New Developments in Natural Justice:
Their Application to Tenure Decisions
A.R. Vining and D.C. McPhillips*
Synopsis
Introduction
I.
II.
The New Natural Justice
A. Background
B. The English View
C. The Traditional Canadian View
D. The New Canadian View
E. The Courts and Recent Tenure Decisions
Existing Tenure Procedures
A.
B. The Importance of Tenure
C. Substantive Review
D. Procedural Requirements
Introduction
1. Bias
2. The Right to be Heard
E.
The Nature of the Tenure Decision
Conclusion
Introduction
Tenure reflects and guarantees the fundamental place of the scholar-teacher in the
university’s unique contribution to the common good of society: the free pursuit and
exposition of truth. Given this, the commitments, rights, and responsibilities of faculty
members involve three major, related roles: to participate in the search for basic truths,
and openly to communicate the results of this search; to develop creative scholarship in
specific disciplines, within which students participate in the process of rational inquiry;
* Of the Faculty of Commerce and Business Administration, University of British
Columbia.
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NATURAL JUSTICE AND TENURE DECISIONS
to encourage where feasible the generalized application of scholarship and research, to
the benefit of the university community and for the common good of society.’
Historically, the granting of tenure to university faculty members after a
period of five to eight years seemed akin to acceptance in a prestigious and
private men’s club.2 However, this idyllic world no longer exists. Women
have demanded entrance to the club; students are now involved in assessing
teaching competence; governments are increasingly questioning the role of
universities; collective bargaining has come into prominence and tightening
budgets have forced cutbacks. Finally, and most relevantly for this paper,
unsuccessful tenure candidates are questioning the denial of tenure and, like
dismissed employees in other occupations, are seeking legal recourse.
Currently, certified trade unions are representing the faculty on many
Canadian campuses, and the collective agreement, arbitration provisions
and relevant provincial labour code determine the rights and obligations of
the parties. In some instances, although the faculty is not unionized, faculty
associations have negotiated a “group contract” under some form of special
plan relationship; this has been done at the Universities of Alberta, British
Columbia, Calgary and Toronto. Even in those cases where there is only a
private contract between the professor and the university, the terms of that
contract have come under public review. 3 The winds of change are blowing
across the campuses.
It may well be that the notion of the university as a collegial community of scholars was
never more than an ideal, and that the reality was more like that of a community based
on a benevolent but hierarchical paternalism. Be that as it may, it was possible in such a
community, not regulated by a written code, to have a good deal of flexibility-
whether for good or for ill. With formalized collective bargaining, even the fiction of
collegiality must give way to a legally defined employer/employee relationship, the
details of which are embodied in a collective agreement.4
Until recently the courts have had little to do with these issues in a direct
way. However, that is quickly changing and this paper proposes to
I Concordia University (Montreal), Document on Tenure Policy, (unpublished, 1980).
2 We use the word “seemed” advisedly since the legal status of tenure is unclear. Professor
Mullan thus points out that: “It should not,… be at all surprising that the general legal
incidents of ‘tenure’ are so unclear when the very legal basis of the relationship which the
is the subject of ongoing debate.” D. Mullan, Tenure:
word purports to describe
Employment for Life on an Uncertain Future? (unpublished paper, Queen’s University,
Faculty of Law, 1980, 3).
3 For a more extensive discussion of these various relationships, see I. Christie, University
Employment Law: The Canadian Experience (unpublished paper, Dalhousie University,
Faculty of Law, 1980) and the comment thereon by D. McRae (unpublished, University of
British Columbia, Faculty of Law, 1980), both delivered at the Conference on Universities
and the Law in the 1980s, University of Victoria, 2 March 1980.
4 Re: Association of Professors of the University of Ottawa and the University of Ottawa
(Valero) (1978) Canadian Association of University Teachers, Academic Arbitration Binder
Service 544 [hereinafter cited as C.A.U.T., A.A.B.S.].
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investigate the shift to increasing judicial review and its implications for the
academic community.
In the last few years several important cases have had a major impact on
the development of natural justice in Canada and, consequently, on the
procedural aspects of tenure review. These cases have, and will continue to
have, a major impact on many kinds of quasi-judicial and administrative
processes. Specifically, recent cases directly on the subject of tenure
(Paine v. University of Toronto,5 Stephenson v. McMaster University6) on
related academic topics (Kane v. Board of Governors of the University of
British Colombia7), and on the nature and extent of natural justice (M.N. R.
v. Coopers and Lybrand,8 Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police9), have all, we argue, considerably altered
and expanded the role that natural justice plays in tenure proceedings.
This analysis is divided into two parts. Part I reviews the genesis of the
new natural justice doctrine, culminating with those cases that signal its
“infusion” into tenure applications. Part II describes and categorizes the
major procedural safeguards that a natural justice approach to tenure
applicants implies. The conclusion is that in many of the tenure documents
in place in universities in Canada, the existing procedures can be challenged
for breaching the requirements of natural justice.
I. The New Natural Justice
A. Background
In the recent development of natural justice much of the case law and
academic debate has focused on two central questions. First, is the
distinction between judicial (or quasi-judicial) acts and administrative acts
relevant to the duty to act with natural justice? Secondly, to what extent
does the source of the act influence the applicability, nature and scope of
natural justice? There are two sub-questions within this second question.
First, is it necessary that the administrative decision either involves state
action, results from the exercise of statutory powers, contains some element
of “publicness” or results from a purely private contractual relationship?
Secondly, what is meant by “a decision”? As we shall see, the recent English
cases have tended to concentrate on the first major issue, while recent
Canadian cases have dealt with both issues.
5(1980) 30 O.R. 69 (Div. Ct), rev’d(Ont. C.A.) 910/80,21 December 1981 per MacKinnon
A.C.J.O., Brooke and Weatherston JJ.A.
6(1980) Ont. S.C. (unreported).
7[1980] I S.C.R. 1105.
8[1979] 1 S.C.R. 495.
9[1979] I S.C.R. 311.
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In order to examine current Canadian legal thinking on natural
justice-most particularly in the context of tenure proceedings -this
section of the paper is divided into four parts: (1) the new English view;
(2) the traditional Canadian position; (3) the new Canadian law on natural
justice; and (4) the courts and recent tenure decisions.
B. The English View
The English view of “natural justice as fairness” or “quasi-naturaljustice”
as it might be called -has
been recently described by both Professors
Mullan’ O0 and Schauer”. However, the rush of recent events has been such
that judicial decisions have already partially overtaken their analyses. As
Professor Mullan points out, the traditional common law view, in both the
United Kingdom and Canada, was that a distinction should be made
between judicial decisions, or quasi-judicial decisions which “involved not
only good faith but also the application of the rules of natural justice”, 12 and
purely administrative decisions of statutory decision-making bodies, which
have not been seen as having any procedural content except in relation to
decisions which could be classified as judicial or quasi-judicial. Over the last
quarter century the attitude of the English courts has changed considerably.
A line of cases including Ridge v. Baldwin,13 In re H.K (an infant),14
Schmidt v. Secretary of State for Home Affairs,15 R. v. Gaming Board for
Great Britain, Ex parte Benaim and Khaida,16 In re Pergamon Press Ltd,17
R. v. Liverpool Corporation8 Breen v. Amalgamated Engineering Union, 9
Pearlberg v. Varty20 and Furnell v. Whangarei High Schools Board2′ have
established the principle that the judicial-administrative dichotomy is no
longer of major substantive importance. Most other Commonwealth
countries have been quick to adopt the English view. 22 While there have
10 Mullan, Fairness: The New Natural Justice? (1975) 25 U.T.L.J. 281.
1 Schauer, English Natural Justice and American Due Process: An Analytic Comparison
(1976) 18 W. and M. L. Rev. 47.
12 Mullan, supra, note 10, 283.
13[1964] A.C. 40 (H.L.), rev’g [1963] 1 Q.B. 539 (C.A.).
14[1967] 2 Q.B. 617 (D.C.).
15 [1969] 2 W.L.R. 337 (C.A.); petition for leave to appeal dismissed [1969] 1 W.L.R. 338
(H.L.).
16[1970] 2 Q.B. 417 (C.A.).
17[1971] Ch. 388 (C.A.).
18[1972] 2 Q.B. 299 (C.A.).
19[1971] 2 Q.B. 175 (C.A.).
20[1972] I W.L.R. 534 (H.L.).
21 [1973] A.C. 660 (P.C. (N.Z.)).
