McGILL LAW JOURNAL
[Vol. 26
Tenure and Tenure Review in Canadian Universities
I. The meaning of tenure
To many people tenure denotes the holding of land. In feudal
times tenure described the manner by which a tenant occupied
land under his lord, but in general usage it simply means a mode of
holding or occupying. Thus there is tenure of office, meaning the
manner in which that office is held, particularly with regard to time.
Judicial tenure refers to the duration and conditions of office
for judges. Until the end of the seventeenth century most judges
were appointed during the royal pleasure. There were many in-
stances of judges being dismissed. When the Act of Settlement, 1701,
came into force in 1714, judges were appointed during good be-
haviour. Thus an independant judiciary was created by a tenure of
office which was adequate to ensure freedom from political and
economic pressure. Today, superior, county and district court
judges in Canada are guaranteed tenure by section 99 of the British
North America Act, 1867, which provides that judges “shall hold
office during good behaviour, but shall be removable by the
Governor General on address of the Senate and House of Com-
mons.”‘
Unlike judicial tenure, academic tenure was created not by
statute but, in true collegial fashion, by custom, which the courts
refused to incorporate into individual contracts of employment. Until
recently, tenure of office for members of the academic community
was assured by the generosity of universities rather than by en-
forceable rights, and it was important to such people for three
reasons. First, it represented a type of communal acceptance into
a professional guild. Second, it provided job security and reward
for individual service and accomplishment. Third, and most im-
portant, it protected a professor’s rights to academic freedom and
free communication without fear of reprisal.2
130-31 Vict., c. 3 (U.K.) as am. Despite the view of several federal govern-
ments that s. 99 guaranteed tenure for life, the British North America Act
was amended in 1960 to provide for the compulsory retirement of judges at
age 75 (The British North America Act, 1960, 9 Eliz. 2, c. 2 (U.K.)).
2Indicating that academic freedom is the basic justification for tenure,
Professor Machlup says:
The occupational work of the vast majority of people is largely in-
dependent of their thought and speech. The professor’s work consists
of his thought and speech. If he loses his position for what he writes or
19811
COMMENTS – COMMENTAIRES
There are very few reported decisions on tenure in Canadian
courts, and on the whole they do not recognize tenure as the legal
right of a university professor to remain in service until retirement.
The earliest case, Ex parte Jacob,3 dealt with the dismissal of a
professor from the University of New Brunswick who held appoint-
ment during pleasure. Dr Jacob applied for certiorari to bring the
dismissal proceedings of the University Senate before the New
Brunswick Supreme Court. Carter C.J. held that the exercise of
powers given to the Senate could not be considered judicial acts
and dismissed the motion.4 However, he did state that the govern-
ing body of the University
may, if [it sees] fit, remove any of the officers, without any formal
proceeding in the nature of a trial, in the same way that a private
individual may dispense with the services of a clerk or other servant,
and are not liable to be called to account for their proceedings in any
other’ tribunaL5
In Re The University of Saskatchewan and MacLaurin the Court
of King’s Bench, while exercising its visitorial powers, reviewed
the action of the President in dismissing three professors who
had been employed during pleasure. The Court agreed with Ex
parte Jacob, that professors might be removed without notice and
without a hearing, but qualified the discretion to dismiss by stating
that this power must not be exercised in an aggressive manner or
with a corrupt or indirect motive.7 Because the relevant statute and
by-laws had been observed, the Court concluded that it had no
power to interfere with what had been done and maintained the
action of the President.
In Craig v. Governors of University of Toronto8 the University
retired a professor against his will at sixty-eight years of age. The
plaintiff claimed that his appointment was permanent, alleging
that a full professorship meant “an appointment for life, subject
says, he will, as a rule, have to leave his profession, and he may no longer
be able effectively to question and challenge accepted doctrines. And
if some professors lose their positions for what they write or say, the
effect on many other professors will be such that their usefulness to
their students and to society will be gravely reduced.
On Misconceptions Concerning Academic Freedom (1955) 41 A.A.U.P. Bull. 756.
3 (1861) 10 N.B.R. 153 (S.C.).
4 It is clear that Carter CJ. would have dismissed the motion on the
alternative ground that Dr Jacob should have appealed to the Visitor
rather than the Court (ibid., 161).
5 Ibid., 163.
6 [1920) 2 W.W.R. 823 (Sask. K.B.).
7 1bid., 827.
8 (1923) 53 O.L.R. 312 (H.C.).
McGILL LAW JOURNAL
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only to the appointee’s good behaviour and his ability to perform
his duties efficiently”.9 To this Orde J. replied:
This is surely a startling proposition, and Mr. Arnoldi was unable to
give me any authority for it. I think the argument can be met very easily
if we keep in mind that, if this contention were correct, the contract
for a life-appointment must necessarily be mutual. It could not be bind.
ing on the University without at the same time binding the professor.
And it would be rather disturbing to the whole professorial body, if it
were suggested that, upon an appointment not limited as to time, none
of them could, after due notice, without the consent of his employer,
accept a more remunerative offer of employment either in some other
university or elsewhere without committing a breach of contract involving
liability to heavy damages. It should be only necessary to state this
contention to shew its absurdity.’ 0
Although the plaintiff tried to prove that full professorships were
appointments for life according to custom in universities generally,
and particularly at the University of Toronto, The University Act
stated that tenure was held “during the pleasure of the Board”.”
Accordingly, the Court dismissed Craig’s plea on the ground that
custom could not supersede statutory powers vested in the Board. 2
Thus the Board could terminate the employment contract at any
time, subject only to reasonable notice of its action.
The last reported case to consider the tenure of a professor’s
individual contract of employment was Smith v. Wesley College.’3
The Board of Directors of Wesley College had decided that it was in
the best interests of the College to dismiss the plaintiff professor.
By statute, the Board had the power to “define … tenure of office
or employment, which unless otherwise provided shall be during
the pleasure of the board”. 4 Due to disagreement over the terms of
employment, the Court was asked to imply the terms of the contract
from correspondence between the plaintiff and the President of
Wesley College. It decided that there was no definite agreement
as to the duration of the contract. Instead of following earlier
authorities, the Court concluded that the contract’s term was from
year to year, subject to termination on one year’s notice, and that it
could not be terminated “unless and until, in the honest opinion of
the board, the best interests of the college so demanded”. 5 The best
1) Ibid., 319.
10 Ibid.
11 R.S.O. 1914, c. 279, s. 32(b).
12 The mere fact that the University had not exercised its statutory right
of dismissal over a long period of time would also not allow such a custom
to be incorporated into the plaintiff’s contract (supra, note 8, 320).
‘3 [19233 3 W.W.R. 195 (Man. S.C., T.D.).
14Ibid., 197, quoting S.M. 1919, c. 131, s. 18(b).
15 Ibid., 202.
19811
COMMENTS – COMMENTAIRES
interests of the college meant what the directors bond fide consider-)
ed them to be.16 With respect to the tenure of professors, Dysart J.
stated:
The reason for so qualifying the right to terminate such employment is
both just and apparent. College professors are men specially trained
for special work. Their opportunities for suitable employment are rare,
and if lost are not easily substituted by other congenial employment.
Their special training unfits them for general service. In their chosen
field, the material returns are relatively small. In order, therefore, that
this noble profession may still attract recruits, it is wisely acknowledged
both in theory and practice that the employment of professors by
colleges should be characterized by stability approaching to permanence.
This
involves fair, considerate and even indulgent treatment in all
matters relating to general behaviour. Whatever is not inconsistent with
its welfare is generally allowed by the college. 17
Except for the limited form of tenure recognized in Smith v.
Wesley College, courts have not implied tenure as a term in a
professor’s contract of employment. 18 Thus, unless permanency is
expressly stated in the contract, or conferred by the university
through some overt act, only one year’s notice, or a year’s pay in
lieu of notice is required for dismissal. But no notice is required
where there is cause, such as incompetence, neglect of duty or grave
misconduct.
Collective bargaining in the universities developed in the late
sixties and early seventies. Many existing practices and procedures
were set down in writing between faculty associations or unions
and the management of the university. The resulting agreements
were incorporated into each professor’s contract of employment.
Established practices were written and frequently revised, pres-
cribed procedures became mandatory, and the customary powers
of deans and administrators were re-examined in light of these
agreements. As one arbitrator has stated:
The advent of collective bargaining in the university sector engenders a
qualitative change in the relationship of the professoriate to the univer-
sity. 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
16 Ibid.
17Ibid.
