In two very significant cases in the past year, arbitrators have found that management at Brock University had a duty to act reasonably and fairly in dealing with members who were exercising their academic freedom rights, and that management at Brock did not act reasonably and fairly.
The facts underlying both cases are interrelated, and some of the same people played significant roles in both cases. Key events in the background to these cases include:
- A campaign by faculty members including Professor Ana Isla and Professor Cathy van Ingen and others on campus to have the University sever its ties with a program called Solidarity Experiences Abroad (“SEA”), a program in which the office of the Roman Catholic Chaplaincy on campus played a role
- An investigation of SEA by the University
- Complaints by those in the office of the Roman Catholic Chaplaincy on campus of harassment and discrimination by those involved in the campaign to oppose SEA, complaints made both to the Office of Human Rights and Equity Services (“OHRES”) on campus and to the Human Rights Tribunal of Ontario
References to the pages in the arbitration awards where the details of the factual background are described can be found below.
In both cases members had exercised their academic freedom rights to criticize the University’s involvement with SEA, and that exercise of academic freedom rights had attracted complaints by others.
In both the current 2014-17 and the previous 2011-14 collective agreements, Brock University retained its rights under the Brock University Act to manage the University except to the extent modified by the collective agreement, and agreed to exercise its management rights fairly and reasonably.
BUFA filed two grievances on behalf of its members and both matters were referred to arbitration. Because both cases raised issues of national importance for faculty associations across Canada, namely, academic freedom and freedom of expression, BUFA was assisted and represented by legal counsel provided by CAUT.
In the first case, the University had denied Professor Ana Isla’s request for legal representation in dealing with the complaint filed against her with the Human Rights Tribunal of Ontario. Professor Ana Isla complained about this, BUFA filed a grievance that the University had thereby violated the collective agreement, and the grievance was referred to arbitration. On May 6, 2014, after five days of hearing, Arbitrator Knopf issued her arbitration award which is reported at Brock University v Brock University Faculty Association, 2014 CanLII 24449 (ON LA). The Arbitrator found (pp. 42-43) that the University had “…no contractual obligation to provide liability insurance to cover allegations of Human Rights violations.” Nevertheless, the University still had an obligation to exercise its management rights reasonably and fairly. The Arbitrator allowed the grievance in part and stated (p. 42) that:
“the University failed to reasonably and fairly exercise its discretion in deciding not to provide legal assistance to the Grievor in support of her defence at the Human Rights Tribunal.”
In the second case, the Office of Human Rights and Equity Services at the University received several complaints against Professor Ana Isla, Professor Cathy van Ingen and others and ultimately dismissed all of them. However, there were many procedural irregularities in the way the OHRES handled these complaints and it took a considerable amount of time for the OHRES to ultimately dismiss the last of them. Professor Ana Isla and Professor Cathy van Ingen complained about this, BUFA filed a grievance about this, and the grievance was referred to arbitration. On April 8, 2015, after five days of hearing, Arbitrator Swan issued his arbitration award which has not yet been reported. At arbitration, BUFA had attacked much about the way in which the complaints against these members had been handled by the University, and argued that the University had been both unreasonable and unfair. The Arbitrator did not accept all of BUFA’s arguments. In particular, the Arbitrator found that the University had been reasonable but had not been fair. In considering whether or not the University had been reasonable, the Arbitrator stated (p. 34) that “The disregard of the academic freedom issue… troubles me,” but that he could not “find that the decision itself (“to let the complaint as ultimately drafted go on to the investigation stage”) was unreasonable.” However, the Arbitrator also found (p. 35) that:
“there is enough substance in the grievances to justify issuing a declaration that there was a breach of the collective agreement in the exercise of management rights by the OHRES in its handling of this matter… in that there was procedural unfairness…”
The circumstances that gave rise to these grievances that were not significantly in dispute were summarized well in both awards cited above, namely, in the Knopf award (pp. 3-6) and in the Swan award (pp. 2-17). In particular, the summary in the Swan award (pp. 7-11) of the facts, arguments, findings, and the decision of the Ontario Human Rights Tribunal reported at McKenzie v. Isla, 2012 HRTO 1908 (CanLII), in the matter of a complaint filed against Professor Ana Isla by Br. McKenzie, makes compelling and informative reading. The Adjudicator dealt with competing rights, namely, the right to be free from harassment, discrimination, bullying and disrespect, the right to academic freedom, and the right to freedom of expression, and dismissed the application against Professor Ana Isla.
Of course, BUFA is committed to and strongly supports the statutory right of members to work free from harassment and discrimination; however, BUFA also acknowledges the rights of members to academic freedom and freedom of expression, and the importance of properly balancing these important rights within the university. In this regard, it is helpful to set out paragraph 35 (p. 12) from the HRTO award cited earlier:
“With respect to academic freedom, it is well-established that courts and tribunals should be restrained in intervening in the affairs of a university in any circumstance where what is at issue is expression and communication made in the context of an exploration of ideas, no matter how controversial or provocative those ideas may be… However, the principle of academic freedom does not override an organization or person’s obligations under the Code. In other words, academic freedom is not a license to discriminate against another person because of his or her religious beliefs… That said, in my view, given the importance of academic freedom and freedom of expression in a university setting, it will be rare for this Tribunal to intervene where there are allegations of discrimination in relation to what another person has said during a public debate on social, political, and/or religious issues in a university.”
BUFA acknowledges the courage and commitment of Professors Ana Isla, Cathy van Ingen, and others in these two cases in the legitimate exercise of their rights to academic freedom and freedom of expression, and in their defence of their legitimate exercise of those rights when others used against them, in attempts to silence them, policies of respectful workplaces, codes that enshrine rights to be free of harassment, discrimination and bullying, and the offices and organizations that administer those policies and codes. BUFA also acknowledges the support of CAUT and, in particular, of its General Legal Counsel Paula Turtle in defending the rights of academic freedom and freedom of expression of BUFA members and faculty members across Canada.
In the future, BUFA fully expects that the University will exercise its management rights fairly and reasonably in support of members who are exercising their rights to academic freedom and freedom of expression, without the need to resort to the grievance and arbitration process to enforce those rights.