22 See Mullan, supra, note 10, 287. See, e.g., in New Zealand Lower Hutt City Council v.
Bank [1974] 1 N.Z.L.R. 545 (C.A.); Pagliara v. A.-G. [1970] 57 A.I.R. 150 (S.C.).
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been skeptics, some pointing out the pervasive influence of Lord Denning,
and while there is still controversy over the genesis of the doctrine,23 the new
principle now seems well established. Although some commentators are still
reluctant to accept the total demise of the distinction,24 a review of Ridge v.
Baldwin (1963) suggests that if it were the final and definitive case on natural
justice, such a cautious view would hardly seem supportable. It is our view
that in that decision a majority of the Court – Lords Evershed, Morris and
Hodson- expressly did away with the dichotomy between quasi-judicial
acts and administrative or executive acts. First of all, Lord Evershed stated:
I am, however, content to assume that… [natural justice] should not be limited to cases
where the body concerned, whether a domestic committee or some body established by a
statute, is one which is exercising judicial or quasi-judicial functions strictly so called; but
that such invocation may also be had in cases where the body concerned can properly be
described as administrative… .25
Secondly, Lord Morris of Borth-y-Gest approvingly quoted Lord Parmoor
in Local Government Board v. Arlidge26 in which he had concluded that, if
an order of a local government board was regarded as either administrative
or quasi-judicial in character and the order affected the rights and property
of the respondent, then he was “entitled to have the matter determined in a
judicial spirit, in accordance with the principles of substantial justice. ”27
Finally, Lord Hodson held that “[t]he cases seem to me to show that persons
acting in a capacity which is not on the face of it judicial but rather executive
or administrative have been held by the courts to be subject to the principles
of natural justice.”2 8
Professor Mullan, concentrating on the opinion of Lord Reid, doubts
that Ridge does away with the distinction.29 We submit that a better reading
of Lord Reid’s judgment is that he did not accept a distinction between quasi-
judicial and administrative decisions, but rather was concerned to emphasize
that natural justice would not apply to certain types of administrative
decisions. Lord Reid distinguishes between administrative decisions which
affect whole classes or groups of people, i.e., policy decisions, and
administrative decisions involving the rights of particular individuals:
Sometimes the functions of a minister or department may also be of that [individual]
character, and then the rules of natural justice can apply in much the same way. But
23Several of the Lords in Ridge v. Baldwin, supra, note 13, claimed that the doctrine can
be traced at least to Bagg’s Case (1615) 11 Co. Rep. 93, 77 E.R. 1271 (K.B.).
24Shauer, supra, note 11, 57, says: “this rigid categorization of proceedings as
administrative, judicial or quasi-judicial, largely, but not completely, has passed into
disfavour” [emphasis added].
25Supra, note 13, 86.
26[1915] A.C. 120 (H.L.).
27 Ibid., 142.
2 8Supra, note 13, 130.
29Supra, note 10, 285, fn. 22.
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more often their functions are of a very different character. If a minister is considering
whether to make a scheme for, say, an important new road, his primary concern will not
be with the damage which his construction will do to the rights of individual owners of
land. He will have to consider all manner of questions of public interest and, it may be,
a number of alternative schemes. He cannot be prevented from attaching more
importance to the fulfilment of his policy than to the fate of individual objectors, and it
would be quite wrong for the courts to say that the minister should or could act in the
same kind of way as a board of works deciding whether a house should be pulled
down. 30
It is our view, then, that Ridge v. Baldwin can be construed as abolishing
the judicial, quasi-judicial and administrative trichotomy, and as suggesting
that the requirement of natural justice will also exist in certain kinds of
administrative processes.
Following the House of Lords’ decision in Ridge, two new concepts
began to take shape: (1) the concept of quasi-natural justice or “fairness”,
which applies to administrative decisions (as opposed to “full” natural justice
which lies in judicial or quasi-judicial contexts), and (2) the substantial
miscarriage of justice as a test of the appropriateness of a court’s
intervention.
In 1972 the House of Lords in Pearlberg v. Varty attempted to retreat
somewhat from its position in Ridge and indicated that although there is no
requirement of natural justice in administrative decisions, the courts will still
require “fairness”. In particular, Lord Dilhorne said: “[w]hether the
commissioner’s function in deciding to give leave is to be described as judicial
or administrative, he must obviously act fairly”.31
Lord Pearson more explicitly put forward the distinction between
natural justice and fairness:
30Supra, note 13, 72.
31 Supra, note 20, 542. It is arguable that “Pearlberg-type” cases are not really concerned
with the administrative-judicial dichotomy, but are more appropriately treated under the
second sub-category of question discussed in this article, i.e., what is meant by a decision?
The question in these cases is usually whether the process is actually “a decision” or the
preparation of a primafacie case. Many cases have pointed out the difficulty of applying
rules of natural justice where, in fact, the process is the preparation of a primafacie case.
As Lord Reid pointed out in Wiseman v. Borneman [1971] A.C. 297, 308 (H.L.): “Every
public officer who has to decide whether to prosecute or raise proceedings ought first to
decide whether there is a prima facie case, but no one supposes that justice requires that he
should first seek the comments of the accused or the defendant on the material before him.”
It is submitted that the test should be one of substance, not of form; i.e., is the process the
preparation of aprimafacie case with subsequent processes constituting “the decision”, or is
the process, in fact, the decision with any subsequent process providing “an appeal”? Of
course the decision to proceed with aprimafacie case is”a decision”, in one sense, but it is not
a decision where natural justice lies. The question of whether this prima facie decision is
judicial or administrative in character would seem to be irrelevant.
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But where some person or body is entrusted by Parliament with administrative or
executive functions there is no presumption that compliance with the principles of
natural justice is required, although, as “Parliament is not to be presumed to act
unfairly”, the courts may be able in suitable cases (perhaps always) to imply an
obligation to act with fairness. Fairness, however, does not necessarily require a
plurality of hearings or representations and counter-representations. If there were too
much elaboration of procedural safeguards, nothing could be done simply and quickly
and cheaply. 32
The distinction had previously been most clearly argued by Megarry J.
in Bates v. Lord Hailsham of St Marylebone:33 “that in the sphere of the so-
called quasi-judicial the rules of natural justice run, and that in the
administrative or executive field there is a general duty of fairness.”3 4
The potential inflexibility of a dichotomy between natural justice and
fairness, however, was quickly recognized by the English courts. More recent
cases have stressed the existence of a continuum of circumstances which
require varying degrees of procedural safeguard. The emerging consensus
seems to derive from the spirit of Lord Reid’s judgment in Ridge v. Baldwin,
although most courts seem unwilling to go as far as Lord Reid did in making
a priori distinctions as to which type of administrative action will call forth
natural justice, e.g., between policy decisions and decisions affecting
individual rights. Rather than allowing each new case to further fragment
the law, the English courts now appear to have made a commitment to broad
principle – which, as we will see, has been recently influential in Canada –
allowing individual cases to fall where they may, on the facts. The roots of
this approach can be found in Russell v. Duke of Norfolk.35 In Furnell v.
Whangarei High Schools Board, Lord Morris, speaking for the majority of
the Privy Council, commented:
Natural justice is but fairness writ large and juridically. It has been described as ‘fair
play in action’. Nor is it a leaven to be associated only with judicial or quasi-judicial
occasions. But as was pointed out by Tucker L.J. in Russell v. Duke of Norfolk, the
requirements of natural justice must depend on the circumstances of each particularcase
and the subject matter under consideration.3 6
A similar approach has been taken by Lord Denning M.R. in R. v. Race
Relations Board, Ex parte Selvarajan37 where he concluded:
In all these cases it has been held that the investigating body is under a duty to act fairly;
but that which fairness requires depends on the nature of the investigation and the
consequences which it may have on persons affected by it. The fundamental rule is that,
if a person may be subjected to pains or penalties, or be exposed to prosecution or
32 Supra, note 20, 547.
33[1972] I W.L.R. 1373 (Ch. D.).
341Ibid., 1378.
35[1949] I All E.R. 109 (C.A.).
36Supra, note 21, 679.
37[1975] I W.L.R. 1686 (C.A.).
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proceedings, or deprived of remedies or redress, or in some such way adversely affected
by the investigation and report, then he should be told the case made against him and be
afforded a fair opportunity of answering it.38
Thus, the impact of this approach has been to build a bridge between
natural justice and fairness, creating a flexible continuum rather than an
uneasy new dichotomy. The dichotomy suggested by Pearlberg, then,
appears to have been bridged.