18 In Re Wilson (1885) 18 N.S.R. 180 (S.C.), a dismissed professor made an
application for mandamus to compel the Governors of King’s College to
restore him to certain offices. Professors at King’s College held their offices
during good behaviour. Professor Wilson had published a letter “incompatible
with the relation of a Professor to the governing body [of the College]”
(p. 181) and was consequently dismissed without notice. The Court held that
the office of professor was one ‘in relation to which mandamus would lie
and granted the application.
McGILL LAW JOURNAL
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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 em-
bodied in a collective agreement.19
How has tenure been affected by the advent of faculty associa-
tion or union agreements with universities?20 Before being consider-
ed for tenure, a faculty member must serve a probationary period,
during which teaching ability, scholarly promise and diligence are
reviewed. This period may last from three to five years, and a can-
didate may thereafter become eligible for tenure consideration by
the relevant departmental committee, the composition and proce-
dures of which are fixed in the agreement. After the departmental
tenure committee makes its recommendation, the faculty tenure
committee takes up the matter and makes a further recommenda-
tion according to a procedure which is also set down in the agree-
ment. In most agreements the “legal” decision is finally made by
the Board of Governors upon recommendation by the President.
Not only is the procedure for granting tenure spelled out, but
some agreements have defined tenure as well, generally as a con-
tinuing or permanent appointment up to the age of retirement.2′
Some agreements stipulate that tenure is not a right of faculty who
have served the required probationary period.2 However, tenure is
now subject to other provisions of the agreement, such as dismissal
for cause or lay-off in the event of financial stringency.
Although some agreements state that the purpose of tenure
is to guarantee academic freedomm tenure is largely a code-word
for employment security.24 All agreements contain an article guar-
anteeing academic freedom for every faculty member, including
19 Re the Association of Professors of the University of Ottawa and The
University of Ottawa (Valero) (1978) A.A.S. 544, 556 per Frankel.
z0 Faculty association agreements do not have the same permanence as
collective agreements. Senate by-laws and resolutions may be incorporated
into faculty association agreements by reference. These terms can be uni-
laterally altered with reasonable notice by the Senate, whereas in collective
bargaining terms are fixed for the duration of the collective agreement
and cannot be altered by resolution or by-law of an internal body such as the
Senate.
Regina, Art. 14.2.3; Saint Mary’s, Art. 10.11; Saskatchewan, Art. 15.1.
21See, e.g., Carleton, App. A; Dalhousie, Art. 5.2.1; McGill, Art. 1.3.4;
22 E.g., Alberta, Art. 6.07.1.
23 E.g., Dalhousie, Art. 5.2.1; Saskatchewan, Art. 15.2.
24 See also Adel & Carter, Collective Bargaining for University Faculty in
Canada (1972), 13.
19811
COMMENTS – COMMENTAIRES
those without tenure. Further, if tenure is not granted at the end
of the probationary period, or after a fixed number of term appoint-
ments, no further offers of employment can be made. But Professor
Winegard describes tenure in a different light:
In deciding in favour of granting tenure the university makes a significant
commitment to the individual faculty member. It is in the nature of a
university appointment that a faculty member is virtually free from
to- the impossibility of constantly
supervision. This is in part due
monitoring and assessing the work of an academic and, in larger part,
due to the notion of academic freedom. For these reasons the granting
of tenure represents a high degree of trust in the faculty member and
it is only upon being satisfied that this trust is warranted that the univer-
sity will grant tenure. It is no doubt precisely because the granting of
tenure entails a long term commitment without close supervision and
review that such a long probationary appointment (as compared to the
length of probationary appointments in industry) is required.25
II, The criteria for tenure
The considerations to be taken into account for granting tenure
can easily be identified in the respective agreements, but neither
these considerations nor their application are by any means con-
sistent from institution to institution. In some agreements the
considerations are spelled out for the tenure committee’s direction,
while in others the tenure committee must provide its own defini-
tions. However, there are basically four criteria which must be
considered: academic qualifications, teaching, research and service
to the university.
A. Academic qualifications
Most agreements provide that a faculty member must have the
required academic credentials before tenure can be granted. These
requirements vary among universities, and presumably are known
at the time of hiring. However, academic credentials which have
been traditionally acceptable to one faculty may not be acceptable
to another for the granting of tenure. Such was the case in Re the
Association of Professors of the University of Ottawa and The
University of Ottawa (Valero) 26 In this case Professor Valero was
teaching in the Faculty of Administration and had an LL.M. degree.
The Teaching Personnel Committee and his dean recommended him
2 5 Re the Association of Professors of the University of Ottawa and The
University of Ottawa (Goreloff) (1977) A.A.S. 366, 371 per Winegard: aff’d
(1978) 19 O.R. (2d) 271 (Div. Ct). For limits of the “trust”, see Re The
President of the University of Western Ontario and Chamberlain (1974)
A.A.S. 17, 21 per L’Heureux.
2 o Supra, note 19.
,
McGILL LAW JOURNAL
[Vol. 26
for tenure. However, the Joint Committee for the Senate and Board
refused tenure on the ground that Professor Valero did not hold a
doctorate. The relevant article in the collective agreement stated
that a professor must
[hold] a Doctorate, it being understood that the University will consider
as an equivalent in this regard any work judged by his peers as having
contributed in a significant manner to the advancement of a science,
of an art or of a profession. 27
The Joint Committee felt that the equivalence had not been fulfilled
because Professor Valero’s research had received only indifferent
assessment from external referees. The Arbitration Board concluded
that, on construction of the article, the Joint Committee had not
acted unreasonably or capriciously because of the even-handed and
consistent manner with which tenure historically had been granted
at the University 28
B. Teaching
Some agreements stipulate teaching as the paramount considera-
tion for granting tenure, while others consider teaching on an equal
basis with research?9 Teaching is undoubtedly the most difficult
factor to assess and in most agreements it is undefined or nominally
defined. 30 For example, “teaching ability”, “teaching effectiveness”,
“teaching performaice” and “teaching quality” are given as criteria
27 Ottawa, Art. 33-10(b)(2).
28 TheJoint Committee did not accept the Dean of Law’s contention that
for law professors an LL.M. is equivalent to a doctorate for purposes of
tenure.
29Art. B.3 of the Western Ontario agreement provides that outstanding
ability in teaching alone may be sufficient reason for granting
tenure.
Likewise under Art. 33.11(a) of the Ottawa agreement a candidate can
obtain
less
research than normally required.
tenure for exceptional quality of
30 E.g., Art. 13(b) of the Toronto agreement defines teaching effectiveness
teaching where
there
is
as
the degree to which he or she is able to stimulate and challenge the
intellectual capacity of students; the degree to which
the candidate
has an ability to communicate well; and the degree to which the candidate
has a mastery of his or her subject area.
Not only is the means of measuring undefined, but- also there is no indication
of what is satisfactory ability for tenure purposes. Art. 4.02 of the Uni-
versity of British Columbia agreement states that the methods of teaching
evaluation include student opinion, assessment by colleagues, outside re-
ferences and the calibre of supervised essays and theses. The opinions of
students and colleagues are taken through formal procedures. Consideration
is also to be given to the candidate’s willingness and ability to teach a range
of’ subjects -at various
levels. Excepting this last point, no means of
is given. In McWhirter v. Governors of the University of
measurement
1981]
COMMENTS – COMMENTAIRES
for granting tenure. But what do these words mean and, more im-
portant, how can they be measured or assessed for tenure considera-
tion?
Some universities use student evaluations, but it is difficult to
determine exactly what they measure.3 1 One of their purposes is to
provide a teaching score relative to one’s colleagues. However, it is
uncertain whether the form used can adequately measure the
candidate’s teaching ability for the purpose of tenure. Further,
should the form be used across campus? While one instrument may
be less expensive to administer, and provides a uniform measure,
it may be inappropriate to use the same evaluation form for all
purposes.
Peer evaluation can also measure teaching ability, but one
problem with it is that there is no guidance as to the criteria to be
considered and the method of evaluation to be used. Course mater-
ials and competence in their presentation may be considerations,
but are they appropriate or sufficient for the purpose of tenure?
