Cohnstaedt v. University of Regina, [1989] 1 S.C.R. 1011

University of Regina Appellant

v.

Dr. Martin L. Cohnstaedt Respondent

indexed as: cohnstaedt v. university of regina

File No.: 19816.

1989: January 30; 1989: April 27.

Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.

on appeal from the court of appeal for saskatchewan

Contracts -- Employment -- Assessment of abilities -- Tenured professor to be assigned work and assessed pursuant to agreement with university -- Early retirement to be waived if reasonable standards of tenured professor met -- Assignments on which assessment based not including all aspects of tenured professor's work -- Professor's skills found to be wanting and notification of early retirement given -- Whether or not agreement between parties breached such that evaluation invalid and employment wrongfully ended.

Appellant entered into a formal agreement with respondent, a tenured professor, in an attempt to resolve difficulties existing between the professor and his department. Respondent was to perform the academic duties assigned to him over the course of a year by two deans who were to assess his performance. It was agreed that if respondent's work met a reasonable standard for a full professor the university would accord him the same treatment as any other tenured professor and waive its requirement that he take early retirement. Appellant was assigned work involving scholarship and research performance and public service but none involving teaching or administrative skills. When respondent's work was assessed to be below standard, appellant immediately notified him of his retirement. Respondent challenged the assessment and sought a declaration that the termination of his appointment was invalid because of (i) a failure of natural justice in the procedure followed, and (ii) a breach of the agreement with the university. The trial judge upheld the deans' assessment and implicitly found that no breach of contract had occurred. The Court of Appeal reversed this decision.

Held: The appeal should be allowed in part.

The university, pursuant to the agreement, undertook to evaluate respondent on all aspects of his performance: his teaching skills, his scholarship and research abilities, his administrative skills and his level of public performance. It also undertook to give respondent assignments that would be subject to evaluation. These obligations were not met. The deans, while charged with assigning respondent work that would be subject to assessment, did not have a discretion to assign no work or to assign insufficient work for evaluation. The failure to give respondent sufficient duties to permit a thorough assessment of his performance amounted to a breach of the agreement. The actual assessment was accordingly invalid and respondent's employment wrongfully ended.

It was not necessary to discuss the arguments concerning natural justice.

Cases Cited

Referred to: Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1986), 1986 CanLII 2917 (SK CA), 45 Sask. R. 197, [1987] 2 W.W.R. 1, 18 Admin. L.R. 1, 12 C.C.E.L. 265, allowing an appeal from a judgment of Forbes J. (1982), 1982 CanLII 2656 (SK QB), 45 Sask. R. 232. Appeal allowed in part.

Gordon Kuski, Q.C., and Pamela Conklin, for the appellant.

John Beke, Q.C., for the respondent.

//L'Heureux-Dubé J.//

The judgment of the Court was delivered by

L'HEUREUX-DUBÉ J. -- The respondent, Dr. Cohnstaedt, was appointed as a tenured professor to the Sociology Department of the appellant University in 1967. As early as 1969 there were signs of discontent within the Department concerning the presence and performance of Dr. Cohnstaedt.

There is no need to recount at length the events prior to the formation of the agreement which is the subject of this case. Suffice it to say that there was tension and acrimony between the parties. On one view of the facts, the University was engaged in an attempt to dismiss a tenured professor who was disruptive and unable or unwilling to perform his functions properly. On another view of the facts, Dr. Cohnstaedt was the victim of political manoeuvering within the Sociology Department, with his removal being sought on personal and ideological grounds.

