DIVISIONAL COURT FILE NO.: 210/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. SACHS, HACKLAND and THORBURN JJ.
BETWEEN:
DR. CHRIS BART, DR. DEVASHISH PUJARI, DR. WILLIAM RICHARDSON, DR. JOE ROSE, Dr. SOURAV RAY, DR. GEORGE STEINER AND DR. WAYNE TAYLOR
Applicants
– and –
MCMASTER UNIVERSITY, THE BOARD SENATE HEARING PANEL FOR SEXUAL HARASSMENT/ANTI-DISCRIMINATION UNDER THE MCMASTER UNIVERSITY ANTI-DISCRIMINATION POLICY, THE SENIOR ADMINISTRATOR AT MCMASTER UNIVERSITY, AND CERTAIN UNNAMED INDIVIDUALS AT MCMASTER UNIVERSITY
Respondents
Tae Mee Park and Elliot P. Saccucci, for the Applicants
Mark J. Zega, for the Respondent, the Board Senate Hearing Panel for Sexual Harassment/Anti-Discrimination under the McMaster University Anti-Discrimination Policy
George Avraam, for the Respondents, McMaster University, the Senior Administrator at McMaster University and Certain Unnamed Individuals at McMaster University
HEARD: April 25-28, 2016 (Toronto)
reasons for decision
The court:
OVERVIEW
1The Applicants are current or former tenured professors at the DeGroote School of Business at McMaster University (“the business school” or “DSB”).
2At the time of the events that gave rise to this proceeding, the Applicants had been employed by the University for the following periods: Dr. Rose, since 1979; Drs. Bart and Steiner, each since 1981; Dr. Taylor, since 1986; Dr. Richardson, from 1974 to 1988 and from 2004 to 2006; Dr. Pujari since 2001; and Dr. Ray, as a tenured professor, since 2009. None of them had any previous record of misconduct.
3Beginning in approximately 2006, a dispute arose amongst many of the faculty members at the business school. The dispute involved the management of the business school by Dean Paul Bates and his reappointment as Dean, the creation of a second campus for the business school in Burlington, Ontario, and the decision to hire teaching faculty on short-term contracts instead of hiring additional tenure-track research professors.
4Allegations of harassment and creating a poisoned work environment were made by and against the Applicants. Two “group complaints” were filed under the McMaster University Anti-Discrimination Policy (“the Policy”): a complaint of harassment originally filed by six of the Applicants (excluding Dr. Ray) against Mr. Bates and the University (“the 002 Complaint”); and a complaint of harassment filed by various business school professors and staff against six of the Applicants (excluding Dr. Richardson) and the University (“the 003 Complaint”).
5The two complaints were consolidated into one hearing before an adjudicative panel made up of the Applicants’ peers (“the Tribunal”). The Panel determined that under the terms of the Policy, the six Applicants against whom the 003 Complaint was filed were involved in harassment in the workplace and contributed to a poisoned workplace within the business school. The Tribunal also found that three of the Applicants, Drs. Steiner, Taylor, and Ray, had attempted to improperly influence witnesses and engaged in reprisals. The Tribunal therefore ordered the following sanctions:
(a) Drs. Bart, Steiner, and Taylor each received a three-year suspension without pay, benefits, privileges, or access to the University premises;
(b) Dr. Pujari received a one-year suspension without pay, benefits, privileges, or access to the University premises;
(c) Dr. Ray received a one-academic-term suspension without pay, benefits, privileges, or access to the University premises;
(d) Dr. Rose received a formal reprimand to be maintained on his record for five years; and,
(e) all six of these Applicants were stripped of positions of academic authority for a period.
6Drs. Pujari and Ray have since returned to the University after serving out their respective suspensions. Drs. Pujari, Ray, and Rose have all undergone mandatory sensitivity, harassment, and conflict-resolution training.
7The Tribunal also found that the University contributed to the unacceptable work environment.
8The Applicants claim the Tribunal process was seriously flawed, resulting in breaches of the rules of procedural fairness and natural justice in the following respects:
(a) The Applicants were not given the opportunity to pursue informal resolution of their complaints before the hearing process began, contrary to s. 44 of the Policy.
(b) Fifteen individual harassment complaints were grouped into two groups of complaints, contrary to ss. 33–36 of the Policy and without giving the Applicants the opportunity to see the investigative report that included complaints about the Applicants and led to the complaint against them. The Tribunal found this grouping was ineffective and created “barriers to resolution.”
(c) The Tribunal imposed a strict schedule that did not give the Applicants time to prepare such that they were denied the right to make full answer and defence.
(d) The Tribunal did not have jurisdiction to consolidate the two group complaints into one.
(e) The complaint against Dr. Steiner was allowed to proceed to a hearing although the time for hearing the complaint had expired.
(f) At the hearing, the Respondents led some evidence without giving the Applicants proper notice of witness testimony and over the objections of the Applicants’ counsel.
(g) One of the Tribunal members was absent from the hearing twice and missed testimony from witnesses.
(h) The University was permitted to make submissions on penalty.
(i) The Tribunal member who was absent from the hearing and missed testimony was promoted by the University to a senior administrative position just weeks after the conclusion of the hearing and before receiving remedy submissions and the release of the two Tribunal decisions in which he participated. This gives rise to a reasonable apprehension of bias.
(j) Dr. Ray was never invited to make submissions to respond to the allegation that his counter-complaint against one of the 003 complainants was frivolous, vexatious, and/or retaliatory.
(k) The Tribunal maintained deficient audio recording of the proceedings.
(l) The penalties imposed are disproportionate to the actions for which the Applicants were sanctioned.
9The Tribunal took nearly a year from the last day of the hearing to release its decision on liability (the “Liability Decision,” released May 15, 2013), and longer to release its decision on remedies (the “Remedies Decision,” released September 23, 2013). The Applicants claim that they continued to work within the business school without incident during the intervening time.
10The Applicants claim this ought to have been taken into account in determining an appropriate penalty.
11The Applicants, therefore, seek an order for judicial review to quash the decision of McMaster University’s Board Senate Hearing Panel for Sexual Harassment/Anti-Discrimination, and the sanctions it imposed. They claim the sanctions imposed were punitive rather than remedial and had the effect of terminating the careers of three of the Applicants and seriously prejudicing the careers of all of the sanctioned Applicants.
12The Respondents, McMaster University, its senior administration and certain unnamed individuals, claim there were no breaches of procedural fairness as:
(a) The Applicants were never prevented from resolving the complaints informally before the hearing and the hearing proceeded on consent of the parties.
(b) The parties consented to consolidation of the proceedings into two group complaints.
(c) The parties expressly agreed to proceed with the hearing knowing it was proceeding as one global hearing.
(d) No objection was made to the 21-day hearing schedule provided for in advance of the hearing nor did the Applicants indicate during the hearing that they were unable to present their case. Moreover, the Tribunal granted the Applicants additional dates when requested, and the Applicants themselves cancelled four originally scheduled hearing dates. Although the Tribunal did say at one point that there would be no further adjournments, the Applicants simply needed to show cause for a request, which they never did. The Respondents, therefore, submit that the Applicants were able to make full answer and defence.
(e) The proceedings against Dr. Steiner were not time-barred as all of the complaints against him were made within 12 months of the events that gave rise to them, as part of the preliminary investigation that led to the hearing.
(f) The Tribunal had the right to control the process and the Applicants could have asked for more time if they needed it to respond to new evidence adduced.
(g) The Applicants agreed to allow one of the Tribunal members to absent himself from the proceeding on two occasions and there was no prejudice arising from this.
(h) There was no reasonable apprehension of bias arising from a Tribunal member being appointed Associate Dean of Graduate Studies and Research for the Faculty of Humanities as the position is not related to the business school.
(i) The audio recording of the hearings was not perfect but no prejudice arises from this.
(j) Dr. Ray knew the Tribunal would be asked to find that his counter-complaint was frivolous and had the opportunity to make submissions in response.
(k) The University was a respondent to both the 002 and 003 Complaints and, therefore, had the right to make submissions on penalty.
(l) The penalties imposed were reasonable and proportionate to the severity of the misconduct and the Applicants’ failure to take responsibility for their serious misconduct.
THE EVIDENCE
McMaster’s Anti-Discrimination Policy
13The relevant version of the McMaster University Anti-Discrimination Policy was approved by the Senate and Board of Governors in October 2001, and remained in effect until July 1, 2015.
14Section 31 of the Policy provides that no one can be compelled to proceed with a complaint. Complaints can be withdrawn at any time, even after proceedings have begun.
15Section 33 of the Policy provides that if the University’s Anti-Discrimination Officer (“the Officer”) receives repeated allegations of offences against the same person but each person making allegations is unwilling to file a written complaint and appear as complainant, and circumstances warrant lodging a complaint, the Officer shall inform a Vice-President or the President of the University.
16Section 35 provides that the Officer shall provide the Vice-President with the names of witnesses who agree to testify, the name of the alleged respondent, and copies of complaints and responses relating to alleged offences.
17Section 36 provides that the Vice-President shall communicate with witnesses and the alleged respondent, review all information, and decide whether to initiate formal procedures against the respondent.
18Section 44 provides that when a written complaint is received, the Officer or another University official must determine whether the complainant wishes first to proceed by way of informal resolution or whether the complainant wishes directly to proceed with the formal resolution process.
19The formal process consists of a hearing before a tribunal composed of three panel members, which is what happened in this case.
20The Policy includes a list of sanctions that may be imposed or recommended by a tribunal, including suspension and removal from the University.
Conflict within the Business School
21In 2004, Paul Bates was appointed Dean of the business school for a five-year term. Following his appointment, the environment at the business school became increasingly toxic as a division emerged between those in favour of the Dean and those opposed to him and the policies he chose to pursue on behalf of the business school. Those policies included the creation of a second campus for the business school in Burlington, and the decision to hire more teaching faculty on short-term contracts instead of hiring additional tenure-track research professors.
22In the fall of 2007, as a result of their outspoken opposition to the Burlington expansion plan, five professors, including the Applicant Dr. Pujari, received disciplinary letters in their files from the Provost. These letters were later withdrawn after grievances were filed. In December 2007, the DSB faculty voted in favour of the Burlington expansion.
23In late 2007, Dr. Pujari asked the McMaster University Office of Human Rights and Equity Services (“HRES”) to investigate his claim that he was pressured and bullied into voting in favour of the Burlington expansion. This investigation was not pursued on the grounds that the Policy only covered harassment identified in the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
24In early 2008, Mr. Bates announced his intention to seek a second term as Dean. An Ad Hoc Dean Selection Committee was struck. The Applicants, Drs. Steiner and Taylor, who had been selected by their Areas to sit on the Committee, were denied the opportunity to do so by the Provost.
25Eighty-two percent of the voting faculty opposed Mr. Bates’ continued leadership as Dean. Twenty-one tenured faculty members, including Drs. Pujari, Rose, Steiner, Bart, and Taylor, signed a report critical of Mr. Bates and presented it to the University administration in December 2008.
26The 21 faculty members who signed the report were known as the G21.
27Notwithstanding the objections of the G21, Dean Bates was reappointed by the University in May 2009.
