A group of former and current professors at the DeGroote School of Business at McMaster University are asking an Ontario court to throw out the decision of a university tribunal into a long-running dispute among faculty members at the school in a case that will be a test of whether university disciplinary procedures must follow the same rules as courts of law.
In 2013, a university tribunal found that some of the academics in the group had interfered with decisions on promotion and tenure of colleagues during a battle between critics and supporters of former DeGroote dean Paul Bates. Three of the professors in the case were suspended for three years and effectively forced to retire. Two received shorter suspensions, but their careers have been damaged. A sixth was reprimanded.
The application for judicial review comes as universities are introducing and revising policies to address discipline cases. At stake in the court ruling is whether university-run quasi-judicial hearings can withstand legal scrutiny.
“The process is an embarrassment in a democratic society. That’s an issue as universities are setting up more administrative tribunals to deal with issues from harassment to discrimination,” said James Turk, the former executive director of the Canadian Association of University Teachers (CAUT), the group that is paying for the application.
In a statement, McMaster said it “strenuously opposes” the application.
“The process that was followed was fair and balanced and we will staunchly defend it as the court considers the application,” the statement said.
The case is connected to that of Robert Buckingham, the former dean of the school of public health at the University of Saskatchewan, who was fired last year after going public with criticisms of the university’s budget plans. At the time, Ilene Busch-Vishniac was president of the Saskatchewan school, a job she had come to after serving as provost at McMaster during the years of the DeGroote controversy.
“A centrepiece of academic freedom is the right to comment on any aspect of decisions within the university. When that is not only denied, but severely punished, it raises grave concerns,” Dr. Turk said.
The DeGroote saga stretches back to the appointment of Paul Bates as dean in 2004, after enrolment at the school had declined by half in the previous five years. Opposition to Mr. Bates was intense among some members of the faculty, who believed his success on Bay Street – he had run discount brokerages Charles Schwab and Marathon Brokerage – could not make up for his lack of a university degree.
The critics also opposed a plan by McMaster to expand the business school to a Burlington campus, as well as an increase in the number of faculty on contracts rather than in tenure-track positions. The Burlington expansion was funded partly by a $10-million donation from Tim Hortons co-founder Ron Joyce and a $3-million land donation from Michael H. DeGroote, the son of Michael G. DeGroote, for whom the school is named.
Critics and supporters of Mr. Bates hardened into two camps. In the fall of 2007, the battle between the administration and some of the professors who criticized Mr. Bates led to disciplinary letters being placed in the files of five academics by Dr. Busch-Vishniac.
By 2010, two reports had found major, ongoing problems. One said the environment at the school was characterized by “bullying [and] … intimidation.” The other said some professors had to take anti-anxiety medication to come to work, and the debate had grown so “fractious and divisive” that it threatened the opening of the Burlington campus.
The second report recommended that Mr. Bates resign, and he did so in the winter of 2010.
Relations among professors improved, but the university’s human rights office recommended that further measures were needed. Eventually, both sides of the debate filed complaints to the tribunal that was struck to consider the case.
The application for judicial review reveals that many of Mr. Bates’s critics were extremely reluctant to proceed with complaints after the dean resigned. They were encouraged to do so by McMaster’s human rights and equity officer, who was also speaking to the former dean’s supporters about making complaints – without telling either group he was talking to the other.
Nevertheless, professors who alleged that the university had punished them for publicly criticizing Mr. Bates, partly through the disciplinary letters, filed one complaint. The second was from the dean’s supporters: They said members of the first group had retaliated for their differences of opinion by interfering in decisions about their careers and tenure. The second group’s version eventually prevailed.
Fifteen months after hearings ended, the tribunal recommended the suspension of five of the seven professors who have launched the current court challenge. (The seventh professor is included in the suit, as he was part of the original complaint, although he was not disciplined).
In its decision, the tribunal argued that the dean’s critics engaged in conduct that constituted “intimidation and reprisal” and had no relationship with speech protected by academic freedom. They were “seemingly unconcerned about whether allegations [against Mr. Bates] were real, embellished, or even false.”
Even if that were true, the judicial review application states, the suspensions were “punitive … disproportionate and disastrous.” Moreover, it says, they were “procedurally unfair.” It argues that suspension was requested by the university, whose role at the tribunal should have been restricted to defending itself against allegations it allowed a toxic environment to fester.
“The extent of the punishment of the professors, at least to our expert, seems to be almost 10 times more than what they should have received,” the professors’ lawyer, Peter Jacobsen said, referring to the supporting opinion of Donald Carter, former chair of the Ontario Labour Relations Board and former dean of Queen’s University’s School of Law. (Mr. Jacobsen is also legal counsel to The Globe and Mail.)
“In virtually every other workplace, there is a duty of loyalty,” Dr. Turk said. “The tradition of universities is collegial governance where academic staff take the lead in making academic decisions. But academic staff can’t do that if they are muzzled about what is going on in their own institutions.”
The university will file a response in the coming months.