President Meric Gertler of the University of Toronto Needs a Better Lawyer

Apr 24

In the two letters that President Marc Gertler of the University of Toronto sent to faculty and librarians this week, the first on April 20 and the second on April 23, President Gertler claimed that Justice Cromwell made factual findings that exonerate the University from the charge that it interfered in the academic freedom of Dr. Azarova when, as Justice Cromwell put, “advanced negotiations” were “abruptly halted.” (p. 12 of the Cromwell Report).

In the April 20 letter, President Gertler stated the following:

In the April 23 letter, President Gertler, following the decision of the Canadian Association of University Teachers to censure the University of Toronto in a 79-0 vote, essentially reiterated what he had said two days prior to the CAUT hearing:

President Gertler seems genuinely puzzled that his argument — that Justice Cromwell’s conclusions should end discussion — has fallen on deaf ears. Perhaps that is because he is receiving some really bad legal advice.

In this twitter thread, I explained that Justice Cromwell’s conclusions of fact — other than those facts which in his Report are uncontested — are entitled to zero deference because the posture of the investigation that he conducted is best understood from the perspective of a judge ruling on a Rule 20 motion for summary judgment. In it I explained that the judge’s role in ruling on a summary judgment is limited to determining whether sufficient facts remain in dispute to warrant a full trial of the facts. Denial of a plaintiff’s motion for summary judgment — in this case, essentially moving for a finding of wrongdoing on the part of the former dean — means no more than that Justice Cromwell believed that the former dean has an evidentiary basis on which he could mount a defense to a charge that his decision was motivated by an improper purpose, namely, to satisfy the demands of Justice Spiro and his political allies. The most important factual basis for the former dean’s defense is that he believed that September 30 was a hard starting date. Because it became apparent to the former Dean that Dr. Azarova could not obtain a work permit by that date, nor would a temporary independent contractor agreement with her be feasible, the former Dean concluded — in his version of the facts — that an offer was not viable so he terminated it.

But that is not the only version of the facts included in the Cromwell Report. Two members of the Search Committee, one a tenured professor in the Faculty of Law, and the other a paid part of the IHRP staff at the time, both denied that September 30 was a hard deadline. Furthermore, the tenured professor believed that an independent contractor arrangement would have been viable, a fact corroborated by the undisputed fact that the University of Toronto had used independent contractor arrangements with other potential hires until they could obtain work permits (p 19 of the Cromwell Report).

So, here we have a dispute about a material fact: was September 30 a hard deadline or not? Justice Cromwell stated that he was not in a position to resolve such contested because he could not make credibility assessments.

In view of that, how are we to understand his decision to credit the former Dean’s version? We are required to take Justice Cromwell at his word: that he was “not to resolve point on which memories differ.” But if we accept my argument that he was acting as though he were resolving a summary judgment motion against the defendant, in this case the former Dean, he behaved as a judge would behave in those circumstances: he made all reasonable inferences in favor of the non-moving party, which required him to assume that the Dean’s version was true. But this is not a finding of fact that deserves any deference. It only means that he could not adjudicate between the contested claims of two members of the search committee, and the claim of the Dean and the Assistant Dean.

Why not? What safeguards were absent from this process that precluded Justice Cromwell from making definitive findings? In short, all the ordinary procedural rights that attach to individuals who participate in civil litigation.

First, none of the “testimony” that Justice Cromwell obtained was taken under oath subject to the penalty of perjury.

Second, and unlike a deposition in civil litigation, the “witnesses” were not subject to cross-examination by the opposing party. This means that there was no opportunity to ask the former Dean or Assistant Dean obvious questions, like, “If September 30 was a hard deadline, why wasn’t it communicated to the Preferred Candidate on August 11?” or “Why is the only evidence of September 30 being a hard deadline oral statements from the Dean and the Assistant Dean made long after the controversy came to light?”

Third, Justice Cromwell — as far as we know — did not employ a court reporter to record the testimony of the parties. Therefore, the oral evidentiary record was not likely to have been pristinely preserved. As far as I know, Justice Cromwell did not share his notes with all the parties so that they could have a fair appraisal of all the evidence in the case. Indeed, President Gertler points out in both letters that Justice Cromwell was the only person in possession with all relevant materials, as though that is a virtue, when in fact it is a reflection of the very constraints that Justice Cromwell mentioned on page 12 of his report that prevented him from resolving factual disputes. Not only did Justice Cromwell not make available complete transcripts of his interviews with the various participants to all the parties, he also did not share with them copies of the emails that he reviewed. Accordingly, it is impossible for a third-party to determine whether his factual account is in any way incomplete or even misleading in light of the material he gathered. It accordingly lacks the transparency required to afford conclusions of fact preclusive effects.

Because the parties were also unrepresented by lawyers, none were present to object to the kinds of questions Justice Cromwell asked. As far as we know, he might have elicited answers using leading questions or other inappropriate modes of coaxing information from witnesses, mistakes which we rely on our adversarial system to prevent.