The second approach to natural justice, that requiring “a substantial
miscarriage of justice”, was also raised in Pearlberg. Several members of the
House of Lords have been prepared to make a determination of the
applicability of natural justice only after a substantive review of the results of
the procedures followed. They have only been willing to demand procedural
protection where, on the facts of the case, there has been a substantive
miscarriage of justice. Thus Lord Evershed, in his dissenting judgment in
Ridge v. Baldwin, was unwilling to allow relief, noting “I conclude justice
was here done -or, at least, there was no ‘real substantial miscarriage of
justice”‘. 39 Similarly, in Pearlberg, Lord Hailsham felt there had been no
“substantial injustice”.40 This is potentially a very different approach to the
issue of procedural safeguards although it appears never to have become a
dominant theme in the English decisions. However, it is of particular interest
in Canada because it is a view that has been strongly argued in several cases
and has recently been addressed by the Supreme Court of Canada.4’
The second major problem in the development of natural justice has
concerned the issue of who is a “statutory decision maker”. In Ridge v.
Baldwin, Lord Reid presented the traditional trichotomy of cases, namely:
“dismissal of a servant by his master, dismissal from an office held during
pleasure, and dismissal from an office where there must be something against
a man to warrant his dismissal. ’42 Lord Reid was of the opinion that in the
first two categories of cases natural justice was an irrelevant consideration.
This whole question of the scope of natural justice was treated
exhaustively by the House of Lords in Malloch v. Aberdeen Corp.43 The
appellant, Malloch, was employed by the Aberdeen education authority as a
teacher. In 1969 the authority served notice of dismissal on Malloch. The
notice followed a meeting of the education committee held in March 1969 at
which the committee had passed a resolution dismissing the appellant from
their employment on the grounds that he was unregistered, as required under
38 Ibid., 1694.
39Supra, note 13, 97, affg Osgood v. Nelson (1872) L.R. 5 H.L. 636, 646 per Baron
Martin.
4 Supra, note 20, 537.
41 Infra, note 82 and accompanying text.
42 Supra, note 13, 65.
43[1971] I W.L.R. 1578 (H.L.).
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the Teaching Council (Scotland) Act, 1965,44 and thus his continued
employment was no longer lawful by virtue of the Schools (Scotland) Code,
1956.45 The Public Schools (Scotland) Teachers Act, 1882,46 provided that,
among other things, a notice of the motion for his dismissal must be sent to
the teacher not less than three weeks previous to the meeting and that a
majority of the full members of the Board must pass the resolution. Section
3 of the Act also contained an explanation of their purpose which was “to
secure that no certificated teacher appointed by and holding office under a
School Board in Scotland shall be dismissed from such office without due
notice to the teacher and due deliberation on the part of the School Board.”
Malloch sought the reduction of the resolution of the education committee
and the notice of dismissal on the ground that, contrary to natural justice, the
education committee had refused to receive his written representations or to
afford him an opportunity to be heard before the resolution had been passed.
The education authority contended: (I) that since, by virtue of s. 82(1) of the
Education (Scotland) Act, 1962,47 Malloch’s appointment was during the
Board’s pleasure, he was not entitled to be heard before being dismissed;
(2) that, even if in general a teacher had a right to be heard before being
dismissed by an education authority, to have afforded the appellant a
hearing would have been a useless formality because whatever he might have
said, they were nonetheless legally bound to dismiss him; and (3) that even if
the appellant was entitled to a hearing, he was not entitled to have their
decision to dismiss him reduced or annulled.
The House of Lords in Malloch, while reaffirming or at least paying lip
service to the trichotomy presented by Lord Reid in Baldwin, served notice
that they would construe narrowly any attempt to exclude an individual’s
case from the purview of natural justice. The majority of the Court held that
had the status of such Scottish teachers been governed purely by common
law, a teacher, like the appellant, holding public office during the pleasure of
a public authority would not be entitled to a hearing before being dismissed.
They argued, however, that this was not the position in Malloch’s case as the
common law position had been fortified by additional statutory protection.
The House of Lords concluded that in such a case the court would examine
the framework and context of the employment to see whether elementary
rights were conferred on the employee -either
expressly or by necessary
implication.
All three of the majority of the Court made strong statements on the
scope of natural justice, especially in regard to the master and servant
relationship and offices held “at pleasure”. Lord Reid pointed out:
4413 & 14 Eliz. II, c. 19.
45S.I. 1956 No. 894.
4645 & 46 Vict., c. 18.
4710 & I 1 Eliz. II, c. 47.
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An elected public body is in a very different position from a private employer. But
many in higher grades or “offices” are given special statutory status or protection. The
right of a man to be heard in his own defence is the most elementary protection of all
and, where a statutory form of protection would be less effective if it did not carry with
it a right to be heard, I would not find it difficult to imply this right.48
The limitations that Lord Reid placed on the exceptions to the reach of
natural justice can be critically compared with his own statement less than
ten years earlier in Ridge v. Baldwin:
I fully accept that where an office is simply held at pleasure the person having power of
dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell
the officer and hear his explanation before deciding to dismiss him. But if he is not
bound to disclose his reason and does not do so, then, if the court cannot require him to
do so, it cannot determine whether it would be fair to hear the officer’s case before
taking action.49
The new, broader reach of natural justice was also strongly argued for by
Lord Wilberforce. He provides the broadest rationale for the expanded
reach of the doctrine:
The appellant’s challenge to the action taken by the respondents raises a question, in my
opinion, of administrative law. The respondents are a public authority, the appellant
holds a public position fortified by statute. The considerations which determine
whether he has been validly removed from that position go beyond the mere contract of
employment, though no doubt including it. They are, in my opinion, to be tested
broadly on arguments of public policy and not to be resolved on narrow verbal
distinctions.
The appellant is entitled to complain if, whether in procedure or in substance, essential
requirements, appropriate to his situation in the public service under the respondents,
have not been observed and, in case of non-observance, to come to the courts for
redress. 50
Wilberforce concluded that the requirement of natural justice is included
only in those situations which can be characterized as
‘pure master and servant cases’, which I take to mean cases in which there is no element
of public employment or service, no support by statute, nothing in the nature of an
office or a status which is capable of protection. If any of these elements exist, then, in
my opinion, whatever the terminology used, and even though in some inter partes
aspects the relationship may be called that of master and servant, there may be essential
procedural requirements to be observed, and failure to observe them may result in a
dismissal being declared to be void.5′
Given the broad scope of natural justice posited in Malloch, it would now
seem inappropriate to characterize the required decision as one of “statutory
decision making”. For example, it seems quite clear that the range of
decisions that the House of Lords perceived as being reviewable in terms of
48Supra, note 43, 1582.
49Supra, note 13, 66.
50 Supra, note 43, 1594.
51 Ibid., 1596.
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natural justice is much broader than the American conception of the scope of
due process that is limited to “state action”.52 Rather, the emerging test
seems to be one of “publicness”.
C. The Traditional Canadian View
Until very recently the Canadian courts have refused either to accept the
demise of the judicial-administrative dichotomy or to broaden the reach of
natural justice. Writing on the Canadian law as recently as 1976, Professor
Mullan concluded:
As in many other areas of common law growth, it is indeed beginning to seem already
that our real leads in the area of fairness are going to come from the English courts. All
this is not to say, however, that even the English decisions have made much of an impact
in Canada so far. They have not.5 3
On the judicial-administrative dichotomy itself Mullan concludes that
there is “a sea of decisions accepting without question the notion that the writ
of natural justice only runs in the world of the judicial and the quasi-
judicial”. 54 Indeed, in his review of the new natural justice in 1976 Mullan
could find only two Canadian judges who had made unequivocal statements
in favour of the view that such a dichotomy did not exist.
Given the comprehensiveness of Professor Mullan’s study it would be
inappropriate to review extensively the traditional Canadian view on natural
justice; however, three cases-
the so-called “Alberta trilogy” – will be
reviewed because of their relevance to the tenure issue. These cases deal with
both the judicial-administrative dichotomy and the interpretation of
“statutory” and “decision-maker”. It is certainly arguable that the three
cases, Re Elliot and Governors of University of Alberta,55 Re Vanek and
Governors of University of Alberta56 and McWhirter v. Governors of the
University of Alberta (No. 2)57 show the Canadian courts, at their most
traditional, restrictive and contradictory.
Re Elliot (1973) essentially follows Ridge, although Lieberman J. took a
rather narrow view of the extent of procedural protection. The applicant, an
Associate Professor of Sociology, applied for an order of certiorari to quash
a faculty tenure committee’s decision to deny him tenure and an order of
prohibition to prevent the tenure appeals committee from proceeding with
his termination. The applicant argued that he had been denied natural
52See Jackson v. Metropolitan Edison Co. 419 U.S. 345 (1974); Goss v. Lopez 419 U.S.