Further, how much notice should be given, how often must a peer
attend lectures before reporting, and what form should the evalua-
tion take? If the report is written, should the candidate be given
an opportunity to respond? Although formal teaching evaluation is
relatively new to Canadian universities, one hopes it will be given
the attention it needs to help ensure that student and peer evalua-
tions can provide useful evidence of teaching ability for tenure
consideration.
C. Research
While teaching ability may be difficult to assess, tenure com-
mittees seem to have little difficulty in assessing a candidate’s
research. Academics are skilled in assessing research and on this
basis many agreements do not permit arbitral review of academic
judgment. However, the meaning of research varies from agreement
Alberta (No. 2) (1977) 80 D.L.R. (3d) 609 (Alta S.C., T.D.), Steer J. was
critical of the evidence given with respect to teaching ability. He stated:
the evidence given at trial showed that, in fact, there was no system
in the university, except rumour, whereby a committee could get any
satisfactory evidence of a candidate’s teaching ability. … With regard
to the expressions of the staff, … there was nothing to indicate that any
had ever heard him teach although some may have heard him speak at
a seminar (p. 630).
31 Art. 26.3(a) of the Carleton agreement spells out the content of the
student evaluation form. This form is used across campus and cannot be
altered. The difficulty with employing
that
differences in faculty, class size, course level and programme requirements
are completely overlooked.
this inflexible evaluation
is
McGILL LAW JOURNAL
[Vol. 26
to agreement. Some agreements simply define it as “creative scholar-
ship”, “research and scholarly work”, “publication”, “contributions
to an academic discipline”, “research ability”, or “scholarly or
professional productivity and activity”. But the University of To-
ronto agreement is very elaborate:
in research or creative professional work
Achievement
is evidenced
primarily, but not exclusively, by published work in the candidate’s
discipline;
in this context, published work may include books, mono-
graphs, articles and reviews and, where appropriate, significant works
of art or scholarly research expressed in media other than print. It
may also be evidenced by various other types of creative or professional
work, including community service, where such work is comparable in
level and intellectual calibre with scholarly production and relates
directly to the candidate’s academic discipline. Research also encompasses
unpublished writings and work in progress. Scholarly achievement may
be demoristrated by consideration of theses or other material prepared
or written under the candidate’s direct supervision. In some exceptional
cases, weight should be given to “unwritten scholarship” of the type
displayed in public lectures, formal colloquia and informal academic
discussion with colleagues.3 2
If an agreement merely identifies research as a consideration in
granting tenure, it permits a tenure committee great latitude in
determining what is to be included, as well as the required quantity
and quality of research, and this exercise may reflect the university’s
expectations on a general level and for the specific programme. By
contrast, although the Toronto definition recites at length what
is to be considered, it does not state the standard required for
the granting of tenure. There have been criticisms of both approach-
es, and the denial of tenure for deficiency in research has often
resulted in grievances and arbitrations. For example, in Re The
Association of Professors of the University of Ottawa and The
University of Ottawa (Goreloff),3 the arbitration board had to
decide what “competence in research” meant:
It is something more than the simple equivalent to the question “can he
do research?” What is required is evidence of capacity and will to engage
in meritorious research, to organize a research program effectively, to
complete research projects and to produce research output –
all of
this on a scale and with results in terms of quality and quantity which
can be regarded as normal for his/her sector of activity.
It is clear from the evidence that Professor Goreloff can do some
research. It is less clear that he has done what is and can be normally
expected of a professor in Slavic Studies at the University of Ottawa.34
32 Toronto, Art. 13(a).
33 Supra, note 25.
41bid., 381. This definition was followed in Re The Association of Pro-
fessors of the University of Ottawa and The University of Ottawa (Jansen)
(1978) A.A.S. 515 per Smith.
1981]
COMMENTS – COMMENTAIRES
It is arguable that the Board’s statement applies only to the Ottawa
agreement. However, because of the generality of the term “com-
petence in research”, the Board’s statement may be apposite in
tenure considerations elsewhere.
We have noted that tenure committees must consider the quality
and quantity of a candidate’s research, but what standard of com-
parison is appropriate to determine the qualities required for tenure?
In Re The President of The University of Western Ontario and
Chamberlain35 the Hearing Committee held that it was the relevant
sector of the University to which the complainant belonged, namely,
the Department of Psychology. The Goreloff decision refined the
relevant-sector test to a relevant subsector of the department. The
University of Ottawa placed heavy emphasis on its graduate pro-
gramme in Slavic Studies and thus the professors in that depart-
ment had- to have a level of research to support the graduate
programme. 6
As to what is considered research for tenure purposes, mono-
graphs and published contributions to refereed journals are uni-
formly acknowledged, and unpublished research or work produced
in a medium appropriate to the discipline may also be considered.
With respect to paid research, very little direction is given in the
agreements, and there are few reported decisions on disputes arising
from such research. However, under an agreement which stated that
research and scholarly activity would not normally include “re-
search contracts and consulting activities for which the member
receives a remuneration above and beyond the salary paid by the
University”, a psychology professor had been retained by a local
hospital as a clinical psychologist, and the Board in this case held
that while such work could not be considered by itself as research,
‘r Supra, note 25.
36 Ottawa’s Art. 33.10(a) states that a candidate must have “the kind of
qualifications required to support effectively the programmes of study and
of research that the University has decided to pursue”. The Board concluded
that in order to comply with this requirement Dr Goreloff had to be
capable of supervising graduate students, and in order to do so, he had to
“complete good research within reasonable time limits and be capable of
producing a steady flow of completed research” (supra, note 25, 386). By
contrast, in Re the University of Manitoba and Stevens (1976, unreported)
per Dunlop, research output was compared to that which is expected from
the professor’s field in a “ranking Canadian university”.
87 See Art. 13(a) of the Toronto agreement, supra, note 32. See also Re
The University of Ottawa and the Association of Professors of the Uni-
versity of Ottawa (McInnis) (1977) A.A.S. 420, 430 per Kruger and Re The
University of Ottawa and the Association of Professors of the University
of Ottawa (McCutcheon) (1977) A.A.S. 621 per Robinson.
McGILL LAW JOURNAL
[Vol. 26
any product or article from it which was available to the public
could be considered 8
D. Service
The final consideration for tenure is service. Most agreements
state that service includes contributions to the department, faculty
and university community. Some agreements broaden the scope
of service to include contributions to a wider community, such as
academic and professional bodies 9 Generally, the service com-
ponent for tenure is not given any significant weight, unless per-
formance is outstanding and there are no substantial reservations
with respect to teaching and research ability.40
E. Other
Some agreements stipulate that the expectations for a can-
didate be favourable before tenure is granted, such as Article 13
of the Toronto agreement, which provides that a candidate must
show “clear promise of fature intellectual and professional develop-
ment”. Similarly, Afticle 4.01 (c) in the British Columbia agreement
requires not only that a candidate have maintained a high standard
of performance in teaching, research and service, but that he show
promise of continuing to do so. 41 Neither agreement indicates how
such promise is to be measured and assessed.
Because judgments should be made impartially and objectively,
incompatibility with colleagues is usually only considered in tenure
38 Re The University of Ottawa and the Association of Professors of the
University of Ottawa (Blank) (1977) A.A.S. 409 per Robinson: this provision
has since been abandoned.
30 E.g., Art. 12.91(c) of the Acadia agreement and Art. 6.07.1(f) of the
Alberta agreement. Art. 7.10(i) of the Bishop’s agreement states that service
includes contributions to the Faculty Association committees.
40 There are two notable exceptions. Art. B.3 of the Western Ontario agree-
ment provides that outstanding service, by itself, may be sufficient for tenure
and Art. 33.11(c) of the Ottawa agreement provides that extensive administra-
tive service may compensate for a lesser research activity.
41 This article states further that “[tjhe decision to grant such an appoint-
merit will take into account the interests of the Department and the Uni-
yersity in maintaining academic strength and balance”. Art. 11.22(b) of
,_the ‘Saint Mary’s agreement states that a candidate must be “a person who
will contribute to the growth and stature of the University, and will promote
its objectives as set out in the Saint Mary’s University Act, 1970”: see Re
Saint Mary’s University and MacFarlane (1979, unreported) per Nunn; rev’d
(1979) 103 D.L.R. (3d) 470 (N.S.S.C., T.D.).
