Canada: Law Professor's Human Rights Complaint Against University Of British Columbia Dismissed

More than a year after the merits of Ms. McCue's complaint were heard, the B.C. Human Rights Tribunal (the "Tribunal") has dismissed this case in its entirety. The 300+ page decision contains important discussion about various topics including the Tribunal's jurisdiction, prima facie discrimination, workplace accommodation, cultural obligations, complainant obligations, and the duty to inquire.

The McCue case is particularly important to post-secondary institutions across Canada. Ms. McCue argued that the notion of "peer review", as understood by the University of British Columbia and universities worldwide, had no application to her as an Indigenous female scholar. Ms. McCue argued that her scholarly work, which she said was oral in nature and which included her service to her indigenous community, should "count" for tenure as it was "peer-reviewed" by indigenous members of her community. The Tribunal found that Indigenous faculty who choose to disseminate their work orally must provide it in a way that is capable of assessment by conventional peer review in the tenure process.

Michael Wagner and Julie Menten represented the University of British Columbia in this matter.

Procedural History

In 2012, Lorna McCue filed a human rights complaint against the University of British Columbia ("UBC"), alleging that UBC's decision not to grant her promotion or tenure in the Faculty of Law ("Tenure"), or award her merit and performance-based remuneration ("Merit Pay"), was based on her family status, marital status, race, colour, ancestry, place of origin and sex (the "Complaint").

The Complaint has a long procedural history. UBC initially filed an application to dismiss portions of the Complaint on the basis of timeliness in 2012, and then applied to dismiss the Complaint without a hearing in 2013. The Complaint was not entirely dismissed but its scope was narrowed to allegations of individual (not systemic) discrimination on the basis of race, colour, ancestry, place of origin and sex. It was also confirmed that the Complaint did not challenge the tenure and promotion standard as set out in the Collective Agreement (the "Standard"). Rather, the Complaint only challenged the application of the Standard.

The hearing on the merits began on June 15, 2015. After the Complainant had closed her case, UBC applied to have the Complaint dismissed on the basis that Ms. McCue had not provided sufficient evidence to prove the elements of prima facie discrimination. The Tribunal dismissed UBC's no-evidence application and the hearing resumed on November 15, 2016. It concluded on January 17, 2017.

The Tribunal dismissed the Complaint in its entirety on February 22, 2018, in a 329 page decision: McCue v. The University of British Columbia (No. 4), 2018 BCHRT 45.

Background

Ms. McCue, an Indigenous woman, was a "tenure-track" Assistant Professor of the Faculty of Law in 2000. The terms and conditions of UBC's Faculty appointments and promotions are set out in a collective agreement negotiated between UBC and the Faculty Association (the "Collective Agreement"). Ms. McCue filed the Complaint after her application for Tenure was denied and, as mandated by the Collective Agreement, her employment with UBC came to an end.

All of the witnesses in this case were academics with impressive credentials and publications. Ms. McCue called three witnesses, two as experts, who gave evidence relating to the experience of Indigenous faculty at universities across Canada, and the field of Indigenous knowledge, including oral tradition and community-based research. UBC's witnesses included the former President of UBC, Professor Stephen Toope, the former Dean of the Faculty of Law, Professor Mary Anne Bobinski, as well as several former members of the Faculty of Law.

At issue in this case was UBC's application of the Tenure Standard. The Tribunal adopted Professor Toope's evidence that granting tenure to a professor is significant as tenure is meant to be a fundamental protection for academic independence and autonomy, and therefore is very difficult to reverse. Professor Toope testified that granting tenure was one of the most important sets of decisions he would make as President because "universities are judged ultimately on their reputation and reputation is dictated largely by the reputation of faculty members ... [which has] a profound implication for the entire university ... [as] there is a limited number of tenure-track appointments ... and they represent an expenditure of potentially of hundreds of thousands if not more than a million dollars over the lifetime of a professor."

Ms. McCue had applied for Tenure within the timeframe mandated in the Collective Agreement after receiving the maximum permitted extensions to her "tenure clock." Candidates for Tenure are required to prepare a Curriculum Vitae ("CV") and record of their published work (the "Dossier") to send out to external referees. The candidate's "shepherds" in the Tenure process prepare an application package, which includes the Dossier, the external references and a shepherd's report (collectively the "Application"), which they submit to the Faculty's tenure committee (the "Committee"). The Committee judges the candidate's Application against the Standard, which requires an assessment of the candidate's scholarship, teaching and service to the community. Pursuant to the Collective Agreement, exceptional service cannot compensate for deficiencies in teaching or scholarship.