The Report Commissioned by the Provost
28In 2009, HRES began to interpret allegations of bullying and harassment more broadly in view of the impending enactment of changes to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 and the new requirement that employers develop and maintain a policy regarding workplace harassment.
29In June 2009, after receiving complaints from faculty members who claimed harassment and bullying were taking place within the business school, the Provost asked HRES Director and Anti-Discrimination Officer Milé Komlen to conduct an investigation (referred to as a “preliminary audit”) and to report on allegations of workplace harassment, bullying, and a poisoned work environment within the DSB.
30This was the first time the Policy was used to address allegations of personal harassment in the context of an inter-faculty dispute.
31In a report released on March 25, 2010 (“the Komlen Report”), Mr. Komlen identified a “fractious and divisive debate over the [business school’s] governance that has involved faculty members and administrators.” Mr. Komlen outlined a number of causes, chiefly the on-going debate about the Burlington expansion plan. He concluded that “McMaster University must act immediately to resolve the situation in order to … ensure the timely opening of the Burlington campus.” He also noted that “there is a likelihood that harassment has been encountered at the School, including ‘bullying’ (or psychological harassment), ‘intimidation’ and academic ‘mobbing’ … requiring immediate intervention” and that “[a] sufficient number of allegations of offences have been received through the course of this preliminary audit to warrant the advice to the President that formal complaints should be lodged against certain individual respondents.”
32No actions were attributed to any specific individuals.
33The Report identified that both the groups opposed to and in favour of Dean Bates alleged harassment and bullying.
34The Report recommended that the University resolve the issue by either informal means or a formal complaint under the Anti-Discrimination Policy, and that it invoke the University’s Group Conflict Policy.
Further Investigation by McMaster’s Office of Human Rights and Equity Services
35Following the release of the Komlen Report in March 2010, and pursuant to s. 37 of the Policy, the President of the University asked HRES to conduct a further investigation to see if there could be an informal resolution or whether formal proceedings should be initiated.
36Two investigators were retained to conduct interviews. The events that were to be investigated dated as far back as 2005 and involved 16 complainants.
37One investigator, Ms. Catherine Milne, was to investigate complaints made by some of the Applicants against the Dean, and the other, Ms. Shari Novick, was to investigate the complaints made against some of the Applicants.
38The Applicants who had made complaints were interviewed regarding their issues with the University and the Dean.
39During the investigation, Mr. Komlen advised these Applicants that a group complaint against Mr. Bates would be brought forward by the University and prosecuted on their behalf pursuant to ss. 33–36 of the Anti-Discrimination Policy.
40At this time, the Applicants were not aware that another set of individuals within the business school was also being interviewed as part of a separate investigation for a separate group complaint to be brought against the Applicants. The Applicants only became aware of this when they received the formal complaint against them.
41The investigations were completed by mid-December 2010 and Ms. Milne and Ms. Novick submitted their reports to Mr. Komlen by December 21, 2010.
42Mr. Komlen reviewed and edited the investigators’ reports (the “Milne and Novick reports”) before forwarding them to the President on January 7, 2011.
Referral of the Complaints to the Tribunal
43Following the release of the Komlen Report, the President had also established an Advisory Committee to make recommendations regarding the management of the business school. In a report circulated on December 16, 2010, the Committee recommended, among other things, that Mr. Bates step down as Dean. Immediately after the release of this report, the President announced Mr. Bates’ intention to resign as Dean. Mr. Bates then became Special Advisor to the President.
44Upon hearing of Mr. Bates’ resignation, the investigator that dealt with the Applicants’ complaints approached Mr. Komlen to advise that it was possible that the Applicants might withdraw from the process because the Dean had resigned.
45However, Mr. Komlen suggested that the Applicants proceed with their complaints, as they would likely be targeted by the other complainants as having engaged in harassment and the Applicants’ complaint would provide a possible defence to those allegations. On this basis, the Applicants, except for Dr. Ray, decided to pursue their complaints against Mr. Bates.
46Mr. Komlen advised the Applicants that if approved by the President, the University would prosecute their complaints as a “group complaint” and would likely retain counsel for them in order to do so.
47The President accepted the recommendations in the investigators’ reports that the various complaints regarding the environment at the business school be dealt with under the Anti-Discrimination Policy. He announced on February 18, 2011 that he was referring the complaints in the investigators’ reports to the “Human Rights Tribunal.” The President did not communicate with the Applicants to review the information or ask them to provide a response to complaints about them before deciding to initiate formal complaints.
48On March 21, 2011, Mr. Komlen advised the Applicants that the President had decided to refer their complaints to the “Human Rights Tribunal,” pursuant to ss. 33–36 of the Policy, with the “University as complainant.”
The Complaints
49Two group complaints were filed on March 31, 2011. The 002 Complaint initially involved allegations of harassment made by the Applicants (other than Dr. Ray) against Mr. Bates and the University (Dr. Steiner withdrew his complaint in September 2011). The 003 Complaint involved allegations of harassment made by various business school professors and staff against six of the Applicants and the University.
50The Applicants claim that Drs. Bart, Steiner, and Taylor all expressed concern to Mr. Komlen about a possible conflict of interest as his office reported to the Provost’s office, and that they were reluctant to participate in the HRES investigation, especially since Mr. Bates had resigned prior to filing. They claim Mr. Komlen told them their formal complaint was necessary to address and improve the situation in the business school and that they had the support of the University, which was filing the complaint on their behalf.
51The Respondents claim Mr. Komlen simply told the Applicants their complaints could support a defence if others filed formal allegations of harassment against them.
52The Applicants further claim they did not know that a group complaint against six of them was being brought by several professors and staff within the business school. They first received notice of this group complaint against them after they filed their 002 Complaint against Mr. Bates and the University.
53Dr. Ray claims that his involvement in the Tribunal hearing arose out of his interaction with another professor over the supervision of a Ph.D. student. It was at Mr. Komlen’s direction that this complaint against Dr. Ray was incorporated into the two complaints heard by the Tribunal.
54The Tribunal was convened in March 31, 2011, pre-hearings began in the spring of 2011, and the Applicants were suspended in the fall of 2013. The hearing took place over 21 days between March 3, 2012 and June 6, 2012, and included 2,694 documents, and testimony from about 65 witnesses.
Dr. Ibhawoh’s Absence from the Tribunal Hearing and Appointment as Associate Dean
55The Tribunal was made up of three faculty members.
56On April 13, 2012, Dr. Bonny Ibhawoh, one of the three Tribunal members, was absent for 24 minutes and 4 seconds for a portion of the cross-examination of 003 Complainant Dr. Milena Head and all of her re-direct examination. Dr. Head’s testimony related to her harassment complaint against Dr. Steiner. Dr. Head’s harassment complaint, which the Tribunal concluded was made out, was ultimately one of the primary reasons that the Tribunal recommended that Dr. Steiner receive a three-year suspension.
57On April 24, 2012, Dr. Ibhawoh was also absent for 43 minutes and 22 seconds during a significant portion of the cross-examination of the Applicant Dr. Pujari, during which Dr. Pujari’s credibility was impugned. Dr. Pujari was subsequently found liable for harassment and his employment suspended.
58Moreover, while still an adjudicating Tribunal member, Dr. Ibhawoh was appointed Associate Dean of Graduate Studies and Research for the Faculty of Humanities effective on or about July 1, 2012. This appointment occurred less than a month after the Tribunal’s hearing ended on June 6, 2012, before receipt of remedy submissions, and a year before the release of the Tribunal’s decisions in May and September 2013.
59In his application for the position of Associate Dean of Graduate Studies and Research for the Faculty of Humanities, Dr. Ibhawoh highlighted his position as a four-year tenured member of the Board Senate Hearing Panel for Sexual Harassment/Anti-Discrimination under the McMaster University Anti-Discrimination Policy. The Applicants were not told of Dr. Ibhawoh’s application and recommendation for the position of Associate Dean until after the conclusion of the hearings on liability.
Pre-Hearing Issues Dealt with by the Tribunal
60Originally, the 002 and 003 Complaints were to be heard one after the other, with 003 being heard first.
61On June 10, 2011, the Tribunal served a Notice of Joint Pre-Hearing Conference on all of the parties to the 002 and 003 Complaints. On October 7, 2011, the Tribunal agreed with the Applicants’ submissions that it could not order the consolidation of the hearings, on the basis that the SPPA “does not provide the tribunal with the legal authority to rule that the matters be heard on a Consolidated basis” (emphasis added by the Tribunal).
62By order of the Tribunal, the Applicants were required to file all relevant documents by December 19, 2011, all of their 002 Complainant affidavits by January 6, 2012, and all of their 003 respondent affidavits by January 31, 2012.
63On November 28, 2011, the Tribunal held its second pre-hearing conference. At the time, the hearings were to begin on February 7, 2012, with the 003 matter being heard first. The Applicants, as 003 respondents, were to begin cross-examinations of the 003 complainants shortly after finalizing their own responding materials. The 003 complainants (who were not respondents to any complaints) were to file their Complainant affidavits on January 6, 2012, and were to lead in-chief evidence on February 7, 2012.
64During the pre-hearing conference on November 28, 2011, counsel for the Applicants objected to the first two dates of the hearing, on the basis that those days would be required to prepare for the hearing because, otherwise, “there’s not enough time to get a dozen affidavits, and then immediately start our opening arguments within a couple of days or over the weekend.”
65On January 18, 2012, Tribunal counsel wrote to counsel for all parties advocating a reconsideration of the consolidation issue, in light of the pleadings and evidentiary record then before counsel, and the time pressure facing all parties due to the hearings set to commence on February 7, 2012.
66The Applicants agreed to consolidate the two complaints on the basis that the hearing would begin on March 3, 2012 and the hearing order would be reversed so that the 002 Complaint would proceed first.
Time Allotted for the Hearing
67The Applicants sought 74 hearing days, but the Tribunal set a schedule of 21 days. In order to meet the firm deadline for the end of the hearing, the Tribunal advised that it would not permit any further adjournments. The Applicants did not object and the hearing proceeded as scheduled. At the outset of the hearing, the Tribunal confirmed:
[D]o we have agreement that the Panel has jurisdiction to hear both complaints? And unless I hear an objection, I’ll say yes.
68The hearing began on March 3, 2012 and ended on June 6, 2012.
Evidence Adduced during the Hearing without Prior Notice to the Applicants
69The Tribunal permitted evidence against the Applicants to be heard without prior notice to them and over the objections of their counsel on three occasions.
70On March 3, 2012, the Tribunal allowed 003 complainants’ counsel to cross-examine Dr. Catherine Connelly on matters pertaining to alleged bullying during her tenure and promotion hearing and to put questions to Dr. Connelly that elicited positive testimony regarding 003 complainants Dr. Brian Detlor and Ms. Carolyn Colwell. This evidence was related to the complaints against Drs. Ray and Steiner, who had no prior notice of this evidence and were not present to hear the evidence or assist their counsel.
71On April 12, 2012, the Tribunal permitted counsel for the University and Mr. Bates to examine Ms. Rita Cossa in respect of Dr. Richardson’s complaint in the 002 matter. Ms. Cossa had not filed an affidavit in respect of the 002 Complaint. Dr. Richardson was not provided notice of Ms. Cossa’s testimony and was not present to hear her evidence against him or assist his counsel in addressing the evidence.