19811
COMMENTS – COMMENTAIRES
matters when it disrupts the operation of the department.4 Only
two agreements mention incompatibility. The Dalhousie agreement
provides that a candidate must have “ability and willingness to
work with colleagues so that the academic units concerned function
effectively”.4 The McGill agreement takes a more draconian ap-
proach: “[i]ncompatibility with colleagues sufficiently serious to
interfere with the proper functioning of the department or other
parts of the University”44 may be grounds for denying tenure.
A recent case concerning incompatibility was Dombrowski v.
Dalhousie University.45 The plaintiff seriously objected to the ad-
ministration of his department and openly expressed a low regard
for the competence of his colleagues. The faculty tenure committee
unanimously recommended the plaintiff for tenure but the Dean
refused to so recommend because of the plaintiff’s clashes with his
colleagues. The Vice-President and President, who had ultimate
discretion in this matter, agreed with the Dean that the work of
the department had been seriously affected and that the department
could not work together effectively if the plaintiff had tenure. The
plaintiff’s action was dismissed because there had been no improper
application of the requirements for tenure by the administration.
Because of significant differences among disciplines within a
university, tenure considerations will be varied4 6 The extent of the
variation is reflected by the tenure committee and administration’s
expectations of a candidate’s discipline. Few agreements provide
that standards required for tenure be made known to the candidate
at the time of appointment.4 7 However, some agreements do provide
that if the standard of performance required for tenure changes,
42 E.g., Victoria, Art. 10.5, states that incompatibility is not to be considered
except where it seriously disrupts one’s colleagues:
Since it is most important that the University insure that the criterion
of lack of compatibility not be applied because of personal antipathy.,
negative recommendations founded on or supported by evidence relating
to the lack of compatibility must be fully documented. Such documenta-
tion as is consistent with the principles of natural justice shall be made
available to the faculty member concurrent with its availability to the
Dean or Director or the Faculty or School Advisory Committee.
46 See, e.g., Saskatchewan, Art. 15.12; Regina, Art. 16.1.1; Alberta, Art.
6.07.02; Toronto, Art. 12.
47 A notable exception is Saskatchewan, Art. 15.12.1.
See also British Columbia, Art. 4.0.1(b).
43 Dalhousie, Art. 5.3.2.
44 McGill, Art. 5.18.2.
45 (1975) 55 D.L.R. (3d) 268 (N.S.S.C., T.D.); afI’d (1976)
299 (App. Div.).
15 N.S.R. (2d)
McGILL LAW JOURNAL
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the candidate must be given notice of that change.4 Further, two
agreements provide that changes in standards subsequent to a pro-
bationary appointment do not apply retroactively. 4
The agreements give little guidance regarding the weight to be
attached to each of the tenure considerations. Some agreements
provide that the candidate must have competence or superior per-
formance in both teaching and research, or in two of teaching,
research and service.50 Consequently, the tenure committee must
devise its own balancing scheme, which could lead to uneven ap-
plication of the criteria and possible abuse. This is particularly so
because the evaluation of a candidate’s research is, for the most
part, subjective.
III. Methods of tenure review
A decision to deny tenure can be reviewed in three ways. First,
the candidate may apply to the court for a prerogative writ or
equivalent statutory order. Second, the agreement with the uni-
versity may provide for an appeal procedure within the university.
Third, the candidate may grieve the denial of tenure through the
grievance procedure to arbitration.
A. Application to the court
Court action has never been a favoured remedy, due to cost,
delay and jurisdictional difficulties. Further, judicial remedies tend
to be inadequate because of the court’s reluctance to reverse aca-
demic decisions made by the plaintiff’s peersY1 On the other hand,
decisions of arbitrators may be more responsive to the needs of the
university because their decisional standards and remedies are
fashioned by the faculty and administration. Further, the arbitrator
is jointly selected, presumably because of his special competence.
B. Internal appeals
Appeal to an internal review body is an informal and expedi-
tious method of challenging a tenure denial. It can be argued that
programmes: see Dalhousie, Art. 5.3.1.
48St Thomas, Art. 8.02. This change may result from changing needs in
49Alberta, Art. 6.07.3; Saskatchewan, Art. 15.13.1.
50 British Columbia, Art. 4.01 and McGill, Art. 5.17 respectively. A notable
exception is Western Ontario, Art. B.3, which allows the tenure committee
to determine the relative significance of teaching, research and service.
51See McWhirter, supra, note 30. The Court awarded only $12,000
in
damages. The plaintiff had asked for a declaration that the rules governing
tenure had not been followed, $75,000
in damages and/or specific per-
formance.
19811
COMMENTS – COMMENTAIRES
since tenure is purely an internal matter, it should ultimately be
determined by faculty and, if need be, reviewed by faculty. Further,
there may be special circumstances which an outside arbitrator
cannot understand. On the other hand, the possible proximity of
the appeal committee to the appellant may affect the objectivity of
the reviewers. Also, an internal appeal committee may not be as
capable as an arbitrator in determining the consequence of pro-
cedural violations.
Approximately half of the universities in Canada have an in-
ternal tenure appeal system. Some agreements provide that the
decision of an internal appeal system can be grieved to arbitration 2
For the most part, the agreements have adopted the tenure appeal
system in existence prior to the agreement. Accordingly, the com-
position, jurisdiction, powers and procedures vary from agreement
to agreement. Both the Toronto and Carleton agreements give the
tenure appeal committee investigative powers 3 It is impossible to
assess how effectively the internal appeal system works because
most agreements state that hearings will be held in camera and
that decisions are confidential, final and binding on the parties.
C. Arbitral review
Arbitral review of denial of tenure has become more frequent
since the advent of collective bargaining. Unlike an internal appeal
procedure, arbitration employs an outsider for the resolution of a
challenged decision. However, despite the merits of having an ob-
jective third party resolve a tenure dispute, arbitral review may
offend existing processes within the university system which are
based on the doctrine of self-governance. Faculty not only share
decisional authority with the university but also have primary
responsibility for formulating decisional standards and in making
initial decisions with respect to tenure by peer evaluation, although
tenure decisions finally rest on subjective assessment by peers of
such vague criteria as the quality and quantity of a candidate’s
research. If the merits of a tenure decision were subject to review,
full and free discussion of a candidate’s performance or ability
52E.g., Manitoba, Art. 19.11(a); Notre Dame, Art. 11.C, Regina, Art. 18.8
and Saskatchewan, Art. 15.19.
3 Toronto, Art. 27, Carleton, Art. B.10. The Carleton agreement provides
that “The Committee may call for, and is entitled to receive, any other
information that is relevant to the appeal” (Art. B.10). Toronto’s agreement
provides that the Committee “shall be empowered to obtain such information
and to interview such persons as it may judge to be useful to its reaching a
judgement of the case” (Art. 27). This investigative role no doubt is exercised
for the benefit of the appellant.
McGILL LAW JOURNAL
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might be impeded, and the possibility of review might induce tenure
committees to grant tenure to marginal candidates. Conversely, it
might be argued that the possibility of arbitral review would
encourage frank and fair assessments. The dilemma of striking a
balance between the interests of the aggrieved faculty member and
the existing institutional processes must be met. Some collective
agreements have tried to resolve this problem by restricting the
scope of the arbitrator’s jurisdiction to a review of mandated
procedures for making tenure decisions. For example, the Manitoba
agreement states that:
a faculty member shall not grieve any substantial decision made pur-
suant to the provisions of this article but shall have the right only to
grieve procedural defects in the tenure committee or appeal committee
process.5 4
By this method, committee decisions on the merits of the case
are preserved while procedures which are the only guarantee of
fairness to the candidate are closely examined. The provisions which
spell out the procedure/substance dichotomy are usually skeletal
and do not resolve challenges that substantive considerations were
misapplied, wrong considerations were applied or that the decision
was based on irrelevant or even prohibited considerations. 5 Further,
such provisions do not protect a candidate from tenure committees
or administrations which have carefully followed procedural re-
quirements but have rejected tenure for personal or political reasons.
On the other hand, an arbitrator’s jurisdiction may be broadened
beyond procedural review if there is a violation of provisions go-
verning academic freedom or non-discrimination, in which case the
substantive decision will be reviewed on its merits.L Some agree-
ments also permit review of substantive decisions in certain cir-
cumstances, such as a President’s reversal of a positive recom-
mendation for tenure.57 The St Thomas agreement provides that
“the president shall not unreasonably reject a recommendation of
the committee on academic staff” 8 This allows arbitral review of
the merits of the President’s decision, but limits substantive review
of the committee’s recommendation.