565 (1975); Dixon v. Alabama State Board of Education 294 F. 2d 150 (5th Cir. 1961), cert.
denied 368 U.S. 930 (1961).
53 Mullan, supra, note 10, 291.
5 Ibid.
55(1973) 37 D.L.R. (3d) 197 (Alta S.C., T.D.).
56(1975) 57 D.L.R. (3d) 595 (Alta S.C., App. Div.).
57(1977) 80 D.L.R. (3d) 609 (Alta S.C., App. Div.).
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justice because his departmental chairman, who had recommended denial of
tenure, was a member of the faculty tenure committee and that he was denied
the right to be heard before the faculty tenure committee or to cross-examine
its members. He also argued that both committees were quasi-judicial in
nature.
The Court refused to quash the decision on the basis of the chairman’s
role, arguing that the chairman had merely made a recommendation to the
committee and had not made a final decision. Additionally, Lieberman J.
held that, although both committees could be properly characterized as
quasi-judicial, the duty to act fairly required a minimum of procedural
content. The Court did reject the University’s claim that neither committee
was a statutory body, although holding that this finding did not materially
affect the Court’s jurisdiction: “[t]his Court also has the inherent right of
jurisdiction to question and, if the circumstances warrant, to quash the
award of tribunals whether they are statutory or non-statutory”.5 8 In
making such a finding the Court relied upon, among other cases, Lord
Denning’s statement in Lee v. The Showmen’s Guild of Great Britain that “I
see no reason why the powers of the court to intervene should be any less in
the case of domestic tribunals.”59
In Re Vanek (1974) the applicant professor applied for certiorari to
quash the negative decision of a faculty tenure committee. Cavanagh J.
dismissed the application arguing, contrary to Re Elliot, that a faculty tenure
committee was not a statutory body and thus certiorari did not lie to review
the committee’s decision. The applicant appealed unsuccessfully to the
Alberta Supreme Court, Appellate Division. Clement J.A. agreed with the
lower Court that the committee was non-statutory, claiming “[t]he
committees and their functions were established not as bodies prescribed by
statute as a matter of public policy, but rather as a matter of choice in the
exercise of a discretion granted by statute relating to affairs internal to the
university.” 60 Additionally, the Court also held that these committees were
not, in law, the “decision makers”:
The tribunals and officials with which we are concerned are not empowered directly to
affect Vanek. Their function is described but by the operation of the statute their
conclusions can only be a recommendation to the president; and in the end it is the
Governors of the University alone who must determine the engagement of Vanek. The
procedures under discussion, in form approved by the general Faculty Council, have no
legalistic effect in themselves on the decision of the governors. 6′
McWhirter (1977) confirmed the approach taken in Re Vanek and
indeed expressly rejected Re Elliot. McWhirter made two claims: first, that
58 Supra, note 55, 200.
59[1952] 2 Q.B. 329, 346 (C.A.).
6oSupra, note 56, 600.
61 Ibid., 607.
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he had a contract with the University, i.e., the Board of Governors, which
was breached, and secondly, that the rules of natural justice had not been
followed in two respects: (1) the criteria utilized in the tenure proceedings
were inappropriate, and (2) certain members of the two tenure committees
were biased.
The trial Court again held that both tenure committees were non-
statutory tribunals. It additionally held that neither committee was the
“decision maker”:
It is also clear that the role of the Faculty Tenure Committee is advisory only. It merely
makes a recommendation with respect to tenure to the Board through the President.
The Board is in no way limited by the recommendation as to the decision it ultimately
makes on the question of the member’s tenure… , and it follows that the Board could
refuse to grant tenure even in the fact of a favourable recommendation without
committing a breach of contract.62
The Court held that tenure proceedings were governed by the
contractual arrangements between the parties, rather than administrative
law. This, of course, determined the available remedies: “[i]f the dismissal is
a breach of contract, it is unlawful but can only sound in damages. ’63 Thus
the Court held to the general principle that courts will not grant specific
performance of contracts of service.
The Court, however, citing Roper v. The Executive Committee of the
Royal Victoria Hospital,64 held that although the committees were “non-
statutory, non-decision makers” they did have a duty to act impartially and
fairly. Apparently relying on this principle, the Court held that processes
used by the various committees were in breach of contract. The “fairness”
requirement would be a relevant question in contract only when fairness can
reasonably be implied as a term.
Both parties appealed
to the Alberta Supreme Court, Appellate
Division, which held that there was no such breach of contract as the
particular procedures were implicitly delegated by the faculty handbook to
the departmental head. Additionally, the Court of Appeal held that the
relevant test in deciding whether there is an implicit breach of contract is the
presence of the invidious “substantial miscarriage of justice”. 65
These cases present several conflicting conclusions on the relevance of
natural justice to tenure proceedings. Re Elliot suggests that although a
tenure committee is a statutory body, it is not necessarily the decision-
62Supra, note 57, 616-7.
63Ibid., 618.
64[1975] 2 S.C.R. 62.
65 McWhirterv. Governor of the University ofAlberta(No.2)(1979) 103 D.L.R. (3d)255,
266 (Alta C.A.). The decision is discussed in Campbell, Tenure and Tenure Review in
Canadian Universities (1981) 26 McGill L.J. 362.
1982]
NATURAL JUSTICE AND TENURE DECISIONS
making body; hence, a statutory decision maker must be both statutory and
make the decision. Even if some procedural protection was to be afforded, it
would be very much less than “full” natural justice. Re Vanek, on the other
hand, concludes
that tenure committees are not statutory bodies.
Mc Whirter, following Re Vanek, concludes that tenure committees are not
statutory bodies and that the relevant test is a contractual test of “substantial
miscarriage of justice” rather than either a breach of natural justice, or of
quasi-natural justice.
At the time of the Alberta trilogy, then, Canadian courts had effectively
excluded tenure proceedings from the purview of natural justice. Writing as
recently as 1980, after a review of the Alberta trilogy, Professor Campbell
was forced to conclude, “[j]udicial review of tenure denials has been
frustrating for aggrieved faculty members because of difficulties
in
establishing
the
tenure matter and
inappropriateness of the remedy given.” 66
the court’s
jurisdiction
in a
D. The New Canadian View
Even as Professor Campbell was writing, however, the courts had begun
a swing back to an administrative law/ natural justice approach to these
matters and away from a contract law approach. The seeds of this approach
can be found a few years earlier in two important decisions of the Supreme
Court of Canada, Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police (October 1978) and M.N.R. v. Coopers and
Lybrand (November 1978). Nicholson is, in many respects, a watershed case
as it represents the explicit adoption of the “English view” on the reach of
natural
justice. The appellant was a probationary constable in a
municipality which was incorporated into a new regional municipality. The
regional board of commissioners attempted to dismiss him without a hearing
within his 18 month probationary period. The Police Act 67 and its
Regulations67a expressly state that while no constable with more than 18
months’ service can be dismissed without both a hearing and an appeal, a
constable with less than this period of service can be dismissed without such a
hearing. Following his dismissal the constable instituted proceedings to
quash the dismissal. The Divisional Court upheld the constable’s case,
following Ridge v. Baldwin, with Hughes J. holding that as the dismissal
decision was of a statutory nature and consequently the constable was not a
mere servant and further could not be held to be holding office “at pleasure”,
the principles of natural justice would run. The Ontario Court of Appeal,
however, reversed the decision, holding essentially that the constable was
employed only “at pleasure”. That decision was appealed.
66 CampbelI, ibid., 378.
67R.S.O. 1970, c. 351.
67a0. Reg. 680/70, s. 27(b).
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Speaking for a majority of the Supreme Court, Laskin C.J.C. clearly
adopted, in the main, the English view on the courts’ right of review,
although he did not make it clear whether the Court accepted a distinction
between natural justice and fairness or adopted the continuum approach:
In short, I am of the opinion that although the appellant clearly cannot claim the
procedural protections afforded to a constable with more than 18 months’ service, he
cannot be denied any protection. He should be treated “fairly” not arbitrarily. I accept,
therefore, for present purposes and as a common law principle what Megarry J.
accepted in Bates v. Lord Hailsham… ,”that in the sphere of the so-called quasi-judicial
the rules of natural justice run, and that in the administrative or executive field there is a
general duty of fairness.”