72On April 13, 2012, the Tribunal permitted counsel for the University and Mr. Bates to examine Dr. Head. The Applicants’ counsel had received a synopsis of Dr. Head’s proposed evidence, but Dr. Head’s testimony went beyond the scope of the summary and included evidence regarding Dr. Pujari. Dr. Pujari had no notice that Dr. Head would give testimony regarding his actions. Dr. Pujari was not present to hear this testimony.
Dr. Ray’s Counter-Complaint against Dr. Detlor
73The Applicant, Dr. Ray, was a respondent in the 003 Complaint based on allegations brought against him by Dr. Detlor. Dr. Ray filed a counter-complaint against Dr. Detlor, with leave of the Tribunal, on October 7, 2011.
74In his counter-complaint, Dr. Ray, alleged that Dr. Detlor had harassed him by abusing his position as Ph.D. Director to interfere with Dr. Ray’s oversight of a Ph.D. student then under Dr. Ray’s supervision.
75The Policy provides that in instances where the Tribunal determines by a “preponderance of reliable evidence that a complaint has been fraudulent, malicious, frivolous or vexatious, or is entirely without factual basis”, it will find the complainant in breach of the Policy. The Policy also provides that before making such a finding, “the Tribunal will advise the parties that it is considering making such a ruling and specifically invite submissions on this point.”
76At the conclusion of the cross-examination of Dr. Ray on April 23, 2012, the Tribunal Chair asked Dr. Ray whether there was anything he wished to alter about his complaint. Dr. Ray elected not to change his complaint.
77The Tribunal found that Dr. Ray’s counter-complaint against Dr. Detlor was malicious, frivolous, vexatious, and entirely without merit, and thereby in breach of the Policy. The Tribunal, therefore, sanctioned Dr. Ray. This finding was based, in part, on Dr. Connelly’s testimony.
The Complaint against Dr. Steiner
78Dr. Head’s complaint against Dr. Steiner originated from a single event that is alleged to have taken place in December 2009.
79The complaint was referred to in the Komlen Report, dated March 2010.
80The formal complaint was not filed until March 31, 2011.
81A complaint under the Policy must be filed within 12 months. In the fall of 2011, counsel for the Applicants brought a motion to dismiss the complaint against Dr. Steiner for delay. The complaint against Dr. Steiner was allowed to proceed and was one of the primary bases for his suspension.
The Tribunal’s Deficient Audio Recording of the Proceedings
82Section 64 of the Policy requires the Tribunal to arrange for a “permanent” audio recording of proceedings. On October 7, 2011, the Tribunal ordered that audio recordings would be made for each day of the hearing.
83On February 11, 2014, the University Secretariat informed Applicants’ counsel that there were problems with the quality of the audio recordings at the outset of the proceedings, but that as a result of a change in equipment and venue, the audio quality later improved. Two audio files had never been recorded. The missing audio files contained the testimony of a non-party witness referenced by the Tribunal in respect of the 003 Complaint against the Applicants.
Key Findings Made by the Tribunal against the Applicants
84The Tribunal made the following key findings against the Applicants:
(a) The report critical of Mr. Bates that was presented by those opposed to the renewal of his appointment as Dean (the G21) was “flawed, speculative and filled with questionable facts.”
(b) Members of the G21 acted in concert and tried to prevent Dean Bates from obtaining a second term in office. They asked to conduct a non-binding vote on his reappointment and when the results showed many were not in favour of his reappointment. Dr. Taylor said they needed to “leak this to the Globe and Post.”
(c) Members of the G21 “rallied the troops” to vote against Mr. Bates’ reappointment as Dean. They also discussed how to use the results of the vote and disseminate this fact within and outside the University campus. The results were posted throughout campus.
(d) Disparaging remarks were made about other faculty in G21 communications and no member of the G21 asked to be removed from the group’s email list.
(e) In June 2006, the business school decided to appoint an inaugural Director of the Ph.D. program, merging two positions, one of which had been occupied by Dr. Steiner, into one. When Dr. Head, in her capacity as Associate Dean, told Dr. Steiner that he would not be appointed to the new Director position, Dr. Steiner became visibly agitated saying, “you shit on people and it will come back to haunt you.” At a later meeting, Dr. Steiner questioned Dr. Head for about 90 minutes concerning an administrative process that had taken place while she was Associate Dean. This was “intended to embarrass Dr. Head” by ambushing her and affected “her right to be assessed for a promotion on the merits of her consideration.”
(f) At a faculty meeting on June 25, 2007, Drs. Bart and Taylor voiced opposition to Mr. Bates in front of other faculty leaving some faculty members feeling uncomfortable, “shaken,” and “in shock and disbelief.” Dr. Terry Flynn felt this behaviour was intimidating and told Mr. Bates. Upon discovering this, Dr. Taylor advised another faculty member that he and other opponents of the Dean “knew who did it,” and that that “person has been dealt with and will continue to be dealt with.” Dr. Taylor also suggested to the faculty member that she and other non-tenured staff “stay out of it.” Drs. Taylor and Bart then told Dr. Flynn that “there was a mole in their area” and they were “going to find out who the mole was and deal with the person.”
(g) Upon identifying Dr. Flynn as the organizer of efforts to reappoint Mr. Bates, Dr. Taylor stated that Dr. Flynn “does get dirty so prepare for more” and identified Dr. Flynn and others as “Bates’ stormtroopers.” Drs. Bart, Pujari, Steiner, Rose, and Ray all voted against Dr. Flynn’s renewal in a manner that “suggested bias.”
(h) Dr. Bart suggested that, “The real ‘war’ has now begun … are we up for it?” He also told Dr. Flynn he was “on the wrong team.”
(i) Dr. Longo was denied tenure and Drs. Bart, Pujari, Steiner, and Taylor all voted against him. They failed to disclose disparaging comments they and other members of the G21 had made against him and which were known to them when they participated in the faculty committee discussions.
(j) The Tribunal did not find that any particular complainant should have been granted tenure but did find that participants in tenure and promotion processes were treated in a manner contrary to the Policy.
(k) In an effort to secure more tenure-track positions, Drs. Pujari, Taylor and Bart developed a strategy to refuse to put faculty on short-term contracts up for more permanent “teaching-track” appointments, with Dr. Pujari referring to them as “retailers of information” and describing their presence as an “intellectual deficit” making the business school into a community college. In so doing, these Applicants took advantage of the power imbalance.
(l) Dr. Ray’s counter-claim against Dr. Detlor was “malicious, frivolous, vexatious and entirely without merit”.
(m) Dr. Steiner approached a non-party witness and asked him to consider amending his affidavit although he knew his evidence was truthful. When the witness refused to do so, Dr. Steiner sent the witness an email saying he was very disappointed as “this could have served as an important opening towards true reconciliation in the faculty.” He also approached another non-party witness and told him that “they [the 003 complainants] are trying to paint the G21 as a conspiracy.” In so doing, he disclosed information about the hearing, which he was ordered not to do.
(n) Dr. Ray approached his witness and asked her to sign a revised affidavit after realizing that certain allegations he had conveyed would not be corroborated. The witness complied but testified that what she had originally written was what she remembered saying. In approaching the witness, Dr. Ray attempted to tamper with her evidence.
(o) Dr. Taylor sent a letter to a person who had written a letter of support for Mr. Bates, stating that he was “disappointed, but not surprised” to read the letter of support.
All 19 allegations brought against Mr. Bates were dismissed by the Tribunal.
85The Applicants note that they had no power over the 003 complainants, Dr. Detlor and his assistant, Ms. Colwell. Moreover, the Complainant, Dr. Head, in her capacity as Associate Dean, had influence over the Applicants. Finally, they note that notwithstanding their difference of opinion over whether Drs. Flynn and Longo should have received tenure, both were granted tenure.
Penalties Ordered by the Tribunal
86During the closing submissions on June 5, 2012, the University requested removal of some of the Applicants and the suspension of others.
87The penalties recommended by the Tribunal and imposed on the Applicants are as follows:
(a) Dr. Rose received a written reprimand.
(b) Dr. Ray received a suspension for one academic term.
(c) Dr. Pujari received a 12-month suspension.
(d) Drs. Taylor, Steiner, and Bart each received a three-year suspension, forcing them into early retirement (in order to maintain their health benefits).
(e) The sanctioned Applicants were required to attend mandatory sensitivity and conflict-resolution training and removed from any current or future positions of authority for a period, on the basis that the Applicants had not truly accepted responsibility for their actions. Drs. Rose, Pujari, and Ray have since attended the mandatory training sessions.
88All of the Applicants claim their prospects outside of the University are seriously diminished.
THE ISSUES
89On this application, the Applicants make the following arguments:
(a) The Tribunal failed to determine whether the Applicants wished to pursue an informal resolution before proceeding with their formal complaint, thereby breaching s. 44 of the Policy.
(b) The Tribunal breached ss. 33–36 of the Policy by proceeding with group complaints rather than individual complaints.
(c) The Tribunal violated the principles of natural justice and procedural fairness by imposing an unreasonable hearing schedule.
(d) The Tribunal erred when it allowed the parties to consolidate the hearing of the group complaints as the Policy does not permit consolidation, even on consent.
(e) The Tribunal breached s. 43(b) of the Policy by proceeding with the complaint of Dr. Head against Dr. Steiner when that complaint was time-barred.
(f) The Tribunal violated the principles of natural justice and procedural fairness by permitting significant evidence to be led without proper notice to the Applicants.
(g) The Tribunal violated the principles of natural justice when it proceeded to hear evidence in the absence of a Tribunal member on two occasions.
(h) The Tribunal violated the principles of natural justice and procedural fairness when it permitted the University to make submissions on the issue of penalty.
(i) The promotion of one of the Tribunal members to the University’s administration while that member was still an adjudicating member of the Tribunal gave rise to a reasonable apprehension of bias.
(j) The Tribunal found that Dr. Ray’s counter-complaint was frivolous, vexatious, and retaliatory without complying with an express “condition precedent” for such a finding under s. 43(b) of the Policy.
(k) The Tribunal violated the principles of natural justice by providing deficient audio recordings of its hearings.
(l) The penalties recommended by the Tribunal and imposed on the Applicants were unreasonable.
THE LIABILITY DECISION
Alleged Breach of s. 44 of the Policy (the “Informal Resolution Issue”)
90Section 44 of the Policy reads as follows:
Upon receipt of a written complaint, the Officer, or other University officer where appropriate, shall determine whether the complainant wishes first to proceed by way of the ‘Informal Resolution With a Written Complaint’ procedure or whether the complainant wishes directly to proceed with the “Formal Resolution” procedure.
91According to the Applicants, the Anti-Discrimination Officer never determined whether the Applicants wished to pursue an informal resolution in respect of their complaints. Since this was required by the Policy, the Tribunal never had jurisdiction to hold a formal hearing of the complaints. As part of their submission on this point, the Applicants point to the fact that when they expressed an interest in withdrawing their complaints after Mr. Bates’ resignation (which would have resolved the complaints), it was Mr. Komlen who advised them not to do so.
92There are two problems with this submission. First, as the Supreme Court of Canada has made clear in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33, 39, the category of true questions of jurisdiction is very narrow and true questions of jurisdiction will be exceptional.