Regardless of the view of the facts taken, the events culminated in the parties entering into the following agreement on May 18, 1977:

MEMORANDUM OF AGREEMENT made the 18th day of May, 1977

BETWEEN: DOCTOR M. L. COHNSTAEDT, of the Town of Lumsden, in the Province of Saskatchewan, (hereinafter referred to as Cohnstaedt)

OF THE FIRST PART

and

THE UNIVERSITY OF REGINA, (hereinafter referred to as the University)

OF THE SECOND PART

WHEREAS Cohnstaedt has commenced an action against The University of Regina as Q.B. No. 474 of 1975 which action has been set for trial commencing May 24, 1977;

AND WHEREAS the parties hereto have reached agreement whereby the dispute being litigated has been fully resolved;

NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:

1. Cohnstaedt shall be forthwith assigned to the Department of Sociology and Social Studies and immediately thereafter seconded for an indefinite period to work under the joint direction of the Dean of Arts and the Dean of Social Work (hereafter referred to as "the Deans").

2. Cohnstaedt shall be shown as a Professor of Sociology and a member of the Department of Sociology in the University telephone directory, the general calendar and publications issued by the University where members of the Department of Sociology and Social Studies are listed, but shall not attend Department of Sociology meetings or take any part in the department's affairs except at the request of the head of the Department of Sociology and Social Studies. He shall receive notices of all department meetings, copies of minutes and other documents or memoranda issued by the Department and normally circulated to members of the Department.

3. Cohnstaedt shall perform such academic duties as shall be hereafter assigned to him by the Deans during the period ending April 30, 1978, at which time his work during the said period shall be assessed as hereafter provided.

4. Cohnstaedt's academic work as assigned to him shall be assessed by the Deans forthwith after April 30, 1978, and if his work shall be judged to be of a quality such as might reasonably be expected of a full professor with the University, the University agrees, subject to paragraphs 2 and 5 hereof, to thereafter treat him as any other tenured professor and to waive the requirement for early retirement contained in the agreement made between the University and Cohnstaedt dated October 7, 1972.

5. In the event of such waiver, Cohnstaedt shall thereafter continue to work under the Deans as a seconded member of the Department of Sociology and Social Studies until his retirement or until he shall be invited by the University to participate in the work of the Department of Sociology and Social Studies. While working under the direction of the Deans he shall continue as a seconded member of the Department of Sociology and Social Studies subject to the terms of paragraph 2 hereof and shall continue to work at the direction of and be responsible to the Deans.

6. In the event the Deans judge his performance during the said period ending April 30, 1978, to be inadequate (i.e. of a standard below that which might reasonably be expected of a full professor at the University) then Cohnstaedt shall continue to be bound by his undertaking in the said agreement of October 7, 1972, to retire effective June 30, 1978.

7. There shall be no appeal from the joint decision of the Deans, however, in the event that the Deans are unable to agree, the assessment shall be made by a board of three members to be selected as follows:

(a) a nominee to be appointed by the President of the University;

(b) a nominee to be appointed by Cohnstaedt;

(c) a chairman to be agreed upon by the nominees or in the event of failure so to agree to be selected by the Visitor of the University of Regina.

8. The University shall forthwith pay and Cohnstaedt accepts the sum of $1100.00 in full settlement for increments denied him during his employment with the University.

9. Cohnstaedt agrees to forthwith discontinue the action he has commenced against the University of Regina, being Q.B. No. 474 of 1975 and also releases the University from all claims and demands involved in such litigation and which are alleged in such action to have accrued to him.

10. The University affirms that it has no present intention to change the office or other facilities of the University currently available to Cohnstaedt and agrees that no such change shall be made until his retirement without the prior consent of the Deans.

On June 29, 1978, Deans Stalwick and Robinson notified the President of the University that they had carried out their assessment of Dr. Cohnstaedt. They were of the opinion that his work was "of a standard below that which might reasonably be expected of a full professor at the University". Without waiting for the reasons for this assessment, the University moved immediately to notify Dr. Cohnstaedt that his retirement from the University, pursuant to the agreement, would take effect June 30, 1978.

Dr. Cohnstaedt challenged this assessment which, in his view, amounted to a "dismissal". He sought a declaration that the termination of his appointment was invalid because of a failure of natural justice in the procedure followed. He also claimed that the procedure followed was in breach of his agreement with the University.