During each of her annual reviews, Ms. McCue was told that she was at risk of being denied Tenure primarily due to serious deficiencies in her scholarship. Ms. McCue had been told repeatedly that by the time she applied for Tenure, she should have published approximately 5 -6 original, peer-reviewed works (or equivalent) that demonstrated significant impact (the "Peer Review Standard"). Ms. McCue consistently responded to these concerns by stating that she was in the process of publishing and meeting the Peer Review Standard. To assist Ms. McCue in doing so, UBC provided her substantial supports, including removing Ms. McCue's administrative tasks, providing her with internal mentors, linking her with an external Indigenous mentor, and significantly reducing her teaching load over more than one term.

Despite this assistance, when Ms. McCue applied for Tenure in 2011, not one of her published works met the Peer Review Standard. Her Dossier included a CV of 10 pages and 82 pages of work, none of it published in peer-reviewed journals or equivalent, and much of which was not solely her own work. The Dean concluded that only 44 pages of her Dossier could be assessed. After reviewing the Application, the Committee advised Ms. McCue (through the Dean) of its grave concerns about her Application for Tenure, particularly due to the significant deficiencies in her scholarship.

Ms. McCue responded to the Committee's concerns by bringing up, for the first time, her belief that as an Indigenous female scholar her work should be judged differently and that she should not be required to publish "Western" peer-reviewed work. She said that her oral work, including conferences in which she was a speaker, should count as peer review. She also asserted that her service to the community, of which there was no record, should count as scholarship. She asked for the opportunity to restart her Tenure Application so that she could revise her Dossier and send it back to the external reviewers to be reviewed on an "agreed-upon culturally appropriate metric." UBC denied these requests.

As Ms. McCue continued through the Tenure process, UBC provided Ms. McCue with the opportunity to revise her CV and include all other work she believed should be reviewed. Ms. McCue's CV and Dossier grew, but she did not include any work that met the Peer Review Standard, or provide any substantive description of her oral work.

After reviewing Ms. McCue's revised Dossier, the Dean joined the Committee in recommending against Tenure. Ms. McCue was then provided with a further opportunity to add additional information to her Dossier for review by the President, which she did. In reviewing Ms. McCue's Application, and accepting her request to be viewed as a non-traditional Indigenous female scholar, President Toope concluded that her Dossier did not provide him with any record of her oral work such that he could evaluate it. In reviewing what he had before him, he concluded that even on the broadest interpretation of the Standard, Ms. McCue had not demonstrated the significance of contribution or the dissemination of results expected for Tenure. He denied her Application for Tenure.

Arguments in the Hearing

In the hearing, Ms. McCue argued that UBC's approach to her application for Tenure and Merit Pay were based on "preconceived, mischaracterized, and unilateral ideas" concerning her personal characteristics as an Indigenous female scholar, and that "her choices that flow" from her protected characteristics, such as her choice to prioritize oral work over peer review, should be protected. She argued that it would be at great personal cost to her, and akin to assimilation, should she be required to meet the Standard using written language. She alleged that the metrics UBC used to evaluate her work were culturally inappropriate and argued that UBC should have interpreted the Collective Agreement more broadly when it assessed her scholarship and service. She also argued that her oral dissemination of Indigenous knowledge should count as publication, and alleged that UBC did not properly characterize her oral work and service as scholarly activity.

Additionally, Ms. McCue alleged that UBC had a duty to inquire into her cultural traits and the choices that flowed from them to explore why she was not meeting UBC's Standard. She claimed that by not undertaking this inquiry UBC failed in its duty to accommodate her. In her closing argument, Ms. McCue asserted for the first time that UBC should have accommodated her "cultural obligations", which she argued were akin to family status obligations.

In response, UBC argued that it had treated Ms. McCue generously throughout her employment. To the extent that Indigeneity was a factor in UBC's treatment of Ms. McCue, it resulted in more favourable treatment rather than in any adverse impact. UBC could not be faulted for not treating Ms. McCue as a "non-traditional scholar" when Ms. McCue had never informed UBC that her Indigeneity was a barrier to her meeting the Standard. UBC argued that the evidence before the Tribunal overwhelmingly showed that UBC had evaluated all of the work she submitted on an individualized basis and using the broadest interpretation of the Standard it could without abandoning the Standard entirely. Ultimately, UBC could not assess her oral work because it was not recorded in any way. The work UBC could assess did not meet the high standard of quality and significance required for Tenure.