93Sections 12–20, 48, and 52 of the Policy give the Tribunal jurisdiction to hear formal complaints of harassment and discrimination brought by members of the University community under the Policy. The manner in which the preliminary investigation was conducted and the results of that investigation do not deprive the Tribunal of jurisdiction. Under s. 48 of the Policy, once a complainant requests a formal hearing, the hearing is to be conducted before a tribunal such as the one in this case. Thus, the only pre-condition to the Tribunal’s jurisdiction was the request for a formal hearing. That request was clearly made in this case. Therefore, at its highest, the alleged breach of s. 44 can only be considered a procedural matter, not a question of jurisdiction.
94The second problem with the Applicants’ submission on this point is that it is only on judicial review that the Applicants claimed for the first time that the Tribunal lacked jurisdiction to hear the complaints because of procedural issues during the pre-hearing investigation. In fact, at the beginning of the formal hearing before the Tribunal, counsel for the Tribunal made the following statement:
I’m just going to briefly confirm, we’ve had a number of procedural matters addressed. So the parties – the parties are familiar with one another. The University Secretariat is charged with the duty of impartially administering hearings under the University Policy and we have two complaints and they have been consolidated and they are to deal with the McMaster University Anti-Discrimination Policy. A number of the procedural pre-hearing orders are – are continuing to be relevant and the key order is procedural order #8, as we all know, which sets out generally the process that’s going to be followed – followed. We have a few issues I just want to address briefly. So, the first one would be, do we have agreement that the Panel has jurisdiction to hear both complaints? And unless I hear an objection, I’ll say yes. [Emphasis added.]
95In response to this statement, the Applicants did not register an objection.
96Judicial review is a discretionary remedy and “[g]enerally, this discretion will not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised before the tribunal” (Alberta Teachers, at para. 23). In Alberta Teachers (at paras. 24, 26), the Supreme Court summarized the policy reasons for this rule – the need to respect the legislative choice inherent in delegating matters to administrative tribunals by giving “the tribunal the opportunity to deal with the issue first and to make its views known” and the fact that “raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court the adequate evidentiary record required to consider the issue.”
97Both of these considerations apply here. If the Applicants had let the Tribunal know, before the hearing commenced, that they had a concern going to jurisdiction (or even procedural fairness) arising from an alleged failure to offer them the opportunity of an informal resolution, the Tribunal could have heard evidence on the issue and considered whether there was a need to refer the matter back for an informal resolution process before embarking on a formal hearing. Instead, the Applicants chose to proceed through a hearing that took 21 days and that included over 2,500 documents and the testimony of about 65 witnesses before raising any objection. The unfair prejudice arising from this conduct is self-evident.
Alleged Breach of ss. 33–36 of the Policy (the “Group Complaint Issue”)
98Sections 33–36 of the Policy provide, as follows:
If the Officer receives repeated allegations of offences against the same person but each of persons making allegations is unwilling to file a written complaint and appear as complainant, and if circumstances are considered by the Officer to be such that a complaint should be lodged, the Officer shall inform the appropriate Vice-President, or in the case of conflict of interest, the President.
The Officer shall communicate with persons drawn from the pertinent notes/records who might provide evidence of discrimination or harassment to determine their willingness to provide testimony if the University were to proceed as a complainant against the alleged offender. The Officer shall not communicate the contents of the notes to such persons in either written or verbal form.
The Officer shall provide to the appropriate Vice-President the names of witnesses who agree to testify, the name of the alleged respondent and copies of any written complaints and responses submitted to the Officer relating to alleged offence(s) by the respondent.
The appropriate Vice-President shall communicate with witnesses and the alleged respondent, review all information and decide (as soon as possible but no later than six weeks from the date of receiving the information) whether to initiate formal procedures against the respondent (see clause 47). The Officer shall be informed in writing of the Vice-President’s decision. If the Vice-President decides to initiate formal proceedings against the respondent, such proceedings normally should be initiated within one month of making the decision.
99Sections 33–36 of the Policy allow the University to act as a complainant in certain prescribed instances. It was pursuant to these sections that the President, acting on the Milne and Novick Reports, forwarded the group complaints to the Tribunal. According to the Applicants, ss. 33–36 of the Policy required that the President do two things that he never did before initiating the group complaint against them – give them notice of the particulars of the complaints that had been filed against them and communicate or interview them about those complaints.
100The Applicants submit that the failure of the President to abide by what they assert were “conditions precedent” to the initiation of the group complaints means that the Tribunal did not have jurisdiction to hear the group complaints.
101This argument suffers from the same flaws as the Applicants’ argument on the “Informal Resolution Issue.” First, if there was a failure to abide by the Policy, it does not rise to the level of a jurisdictional error. Second, the Applicants failed to challenge the jurisdiction of the Tribunal because of the alleged failure to abide by the Policy when they first had the opportunity to do so.
102The Applicants point to the fact that during the hearing, they raised a concern that they were never provided with a copy of the Novick Report so that they could provide their responses to that report before the group complaint against them was filed. This is true. However, what they did not do was bring a motion before the Tribunal to say that the Tribunal had no jurisdiction to proceed with the hearing because the University had breached ss. 33–36 of the Policy. In fact, as already noted, when they had the opportunity to raise a procedural objection going to jurisdiction, they did not do so.
103This failure to raise the matter occurred in a context where other motions had been brought before the Tribunal before the hearing commenced – in particular, the motion to dismiss Dr. Head’s complaint on the basis that it was time-barred brought by the Applicant, Dr. Steiner, and the motion to consolidate brought by the University. Thus, it was clear that the parties had the ability to bring motions before the Tribunal.
104If the Applicants’ complaint is that they were denied procedural fairness by virtue of their inability to see and respond to the Novick Report, any concern in this regard was cured by the 21-day hearing process, during which they were given a full opportunity to hear and respond to the complaints against them.
The Hearing Schedule Issue
105According to the Applicants, the Tribunal imposed a prejudicial timetable that seriously compromised their ability to adequately respond to the allegations against them. They state that they had difficulty meeting the timelines imposed on them for disclosure. They submit that while the parties estimated that they would need 74 days for the hearing, the Tribunal only provided 21 days, which, in turn, caused the Applicants to reduce the number of witnesses they called. They also assert that because the Tribunal insisted that all the hearing days it had assigned be fully utilized, the timing of witness testimony changed without sufficient notice to the Applicants such that they were not always present when material testimony against them was heard by the Tribunal.
106The Applicants argue that the hearing schedule imposed by the Tribunal violated the principles of natural justice.
107All parties agree that if a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. Rather, it is for the court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (see London (City of) v. Ayerswood Development Corp., 167 O.A.C. 120, 2002 3225 (C.A.), at para. 10).
108The Baker factors include the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the decision-maker operates; the importance of the decision to the individuals affected by it; the legitimate expectations of the person challenging the decision; and respect for the procedural choices made by the decision-maker itself. In this case, there is no issue that given the importance of the decision to the Applicants, they were owed a high level of procedural fairness. The question is whether that level was met when it came to the Tribunal’s conduct in scheduling the hearing.
109In answering this question, it is useful to keep in mind the following articulation by Evans J.A. (in Re: Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170, at para. 42) of the balancing that a reviewing court must engage in:
In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other.
110It is true that counsel initially estimated that the hearing would take 74 days. However, that was before the Tribunal ordered that examination-in-chief be provided by affidavit, with 60 minutes of oral examination-in-chief (or more, if the parties requested) to supplement the affidavit. This significantly reduced the number of days required for the hearing.
111The Tribunal’s decision to control the number of hearing days by providing for examination-in-chief to be introduced through affidavit evidence, supplemented by oral presentation, is a good example of a procedural choice that appropriately balances maximum participation with efficient and effective decision-making. The Applicants do not challenge this procedural choice. What they challenge is scheduling.
112The most significant problem with the Applicants’ submissions on the hearing schedule issue is that they consented to all of the timelines that the Tribunal imposed and consented to the entire hearing schedule.
113On three occasions, timeline extensions were requested by the parties on consent. Every requested extension was granted, except for one that did not impact on the timing of any substantive pleading.
114Further, while the Applicants now assert that 21 days of hearing was insufficient, it was their counsel who wrote to the Tribunal requesting that it cancel the first four days of the hearing. In doing so, he assured the Tribunal that this would not compromise its ability to complete the matter within the time-frame it had established “given the anticipated efficiency” of the process.
115While the Applicants now complain that the hearing schedule prevented them from calling all of the witnesses they wished to call, when they communicated this concern to the Tribunal, the Tribunal was clear that the Applicants’ decision to withdraw witnesses was not being made at the “direction of the Panel.” Further, on April 30, 2012, the Tribunal Chair had the following exchange with Applicants’ counsel about the issue:
Chair: Dr. Ibhawoh has indicated a concern about striking witnesses. That I don’t want you to indicate that that’s comprised [sic] your ability to put your case forward, I guess.
Mr. Hopkins: No, I – it’s just that we’re looking to work together to – to ensure that we get this done on time. I mean, so Madam Chair raised the – necess – the necessity of calling David Weiner, for example, and, you know, we’re – we’re discussing that and if we cannot call David Weiner, it would make sense, then we’ll do that – so I’m just putting that out there as a – as a – as a sign that we’re – we’re willing to work together and try to get this done by June 6th.
116This exchange reflects the actual dynamic that existed when it came to the scheduling and the conduct of the hearing. Everyone was working together to ensure that the hearing would be completed within the agreed-upon time-frame. To that end, the parties consented to maximizing the hearing days such that most hearing days were ten to twelve hours long.
117Further, at no point did the Applicants make a request for additional hearing days to the Tribunal. While the Applicants maintain that this was because the Tribunal had previously advised that there were no more hearing dates, this does not take into account the fact that after the Tribunal took this position, it did, in fact, provide additional dates.
118Finally, any request that the Applicants made to the Tribunal to have more time for examination-in-chief was granted, as was any request that they made for an adjournment.
119In other words, at no time did the Applicants indicate to the Tribunal that the scheduling and conduct of the hearing was prejudicing their ability to present their case and respond to the case against them. In fact, if anything, they did the opposite.
120For these reasons, we find that there is no merit to the Applicants’ submissions on this issue.
The Consolidation Issue
121The University initially brought a motion to consolidate the two sets of group complaints. The Tribunal dismissed this motion on the basis of the fact that under s. 9.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) consolidation orders can only be made on consent. Subsequently, the Applicants needed an extension of time to file their affidavit evidence in the 003 Complaint (which the Tribunal had initially ordered be heard first). Rather than bring a motion before the Tribunal to show cause why they needed this extension, counsel for the Applicants agreed with counsel for the Respondents that they would consolidate the complaints on condition that the Applicants receive an extension of time to submit their affidavit evidence, and that the four hearing dates that were originally scheduled for February 2012 be cancelled.
122Counsel for the Applicants then wrote to the Tribunal advising it of the parties’ agreement and requesting that the Tribunal issue an order accordingly. The Tribunal did so. Thus, there is no issue that the Applicants consented to the order consolidating the hearing of the group complaints.
123The Applicants now submit that the Tribunal had no jurisdiction to order that the hearings be consolidated and that jurisdiction, where it does not exist, cannot be conferred on consent.