Court of Queen's Bench (1982), [1982 CanLII 2656 (SK QB)](https://www.canlii.org/en/sk/skqb/doc/1982/1982canlii2656/1982canlii2656.html), 45 Sask. R. 232

At the end of the trial, Dr. Cohnstaedt sought leave to amend his statement of claim to incorporate allegations that there was bias in the assessment process, and that the Deans failed to act fairly towards him in assigning and assessing his work. Dr. Cohnstaedt also sought leave to include the allegation that:

23. The assignment and the assessment of Dr. Cohnstaedt as contemplated by the agreement was subject to the principles of natural justice and the defendant, in the manner in which the work was assigned and assessed failed to adhere to the principles of natural justice, especially, inter alia, involving a biased person in the assignment and assessment of the work.

Forbes J. held that there was no evidence to substantiate the allegations which were the subject of the amendments. He refused to allow the proposed amendments to the statement of claim.

As to the merits of the case, Forbes J. regrettably did not discuss, weigh or assess any of the evidence in his short reasons. His brief conclusion, at p. 234, was that:

. . . I am satisfied that the two Deans acted diligently and objectively with bona fides and fairness in their task of making an assessment of the performance of the plaintiff, and under the circumstances the assessment of the two Deans should not be disturbed.

It is implicit in this conclusion that Forbes J. found there was no breach of contract. However, it is not possible to ascertain the interpretation given by Forbes J. to the terms of the agreement.

Court of Appeal (1986), [1986 CanLII 2917 (SK CA)](https://www.canlii.org/en/sk/skca/doc/1986/1986canlii2917/1986canlii2917.html), 45 Sask. R. 197

On appeal, Dr. Cohnstaedt challenged the refusal of the trial judge to allow the amendments to his statement of claim. Tallis J.A., writing for himself and for Cameron J.A., determined that the evidence required to support the proposed amendments had been adduced at trial. Tallis J.A. determined that allowing the amendments would cause no prejudice to the respondent and that the amendments should have been granted. The amendment was allowed in the appeal "in order to deal with the real issues in the controversy".

The majority of the Court of Appeal was of the view that the contract established a "domestic tribunal" to which the rules of procedural fairness would apply. Tallis J.A. then determined, at p. 225, that:

We reject the respondent's [here appellant] contention that the appellant [here respondent] has, by contract, deprived himself of any procedural safeguards that flow from his status as a tenured professor. Whether he could contract himself out of such a right is a question that we do not need to decide because the language of the contract does not mandate such a conclusion.

Tallis J.A., while not setting out any specific procedural safeguards to be met, found that at a very minimum, there should have been some sort of pre-termination process or hearing.

Tallis J.A. also found, at p. 228, that the following term was implicit in the contract:

. . . that the appellant [here respondent] would be assessed on the usual factors for evaluating the work of a full time professor, namely, his teaching skills; his scholarship and research performance; his administrative abilities and his level of public service.

The majority found that this implied term was breached by the University because, during the assessment year, Dr. Cohnstaedt received no teaching assignments and was not given any administrative responsibilities of any significance.

In spite of objections by the University, and in spite of a contrary finding by the trial judge, the majority of the Court of Appeal determined that an agreement as to the appropriate amount of damages had been reached by the parties. The "agreement" stipulated the sum of $333,024 as representing Dr. Cohnstaedt's loss with respect to salary and pension benefits. The majority allowed the appeal of Dr. Cohnstaedt, and awarded him that amount in damages.

Hall J.A. dissented. While Tallis J.A. had made an extensive review of the relationship between the parties from the time Dr. Cohnstaedt was appointed to the University, Hall J.A. was of the view that only the agreement and the events subsequent to its formation could be considered.