In answer to Ms. McCue's claim that her oral work should be assessed by her Indigenous community as an equivalent "peer review" process, UBC said that such statements of community support lack the objectivity, independence and academic rigor of a peer review process and rarely provide meaningful evidence of scholarly impact. Therefore, it was not an appropriate assessment tool for Tenure.

In regard to the duty to inquire and UBC's alleged interference in Ms. McCue's cultural obligations, UBC argued that the duty to inquire, which is appropriate in disability cases does not apply to cases of alleged racial discrimination. Cultural obligations are not a prohibited ground of discrimination and there was no evidence that UBC had interfered in Ms. McCue's dissemination of Indigenous knowledge. UBC opposed the analogy between cultural obligations and family status, particularly as Ms. McCue had not raised any evidence of a statutory or fiduciary duty requiring her to perform cultural obligations.

The Tribunal's Analysis

It is significant that the Tribunal confirmed that it had no jurisdiction to engage in an appeal of UBC's Tenure process or to override UBC's academic decisions. Its only task was to review the Tenure process to determine whether it resulted in discrimination against Ms. McCue contrary to the provisions of the Human Rights Code.

In determining whether Ms. McCue had established a nexus between her protected grounds and the denial of Tenure and Merit Pay, the Tribunal accepted that Ms. McCue's resistance to traditional peer-reviewed publication and her need to research and disseminate through oral presentation was "deeply rooted in her Indigeneity." As such, these values could be captured under the grounds of race, colour, ancestry and place of origin. However, the Tribunal also found that Ms. McCue's expert witnesses, who were also Indigenous, had published extensively and made it clear that Indigenous culture, oral tradition, and the requirement to publish are not mutually exclusive.

In answer to Ms. McCue's allegation that UBC did not accommodate her request to restart her tenure clock or meet its duty to inquire, the Tribunal accepted that had Ms. McCue approached UBC in a timely way to request a novel approach to creating a record of her oral work for the purpose of Tenure, "UBC would have been obliged to work with Ms. McCue to identify such an approach." The Tribunal found as fact that for years Ms. McCue had led UBC to believe that she did not require accommodation as she did not "articulate any objection" to the Peer Review Standard. Instead, she repeatedly told the Dean and others that she was complying with it. The Tribunal held that neither Ms. McCue's lack of publications, nor her late request to have her oral work treated as publications, gave rise to a duty on UBC to inquire into Ms. McCue's cultural traits.

The Tribunal observed that the Tenure process required a record of material capable of review for the purpose of assessing a candidate against the Standard. The Tribunal rejected many of Ms. McCue's allegations that UBC had failed her, finding that any failures were her own responsibility. The Tribunal rejected Ms. McCue's assertion that her Dossier, and particularly her oral work, was capable of being assessed. It accepted Professor Toope's evidence that while evidence of scholarly activity does not need to be published in the traditional sense, it must be capable of evaluation by people knowledgeable in the field.

In answer to the argument that UBC had interfered with Ms. McCue's cultural obligations, the Tribunal concluded that Ms. McCue had not provided sufficient evidence to establish that claim. While the Tribunal had earlier found that Ms. McCue's race, colour, ancestry and place of origin were a factor in her decision to disseminate knowledge orally, it concluded that UBC's decision not to grant Tenure was not based on those considerations, but on the lack of information in her Dossier. That deficiency did not arise from any failure by UBC, or Ms. McCue's choice to publish orally, but from Ms. McCue's "lack of interest, for whatever reason, in the process to achieve promotion and tenure."

The Tribunal accepted as fact that the publications capable of evaluation were not sufficient in quantity or quality to meet the Standard, and therefore UBC's denial of Ms. McCue's application for Tenure and Merit Pay was not connected to any protected grounds. Ms. McCue "failed to establish a nexus between her Indigeneity or gender and the rejection of her candidacy" and UBC's denial of Merit Pay. Ms. McCue failed to establish a prima facie case of discrimination, and her Complaint was dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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