What rightly lies behind this emergence is the realization that the classification of
statutory functions as judicial, quasi-judicial or administrative is often very difficult, to
say the least; and to endow some with procedural protection while denying others any at
all would work injustice when the results of statutory decisions raise the same serious
consequences for those adversely affected, regardless of the classification of the function
in question… .68
The Chief Justice also expressly approved the English decisions which
had limited the exclusionary aspects of offices at pleasure, having already
held in obiter that the constable did not hold office at pleasure. Indeed, it
could be said that the Chief Justice went even further than the House of
Lords:
I would observe here that the old common law rule, deriving much of its force from
Crown law, that a person engaged as an office holder at pleasure may be put out
without reason or prior notice ought itself to be re-examined. It has an anachronistic
flavour in the light of collective agreements, which are pervasive in both public and
private employment, and which offer broad protection against arbitrary dismissal in
the case of employees who cannot claim the status of office holders.69
In reaching its decision the majority of the Court expressly cited Malloch
v. Aberdeen Corporation, Ridge v. Baldwin, Bates v. Lord Hailsham,
Pearlberg v. Varty, Furnell v. Whangarei High Schools Boardand Russellv.
Duke of Norfolk as well as the various judgments of Lord Denning.
M.N.R. v. Coopers and Lybrand, although a very different kind of case,
further delineated the approach of the Supreme Court, giving clear evidence
of an emerging dominance of a fusionary, continuum approach to natural
justice. Dickson J., speaking for the Court, again follows the English view.
The Court rejected the judicial/ administrative dichotomy and expressed a
view congruent with Lord Reid’s in Ridge v. Baldwin, namely, that the
crucial issue is the type of administrative process:
Accordingly, administrative decisions must be divided between those which are
reviewable, by certiorari.., or otherwise, and those which are non-reviewable. The former
6 Nicholson, supra, note 9, 324-5.
69 Ibid., 322-3.
1982]
NATURAL JUSTICE AND TENURE DECISIONS
are conveniently labelled “decisions or orders of an administrative nature required by
law to be made on a judicial or quasi-judicial basis”, the latter “decisions or orders not
required by law to be made on a judicial or quasi-judicial basis.” It is not only the
decision to which attention must be directed, but also the process by which the decision
is reached. 70
The Court also made
it clear, however, that whether such an
administrative decision requires the exercise of natural justice is dependent
on several factors, and that the degree of natural justice will depend on the
presence of these conditions. In other words, Dickson J. held that there is
no neat distinction between natural justice and quasi-natural justice, or
fairness.
The Court suggested that four criteria are relevant in making a
determination on the extent and nature of procedural safeguards:
Whether an administrative decision or order is one required by law to be made on a
judicial or non-judicial basis will depend in large measure upon the legislative intention.
If Parliament has made it clear that the person or body is required to act judicially, in
the sense of being required to afford an opportunity to be heard, the courts must give
effect to that intention. But silence in this respect is not conclusive. At common law the
courts have supplied the legislative omission.., in order to give such procedural
protection as will achieve justice and equity without frustrating parliamentary will as
reflected in the legislation….
(1) Is there anything in the language in which the function is conferred or in the general
context in which it is exercised which suggests that a hearing is contemplated before a
decision is reached?
(2) Does the decision or order directly or indirectly affect the rights and obligations of
persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many individual cases rather
than, for example, the obligation to implement social and economic policy in a broad
sense?71
The Court concluded:
These are all factors to be weighted and evaluated, no one of which is necessarily
determinative. Thus, as to (I), the absence of express language mandating a hearing
does not necessarily preclude a duty to afford a hearing at common law. As to (2), the
nature and severity of the manner, if any, in which individual rights are affected, and
whether or not the decision or order is final, will be important, but the fact that rights
are affected does not necessarily carry with it an obligation to act judicially… .
In more general terms, one must have regard to the subject matter of the power, the
nature of the issue to be decided, and the importance of the determination upon those
directly or indirectly affected thereby: see Durayappah v. Ferbilndo.72 The more
important the issue and the more serious the sanctions, the stronger the claim that the
power be subject in its exercise to judicial or quasi-judicial process….
7 0Supra, note 8, 501.
71 Ibid., 503-4.
72[1967] 2 A.C. 337 (P.C. (Cey.)).
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Administrative decision does not lend itself to rigid classification of function. Instead,
one finds realistically a continuum. As paradigms, at one end of the spectrum are rent
tribunals, labour boards and the like, the decisions of which are eligible for judicial
review. At the other end are such matters as the appointment of the head of a Crown
corporation, or the decision to purchase a battleship, determinations inappropriate to
judicial intervention. The examples at either end of the spectrum are easy to resolve,
but as one approaches the middle the task becomes less so. One must weigh the factors
for and against the conclusion that the decision must be made on a judicial basis.
Reasonable men balancing the same factors may differ, but this does not connote
uncertainty or ad hoc adjudication; it merely reflects the myriad administrative
decision-making situations which may be encountered to which the reasonably well-
defined principles must be applied. 73
Coopers and Lybrand thus represents the full intrusion of the English
view into Canadian administrative law. Indeed, it is arguable that the
principle had not been as comprehensively or succinctly stated by the English
courts. The broad conceptualization presented by the Supreme Court is
undoubtedly intended to avoid sterile and artificial factual distinctions. In
1976 Professor Clark had concluded that the Supreme Court of Canada’s
decisions in administrative law “had been weak and fitful”. 74 In the arena of
natural justice after Coopers and Lybrand it would certainly now be
inappropriate to castigate the Court as “weak”; only time can reveal whether
its decisions will be “fitful”.
E. The Courts and Recent Tenure Decisions
What is the impact of these trends in administrative’ law on tenure
proceedings? A cursory observation would be that the criteria laid down by
the Supreme Court in Coopers and Lybrand suggest relatively “strong”
procedural protection for tenure applicants, most clearly in terms of criteria
(2), (3) and (4). Criterion (l) is the most problematic, especially given the
Alberta trilogy, because it addresses the “statutory” nature of the process,
and implicitly, to the question of who is the “decision-maker”.
Three recent cases have addressed these issues in terms of their impact on
the academic world: Stephenson v. McMaster University, Paine v.
University of Toronto and Kane v. Board of Governors of the University of
British Columbia.
In the case of Stephenson v. McMaster University’75 a faculty committee
had refused tenure to the plaintiff and that decision was appealed to a review
committee within the University. The preliminary conclusion on review was
that tenure should be granted; this was secretly communicated to the original
faculty committee which responded that such a reversal would have
73 Supra, note 8, 505.
74 Clark, The Supreme Court of Canada, The House of Lords, The Judicial Committee of
the Privy Council, and Administrative Law (1976) 14 Alta L. Rev. 5, 7.
75 Supra, note 6.
1982]
NATURAL JUSTICE AND TENURE DECISIONS
devastating academic consequences. The review committee then changed its
mind and, despite praising the plaintiff for the quality of her teaching and her
pioneering work in women’s studies in Canada, they indicated that her
scholarly research was inadequate. O’Leary, Dupont and Linden JJ. of the
Supreme Court of Ontario ruled that this secret communication affected the
final decision, quashed the original decision and remitted the matter back to
a differently constituted University committee.
The Paine76 case was first heard in January 1980 before the Ontario
Divisional Court. Paine, an assistant professor at the University of Toronto,
had been denied tenure in 1976 and brought an action claiming that the
tenure committee had not acted fairly. Specifically, Paine argued:
I. A member of the applicant’s department sat on the tenure committee
after having previously submitted a negative assessment of the candidate.
the Dean as specified by the
2. The chairman of the department -not
Governing Council rules -appointed
the tenure committee.
3. The tenure committee sat in the absence of the candidate who was not
given an opportunity to be heard. It was further claimed that the
candidate was not fully informed of the material required to be put before
the committee.
4. The candidate was not given the opportunity to seek an adjournment to
supplement his material as had been the case with two prior candidates.
5. The department chairman conducted the matter in such a manner as to
give the impression of bias.
6. The criteria upon which the tenure committee purported to make its
decision were not clearly stated nor were they communicated to the
candidate.
7. The tenure committee acted upon a wrong principle and drew inferences
improperly when it treated the brevity of the reports from the external
references as a ground for judging that the candidate should not be
tenured. 77
After reviewing, among other cases, Re Vanek, Mc Whirter, Nicholson
and Malloch, the Court of first instance essentially held that the President’s
“decision” was sufficiently statutorial – using the “Wilberforce test” argued
in Malloch and adopted by the Supreme Court in Nicholson -for natural
justice to run.78 The Court imputed the same duty to the tenure committees,
in effect holding that in this situation the committees were the agents of the
76Supra, note 5.