Hall J.A. canvassed events subsequent to the agreement in great detail. He determined that the Deans had acted diligently and in good faith. In Hall J.A.'s view, nothing more was required by the agreement. He found that there was no requirement under the contract for the Deans to assign any particular type of work to Dr. Cohnstaedt. In his view of the matter, the appeal should have been dismissed.

Issues

The appellant University argued before this Court that the situation between Dr. Cohnstaedt and the University was governed by the agreement of May 18, 1977. As such, the problem was purely one of contract and did not involve administrative law principles. It was the appellant's contention that since the present matter did not involve a disciplinary process subject to judicial review, the principles enunciated by this Court in Kane v. Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, did not apply. It argued that there was a "qualitative difference" between a disciplinary process and an academic performance evaluation. It further maintained that the Court of Appeal erred in imposing on the assessment process established by the agreement in this case a "duty of fairness", as outlined in Nicholson v. Haldimand Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311. The appellant also contested the decision of the Court of Appeal to allow the amendments to the statement of claim.

Counsel for the respondent argued that in removing Dr. Cohnstaedt from office the University committed a breach of the employment contract, the 1977 agreement, and the principles of natural justice. It was argued by the respondent that according to principles of natural justice, Dr. Cohnstaedt had a right to see his assessment and respond to it. It was further argued that the assessment procedure was tainted with unfairness. In addition, the respondent maintained that the failure to assign teaching duties for the purposes of the assessment constituted a breach of the 1977 agreement.

Analysis

On my view of the matter it is unnecessary to consider any of the incidents which occurred prior to the formation of the 1977 agreement.

The wording of Clauses 3 and 4 of the 1977 agreement is of key importance, and I will repeat these clauses here:

3. Cohnstaedt shall perform such academic duties as shall be hereafter assigned to him by the Deans during the period ending April 30, 1978, at which time his work during the said period shall be assessed as hereafter provided.

4. Cohnstaedt's academic work as assigned to him shall be assessed by the Deans forthwith after April 30, 1978, and if his work shall be judged to be of a quality such as might reasonably be expected of a full professor with the University, the University agrees, subject to paragraphs 2 and 5 hereof, to thereafter treat him as any other tenured professor and to waive the requirement for early retirement contained in the agreement made between the University and Cohnstaedt dated October 7, 1972. [Emphasis added.]

The Court of Appeal held that this agreement contained an implied term that Dr. Cohnstaedt would be assessed on a range of factors. Tallis J.A. wrote, at p. 228:

1. Implicit in the agreement between the parties was a term that the appellant would be assessed on the usual factors for evaluating the work of a full time professor, namely, his teaching skills; his scholarship and research performance; his administrative abilities and his level of public service. [Emphasis added.]

I agree. The assessment of Dr. Cohnstaedt was supposed to determine whether his work was "of a quality such as might reasonably be expected of a full professor with the University". It would follow that the work assigned should be of the kind as might reasonably be performed by a full professor with the University.

It is clear from the facts that the assessment of Dr. Cohnstaedt was limited to only two of the four types of work identified by the Court of Appeal as constituting the work of a full professor. Only his scholarship and research performance, and his public service were assessed. Tallis J.A. noted, at p. 228-29:

During the crucial assessment year, he received no teaching assignments. Dean Stalwick acknowledged in evidence that this would hamper their ability to conduct a full assessment of the appellant's capabilities as a full Professor. In retrospect, he recognized that more attention should have been paid to this question. . . . [T]he Deans in their assessment emphasized that teaching was one of the two most important areas of assessment in this case. Nor was the respondent assigned any administrative responsibilities of any significance.

It was admitted before this Court that Dr. Cohnstaedt's teaching skills had played a large role in initially securing his position with the University. Given this fact, the lack of a teaching assignment as part of his evaluation is even more striking.