54Manitoba, Art. 19.11.a. Similar provisions’are found in Windsor, Art.
13.03; York, Art. 13.03; Regina, Art. 18.8 and Saskatchewan, Art. 15.19.
55 See Finkin, The Arbitration of Faculty Status Disputes in Higher Education
(1976) 30 S.W.L.J. 389,-411.
Experiences with Arbitration of Faculty Status Disputes (1978), 3.
56See Weisberger, Grievance Arbitration in Higher Education: Recent
57 York, Art. 13.03 and Saskatchewan, Art. 15.19(iv). The Saint Mary’s
agreement provides that in such a situation, the matter be submitted to an
ad hoc review committee (Art. 11A6).
58St Thomas, Art. 9.042.
1981]
COMMENTS – COMMENTAIRES
Another technique of restricting arbitral review is to limit the
broad array of remedies for contractual violations. The Saskat-
chewan agreement states that:
The arbitrator shall have the power to prescribe such remedies as he
sees fit, subject to the following limitations:
(i)
in the event that the arbitrator determines that proper procedures
have not been followed, he may order that the matter of tenure be re-
considered but shall not award tenure on this ground;
(ii)
in the event that the arbitrator determines that Article 6 (Academic
Freedom) or Article 7 (Non-Discrimination) has been violated, he shall
so declare and so report, and he may order that the matter of tenure
be reconsidered but shall not award tenure on these grounds;
(iii)
in the event that the Board has reversed a positive recommendation
from the University Review Committee or Tenure Appeal Committee,
the arbitrator may order the award of tenure;
(iv)
the arbitrator shall be empowered to extend a candidate’s pro-
bationary period by a reasonable length of time to permit reconsidera-
tion of his candidacy for tenure, if so ordered under the provisions of
this section. 9
Guidance in remedies not only simplifies the arbitrator’s role but
also allows the faculty and administration to fashion the outcome
of tenure challenges in ways which are acceptable to both parties.
On the other hand, some remedial flexibility is required, because an
arbitrator may be confronted with a finding of contractual violation,
but no meaningful remedy. 0
Some agreements have abandoned the doctrine of faculty self-
governance and allow unrestricted review of institutional processes,
including peer evaluation. The Ottawa agreement defines grievance
to mean “any difference between the parties to this Agreement
arising from the application, interpretation or administration or
alleged violation of this Agreement, including denial of natural
justice and any question as to whether a matter is arbitrable”.61
Not only is the arbitrator’s jurisdiction unrestricted, but there are
no limitations on the remedies available. This type of unrestricted
arbitral review places a heavy stress on arbitrable standards be-
cause the arbitration board may have to substitute its decision for
a peer evaluation without the benefit of committee deliberations.
Further, unrestricted arbitral review also places a greater onus
on arbitrators who have to deal with a highly subjective decision.
59 Saskatchewan, Art. 1520.
00 In Re Saint Mary’s University and MacFarlane, supra, note 41, the
arbitrator made a clear finding of bias and ordered a two-year deferral,
but on judicial review the Court held that the arbitrator exceeded his
jurisdiction and ordered that the matter be remitted for reconsideration
by the appropriate tenure committee.
G1 Art. 44(1)a: see also Art. 15.01 of the St Thomas agreement. The Ottawa
agreement has produced by far the most arbitrations.
McGILL LAW JOURNAL
[Vol. 26
All collective agreements state that arbitrators do not have
any power “to alter or change any of the provisions of this Agree-
ment nor to substitute any new provisions for any existing provi-
sions, nor to give any decision inconsistent with the terms and provi-
sions of this Agreement”. Finally, in order to relieve tension over
external arbitration, most agreements provide a selection process
of arbitrators by means of predetermined lists for specific issues,
qualification in the disciplinary area under review, or by requiring
that arbitrators hold or have held an academic appointment. 3
IV. Tenure review
It is impossible to evaluate cases which deal with the internal
appeal system because, as noted above, the hearings are usually
in camera and the decisions are confidential. Accordingly, this sec-
tion will deal with judicial control and arbitral review of tenure
denials.
A. Judicial control
Collective agreements must contain an arbitration clause; thus
an aggrieved tenure candidate usually must go to arbitration to
challenge an institutional decision. The candidate and the university
will be bound by the arbitrator’s decision unless the arbitrator
has exceeded his jurisdiction. However, if a collective agreement
precludes arbitral review of tenure or if an association agreement
provides for an internal appeal procedure only, the candidate may
apply to the court for common law judicial review through one of
the prerogative writs or their statutory equivalents, or may com-
mence an action for wrongful dismissal. In Ontario, a candidate can
apply for judicial review under The Judicial Review Procedure Act;0 4
in British Columbia he can apply under the Judicial Review Pro-
cedure Act.65
B. Common law review
Judicial review of tenure denials has been frustrating, for ag-
grieved faculty members because of difficulties in establishing the
court’s jurisdiction in a tenure matter and the inappropriateness
62 E.g., Ottawa, Art. 44.12(i). See also St Thomas, Art. 15.091; York, Art.
9.24.
03Art. 19A2 of the Acadia agreement provides that “[i]n cases requiring
academic judgment, the members of the Arbitration Board shall be current
or former members of a faculty of a Canadian university other than Acadia
University”.
64 The Judicial Review Procedure Act, (1971), S.O. 1971, c. 48.
6SJudicial Review Procedure Act, S.B.C. 1976, c. 25.
19811
COMMENTS – COMMENTAIRES
of the remedy given. 66 In Re Elliot and Governors of University of
Alberta7 a faculty member applied for an order of certiorari to
quash a Faculty Tenure Committee’s decision to deny tenure and
prohibition to prevent the Tenure Appeals Committee from pro-
ceeding. The applicant argued that he had been denied natural
justice because his departmental chairman, who had recommended
denial of tenure, was a member of the Faculty Tenure Committee
and because he was denied the right to be heard before the Faculty
Tenure Committee and to cross-examine its members. He contend-
ed further that both committees were quasi-judicial in character
and function. The Court refused to quash the decision since the
chairman had made merely a recommendation and not a final
decision. 8 Further, although the Court agreed that the Faculty
Tenure Committee and the Tenure Appeals Committee did exercise
quasi-judicial functions, the Court felt that it was necessary for the
Faculty Committee to be able to discuss freely in private, and that
on the facts the denial of the right to cross-examine was not a denial
of natural justice. The application for prohibition was dismissed
because there was no real apprehension or likelihood of bias, only
a hypothetical possibility.
The assumption that the Faculty Tenure Committee and Tenure
Appeals Committee were bodies subject to common law review by
remedies such as certiorari was weakened in Vanek v. Governors
of the University of Alberta.’ 9 In this case the applicant professor
applied for certiorari to quash the negative decision of the Faculty
Tenure Committee on the ground of a procedural defect. Cavanagh
J. dismissed the application because the Faculty Tenure Committee
was not a statutory body and thus certiorari did not lie to review
the committee’s decision 7 0
106Theie was no reported case in Canada concerning
tenure between
1923 and 1973.
67 (1973) 37 D.L.R. (3d) 197 (Alta S.C., T.D.).
68 Cf. Re Kane and Board of Governors of University of British Columbia
(1977) 82 D.L.R. (3d) 494 (B.C.S.C.), where it was held that the President’s
presence during and participation in the deliberations of Board of Governors’
proceedings raised a presumption of bias; rev’d [1980] 3 W.W.R. 125 (S.C.C.).
69 [1974] 3 W.W.R. 167 (Alta S.C., T.D.), aff’d (1975) 57 D.L.R. (3d) 595
(App. Div.).
For a discussion as to whether a university is a private institution or a
public body, see Fridman, Judicial Intervention into University Affairs (1971)
21 Chitty’s L.J. 181. The application of the prerogative writs to university
decisions has received criticism in England: see, e.g., Wade, Judicial Control
of Universities (1969) 85 L.Q.R. 647.
70 However, Cavanagh J. noted in obiter that “if the faculty tenure com-
mittee was a statutory tribunal, I would likely have quashed its proceedings
for procedural errors” (ibid., 173).
McGILL LAW JOURNAL
[Vol. 26
In appeal, Clement J.A. agreed that the committee was non-
statutory. He held that the Visitor had exclusive jurisdiction in all
internal matters relating to administration of the university such as
academic decisions regarding status, and that the Court was not
empowered to act as the Visitor’s delegate.1 However, the Court
did comment that it would have jurisdiction if the issue had con-
cerned a breach of contract.