77 See ibid., 77-8 (Div. Ct).
78 Ibid., 88.
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President, and then held that those committees had not acted with
procedural fairness.
law.
the decision was bad
The Court not only distinguished Re Vanek, and therefore implicitly
McWhirter, but also suggested
It was
distinguished on two grounds: first, there is no Judicial Review Procedure
Act 78a in Alberta and therefore, by implication, tenure decisions in Alberta
may not be similarly statutorial – which, of course, has implications for
other provinces without similar legislation. Secondly, the Court argued that
the Alberta decisions “dealt directly with the actions of a committee rather
than with those of a person or body, such as the president or Governing
Council… whose authority stems directly from statute”.79 This particular
ground for distinction seems arcane given that the Court held that such
committees were essentially agents of the University; it simply seems to be an
indirect restatement of the first grounds for distinguishing Re Vanek, i.e., the
presence of a Judicial Review Procedure Act. Furthermore, the Court
suggested that Re Vanek had in fact been incorrectly decided as Malloch
had not been brought to the attention of the Alberta court. The Court noted
that Re Nicholson had now clearly established this new position as law in
Canada.
The new Canadian view of natural justice in tenure proceedings was
reiterated in the conclusion of the Court:
In our view, there is nothing inconsistent with the concept ofjudgment by one’s peers in
a requirement that proceedings must be fair…. A trial is no less a trial by one’s peers if
those among them who are obviously biased have been previously eliminated. In the
circumstances, the proper remedy is… a declaration that the process whereby the
applicant was denied tenure and his appointment terminated, was invalid and of no
effect.80
On appeal to the Ontario Court of Appeal Paine has been overturned.
While, as we will demonstrate, the ratio decidendi of the case is somewhat
unclear, the Court basically affirmed the new view of natural justice.
Weatherston J.A., for the Court, expressly cites the Nicholson continuum
approach 8′ and approvingly quotes from the recent Supreme Court case of
Martineau v. Matsqui Institution Disciplinary Board (No. 2)82 which
reiterated that “the application of a duty of fairness does not depend upon
proof of a judicial or quasi-judicial function. ”83
The ambiguity
the case stems from several sources. First,
Weatherston J.A. “doubted” whether the Governing Council in appointing
in
7saR.S.O. 1980, c. 224.
79 Supra, note 5, 88 (Div. Ct.
80 Ibid., 90.
81 Supra, note 5, 7 (Ont. C.A.).
82[1980] I S.C.R. 602.
83 Ibid., 622.
1982]
NATURAL JUSTICE AND TENURE DECISIONS
staff is acting with a “statutory power of decision”. 84 But he goes on to say in
his next sentence “[i]n any event, a mere declaration as to Mr Paine’s rights is
of no avail to him.”85 Therefore, it is not immediately clear whether the
Court held that the various bodies of the University are, or are not, statutory
decision makers. Implicitly, however, the subsequent concentration on
appropriate remedies suggests that the Court of Appeal was acting as if the
various bodies are statutory decision makers. Indeed, the Justices expressly
approved of the “element of public employment” argument of the lower
court.86
The second problem is more serious. Weatherston J.A. perceived the
issue to be: under which conditions does certiorari lie? He concludes that the
remedy should only lie when there is “manifest unfairness”. 86a This is, in
effect, a new version of the “substantial miscarriage of justice” test, already
discussed, 87 now applied to the remedy issue.
The third problem with the decision is directly associated with the
in a supposedly concurring judgment,
second. McKinnon A.C.J.O.,
resurrects the same test but applies it in its original, and it is submitted, now
discredited form.88
Both these latter positions seem to be in direct contradiction to the
Supreme Court of Canada’s position in Kane- which interestingly was not
cited in the Court of Appears decision.
It is our view that, despite the reversal, the Court of Appears arguments
in Paine have confirmed the main thrust of this analysis, although several
parts of the case are ambiguous. To the extent that portions of the decision
might be used and interpreted restrictively, they would only establish the
parameter for court intervention at a slightly higher level.
Finally, of course, this decision (or future ones based upon it) may be
appealed and thus assessed in light of the Supreme Court of Canada’s
decisions in Nicholson, Martineau (No. 2) and Kane. It is to the latter that
we will now turn our attention.
The Supreme Court of Canada decision in Kane v. The Board of
Governors of the University of British Columbia89 concerns the suspension
hearing of a tenured faculty member. Certain aspects of that case are of
critical importance to this discussion.
84Supra, note 5, 5 (Ont. C.A.).
85 Ibid., 6.
86 Ibid., 10.
86a Ibid., 13.
87 Supra, note 39 and accompanying text.
88Supra, note 5, 14-5 (Ont. C.A.).
89 Supra, note 7.
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The facts of Kane are relatively simple. The main complaint was that
following a formal appeal hearing from a suspension imposed by the
University President for disciplinary reasons, the President and other
members of the Board of Governors, acting in their role as members of the
suspension appeal board, reconvened and, among other issues, discussed
Kane’s appeal. Although the President did not participate
in these
discussions or vote on the matter he did answer questions concerning the
case. As neither Kane nor his counsel were present at this meeting, the
appellant claimed that these procedures amounted to a breach of natural
justice.
Dickson J. delivered the judgment for six members of the Supreme
Court, with Ritchie J. dissenting. The Court reaffirmed that quasi-judicial
proceedings need not adopt the trappings of a court, but that it is necessary
“that the case [be] heard in a judicial spirit and in accordance with the
principles of substantial justice”.90 Mr Justice Dickson specifically endorsed
the “continuum” approach of Tucker L.J. in Russell v. Duke of Norfolk and
held that this kind of proceeding required a high standard of procedural
justice.
A high standard of justice is required when the right to continue in one’s profession or
is at stake [Abbott v. Sullivan,91 Russell v. Duke of Norfolk]. A
employment
disciplinary suspension can have grave and permanent consequences upon a
professional career. 92
It seems likely that if the Court holds that a suspension hearing requires a
“high standard of justice”, it would require no less a standard for tenure
hearings which carry even graver, and equally permament, consequences.
The Court also finally laid to rest any likelihood that it will ever approve
the “substantial miscarriage of justice” standard:
The Court will not inquire whether the evidence did work to the prejudice of one of
the parties; it is sufficient if it might have done so… . We are not here concerned with
proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in
the eyes of reasonable persons.93
Apart from delineating some of the procedural safeguards that are
required in such kinds of hearings the Court implicitly made it clear that they
place little weight on the presumption that acts will be exempted if they are of
an official nature and specifically authorized by the legislature, i.e., omni
praesumunter rite acta esse.
90 Ibid., 1113.
91[1952] 1 K.B. 189 (C.A.).
92 Supra, note 7, 1113.
93 Ibid., 1116.
1982]
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H. Existing Tenure Procedures
A.
Introduction
Proceeding from the proposition that the courts are prepared to
intervene in the world of academe, we are of the opinion that the promotion
and tenure mechanisms in place at many Canadian universities are deficient.
In this part of the paper we will examine some of those areas with a view to
their compliance with the rules of natural justice and “fairness”. To repeat, it
is our view that the courts have not, as yet, really distinguished between the
two tests in any substantive way.94
B. The Importance of Tenure
The tenure decision in a university is unique. In one sense, it is an
employment contract for an indefinite term with severe restrictions on the
right of the employer to cancel, i.e., there is no implied term allowing the
university to sever the contract by giving reasonable notice. However, the
tenure decision also controls entry into the academic profession. In this
respect, it performs a licensing function. Further, the public nature of the
university differentiates it from the employer making private employment
decisions. Society has a definite interest in university research and teaching;
otherwise it would be hard to justify public funding. On the other hand,
academics are best qualified to judge other academics. In making these
difficult tenure decisions, some discretion is obviously necessary and
desirable; however, discretion must be exercised such “that something is to
be done according to the rules of reason and justice, not according to private
opinion… ; according to law, and not humour. It is to be not arbitrary, vague
and fanciful but legal and regular.” 95
Some control is necessary, for the dangers of abuse are great when
human beings wield much power. As Davis puts it:
If all decisions involving justice to individual parties were lined up on a scale, with those
governed by precise rules at the extreme left, those involving unfettered discretion at the
extreme right, and those based on various mixtures of rules, principles, standards, and
discretion in the middle, where on the scale might be the most serious and most frequent
injustice?… I think the greatest and most frequent injustice occurs at the discretion end
of the scale, where rules and principles provide little or no guidance, where emotions of
deciding officers may affect what they do, where political or other favoritism may
influence decisions, and where the imperfections of human nature are often reflected in
the choices made.96
Debates about teaching and research competence are constant in a
university. With this background, and the tendency of decision-makers to
94 W. Pue, Natural Justice in Canada (1981), 1-15, 32-7.
95 Sharp v. Wakefield[1891] A.C. 173, 179 (H.L.) per Lord Halsbury citing Rooke’s Case
96 K. Davis, Discretionary Justice, A Preliminary Enquiry (1969), v.
(1598) 5 Co. Rep. 99, 77 E.R. 209 (C.P.).