There was a great deal of discussion before this Court as to where to lay the blame for the lack of teaching assignments. However, in my view, the agreement clearly shows that the University undertook to evaluate Dr. Cohnstaedt on all aspects of his performance. The University also undertook to give him the assignments which would be subject to evaluation. In the circumstances of this case, I am not convinced that the University fulfilled its burden of ensuring, to the best of its abilities, that it met its obligations under the agreement.

Although clause 3 states that Dr. Cohnstaedt would perform "such academic duties [as would be] assigned to him by the Deans", I cannot take this to mean that the Deans had complete discretion in the assignment of work. While the Deans certainly had some discretion in setting tasks for Dr. Cohnstaedt, they could not have the discretion to assign no work or to assign insufficient work for the purposes of the evaluation.

The failure to give Dr. Cohnstaedt sufficient duties to permit a thorough assessment of his performance amounted to a breach of the 1977 Agreement. I accept the following observations of Tallis J.A., at p. 230:

Implicit in the contract, is a term that the respondent, as one of the contracting parties, would assess the appellant on the basis of his abilities as a teacher; his scholarship, and research capacities and performance; his administrative skills and his public service. Indeed that was the framework adopted by the Deans. The contract was not between the Deans and the appellant -- it was between the appellant and the University. Under this contract the respondent bears the burden of ensuring that such an assessment takes place. This it failed to do. For example, the failure to ensure that the appellant was assigned sufficient teaching duties on which to make an assessment must ultimately rest with the administration. The respondent had a clear responsibility to assign to the appellant such duties as would permit his performance as a full time university professor to be properly assessed. This it failed to do.

The University breached the 1977 agreement by not providing anywhere near the type and quantity of work necessary to make a proper assessment of Dr. Cohnstaedt's performance as a full professor. As a result, the actual assessment was invalid, and the employment of Dr. Cohnstaedt was wrongfully brought to an end.

In my view this is sufficient to dispose of the appeal. I do not feel it is necessary in this case to discuss the arguments concerning natural justice and procedural fairness which were made by the parties and discussed by the Court of Appeal.

Damages

The trial judge, in dismissing the claim of Dr. Cohnstaedt, did not find it necessary to determine the quantum of damages. He made the following observation, at p. 234:

One exhibit was filed with figures respecting damages and pension benefits which figures had been agreed upon by both counsel without admitting that the plaintiff was entitled to any particular amount as damages, and if I had found that the plaintiff was entitled to recover I would have asked counsel to speak to the matter of damages.

In reversing the decision of the trial judge, the Court of Appeal addressed the issue of damages. Tallis J.A. determined that the Court of Appeal was in as good a position as the trial judge to make the assessment. Counsel for Dr. Cohnstaedt had argued before the Court of Appeal that the exhibit referred to by the trial judge in the above citation constituted an agreement as to the quantum of loss of salary and pension benefits. Tallis J.A. accepted this position. He determined that it was unnecessary to award damages for mental distress and illness under the circumstances, and therefore awarded judgment for the amount contained in the "agreement".

The appellant University argued before us that there was no agreement between counsel as to the quantum of damages. It is argued instead that this exhibit represented a series of mathematical facts and figures relating to damages but not constituting any sort of agreement as to quantum.

On reviewing the materials before us I am unable to come to the conclusion that the exhibit in question was meant to constitute an agreement as to damages. While the transcripts are not conclusive, it seems clear that the trial judge found that there was no agreement as to damages. It also appears that counsel has never been given an opportunity to address the issue of damages. In my view, the matter should be sent back to the Court of Queen's Bench for a determination of the appropriate award of damages.

Conclusion

In the result, the appeal is allowed in part, the order of the Court of Appeal is varied by substituting for the award of $333,024 an order remitting the matter to the Court of Queen's Bench for an assessment of damages. Costs in this Court and of the assessment to the respondent.

Appeal allowed in part.

Solicitors for the appellant: McDougall, Ready, Regina.

Solicitors for the respondent: Balfour, Moss, Milliken, Laschuk & Kyle, Regina.