C. Actions for damages
In McWhirter v. Governors of the University of Alberta (No. 2),72
the plaintiff was an associate professor in the department of
genetics at the University and was originally hired to do inter-
disciplinary work. According to procedure, the departmental chair-
man had to make a specific recommendation to the Faculty Tenure
Committee after wide consultation. Because
the plaintiff’s col-
leagues had sharply divided views about his tenure, and because the
departmental chairman had little personal knowledge of the plaintiff
or his work, a departmental meeting was called to conduct a secret
ballot. The vote was against tenure. The result of the secret ballot
was the main element ‘iA the chairman’s recommendation to the
Faculty Tenure Committee, which also decided against tenure. The
Tenure Appeals Committee agreed with the Faculty Tenure Com-
mittee that the plaintiff was to be judged primarily as a geneticist
and dismissed the appeal. The plaintiff alleged that the rules of
71The Universities Act, R.S.A. 1970, c. 378, s. 5, states: “The Lieutenant
Governor is the Visitor of each university, with authority to do all those
acts which pertain to Visitors”. The Visitor’s position is in nature like a
domestic tribunal and in this capacity he ensures that the adopted procedures
are followed. See Vanek v. Governors of University of Alberta, supra, note
69, 606 (App. Div.). The Universities Amendment Act, 1976, S.A. 1976, c. 88, s.
5 abolished the office of Visitor.
For a discussion of the origins, jurisdiction and concerns of the Visitor’s
position, see Ricquier, The University Visitor (1978) 4 Dal. L.. 647. One author
describes the Visitor’s function as a “safeguard against indiscriminate use of
authority and as a guardian of the liberal and humane values professed and
practiced by universities” (Bridge, Keeping Peace in the Universities: the
Role of the Visitor (1970) 86 L.Q.R. 531, 551). See also McConnell, The Errant
Professoriate (1973) 37 Sask. L.R. 250.
72 Supra, note 30. The plaintiff’s first case, McWhirter v. Governors of the
University of Alberta (1976) 63 DL.R. (3d) 684 (Alta S.C., T.D.) was not a
success. The plaintiff brought an action against the defendant for breach
of contract but the Court dismissed the action on the ground that the
Visitor had exclusive jurisdiction. Before the plaintiff’s appeal was heard,
the Alberta Government abolished the office of Visitor by statute and thus
the Appellate Court ordered the trial judge to reconsider the case: see note
71, supra.
1981]
COMMENTS – COMMENTAIRES
natural justice were not followed and brought an action against
the defendant for breach of contract on the grounds that proper
procedures were not followed. The plaintiff further alleged that the
terms under which he came to the university ought to have been
considered in his tenure proceedings.
While Steer J. did not find the Faculty Tenure Committee to
be a statutory body exercising quasi-judicial functions, he did hold
that the relevant University bodies must follow the prescribed
University procedures and deal fairly and impartially with the
applicant’s case. This had not happened. Referring to the depart-
mental deliberations before the secret ballot, Steer J. noted that:
They were not discussions for the purpose of getting the view of the
person interviewed and the basis for that view with the object of
assessing the validity of the individuals’ [sic] opinion as to the con-
tribution which Mr. McWhirter and his work were making to the Uni-
versity. This, in my opinion, is what the handbook required the doctor
to do, and further to interview the candidate himself in order that he
may make a fair and informed recommendation. He must, of course,
also use his own personal knowledge, if he has any, which was not the
case here. It also required, in my opinion, that he consult in the same
manner with the persons with whom Mr. McWhirter was working in the
other departments. These things were not done. What was substituted
for this was the secret ballot in which the opinions of the departmental
members were expressed on most important aspects of Mr. McWhirter’s
ability, his work and his teaching, and were accepted by the doctor at
their face value without any inquiry as to whether or not the individuals
casting the ballot had the necessary factual background to express a
valid opinion on the subject-matter of any or all of the questions. …
I have concluded that the method adopted by Dr. von Borstel to reach
his recommendation, although it might be said to be a form of con-
sultation, was not the kind of consultation envisaged by the handbook.
The correct form of consultation to satisfy the requirement of the hand-
book is, in my opinion, the kind I have discussed above, i.e., frank, face-to-
face interviews with a view not only to eliciting an opinion, but also
with a view to ascertaining whether or not there is a valid basis for the
opinion. This was not done1
Accordingly, Steer J. held that the Chairman’s recommenda-
tion and the committee’s decision were
the
recommendation had been so influential in the committee’s deli-
berations. These defects could not be cured by the Tenure Appeals
Committee, which only reviewed procedural matters. Further, the
Faculty Tenure Committee had used the wrong standard to assess
the plaintiff in that he should have been judged on ai
.interdis-
ciplinary basis and not solely as a geneticist. Thus the plaintiff was
awarded damages for breach of contract. In assessing damages
the Court noted that the plaintiff’s contract provided for two event-
invalid because
73 Ibid., 626.
McGILL LAW JOURNAL
[Vol. 26
ualities: if the decision with respect to tenure were negative, the
plaintiff must be offered a terminal appointment of one year, but
if tenure procedures were not followed, he would be offered a
one-year extension and tenure reconsideration without prejudice.
The Court felt that even if the plaintiff were successful in his
tenure reconsideration, he would not likely have stayed long at
the defendant University and awarded $12,000 to compensate him
for that loss of chance.1 4
The Alberta Court of Appeal was of the opinion that there had
been no breach of contract 15 Considerable weight was given to
the fact that tenure procedures in the Faculty Handbook resulted
from negotiations between the Association representing the Faculty
and the Board of Governors. Even though there were no provisions
respecting the manner in which tenure information was to be
gathered, the Court of Appeal felt this was a decision which the
parties had accorded to the Head of the Department and the
Faculty Tenure Committee:
It may well be that a person could, in a number of ways, gather the
required evidence. This is left flexible in the Faculty Handbook, and I
do not believe that a court should dictate a particular procedure. Different
circumstances might well suggest different procedures. In the present
case, the Head of the Department adopted a procedure which he felt was
particularly appropriate in dealing with an issue which had created an
extreme schism in the Department. It may well be that the secret ballot
permitted the members to express honest opinions without becoming
embroiled in the controversy. Those who lived in the community thought
it was appropriate. I cannot conclude that the Head of the Department
failed to discharge any duty imposed upon him.76
Further, the Court of Appeal felt that the decision of the Tenure
Appeals Committee concerning the propriety of the procedures
should not be interfered with unless that decision was “so erro-
neous that a failure to interfere would amount to a substantial
miscarriage of justice”,77 The appeal by the plaintiff was dismissed
because there had been no such miscarriage and no breach of
contract. The University’s cross-appeal was allowed.
74 The plaintiff’s contempt for the department was emphasized by the
75 McWhirter v. Governors of the University of Alberta (1979) 18 A.R. 145
Court (ibid., 634).
(C.A.).
76Ibid., 156. The Court of Appeal noted that those involved in the pro-
cedures acted honestly and in good faith.
771bid., 160. Because there was an agreed-upon
interfere on
tribunal consisting of
peers, the Trial Judge could only
the grounds that “the
tribunal exceeded or declined jurisdiction, or failed to apply the rules of
natural justice, or failed to comply with the procedures set out in the Hand-
book” (ibid., 156).
1981]
COMMENTS – COMMENTAIRES
A claim for damages for wrongful dismissal was dealt with in
Dombrowski v. Dalhousie University,78 where the plaintiff had been
unanimously recommended for tenure by the Faculty Tenure Com-
mittee.