124The Applicants’ argument on this issue is based on a submission involving the wording of the SPPA and, particularly, the sections regarding when proceedings may be consolidated. It is clear that the driving concern of the legislature regarding the consolidation of hearings was the need to balance both the fact that oral hearings should generally be open to the public and the fact that there are proceedings involving intimate financial or personal matters that should be heard in private. Thus, there could be difficulties consolidating a hearing that should be heard in public with a hearing that should be heard in private. In this case, by virtue of s. 66 of the Policy, both group complaints were to be held in camera. Any concerns about the parties in one group complaint hearing about the intimate financial and personal matters of the parties in the other group complaint were presumably eliminated by the parties’ consent to the consolidation. However, the Applicants maintain that in spite of this, a strict reading of the SPPA does not permit consolidation, even on consent.
125Even if this were true (which, in our view, would involve construing the SPPA to reach an absurd result and allow the Applicants to resile from a tactical decision they made that they have already taken advantage of), the issue of consolidation is not a question of fundamental jurisdiction. The Applicants’ consent to consolidate the group complaints did not bestow jurisdiction on the Tribunal – the Tribunal had already obtained jurisdiction when the complaints were filed. By consenting to consolidation, the Applicants were consenting only to a procedural matter.
126Section 4(1) of the SPPA specifically states that any procedural requirement of the SPPA or other statute applicable to a proceeding may be waived with the consent of the parties and the tribunal.
The Time-Barred Complaint Issue
127Section 43(b) of the Policy provides that “[a] written complaint shall be submitted promptly, but no later than 12 months from the last date of the alleged harassment.”
128One of the complaints against the Applicant, Dr. Steiner, was a harassment complaint made by Dr. Head. The last date of the alleged harassment was December 11, 2009. The 003 group complaint, which included Dr. Head’s complaint, was not officially filed until March 31, 2011. On this basis, Dr. Steiner brought a motion before the Tribunal arguing that Dr. Head’s complaint was time-barred. This motion was heard at the same time as a motion by Mr. Bates to have the complaint against him by Dr. Steiner and the other Applicants dismissed as time-barred.
129The Tribunal dismissed both motions. In doing so, it adopted the argument advanced by counsel for the Applicants (when they were opposing Mr. Bates’ motion) that Mr. Komlen’s preliminary audit (which was completed in March 2010) started the complaint process, as all of the complaints before the Tribunal emanated from the Komlen Report and, therefore, any allegations regarding events that occurred within the 12-month period before the preliminary audit were not out of time.
130In coming to this decision, the Tribunal was interpreting its “home” governing document (the Policy). As such, its decision is to be reviewed on a standard of reasonableness. Applying this standard, we find that the Tribunal’s decision on this issue was a reasonable one.
Alleged Leading of Evidence without Notice
131The Applicants submit that the Tribunal breached the principles of natural justice by permitting counsel for both the University and the 003 complainants to elicit evidence from three witnesses during the hearing of the 002 Complaint in the absence of prior notice to the Applicants. According to the Applicants, this lack of notice rendered the affected Applicants unable to adequately respond to or challenge the evidence that came out without notice.
132Although the two complaints were consolidated into one hearing, the 002 Complaint was heard first. In the interests of efficiency, the Tribunal ordered that if a witness was called regarding the 002 Complaint, that witness could be cross-examined by counsel for the 003 complainants only to the extent that the 003 Complaint was impacted by that witness’s evidence. This would prevent having to call witnesses twice.
133On March 3, 2012, Dr. Connelly gave evidence in the 002 hearing on the tenure and promotion process. At the end of her testimony, counsel for the 003 complainants was permitted to cross-examine her regarding issues relating to the 003 Complaint, namely, the treatment of Dr. Detlor and Ms. Colwell by some of the Applicants. Dr. Connelly had not filed an affidavit regarding these matters. The Applicants’ counsel objected, but the Tribunal permitted the questioning. Dr. Connelly’s evidence in this regard was relied on by the Tribunal in its decisions.
134On April 12, 2012, Ms. Cossa, a complainant in the 003 Complaint, was examined by counsel for the University and Mr. Bates, as a witness with respect to the allegations made in the 002 Complaint. Again, counsel objected because she had filed no affidavit with respect to these matters. On that occasion, because the evidence was unanticipated, the affected Applicant was not present at the hearing.
135Finally, on April 13, 2012, counsel for the University and Mr. Bates examined Dr. Head, a complainant in the 003 Complaint, with respect to allegations made by two of the Applicants in the 002 Complaint. Although the Applicants had been provided with a short synopsis of this evidence before it was heard, the synopsis was allegedly incomplete and Dr. Head had not filed an affidavit in the 002 Complaint prior to testifying. Again, counsel objected and, again, one of the affected Applicants was not present when the evidence was led.
136There are two principal problems with the Applicants’ submissions on this issue. First, there was no procedural order that prohibited counsel from calling a witness without an affidavit. In fact, during the course of the hearing, both parties requested that the Tribunal use its power to issue summonses to compel witnesses to come and testify. Compelled witnesses did not submit affidavits.
137Second, the Tribunal’s choice to allow counsel to examine or cross-examine a witness called with respect to one group complaint on issues affecting the other group complaint is an example of the type of procedural choice that is entitled to deference from this court. It seeks to balance full participation with efficiency.
138In terms of the prejudice that could be caused by allowing the evidence to be introduced, if this prejudice was present, the Applicants could have, but chose not to, seek an adjournment to prepare further because of being confronted with evidence they failed to anticipate. The Applicants having failed to ask for an adjournment, the Tribunal cannot be faulted for not granting one (Obsessions Dress Design Ltd. v. Tully, 2004 CarswellOnt 868, [2004] O.J. No. 815, at para. 2 (C.A.)).
139With respect to Dr. Head’s and Ms. Cossa’s evidence, one opposing counsel had plenty of time to prepare to cross-examine both witnesses after hearing their evidence given in examination-in-chief. Ms. Cossa was not cross-examined until April 19, 2012 (seven days after her examination-in-chief) and Dr. Head was not cross-examined by one opposing counsel until April 22, 2012 (nine days after her examination-in-chief). Although the other opposing counsel cross-examined Dr. Head the day following Dr. Head’s examination-in-chief, again, that counsel did not advise the Tribunal that he needed an adjournment before he did so. This was after the Tribunal had made it clear that any adjournment request of that nature would be granted.
140If certain of the Applicants were not present when the evidence at issue was called, that is a choice that they made. They had the right to be present throughout the hearing. As put by the British Columbia Supreme Court in Cameron v. Regional District of Nanaimo, 2009 BCSC 1206, [2009] B.C.J. No. 1766, aff’d 2010 BCCA 73, 285 B.C.A.C. 10, at para. 25:
[I]f a party voluntarily chooses to be absent from the proceedings he or she cannot be heard to complain about what was or was not done in his or her absence.
141In any event, counsel for the affected Applicants were present. All requests by counsel for time to consult with their clients before proceeding with their questioning were granted. Where no requests were made, the Tribunal cannot be faulted for the prejudice that is alleged to have ensued.
Absence of a Tribunal Member
142It is undisputed that one of the Tribunal members, Dr. Ibhawoh, was absent from the hearing on two separate occasions. On April 13, 2012, he was absent for 24 minutes and 4 seconds and on April 24, 2012, he was absent for 43 minutes and 22 seconds. According to the Applicants, critical evidence was heard during these periods.
143On the first occasion, April 13, 2012, the Tribunal Chair asked counsel if there was any objection to a “brief absence” on the part of Dr. Ibhawoh, “with the concept that he will have an opportunity to review the audiotapes from that prior to and that his – if he has questions, it’ll be with the panel when Ms. Milne questions.” Counsel for the Applicants indicated that they had no problem with this course of action.
144On the second occasion, the Tribunal Chair advised counsel that Dr. Ibhawoh “has to step out of the room briefly at four o’clock and we’re proposing that we continue as we did previously, that if – that whatever section of the transcript – that we’ll just continue on and then he can review that when he comes back.” Counsel did not object.
145According to the Applicants, it is a fundamental principle of natural justice that “he who hears must decide” (Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 66). Further, the Applicants argue that this rule affects the trier of fact’s jurisdiction (Doyle v. Restrictive Trade Practices Commission, 1985 5573 (FCA), [1985] 1 F.C.R. 362, 21 D.L.R. (4th) 366 (C.A.), leave to appeal to S.C.C. refused (1985), 21 D.L.R. (4th) 366, 7 C.P.R. (3d) 235n, at pp. 368–69). Parties cannot by their express or implied waiver, or consent, grant jurisdiction where it does not exist (Goertz v. College of Physicians and Surgeons for Saskatchewan, 1989 4748 (SK CA), 76 Sask. R. 64, cited to [1989] 6 W.W.R. 11 (C.A.) at p. 20.).
146In Ellis-Don, a panel of the Ontario Labour Relations Board adjudicating a dispute discussed the case in a meeting of all Board members, even though all Board members did not hear the evidence or arguments. Thus, the issue before the Supreme Court of Canada was whether the discussions at the full Board meeting influenced the panel such that the other Board members effectively participated in making the final decision. The majority of the Court found no such influence. There is no suggestion in the present case that the Tribunal members consulted with anyone but themselves in making the decisions at issue.
147In Doyle, two of three panel members were absent for various periods during a hearing without the consent of the parties. The relevant legislation in Doyle specifically set out various provisions for how the panel would obtain the evidence and information to be used in preparing its final report. A majority of the Court of Appeal concluded that in light of these statutory provisions, the absence of the two panel members during part of the proceedings invalidated the report.
148In the present case, the Tribunal’s procedures are governed by the Policy and the SPPA. Section 57 of the Policy provides as follows:
Tribunals conducting Hearings under this policy shall follow the procedures set out in the Statutory Powers Procedure Act, or successor legislation. In addition, all hearings before tribunals convened under this policy shall follow the procedures detailed below. In the event of conflict between the [Statutory Powers Procedure Act] and the procedures detailed below, the procedures detailed below govern in the absence of any judicial determination to the contrary. Where any procedural matter is not dealt with in the Statutory Powers Procedure Act, or below, the Tribunal will, after hearing submissions from the parties, and guided by the principles of fairness, establish any appropriate procedure.
149Neither the SPPA nor the Policy speak to whether a tribunal member may be absent during part of a proceeding and subsequently review the audio recording of that part of the proceeding. However, the question remains whether in spite of this the Tribunal lost jurisdiction when Dr. Ibhawoh did so on consent of the parties. If it did not, was the procedure one that breached the rules of natural justice, and, if it did, should the Tribunal’s decision be set aside?
150We find that proceeding on consent in Dr. Ibhawoh’s absence with him reviewing the audiotape does not raise a true question of jurisdiction. The Tribunal already had jurisdiction. What the Applicants consented to was a procedural matter.
151We agree that allowing tribunal members to absent themselves from proceedings where evidence is being heard and credibility assessments have to be made does raise a real concern about procedural fairness. However, having consented to a process and procedure whereby a Tribunal member would be absent for a limited period of time and would review the audiotape of what he missed, the Applicants “cannot now be heard to complain that it was deficient or that [they were] entitled to some other process” (Taucar v. University of Western Ontario, 2011 ONSC 3069, 336 D.L.R. (4th) 305 (Div. Ct.), leave to appeal to Ont. C.A. refused, 211 A.C.W.S. (3d) 748, 2011 CarswellOnt 15071, leave to appeal to S.C.C. refused, [2015] S.C.C.A. No. 13, at para. 16). To find otherwise would be to encourage applicants to make the tactical choice of holding on to a potential ground for judicial review and raising it only if they receive an unfavourable decision.