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attempt to “clone” themselves, it is not surprising that promotion and tenure
decisions are often made in a highly contentious environment with
considerable room for error.
It is our opinion, then, that courts have a legitimate protectionist role in
the review of promotion and tenure decisions. Precisely, what is that role?
C. Substantive Review
teaching, service
In the course of making the tenure decision, the appropriate bodies must
examine the candidate’s record in relation to his or her accomplishments: in
the community, and
research and publishing,
administrative service to the faculty and university (the importance of these
two latter factors vary within each university). Anyone who has had any
association with universities is aware of the serious difficulties encountered
in attempting to assess research and teaching competence. Simple criteria
such as the number of articles published or student evaluation scores tell only
part of the story. Additionally, individuals with particular strengths will
tend to emphasize those measurement devices which favour them.
to
There is no doubt that these evaluations are extremely difficult ones to
make; it is equally obvious that any body which is put in the position of
hearing appeals from them will be reluctant to interfere on the basis of the
substance of the decision.
is particularly
However, in cases where the decision-making body has clearly
disregarded substantive criteria, there is a growing tendency to intervene.
true under collective bargaining regimes where
This
arbitrators are appointed under the provisions of provincial labour codes. 97
These arbitrators are normally prepared to deal with the merits of the case.
Inevitably, even in cases where the appeal is based on procedural grounds,
there is a tendency to look at the substantive issues. Courts, on the other
hand, either by way of appeal from arbitrators or by direct suit on the part of
the unsuccessful candidate, have been less likely to delve into the substance
97 See, e.g., Re: Association of Professors of the University of Ottawa and the University
of Ottawa (Valero), supra, note 4; Re: Association of Professors of the University of Ottawa
and the University of Ottawa (Goreloff) (1977) C.A.U.T., A.A.B.S. 366, affd(1978) 19 O.R.
(2d) 271 (Div. Ct); Re: University of Ottawa, and the Association of Professors of the
University of Ottawa, concerning Dr A.M. Blank (1977) C.A.U.T., A.A.B.S. 409; Re:
Association of Professors of the University of Ottawa and the University of Ottawa in the
case of the refusal of tenure to Professor S.L. Jansen (1978) C.A.U.T., A.A.B.S. 516; Re:
University of Ottawa and the Association of Professors of the University of Ottawa
(Mclnnis) (1977) C.A.U.T., A.A.B.S. 420; Re: University of Ottawa and the Association of
Professors of the University of Ottawa, concerning Dr W. McCutcheon (1978) CA.U.T.,
A.A.B.S. 621; The President of the University of Western Ontario v. Dr L. W. Chamberlain
(1974) C.A.U.T., A.A.B.S. 16; St Mary’s University and Dr D.A. MacFarlane (1980) 36
N.S.R. (2d) 304 (S.C., T.D.).
1982]
NATURAL JUSTICE AND TENURE DECISIONS
of the tenure decision itself although intervention may be more likely if it is
an action for breach of contract.98
In any event, in cases where the tenure criteria have not been clearly
proscribed and/ or applied (although this could be described as a procedural
question), there seems to be evidence of an increasing judicial willingness to
get involved, particularly in cases of obvious erroneous decisions in the same
way as labour arbitrators will interfere with decisions of management in
cases where clear errors have been made.99
Therefore, it would be wise for tenure documents to clearly set out:
a) the factors
to be considered, e.g.,
administration;
research,
teaching, service,
b) the precise definitions of each of these factors to be used in the evaluation
including the importance of the various measuring devices;
c) the “relative” importance of each factor, i.e., are some more important
than others?
Further, it is critical that these documented positions be consistent with
practice. There could be clear grounds for appeal in cases where university
committees give lip service to the importance of the various factors and then
make decisions on other grounds, e.g., if a document states teaching and
research are of equal importance and then a decision places far greater
emphasis on one or the other.
D. Procedural Requirements
In this section, we will examine some of the potential procedural pitfalls
in the tenure process which, we suggest, are the primary sources of difficulty.
Despite a number of arbitration and court decisions on these matters, the
law in this area is still very unsettled. It is our view that over the next decade
the interventionist philosophy is likely to grow and therefore our concerns
reflect future as well as existing areas of likely criticism.
Procedural requirements are particularly critical where there is little
opportunity for review of the substantive issues, 00 i.e., where procedural
safeguards are the only protection; this is often the case with tenure
decisions. Let us examine these procedures under the two criteria normally
associated with natural justice, i.e., freedom from bias (nemojudex in causa
sua) and the right to be heard (audi alteram partem).
98 Mullan, supra, note 2, 9.
99 See, e.g., U.E. W. Local523 and Union Carbide Canada Ltd(1967) 18 L.A.C. 109, 117-
8.
100 S. de Smith, Judicial Review of Administrative Action, 4th ed. (1980), 228.
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1. Bias
One obvious safeguard against unfair treatment is to ensure that all
decision-makers are unbiased and disinterested -and
are seen to be
unbiased and disinterested. Where peer group evaluation occurs, there will
be, by definition, people who must take sides. Once an individual has taken a
position on an issue, he or she should then be precluded from sitting in
judgment at later stages of the process.
If there is a “probability” or reasoned apprehc!.sion of “biased appraisal
and judgment, unintended though it may be”,’0 1 then the decision is flawed.
According to the Supreme Court, there is no need for proof of actual bias; it
is enough if there is a “possibility or the likelihood of prejudice in the eyes of
reasonable persons.”‘ 02 Justice must be seen to be done.
Conflicts of interest can arise in a number of ways. If an individual
member of the faculty submits a written opinion, which becomes part of the
record, concerning the advisibility of granting tenure to a candidate, then
that individual should be precluded from sitting on the adjudicative body
above the first level of decision-making, e.g., the division meeting where all
the senior peers in the immediate, or closely related field present their views.
The Supreme Court in Ringrose v. The College of Physicians and
Surgeons of the Province ofAlberta’0 3 indicated some of the issues they will
look at in determining prior involvement:
All of the surrounding circumstances must be investigated. What is the function of each
of the committees? Does the first body merely find facts, or does it make a preliminary
adjudication? What is the effect of one body’s decision on the second’s decision-
making? Is one of the committees sitting in appeal, expressly or in effect, from the
decision of the other committee? Is the member in the second committee defending,
perhaps unconsicously, a decision of the first committee which he helped to make? Did
the first committee initiate the proceedings or lay charges with the result that a member
of that committee, who later sits on the other committee to hear evidence, is both
accusor and judge? What is the size of the respective committees? What was the degree
of participation in each committee by the member whose presence on both committees
is impugned. 104
Once a departmental or divisional decision is made, then the opinions of
all individuals who have participated are on record. Therefore, other
committees, e.g., faculty promotion and tenure committees, university-wide
senior appointment committees, should be staffed with faculty members
who did not participate at lower levels. All appointees to the senior
committees should refrain from taking part in prior deliberations 05 and not
01 Szilard v. Szaz [1955] S.C.R. 3, 6-7 [emphasis added].
102Supra, note 7, 1116.
103[1977] I S.C.R. 814.
1041bid., 817.
05Supra, note 5, 89.
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NATURAL JUSTICE AND TENURE DECISIONS
submit any personal opinions on a decision which they will later influence. 106
The Court of Appeal in Paine seems to disagree on this particular point but
the evidence would seem to suggest that the Supreme Court is of the
opposite view.
This requirement may obviously pose a problem in smaller departments
where the number of senior people available for committee work is limited.
So be it. In the case of small departments, where the senior people are
needed for senior committees, the initial review should perhaps be conducted
by the senior committee. The alternative is for an individual (even in the case
of large departments) to remove himself from the deliberations of the higher
body where he chose to participate in the formation of recommendations.