However, there had also been serious disagreements between the
plaintiff and his colleagues, who maintained that the planning of
the department’s graduate programme would be rendered im-
possible if the plaintiff were granted tenure. After consulting mem-
bers of the department, the Dean refused to recommend the plaintiff
for tenure because of his personality clashes with his colleagues. 7
The Vice-President (Academic) and President agreed with the Dean,
but after an ad hoc committee’s report the administration made a
final offer of a terminal two-year appointment, which the plaintiff
accepted. In the final year of his contract, the plaintiff made an
application for mandamus to direct the President to place the
plaintiff’s application for tenure before the Board of Governors and
for damages for wrongful dismissal. The Court held that there was
no statutory or contractual duty on the President to place any faculty
member’s name before the Board of Governors for tenure con-
sideration. The plaintiff’s claim for wrongful dismissal also failed
because “in agreeing to the final contract the plaintiff abandoned
any rights he might have had to a tenured position within the
university”. 80
D. Procedural review in Ontario
In Ontario, any procedural requirements which may be imposed
on tenure decisions by virtue of the common law rules of natural
justice may be superseded or supplemented by the Statutory Powers
78 Stpra, note 45.
79Tenure criteria were (1) academic and professional qualification,
to the academic discipline,
(2)
teaching effectiveness,
(4)
ability and willingness to work effectively with colleagues [emphasis added]
and (5) personal integrity (ibid., 286). The fourth criterion must have been
given little weight in the Faculty Tenure Committee in light of Hart J.’s
statement:
(3) contribution
I am further satisfied that he carried the dispute beyond a difference
of opinion among scholars, which is desirable in the academic world,
and converted it into a personal vendetta. I believe it was the attacks
on the personalities of his colleagues that finally lost him the support
of those who had shared the same academic views as Professor Dom-
browski at the beginning of the dispute (ibid., 282).
80Ibid., 291: cf. Ayre v. University of Manitoba (1976) 65 D.L.R. (3d) 747
(Man. C.A.) where the Court held that the right to tenure may be waived by
algreement.
McGILL LAW JOURNAL
[Vol. 26
Procedure Act.”‘ The Act prescribes minimum rules of fair pro-
cedure applicable to most tribunals created by or under an Act of
Ontario. Section 3 of this statute states that:
Subject to subsection 2, this Part applies to proceedings by a tribunal
in the exercise of a statutory power of decision conferred by or under
an Act of the Legislature, where the tribunal is required by or under such
Act or otherwise by law to hold or to afford to the parties to the pro-
ceedings an opportunity for a hearing before making a decision.
There are several issues which must be resolved in favour of the
aggrieved candidate before relief can be granted. First, is a tenure
decision an exercise of a “statutory power of decision”? The govern-
ing statutes of Ontario’s universities provide no uniform power for
the granting of tenure, but the power for doing so is invariably
vested in the Board of Governors or its equivalent. Some statutes
are specific and state that the Board of Governors has the power
to “grant tenure to a member of faculty”,82 Other statutes are more
general and provide a power to “appoint, promote, suspend and
remove the members of the teaching and administrative staffs”.8 3
The Carleton University Act8 vests supervision and direction of the
teaching staff in the President subject to the will of the Board of
Governors. But none of these statutes provide the procedures for
granting tenure or the considerations which should be taken into
account. These procedures have been created either by Senate or by
bargaining between faculty associations and – the university, and
they vary structurally from university to university.
Although the case law in Ontario has not yet determined whether
a tenure decision is an exercise of a statutory power, there have
been two cases outside Ontario which decided whether a tenure
committee is a statutory body.5 While the decisions are by no
81 S.O. 1971, c. 47.
82 E.g., The University of Waterloo Act, 1972, S.O. 1972, c. 200, s. 14(1)(b);
The Wilfrid Laurier University Act, 1973, S.O. 1973, c. 87, s. 12(b): The
University of Western Ontario Act, 1974, S.O. 1974, c. 163, s. 21(d) provides
that the Board of Governors has the power to “fix and provide … the
tenure of office” of faculty.
83 E.g., The University of Toronto Act, 1971, S.O. 1971, c. 56, s. 2(14)(b).
84S.O. 1952, c. 117, s. 20(2).
85In Vanek v. Governors of the University of Alberta, supra, note 69, 600,
“Clement S.A. stated that
The 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 the statute
relating to affairs internal to the university.
Clement JA. stressed that the Faculty Tenure Committee’s purpose was
“private to the university and applicable only to full-time faculty members”
(ibid., 606): see also Re Elliot and Governors of the University of Alberta,
supra, note 67.
1981]
COMMENTS – COMMENTAIRES
means conclusive, it would appear that two factors which may
induce a court to conclude that a tenure committee is not a statu-
tory body are (i) the lack of any mention of the tenure committee
in the governing Act and (ii) the internal nature of the subject-
matter of such a committee.
Assuming that an Ontario tenure committee were held to con-
stitute a statutory body and were not required by statute to hold
hearings, the next question would be whether such a committee were
required “otherwise by law” (i.e. at common law) to afford “an
opportunity for a hearing”.”” If “opportunity for a hearing” means
simply “an opportunity to be heard”, as required by the rules of
natural justice, then the question here is merely whether the rules
of natural justice would apply to the tenure committee in the cir-
cumstances. If so, the procedural requirements of the Statutory
Powers Procedure Act would apply. If, however, the question is
whether, in the circumstances, the rules of natural justice would
have required a frll oral hearing, then only if the rules of natural
justice would have applied and required such a hearing, would the
procedural rules of the Statutory Powers Procedure Act apply.
Finally, it should be noted that if the decision of a tenure com-
mittee were recommendatory only, it would not be subject to the
procedural rules of the Statutory Powers Procedure Act. Section
3 (2) (g) provides that:
This Part does not apply to proceedings, … of one or more persons
required to make an investigation and to make a report, with or without
recommendations, where the report is for the information or advice of
the person to whom it is made and does not in any way legally bind
or limit that person in any decision he may have the power to make.
If, for some reason, the procedural rules of the Statutory Powers
Procedure Act do not apply, it is possible that, as elsewhere, an
Ontario tenure committee might be required to comply with the
common law rules of natural justiceYm
E. Arbitral review
A preliminary difficulty which arises in arbitral review is to
determine who carries the onus of proof? Does the university have
to show that, on the balance of probabilities, its decision was
80 The purpose of this part is to determine whether the provisions of the
Statutory Powers Procedure Act apply. For a discussion of the standards
of natural justice required, see Atkey, The Statutory Powers Procedure Act,
1971 (Ontario) (1972) 10 Osgoode Hall LJ. 155 and Mullan, The Federal Court
Act: A Misguided Attempt at Administrative Law Reform? (1973) 23 U.T.L.J. 14.
87 Cf. Roper v. Executive Committee of the Medical Board of the Royal
Victoria Hospital [1975] 2 S.C.R. 62 and Re Nicholson & Haldimand-Norfolk
Regional Board of Commissioners of Police [1979] 1 S.C.R. 311.
McGILL LAW JOURNAL
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correct in the circumstances or does the tenure candidate have to
demonstrate his tenure worthiness? In Re the Association of Pro-
fessors of the University of Ottawa and The University of Ottawa
(Goreloff)88 it was argued that a decision not to grant tenure under
the collective agreement was tantamount to dismissal for just cause,
in which case the onus would be on the University to justify its
decision not to grant tenure. The Board noted the freedom and
trust which results from the granting of tenure and concluded that
the completion of the probationary period created no right not to
be dismissed.89
Another problem which has arisen, particularly with repect
to the review of peer evaluation, is what review standard is to be
used by arbitration boards? In Re the Association of Professors
of the University of Ottawa and The University of Ottawa (Valero)’
the Board adopted the position enunciated in Re U.E.W., Local 523,
And Union Carbide Canada Ltd:
first, the judgment of the company must be honest and unbiased, and not
actuated by any malice or ill will directed at the particular employee,
and second, the managerial decision must be reasonable, one which a
reasonable employer could have reached in the light of the facts available.
The underlying purpose of this interpretation is to prevent the arbitra-
tion board taking over the function of management, a position which it
is said they are manifestly incapable of filling. Yet the managerial dis-
cretion to decide has been limited by the terms of the agreement and
it is the dtity of the arbitration board to ensure that it is exercised in
the light of proper principles and criteria, that all relevant considera-
tions have been adverted to, and that all irrelevant factors have been
excluded from the process of decision. 91
Thus, the arbitration board in Valero concluded that the proper
test was whether, “[h]aving regard to the collective agreement and
to all of the evidence … the decision of the Joint Committee to
deny tenure [was] wrong in terms of the collective agreement, or
unreasonable on the merits”. 92 The application of this standard is
not easy. In Re The University of Ottawa and the Association of
Professors of the University of Ottawa (McCaughey)93
the com-
plainant had applied for tenure in 1976, but the Joint Committee
SSSupra, note 25.
89 Foll’d in Re the Association of Professors of the University of Ottawa and
The University of Ottawa (Valero), supra, note 19.