Permitting the University to Make Submissions on Penalty
152The Applicants acknowledge that the University was a Respondent to both the 002 and 003 Complaints and, as such, was found liable for its role in allowing the toxic work environment to persist. However, they submit that the Tribunal violated the principles of natural justice by permitting the University to act in a prosecutorial role by permitting it to make submissions on remedies against the Applicants. The Tribunal then recommended an appropriate remedy for the University President to impose.
153In our view, this submission has no merit. As a Respondent to both complaints and as the party with the ultimate ability to prevent a poisoned work environment, the University had the right to make submissions on the question of remedy. Nothing in the Policy precluded it from doing so.
The Alleged Bias Issue
154The Tribunal hearing on liability ended on June 6, 2012. At that point, the Tribunal adjourned to consider its Liability Decision, which it released almost a year later, on May 15, 2013. After the release of its decision on liability, the Tribunal received submissions in writing on the question of remedy in June 2013 and released its Remedies Decision on September 23, 2013.
155On May 3, 2012, one of the Tribunal members, Dr. Ibhawoh, was recommended for appointment as the appointed Associate Dean of Graduate Studies and Research for the Faculty of Humanities, a position he had applied and been interviewed for during the course of the liability hearing. His appointment was approved by the Senate and Board of Governors on June 6 and 7, respectively, and he was informed of these approvals on June 12. His appointment became effective July 1, 2012.
156According to the Applicants, the appointment of a Tribunal member to an academic position within the University administration, at a time when he was tasked with determining the liability and consequences for both the Applicants and the University, gives rise to a reasonable apprehension of bias which, in turn, is a violation of the principles of natural justice.
157The Applicants learned of Dr. Ibhawoh’s appointment in the late summer of 2012, well before the Liability Decision was released and before remedy submissions were made and the Remedy Decision released. The first time they raised the issue of bias is on this judicial review application. Their explanation for not raising the issue when they learned of it is that they were expecting the imminent release of the Liability Decision.
158The Supreme Court of Canada has articulated the test for reasonable apprehension of bias as follows:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly.’ (Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, at 394–5 per de Grandpre J. dissenting but not on this point)
159Further, “[t]he threshold for finding a reasonable apprehension of bias is extremely high …. There is a strong presumption in favour of the impartiality of the trier of fact and the question of reasonable apprehension requires a highly fact-specific inquiry” (Clayson-Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 71).
160In this case, Dr. Ibhawoh was appointed to a faculty-specific position in a faculty that is in no way related to the business school. In a university, it is expected that faculty members will hold various positions and engage in various committees and processes. As put by Member Shime in University of Waterloo v. University of Waterloo Faculty Assn., 168 L.A.C. (4th) 1, 2007 CarswellOnt 10486 (LRB), at p. 18:
[T]he decision of Spence J., in King v. The University of Saskatchewan confirms that in a university setting it is proper that there be duplication in university bodies and particularly as Spence J. stated, ‘in such matters as were the concern of the various university bodies here, duplication was proper and was to be expected’, and did not result in any bias or constitute a breach of natural justice. Despite the able argument of counsel for the Faculty Association, it is expected that members of the faculty will engage in various committees or processes, where their knowledge and expertise in university matters are necessary, and therefore, the mere duplication of roles in university affairs does not necessarily result in bias or a breach of natural justice.
161Given this context, a reasonable person, viewing the matter realistically and practically, would not expect that a tenured faculty member’s impartiality would consciously or unconsciously be affected by the fact that during the course of a hearing involving a faculty with which he has no association he applies for and receives a promotion within his own faculty.
162Furthermore, allegations of bias must be made in a timely fashion, otherwise parties could hold back on their objections, only raising them if they receive an unfavourable decision (Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321, 200 O.A.C. 209 (C.A.), at p. 350; KAP Holdings Inc. v. London (City), 2008 CarswellOnt 9696 (Div. Ct.); Dickson v. Canadore College (2007), 2007 68563 (ON SCDC), 287 D.L.R. (4th) 570, 231 O.A.C. 15 (Div. Ct.)).
163In this case, the parties learned of Dr. Ibhawoh’s appointment long before any decision on liability had been released and before any submissions had been made with respect to remedy. If they were concerned, they should have raised their objection as soon as they discovered the appointment. If they had done so, the Tribunal could have dealt with the issue and given us the advantage of their views.
Alleged Failure to Comply with s. 70(e) of the Policy
164Dr. Detlor brought a harassment complaint against Dr. Ray, which the Tribunal ultimately dismissed. In response to Dr. Detlor’s complaint, Dr. Ray sought leave from the Tribunal to bring a counter-complaint. Counsel for Dr. Detlor consented to the late filing of Dr. Ray’s counter-complaint, but when he did so, he advised Dr. Ray and his counsel that he would be asking the Tribunal to make a finding that the counter-complaint was frivolous, vexatious, or retaliatory. He also confirmed this in his opening statement and repeated it in his closing submissions.
165Dr. Ray’s counsel, in his closing submissions, expressly denied that Dr. Ray’s counter-complaint was frivolous, vexatious, or an act of reprisal.
166The Tribunal made a finding that Dr. Ray’s counter-complaint was frivolous, vexatious, and retaliatory and this finding was important to its reasoning on the penalty it imposed on Dr. Ray.
167Section 70(e) of the Policy provides as follows:
If the tribunal decides by a preponderance of reliable evidence that a complaint has been fraudulent, malicious, frivolous or vexatious, or is entirely without factual basis, the Tribunal hearing the original complaint will find that the complainant, as a result of the complaint, is in breach of this policy and will recommend to the President such sanction or remedy against the complainant as it feels is appropriate. Prior to finding that a complaint has been fraudulent, malicious, frivolous or vexatious or is entirely without factual basis, the Tribunal will advise the parties that it is considering making such a ruling and specifically invite submissions on this point. [Emphasis added.]
168The Applicants submit that the Tribunal failed to advise Dr. Ray that it was considering making a finding that his counter-complaint was frivolous, vexatious, or retaliatory. As a result, it failed to comply with s. 70(e) of the Policy, which renders its decision “nugatory.”
169As the Supreme Court of Canada stated in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43, judicial review (which is a discretionary remedy) should not be granted for a procedural error that “is purely technical and occasions no substantial wrong or miscarriage of justice.”
170In this case, Dr. Ray had ample notice that if he pursued his counter-complaint, the Tribunal would be asked to make a finding that it was frivolous, vexatious, or retaliatory. He chose to pursue it and before the Tribunal made any findings, Dr. Ray made submissions on whether such a ruling should be made. The purpose of s. 70(e) of the Policy is to allow parties to make submissions on the issue before a finding is made. In this case, Dr. Ray had that opportunity. Thus, it cannot be said that the alleged breach by the Tribunal occasioned any substantial wrong or miscarriage of justice.
Deficient Audio Recordings
171In Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 386 (SCC), [1997] 1 S.C.R. 793, 144 D.L.R. (4th) 577, at para. 81, the Supreme Court of Canada held that where an enabling statute mandates a recording of the hearing, a new hearing will be ordered only where defects or gaps in the transcript raise a serious possibility of the denial of a ground of review.
172Section 64 of the Policy mandates that a tribunal arrange for a “permanent” audio recording of the proceedings and the Tribunal here did so through one of its procedural orders. It is undisputed that there are quality issues with the audio recordings that the Tribunal ordered.
173What is less clear is how the deficiencies in the audio recordings have deprived the Applicants of a ground of review. In this regard, the Applicants point to four instances of deficient recordings.
174As already adverted to, counsel for the Applicants objected to some of the cross-examination of Dr. Connelly that was conducted by counsel for the 003 complainants. In each case, those objections were overruled and the questioning was allowed. The audio recording of the Tribunal’s reasons for overruling the objections is deficient. The problem with this submission is that there is no suggestion that counsel for the Applicants is unaware of why his objections were overruled. In fact, he has submitted an affidavit stating the reasons. To the extent that the questioning of Dr. Connelly constituted a ground for judicial review in this application, the deficiency in the audio recording posed no barrier to the argument of that ground.
175Parts of the testimonies of Dr. Taylor, Mr. Weiner, and Dr. Swirsky given on March 23, 2012 are difficult to decipher. However, the Applicants have made no argument as to how this missing testimony prejudiced their ability to raise a ground for judicial review. The same is true of the inadequate recording of Dr. Hupfer’s testimony.
176With respect to the inadequate recording of Dr. Agarwal’s and Dr. Kwan’s evidence, the Applicants have made a submission that the Tribunal’s Remedies Decision is unreasonable because the Tribunal failed to take into account the evidence of these witnesses as to the improved state of the DSB at the time of the hearing as a result of Mr. Bates’ resignation. The Respondents do not dispute that these witnesses gave this evidence. Their position is that there was ample evidence, including the evidence of the Applicants’ own witnesses, that the environment at the DSB remained deeply divided and toxic during the hearing process, even after Mr. Bates had resigned. A tribunal’s reasons do not have to include all the evidence that the tribunal heard; they merely have to allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of possible and acceptable outcomes. In engaging in this exercise, a reviewing court does not reweigh the evidence that the tribunal heard. Thus, even if a full and accurate transcript of Dr. Agarwal’s and Dr. Kwan’s evidence were available, the Applicants’ position on this aspect of their argument respecting remedy would not be improved.
THE REMEDY DECISION
177The Applicants submit that the penalties imposed by the University, on the recommendation of the Tribunal, are unreasonable on the facts and the law, are unduly punitive, and should be quashed. The Applicants describe the penalties as “excessively harsh,” “unprecedented,” and “draconian”. The Respondents submit that the penalties are within the range of reasonable outcomes in all the circumstances.
178For the reasons that follow, we have come to the conclusion that the penalties levied against Drs. Bart, Steiner, Taylor, and Pujari are not reasonable and must be set aside. The penalties levied against Drs. Rose and Ray appear to us to fall within the range of reasonable, possible outcomes and, therefore, this court will not interfere.
Drs. Bart, Steiner, and Taylor
179As noted previously, the sanctions levied against each of Drs. Bart, Steiner, and Taylor were “a three year suspension without pay, benefits, privileges or access to the University’s premises during the period of suspension.” In each case, the Tribunal stated that “the recommendation would have been removal but for the mitigating circumstances of the Tribunal’s findings against the University related to the poisoned academic/work environment.” In addition, each Applicant was subject to the requirement that:
(a) he take mandatory sensitivity training;
(b) he be removed from all positions of authority within the DSB; and
(c) he be prohibited from holding any such position of authority for five years following the end of his suspension.
180The Tribunal, in its Remedy Decision, stated that it was acting under its remedial jurisdiction outlined in the Policy under ss. 71, 73, and 74, and emphasized in particular s. 73, which provides:
The tribunal of the Hearing Panel must recommend any appropriate sanction or remedies it deems necessary to guarantee that the behaviour is not repeated.… [Emphasis added by Tribunal.]