As Pue notes,
this may all be part of a larger principle that ‘where an adjudicator acquires special
knowledge of a matter prior to adjudication, there is a reasonable possibility.., of the
risk that he might prejudice the matter’. 107
2. The Right to be Heard
Whether the test is part of the requirement of natural justice or merely
one of fairness, there is an obvious requirement that candidates be given an
opportunity to present their cases to the decision-making bodies. This
involves a number of separate elements.
First, although there is no common law authority for the proposition
that a candidate has a right to a formal hearing, 08 if there is either a statutory
provision or a section in the governing collective agreement to that effect,
they obviously must do so.
Secondly, candidates must be permitted to submit any evidence they
wish to the committees, the Dean or the President. To be meaningful, this
right must naturally also include the right to hear the case against them’ 09
and the opportunity to rebut any other evidence presented to those bodies or
individuals. Therefore, a number of subsidiary protections are in order.
Candidates deserve a complete, written explanation of any decisions
forwarded by the lower levels of the decision-making process in order that
their own submissions can contain reasonable responses to any contentious
points,” 0 i.e., full reasons along with the actual decisions.”‘ Further, this
106 Ibid.
107 Supra, note 85, 122, citing Alexis, Reasonableness In The Establishing Of Bias (1979)
Public Law 143, 155.
108 R. v. Race Relations Board, Ex Parte Selvarajan, supra, note 37.
109 Nicholson, supra, note 9.
110 Ibid.
1I1 See the discussion in Rabin, Job Security and Due Process: MonitoringAdministrative
Decisions Through a Reasons Requirement (1976) 44 U. Chi. L. Rev. 60.
REVUE DE DROIT DE McGILL
[Vol. 27
protection obviously only has practical effect if candidates are given enough
time to form a reasonable reply.
However, this right of reply will not automatically involve a right of
cross-examination unless the procedures require a full formal hearing. In
that event, the tribunal, depending on the circumstances, may nonetheless
dispense with the right;” 2 however, it would probably be wise to allow for
such participation where personal appearances are involved.
An important issue is the right of access to materials submitted for
decisions at all levels. Included in this category are student evaluations, the
opinions of faculty colleagues and the opinions of external referees. The
courts have always taken the basic position, reiterated in Kane, that all
parties to a dispute should have the opportunity “for correcting or
contradicting any relevant statement prejudicial to their view.”” 13
Therefore, the presumption is that the applicant faculty member should
see or hear all the evidence against him or her. Submissions from formal
groups, e.g., departments or divisions, student bodies, etc., must be
presented to the candidate. This should discourage oral presentations by
groups (e.g., students meeting with the committee to explain their report)
when a candidate is not present’ 14 and prevent the admittance of evidence
after the hearings are concluded.” 5
A more difficult issue concerns the right of access to opinions that have
been submitted by individual students, colleagues and most importantly,
external referees. It might be argued that in the interest of full disclosure,
candidates should have the right to know the identity of the writer and the
content of each opinion filed for the committees. However, opponents argue
that from a practical point of view, such a right of access would be fatal to the
peer evaluation system. How many students would risk offering a personal
opinion with the possibility of facing that professor in future years? How
many colleagues would offer negative opinions, beyond those expressed in
departmental meetings, in lengthy, written form if they knew they could be
read in detail by the candidate with whom they may have to work for thirty
years? In the case of external referees, why make an unnecessary enemy
merely to preserve some ill-defined level of competence at another university
in which you have no direct interest?
“2 Re County of Strathcona No. 20 and Maclab Enterprises Ltd(1971) 20 D.L.R. (3d) 200
(Alta S.C., App. Div.).
113 Board of Education v. Rice [1911] A.C. 179, 182 (H.L.)per Lord Loreburn, cited with
approval in Kane, supra, note 7, 1113 per Dickson J.
114 The Supreme Court’s decision in Kane, supra, note 7, is directly on point here; see also
15 Stephenson, supra, note 6.
Stephenson, supra, note 6.
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NATURAL JUSTICE AND TENURE DECISIONS
The courts have often upheld
in
administrative processes. Lord Denning has stated that there is no need for
the disclosure of a source if it would put the informant in peril or otherwise
be contrary to the public interest but that the “accused” must be provided
with “sufficient indication of objections raised against him such as to enable
him to answer them.”” 6
the need for confidentiality
This issue was recently addressed in the academic context in the Boyd17
decision in Ontario. Unfortunately, from the point of view of this discussion,
the case was settled while on appeal. The lower court upheld the university’s
arguments concerning the need for confidentiality. Mr Justice Hollingworth
decided, in summary:
1. that the information which the adjudicator had ordered be provided had
originated with the understanding that it would not be revealed;
2. that the element of confidentiality was essential to the satisfactory
maintenance of relations between the parties (presumably faculty and
administration at the University);
3. that the relationship was one which, in the opinion of the (academic)
community, should be fostered, and;
4. that the injury as a result of disclosure would be greater than the benefit
gained by the disclosure.
Therefore, it appears for the moment that some confidentiality is
permissible, but it also seems certain that this rule will be the focus of
continued challenges.
In light of these concerns, many universities explicitly make the
anonymity of individual opinions a term of the employment arrangement.
In that event, it would be very difficult to argue that the subsequent refusal to
permit access would be a denial of natural justice. Conversely, it can be held
that a university has waived the right of confidentiality by either express
wording or past practice.
A further safeguard against a breach of natural justice is to provide the
candidate with a “full and fair summary” of the contents of any individual
opinions received. 118
” 6 R. v. Gaming Boardfor Great Britain, Exparte Benaim and Khaida [1970]2 Q.B. 417,
431.
O.R. 312 (H.C.).
117 Re University of Guelph and Canadian Association of University Teachers (1980) 29
IIs Stephenson, supra, note 6; see also, The Association of Librarians and Professors of
the University of Moncton (Fournier) (1980) 1 (no. 1) Rights Reporter, 4; University of
Saskatchewan Faculty Association and the University of Saskatchewan (Mukkur) (1980) 1
(no. 1) Rights Reporter, 9.
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[Vol. 27
E. The Nature of the Tenure Decision
A final issue concerns the actual nature of the tenure decision. A
frequently repeated complaint is that the ultimate decisions in tenure cases
are often totally unexpected given the evaluations of previous years, which
have undoubtedly been carried out, as in any organization, with an eye not
only to evaluation but to motivation and direction.
From the university’s point of view, there are many reasons for these
“unexpected” occurences. The primary argument is that the tenure decision
is of a totally different nature from the decisions which preceded it, at which
the candidate was re-hired for one, two or three year periods. Those were
short-term contracts for a definite period; in many cases, particularly during
the first two or three years, the decision was based on limited information.
The tenure decision differs in many regards. First, it is based on a longer
record and is fortified by outside opinions. Secondly, there are normally
other committees involved, such as a university-wide tenure committee.
Thirdly, the composition of the faculty committees changes periodically with
-the result that different decisions will be made. Finally, and most
importantly, the tenure decision is a permanent commitment, qualitatively
different from a mere contract renewal for two or three years.
These are all plausible arguments, but it is still arguable that they do not
vitiate the need for consistency. If the tenure decision is “unexpected”, it
should be based on “unexpected” material, e.g., the reports of external
referees or a dismal final year performance. A university is on far less secure
ground when, on the basis that the nature of the decision is different, they
appear to change their opinion on material that has already been evaluated
positively. Earlier promotion and renewal decisions are to some extent
different but they are part of a continuing evaluation process and their
existence and relevance cannot be denied.
There is a difference between the requirement for peer evaluation and
discretion which borders on arbitrariness. It may be no defence today to
indicate to an unsuccessful candidate that all the indications he or she
received for four or five years were meaningless. It is incumbent upon
universities to develop proper evaluation mechanisms which are consistent
and instructive.
Conclusion
This analysis has attempted to demonstrate that the courts are now in a
position to intervene in at least the procedural aspects of tenure decisions.
The evidence suggests that universities, faculties and departments have not
yet taken this possibility very seriously. A casual survey suggests that most
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NATURAL JUSTICE AND TENURE DECISIONS
359
academics are loathe to view the tenure process as one involving legalism
and, concomitantly, formalism. A major policy question is therefore
whether the university governments will pre-emptively review their tenure
procedures in terms of meeting the requirements of natural justice. It is our
is considerable reorganization of current
opinion that, unless
procedures in many Canadian universities, litigation in this area is likely to
be increasingly frequent. Although the number of cases which might arise
involves mere speculation, it is safe to say that those that do occur will be
emotional and will likely have a profound effect on the university
community.
there