90 Ibid.
91 (1967) 18 L.A.C. 109, 118 per Weiler.
92 Supra, note 19, 558. The standard may now be correctness rather than
unreasonableness: see Re Philips Cables Ltd and International Union of
Electrical, Radio & Machine Workers, Local 525 (1977) 16 L.A.C. (2d) 345 per
Adams.
93 (1978) A.A.S. 562 per Kruger.
19811
COMMENTS – COMMENTAIRES
refused to grant or deny tenure and offered a one-year contract at
the end of which his tenure application would be reconsidered.
As required in the collective agreement, the Joint Committee had to
state exactly what conditions had to be fulfilled. These were to
obtain a doctorate or its equivalent, and to have his work evaluated
so as to demonstrate his competence in research.14 In 1977, Pro-
fessor McCaughey again applied for tenure an& his research was
evaluated by three external appraisers. The Teaching Personnel
Committee did not recommend Professor McCaughey for tenure
because it felt that his work did not contribute in a significant
manner to the advancement of a science, an art or a profession as
required by the collective agreement. The Joint Committee agreed
with the Teaching Personnel Committee and refused Professor
McCaughey tenure.
Professor McCaughey filed a grievance and the matter went to
arbitration. There were no restrictions on arbitral jurisdiction nor
limitations on remedies. The arbitration board made the following
comments concerning the review of peer judgments:
We must begin with the assumption that a group of peers like those
on the Teaching Personnel Committee are competent and honourable
scholars attempting to reach their conclusions based on the evidence and
consistent with the guidelines of the collective agreement. A board of
arbitration should be most reluctant to substitute its judgment for that
of such a peer body. It should intervene only where either the procedures
were faulty or the decisions cannot be supported on the basis of the
available evidence assessed in the light of the relevant clauses of the
agreement. The assumption that the peers will carry out their assigned
tasks properly is subject to challenge and if successfully challenged, then
a board of arbitration must intervene.
Even in those instances where such deficiencies are disclosed, an outside
arbitration board -normally should consider reference back to the peer
group rather than assume to itself the peer group’s role. Only where
the’board is convinced that justice will not be served by that process
should it take unto itself the function normally better undertaken by
internal bodies closer to the situation and, therefore, generally more
94 Art. 33.9(b) states that the Joint Committee can make a recommendation
“in favour of delaying or refusing tenure and offering a final limited-term
contract at the end of which tenure will be granted or employment ter-
minated. In such a case, the Committee must specify the reason(s) for this,
decision and, if necessary, exactly what condition(s) the professor per-
sonally must fulfill in order to comply with the requirements of 10(b) below
when the Teaching Personnel Committee will examine his file for the second
time relative to the granting or the refusal of tenure”. Art. 33.10(b)(2) states,
“holds a Doctorate, it being understood that the University will consider as an
equivalent in this regard any work judged by his peers as having contributed
in a significant manner to the advancement of a science, of an art or of a
profession.”
McGILL LAW JOURNAL
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suited to making the required judgments. Where a board of arbitration
does not refer back but makes the substantive judgment itself, it is
carrying out the functions normally conducted by bodies like the Joint
Committee rather than those of the Teach~ng Personnel Committee. 5
The arbitration board found that the Teaching Personnel Com-
mittee in 1977 was deficient in its procedures, because it virtually
ignored the Joint Committee’s statement of 1976,90 and that its
interpretation of the collective agreement did not stand up under
scrutiny and was questionable on the evidence. The Board concluded
that Professor McCaughey had produced publishable work that was
favourably assessed by outside reviewers and had no option but to
grant him tenure.
The remedial powers of an arbitration board stem either ex-
plicitly or implicitly from the agreement itself,07 and thus any
departure from those expressly stated in the agreement may be
quashed on appeal.to the court on the ground that the arbitration
board exceeded its jurisdiction. In Re Saint Mary’s University and
MacFarlane,98 the Nova Scotia Supreme Court quashed an award
which gave the grievor a two-year deferral and ordered that the
matter be remitted for reconsideration by the appropriate tenure
committees. In this case the complainant alleged that procedures
in the collective agreement had not been properly followed and that
bias had rendered the procedures defective. The chairman of the
departmental Tenure Committee had influenced its members and
made improper approaches to members of the University Review
Committee concerning the grievor’s application for tenure. 9 Pro-
fessor MacFarlane’s dean recommended him for tenure but the
95 Supra, note 93, 608.
96 The Arbitration Board commented that candidates who came under Art.
33.9(b) are entitled to know what must be done in order to correct previous
deficiencies and to expect that if the conditions prescribed by the Joint
Committee are met, they will be granted tenure.
97 See Association of Radio & Television Employees of Canada v. Canadian
Broadcasting Corp. [1975] 1 S.C.R. 118.
98 Supra, note 41.
99 With respect to the allegation of undue influence the arbitration board
stated, “[i]f the Department is entitled to be involved, then one is faced
with the luck of the draw at the time of his hearing and, while allegations
of undue influence or impropriety may always be made, the procedure itself
enables all members of the Department to participate and presumes acade-
mic integrity, and any Board must be cautioned against findings of im-
propriety or undue influence on such a basis in the absence of substantial
evidence which would support such an allegation” (supra, note 41, 8). The
arbitration board further noted that even though a high degree of subjectivity
was built into the Committee process, the decisions had to be arrived at
fairly.
1981]
COMMENTS – COMMENTAIRES
University Review Committee unanimously voted against tenure on
the ground that Professor MacFarlane’s contributions to the discip-
line through research and publication were deficient. The arbitra-
tion board found actual bias at the departmental hearing because
the decisions
were made on erroneous information, incomplete information and re-
mote and unreliable hearsay, all of which appears to have been or-
chestrated by the Chairman of the Committee out of motives of open
hostility. 00
Consequently, the departmental report which was available
to
members of the University Review Committee lacked the degree
of fundamental fairness which any tribunal of such a nature would
be expected to possess. 11 The recommendation of denial of tenure
was set aside because of bias in the process. However, the arbitra-
tion board did not feel that under the circumstances it was fair to
remit the grievor’s application for tenure because time was “neces-
sary to level the situation” and instead granted a two-year deferral.
The University successfully appealed this deferral. 2 Hallett J.
found that the effect of the Board’s decision was to impose on the
University a two-year deferral of Professor MacFarlane’s tenure
hearing. The collective agreement provided that a decision on tenure
was for the President to make and that any fettering of this right
would compel the University to do something it was not by con-
tract obliged to do. By imposing the two-year deferral on the Uni-
versity, the arbitration board had in effect altered the agreement
and accordingly, the Court quashed the two-year deferral and
ordered that the matter be remitted for reconsideration.
V. Conclusions
It would be folly to speculate at this time whether tenure pro-
visions in association or collective agreements have been more
beneficial to faculty or to university administrations, because tenure
is only one of many aspects which regulate the faculty-administra-
tion relationship. However, several observations may be made from
the limited experience Canadian universities have had with tenure
100 Ibid., 21.
101 Counsel for the University at the arbitration hearing argued that bias
at the departmental level was removed from the University Review Committee
because tenure was rejected on grounds of deficient research and publica-
tion. Nevertheless, the arbitration board concluded that the approach of
the Chairman of the Departmental Tenure Committee to members of the
University Review Committee tainted the whole process.
1O Supra, note 41. The University did not contest the arbitration board’s
findings that the hearings were unfair.
McGILL LAW JOURNAL
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review. First, the language in the agreements should be as specific
as possible. General terms can prove to be obstacles to challenged
institutional decisions. The McWhirter’0 3 decision has placed the
onus on the parties to define proper procedures. On the whole,
the agreements do not effectively inform tenure candidates and
Tenure Committees of the standard of research and teaching re-
quired for tenure. Second, if an arbitration board is not to have
unrestricted power to prescribe an appropriate remedy, then the
agreement should clearly specify the remedies. In the MacFarlane
case the arbitration board noted that it could not order tenure and
decided to grant a deferral because in its opinion it would have been
unfair, in the circumstances, for the Tenure Committee to reconsider
the application until a later time. Finally, tenure procedures, particu-
larly appeals, should be simplified.
R. Lynn Campbell*
1 03 Supra, note 30.
* Professor of Law, Carleton University. Unless otherwise noted, agree-
ments cited in this comment are those in force as of 1 September 1980.