181The Tribunal observed:
The remedies identified by the Tribunal needed to reflect the serious misconduct, be corrective and also provide for reasonable deterrence. Furthermore, the Tribunal needed to be satisfied that the sanctions would allow the poisonous academic and work environment to be remedied. In the Tribunal’s view, this will be achieved only if certain individuals are absent from the University for significant periods of time.
And later, in reference to Drs. Bart, Steiner, Taylor and Pujari:
The most egregious misconduct involved unlawful interference with tenure/permanence and promotion and teaching-track conversion processes and various breaches by Dr. Taylor and Dr. Steiner of the Tribunal’s orders. As such, a continued academic role for Dr. Taylor, Dr. Steiner, Dr. Bart and Dr. Pujari may also be characterized as unsustainable based on the findings in the breach decision.
182The Tribunal went on to speak of fashioning a remedy that “achieved appropriate remedial objectives.” The Tribunal emphasized that in its view, the Applicants’ remedy submissions failed to reflect “the gravity and egregious nature of their misconduct.” The Applicants approach to defending against the allegations was clearly a major consideration utilized by the Tribunal in identifying appropriate sanctions. The Tribunal continued:
Furthermore, remedy submissions on behalf of the individual 003 Respondents continued to rationalize misconduct and/or attempt to, without merit, minimize the gravity of the Tribunal’s findings. There was little in the evidence and in the submissions to suggest that the individual 003 Respondents have attained the level of self-awareness about their behaviour which was necessary to satisfy the Tribunal that significant sanctions are not required or that their behaviour has been corrected and will not be repeated. The offers of a ‘private apology’ are negated by Dr. Taylor, Dr. Steiner, Dr. Ray, Dr. Pujari and to a lesser extent Dr. Bart’s testimony which confirmed they generally did not have good insight into their own misconduct even when confronted with incriminating evidence during the hearing. Furthermore, in the face of overwhelming evidence, the individual 003 Respondents not only vigorously denied any misconduct (as they were entitled) but also continued to blame the victims.
183In a rather confusing paragraph, the Tribunal went on to say that the Tribunal’s primary concern was that the Applicants’ presence in the workplace would jeopardize true reconciliation, but that while removal was a remedy seriously considered, it was determined to be “unnecessary.” The University was said to be partially responsible for the poisoned work environment. The Tribunal stated:
As such, the Tribunal believes significant remedies are required and appropriate in the circumstances. While removal was a remedy seriously considered, in the end it was determined to be unnecessary. The Tribunal is most concerned that the individual 003 Respondents’ presence in the workplace will jeopardize true reconciliation at the DSB and preclude the development of an environment where all faculty and staff, including the 003 Complainants, can reasonably function in the workplace as required under the Policy. However, in hindsight, decisions by the Provost in office at the time and delays in the processes employed by HRES also contributed to the unacceptable working environment at the DSB for the reasons set out in the breach award. In these circumstances, while a recommendation for the removal of Dr. Bart, Dr. Taylor, Dr. Steiner and Dr. Pujari may have otherwise been made, we have decided against such a recommendation. Instead, the Tribunal has identified various lengthy suspensions for Dr. Steiner, Dr. Taylor, Dr. Bart and Dr. Pujari, and other sanctions to address their serious misconduct and which will still allow the Tribunal to fulfill its obligations under the Policy.
184With respect to the issue of standard of review of the Tribunal’s Remedies Decision, the parties agree that the standard of review is reasonableness. In particular, this court is concerned with whether the sanctions against the Applicants fall within a range of acceptable outcomes that are defensible in respect of the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
185We would observe, parenthetically, that under the University’s tenure and promotion policy, there is a right to an appeal process in respect of a termination, while there is no right of appeal with respect to a suspension. Further, under the University’s employment agreements, non-contract teaching staff are not entitled to pursue independent grievance arbitration normally available in a unionized environment. For the Applicants in this case, a decision to suspend can only be challenged by way of judicial review, within the narrow confines of the applicable deferential standard. In the circumstances of this case, the Applicants’ argument that a three-year suspension without pay had a more detrimental effect on them than a termination would have, is not without merit.
186We accept that breaching Tribunal orders andpersonal harassment and bullying in the workplace, particularly in a university environment, are unacceptable. We also accept that the Applicants were found to have engaged in such conduct including in the context of processes and decision-making affecting the career advancement of colleagues. However, it is still necessary that any sanctions observe well-established principles of proportionality and fairness.
187In assessing the appropriateness of sanctions issued by an employer, a helpful list of mitigating considerations is set out in Donald J.M. Brown & David M. Beatty, Canadian Labour Arbitration, loose-leaf (2015 release), 4th ed. (Aurora, Ont.: Canada Law Book, 2006), ch. 7, “Discipline”, 7:4000 “Disciplinary Penalties”, 7:4400 “Mitigating Factors” (citing Steel Equipment Co. (1964), 1964 984 (ON LA), 14 L.A.C. 356 (Arbitrator: R.W. Reville)):
(i) The previous good record of the grievor;
(ii) The long service of the grievor;
(iii) Whether or not the offence was an isolated incident in the employment history of the grievor;
(iv) Provocation;
(v) Whether the offence was committed in the spur of the moment as a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated;
(vi) Whether the penalty imposed has created a special economic hardship for the grievor in light of his particular circumstances;
(vii) Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination;
(viii) Circumstances negativing intent;
(ix) The seriousness of the offence in terms of company policy and company obligations; and
(x) Any other considerations, including the grievor’s unwillingness or failure to apologize or settle when given the chance.
188We agree with the Applicants’ submission that there were a number of obviously relevant mitigating factors that the Tribunal failed to consider, including:
(i) None of the sanctioned Applicants had any history of discipline prior to the Tribunal hearing;
(ii) Each of the sanctioned Applicants had a long record of service to the University at the time of the Remedies Decision;
(iii) The unpaid suspensions issued to the sanctioned Applicants have created special economic hardship for them;
(iv) The University chose to single out for punishment only six of the more than twenty-one faculty members that the Tribunal found to be responsible for creating a poisoned work environment.
(v) The University was found to share, to some degree, in the blame for the poisoned work environment, which the Tribunal identified as being “systemic and cultural,” and which the Tribunal found was compounded by the conduct of the Dean and the Provost; and
(vi) The Tribunal acknowledged that each of the sanctioned Applicants attempted to express remorse for their conduct.
189The Tribunal appears to have given little consideration to the unblemished employment record of the three tenured professors and the absence of any previous discipline. At the time of their suspensions, Dr. Taylor had been at McMaster for 27 years, mostly in leadership positions, and Drs. Steiner and Bart had each been at McMaster for 32 years.
190There would not appear to be any support in the arbitral jurisprudence nor indeed in the employment law context generally for a suspension without pay or benefits for a duration of three years. Such a suspension is, in our view, extremely problematic. The length of the suspension inevitably destroys the basis for the employment relationship. The employee is unable to support himself and family, yet is unemployable and is stigmatized in professional circles. Such a sanction inevitably forces the employee to resign and seek employment elsewhere or to retire to access pension income, which was the course taken by Drs. Bart, Steiner, and Taylor in this case.
191The Supreme Court observed in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311, at p. 1113: “A high standard of justice is required when the right to continue in one’s profession or employment is at stake.… A disciplinary suspension can have grave and permanent consequences upon a professional career.”
192A distinguished arbitrator, Ken Swan, commented in University of Windsor v. University of Windsor Faculty Association (Manley Grievance) (2000), at p. 25: “A three month suspension is a very heavy penalty in any context, and is virtually unheard of in a University except for very unusual circumstances” (Emphasis added).
193The Applicants have cited a number of arbitral decisions involving workplace harassment and bullying in a university environment, arguably comparable to the present situation, that resulted in unpaid suspensions of less than three months: see Manley Grievance, at pp. 23–27; and University College of the North v. Manitoba Government and General Employees’ Union (Thompson Grievance), [2011] M.G.A.D. No. 33.
194In the most serious of cases, longer unpaid suspensions have been given for periods up to a year: see St. Lawrence College v. Ontario Public Service Employees Union (Young Grievance), [1998] O.L.A.A. No. 746 (O.L.R.B.) (creating a poisoned learning environment through gender discrimination, favouritism toward certain students, and sexist language placing the program in jeopardy – five-month unpaid suspension); Okanagan University College v. Okanagan University College Faculty Assn. (Craig Grievance), 1997 24984 (BC LA), 64 L.A.C. (4th) 416, [1997] B.C.C.A.A.A. No. 313 (Arbitrator: S. Lanyon) (sexual relationships with multiple students, breach of trust – two-semester suspension); and The Mount Saint Vincent University Faculty Association v. Mount Saint Vincent University (Stebbins Grievances) (1995) (Arbitrator: Bruce Outhouse) (defrauding a provincial loan program – one-year unpaid suspension).
195It is apparent from the Tribunal’s reasons that a significant consideration leading to imposition of the lengthy suspensions was the fact that the Applicants vigorously put forward their position in defending the allegations made by the 003 complainants. The Tribunal found that the Applicants in their evidence at the hearing and in their written submissions through counsel, refused to “acknowledge the egregious nature of the misconduct” and “showed no remorse and remained intransigent throughout the hearing.” The Respondents state at paragraph 113 of their factum: “Nothing has changed. It is clear from the Applicants’ affidavits and factum that they continue to refuse to accept responsibility for their actions, minimize the egregiousness of their misconduct, and blame anyone other than themselves for the Tribunal’s findings.”
196In the same vein, the Respondents assert at paragraph 298 of their factum that “[b]ased on the Applicants’ testimony during the hearing, their remedies submissions, their affidavits and testimony in this Application, and their submissions in this Application, it is clear that the Applicants … had to be removed from the workplace for a period so that the DSB could heal.” The factum goes on to suggest that this court “should also consider how the Applicants’ affidavits and submissions in this judicial review continue to highlight the lack of remorse for their misconduct because they dispute the Tribunal’s findings and minimize the gravity of their misconduct[,] … as well as their refusal to acknowledge any wrongdoing.”
197In our respectful opinion, the Applicants were entitled to put forward the submissions that they did before the Tribunal and before this court as they were engaged in the good faith defence of their own conduct and their own professional reputations and careers. It is inappropriate to view this as an aggravating circumstance justifying an increased penalty.
198This court has said on at least two occasions that a lack of remorse and a failure to acknowledge guilt cannot be used as aggravating factors to increase sanctions. In the case of College of Physicians and Surgeons of Ontario v. Boodoosingh (1990), 73 O.R. (2d) 478, 39 O.A.C. 51 (Div. Ct.), aff’d (1993), 1993 8655 (ON CA), 12 O.R. (3d) 707, 63 O.A.C. 173 (C.A.), leave to appeal refused, [1993] 4 S.C.R. v, 15 O.R. (3d) xvi, at pp. 479–80:
Counsel for the respondent argues that this doctor has shown no remorse and that by failing to admit his guilt it is unlikely that he can ever be rehabilitated. The argument, if followed to its logical conclusion, results in the message that a plea of not guilty will result in a higher penalty than that imposed where there is a plea of guilty.
This discipline proceeding is quasi-criminal in nature. The maximum penalty of revocation is more serious than many penalties imposed for criminal offences. A reprimand alone is devastating to the recipient. A person charged with a serious offence under the Health Discipline Act … is entitled to have the case against him proved by cogent evidence and he or she is entitled to make full answer and defence without fear of the threat of increased penalty.
The doctor had no prior record of misconduct. The committee took away the doctor’s privilege of practising medicine. In our view, the committee failed to give proper weight to the background of the doctor. He practised medicine for 22 years with substantial involvement in community work and academic achievement. We are also troubled by the disparity between this sentence and that imposed in the cases where a reprimand or modest suspension is ordered.
199To the same effect, this court observed in College of Physicians and Surgeons of Ontario v. Gillen (1990), 1990 6710 (ON SC), 1 O.R. (3d) 710, 42 O.A.C. 173 (Div. Ct.), aff’d (1990), 1993 8641 (ON CA), 13 O.R. (3d) 385, 64 O.A.C. 83 (C.A.), at pp. 711–12:
[T]he words of the Discipline Committee clearly indicate the reasons for the imposition of the revocation of licence. In their minds they were justified in imposing the most severe penalty that they are authorized to impose, in part at least, because the doctor did not acknowledge his guilt. This reasoning is not acceptable. A person accused and at risk, as the doctor was in this case, is entitled to defend and continue to defend and appeal without in any way jeopardizing his position when it comes to sentence in the sense that his sentence should not be more harsh because he does not plead guilty.
200The Respondents rely on a recent decision of arbitrator Claude Foisy, Q.C. in University of Ottawa v. Association of Professors of the University of Ottawa (Rancourt Grievances) (2014). Professor Rancourt grieved his termination from the University for refusing to objectively evaluate and grade his students. In his last four courses, he had awarded almost all his students an A+ over objections and warnings from the administration and had expressed an intention to continue doing so. He had previously been disciplined for similar conduct. The arbitrator stated:
Given the extreme seriousness of Professor Rancourt’s breach of his duties to objectively evaluate his students, which I agree with Dean Lalonde is a form of academic fraud, and his insubordination in not following Dean Lalonde’s repeated warnings, I find there is no reason for me to intervene in the University’s decision to dismiss Professor Rancourt.
201The court’s attention was also brought to the decision of arbitrator Kevin Burkett in Memorial University of Newfoundland v. Memorial University of Newfoundland Faculty Association (Ghazala Grievance) (2015). Professor Ghazala, a tenured professor with 23 years of service, grieved her termination from the University for “gross misconduct in academic research” for making deliberate and willful misrepresentations in an NSERC funding application. The arbitrator determined that the allegations were proven. He listed the relevant factors in determining an appropriate remedial response as (i) the nature and seriousness of the fraud; (ii) length of service; (iii) record; (iv) acknowledgement of wrongdoing; (v) whether personal gain was involved; (vi) impact on the institution; and (vii) proportionality, i.e., “the economic and professional impact of upholding the termination of a tenured faculty member.”
202The arbitrator held that a lengthy suspension without pay would constitute a more just and reasonable remedial response than would termination, particularly considering the proportionality factor. However, the arbitrator concluded that “this employment relationship has been strained to the breaking point, such that reinstatement is not an appropriate remedy.” He referred to several arbitral decisions holding that in exceptional circumstances, where it is determined that the employment relationship is no longer viable, compensation may be awarded instead of reinstatement. He noted that factors that have been considered relevant in finding that the employment relationship is no longer viable include:
(1) The refusal of co-workers to work with the grievor;
(2) Lack of trust between the grievor and the employer;
(3) The inability or refusal of the grievor to accept responsibility for any wrongdoing;
(4) The demeanour and attitude of the grievor at the hearing;
(5) Animosity on the part of the grievor towards management or co-workers; and
(6) The risk of a “poisoned” atmosphere in the workplace.
203The arbitrator ordered compensation on these terms:
Accordingly, I hereby direct, in lieu of reinstatement on the terms I would otherwise have imposed, that Dr. Ghazala be compensated for the loss of her employment that would have followed her return to work as a tenured professor. I further direct that her employment record be amended to show the lengthy suspension
204While the present case does not involve academic fraud, the sanctions arise from the Tribunal’s finding that the sanctioned Applicants were the primary cause of a poisoned atmosphere in the business school. The Tribunal justified the three-year suspensions primarily on the perceived need to exclude Drs. Bart, Steiner, and Taylor from the workplace for a lengthy period so as not to perpetuate the atmosphere and the interpersonal strife that existed in the school.
205In our view, this court must accord reasonable deference to the concerns of the Tribunal, consisting of faculty members from McMaster University. The Tribunal can be expected to have had the best appreciation of the effects of the Applicants’ conduct on the wellbeing of the business school and on the atmosphere that existed there and gave rise to the proceedings.
206At the same time, we must address the lack of proportionality inherent in the excessively long three-year suspensions without pay, which could only have had the effect of destroying the employment relationship. Suspensions of this length are the equivalent of terminations (or removals) and drastic punitive measures of this type are only supported in the arbitral jurisprudence in cases of criminal or academic fraud, serious sexual harassment, or repeated ungovernable behaviour incompatible with the continuation of employment.
207In this case, the Tribunal found that Drs. Bart, Steiner, and Taylor engaged in unacceptable instances of bullying or personal harassment but their motivation was not personal gain but a misplaced approach to advancing their view of workplace issues such as faculty management and leadership, expansion of the business school, and hiring contract rather than tenure-track professors. Most seriously, in imposing these suspensions, the Tribunal did not fairly consider the mitigating circumstances in this case, particularly the very lengthy and unblemished periods of employment of these three tenured professors.
208Lastly, in considering the appropriate remedy, we must recognize that Drs. Bart, Steiner, and Taylor have elected to mitigate their damages by resigning their employment and retiring from the University.
209In all the circumstances, we are of the view that the three-year suspensions without pay of Drs. Bart, Steiner, and Taylor must be set aside, and in place thereof, we would substitute suspensions of one year without pay. Having regard to the findings of the Tribunal as to the Applicants’ conduct and the need to end the poisoned atmosphere that existed in the business school, we would treat this as one of the exceptional cases where reinstatement will not be ordered and, instead, Drs. Bart, Steiner, and Taylor will have their common law remedy of compensation.
Drs. Pujari, Ray, and Rose
210As noted, Dr. Pujari received a one-year suspension without pay. In his 12 years at the business school, he had no record of discipline and, indeed, he occupied a leadership position as Area Chair. He was removed from that position and from any other body or committee “where he would have authority to affect terms and conditions of employment of anyone” at the business school. In addition, he was prohibited from holding any positions of authority for a minimum of five years after his return to the University and, thereafter, permitted to do so only with the President’s approval.
211Dr. Ray is an Associate Professor of Marketing who was awarded tenure in 2009. He was given a suspension of one academic term without pay and also removed from all positions of authority for a minimum period of five years.
212The Tribunal explained in the Remedies Decision (at p. 8) why the suspensions levied against Drs. Pujari and Ray were markedly shorter than the three-year suspensions levied against Drs. Bart, Steiner, and Taylor:
Furthermore, the breach award, when considered in context with the remedy submissions, has led the Tribunal to conclude that Dr. Pujari’s and Dr. Ray’s removal is not required, albeit suspensions are necessary to reflect their serious misconduct and to allow the DSB work environment to be remedied. The Tribunal is less concerned about the future behaviour of Dr. Pujari, Dr. Ray and Dr. Rose, trusting they will acknowledge the breach findings against them and respond constructively to the recommendations set forth in this decision. The Tribunal believes the evidence confirmed that Dr. Pujari was not particularly well-suited for a leadership role and displayed repeated poor judgment. Moreover, he assumed Area Chair responsibilities for the first time in a poisoned workplace. Dr. Pujari, given his dispute with the then Provost and the intense peer pressure associated with participation in the G21, likely mistakenly felt he needed to choose a side. Dr. Pujari was particularly unsuited to deal with overbearing and domineering individuals such as Dr. Steiner, Dr. Bart and Dr. Taylor. The Tribunal believes Dr. Pujari was a conflicted and reluctant participant whose behaviour is easier to correct and we have less concern that he will be an obstacle to returning the DSB to an appropriate work environment. Similarly, the Tribunal finds Dr. Ray was likely unduly and negatively influenced by the senior tenured professors with whom he increasingly became aligned in the G21+. Dr. Ray breached the Policy and exercised extremely poor judgment but the Tribunal believes that the remedies we have identified will correct his unacceptable behaviours. With respect to Dr. Rose, the evidence against him does not support removal or suspension because of the Tribunal’s limited breach findings against him.
213The Tribunal articulated clear reasons for the shorter suspensions for Drs. Pujari and Ray based on mitigating and contextual factors. As noted, Dr. Pujari’s suspension was for one year and Dr. Ray’s for one academic term as against the three-year suspensions imposed on Drs. Bart, Steiner, and Taylor. In our view, having found that the three-year suspensions of Drs. Bart, Steiner, and Taylor should be reduced to one year, we would proportionately reduce Dr. Pujari’s suspension to one academic term in deference to the Tribunal’s weighing of the respective conduct of these applicants.
214The one-term suspension given by the Tribunal to Dr. Ray and the reprimand to Dr. Rose appear to us to fall within the range of possible penalties available on the evidence and accordingly we will not interfere.
DISPOSITION
215The court, therefore, orders as follows:
(a) The three-year suspensions without pay or benefits of Drs. Bart, Steiner, and Taylor are quashed and reduced suspensions of one year without pay or benefits are substituted in their place.
(b) The one-year suspension without pay or benefits of Dr. Pujari is quashed and in its place is substituted a suspension of one academic term without pay or benefits.
(c) The matter of compensation to be paid to Drs. Bart, Steiner, Taylor, and Pujari is remitted to the President of McMaster University who is directed to establish a fair and independent arbitral process to calculate the compensatory entitlements arising from this decision and to cause such compensation, once established, to be paid to the said Applicants by the University.
(d) The application of the remaining Applicants is dismissed without costs.
216In the event the Applicants, Drs. Bart, Steiner, Taylor, or Pujari, wish to seek costs, they are to submit to the court a concise written submission within 30 days of the release of these reasons and the Respondents may reply within 30 days of receiving the Applicants’ submissions.
H. SACHS J.
HACKLAND J.
THORBURN J.
Released: 20160926
CITATION: Bart v. McMaster University, 2016 ONSC 5747
DIVISIONAL COURT FILE NO.: 210/14
DATE: 20160926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. SACHS, HACKLAND and THORBURN JJ.
BETWEEN:
DR. CHRIS BART, DR. DEVASHISH PUJARI, DR. WILLIAM RICHARDSON, DR. JOE ROSE, DR. SOURAV RAY, DR. GEORGE STEINER, AND DR. WAYNE TAYLOR
Applicants
– and –
MCMASTER UNIVERSITY, THE BOARD SENATE HEARING PANEL FOR SEXUAL HARASSMENT/ANTI-DISCRIMINATION UNDER THE MCMASTER UNIVERSITY ANTI-DISCRIMINATION POLICY, THE SENIOR ADMINISTRATOR AT MCMASTER UNIVERSITY AND CERTAIN UNNAMED INDIVIDUALS AT MCMASTER UNIVERSITY
Respondents
REASONS FOR Decision
THE COURT
Released: 20160926