In short, there are so many procedural shortcomings to Justice Cromwell’s “investigation,” that no legal doctrine justifies according its factual conclusions any deference whatsoever, except with respect to its uncontested facts, which essentially amount to admissions against interest, and therefore fall under one of the exceptions to the hearsay rule. Accordingly, all the witness statements about communicating Justice Spiro’s political concerns about Dr. Azarova would be admissible in a trial, even if the parties themselves — the AVP, the Assistant Dean Alumni and Development, and the Assistant Dean of the Faculty of Law — refused to testify under oath to the same facts.

In short, the Cromwell Report is nothing more than an expensive and wasteful exercise in public relations, intended to shore up the University’s image. Unfortunately, the uncontested facts of the Report make things worse. I don’t think anyone could have imagined the eager willingness of University Advancement and administrative officers — two of whom are lawyers — to betray the confidentiality of the hiring process.

In light of their failure to mount even token resistance to Justice Spiro’s improper attempt to scuttle Dr. Azarova’s hire, and the obvious wrongfulness of his request — after all, even Justice Spiro told the AVP, and she so stated to Justice Cromwell that it would be improper for him to communicate his concerns directly to the former Dean — it is borderline shocking that Justice Cromwell attributes this failure to the absence of a written policy (p. 70 of the Cromwell Report).

One would have thought that losing the censure vote unanimously, 79-0, might cause the President to pause to consider why the rest of the world finds the Cromwell Report so unpersuasive. But that might also require the University of Toronto to abandon status-based arguments rooted in the pure character of both former Dean and Justice Cromwell and begin to defend their conduct on the basis of the objective facts of what transpired. Or, it might just be that President Gertler is surrounded by lawyers telling him what he wants to hear: that the University of Toronto can do no wrong.

Unfortunately for President Gertler and his legal advisors, good lawyers never begin with that premise: they presume wrongdoing and work to exclude it based on evidence. Had the University taken this scandal seriously from Day 1, for example, it would have learned of the shocking behavior of its advancement personnel and would have immediately investigated what happened, and taken proper steps to discipline the wrongdoers for their egregious breach of confidentiality. One might have expected that a Faculty of Law which takes its confidentiality obligations toward job candidates seriously to have also mounted an investigation to determine what happened, and upon discovery of the Assistant Dean’s role
in breaching confidentiality, would have taken steps to discipline her as well.

But no such steps were taken by the University to determine what happened. That in itself is reason to be skeptical of any explanation given by University officials involved in this scandal, to say nothing of why no heed should be given to the President’s conclusory declaration that “Mr. Cromwell’s conclusions are clear and compelling.”

Read More

The Cromwell Report: Professor Joe Carens on why it can’t be taken seriously

Apr 14

The abrupt withdrawal of an offer to Dr. Valentina Azarova to become the director of the University of Toronto Faculty of Law’s Director of the International Human Rights Program continues to be a source of controversy. After several Canadian newspapers published a series of stories claiming that the offer to Dr. Azarova was withdrawn after David Spiro, a sitting judge on the Tax Court of Canada, contacted the then Dean of the Law Faculty, Ed Iacobucci, and informed him that she was an unworthy hire because of her scholarship on the Israel-Palestine conflict. Judge Spiro, before joining the bench, had been a director of a pro-Israel advocacy group, The Centre for Israel and Jewish Affairs. (Ultra Vires, the student newspaper at the University of Toronto Faculty of Law, maintains a website with links with the numerous articles and social media posts and tweets that have been written about the controversy since it first broke out in September 2020). In an effort to quell the controversy, Meric Gertler, President of the University of Toronto, appointed Thomas Cromwell, a retired Justice of the Supreme Court of Canada, to conduct a review of what happened. Justice Cromwell’s report was released to the public on March 29, apparently two weeks after it was completed. Justice Cromwell, despite the limitations he placed on his own findings, namely, that he was not in a position to resolve the conflicting factual accounts regarding what happened, ultimately concluded that he was not prepared to conclude that the former Dean acted to appease pressure from donors. Instead, Justice Cromwell concluded that the Dean sincerely believed that immigration rules posed an insurmountable hurdle for hiring Dr. Azarova, who was not a Canadian citizen. The President of the University seized upon the Cromwell Report’s conclusions, issuing a letter in which he expressed his view that the Report was a complete exoneration of the University and the former Dean’s conduct in the Azarova affair.

I expect at a later date that I will give my own analysis of what is wrong with the Cromwell Report. In brief, I believe that the Reports conclusions go well beyond what can be supported by the facts the Report relates and the limitations that Justice Cromwell imposed upon himself with respect to resolving factual disputes. In the meantime, however, a retired colleague in Political Science, the political theorist Joseph Carens, kindly shared with me his executive summary of a much more detailed criticism of the Cromwell Report that he has prepared but is not yet complete.

In my opinion, his executive summary provides more than sufficient reasons for an objective observer to look at the Cromwell Report with a fair degree of suspicion, and that instead of representing an honest effort to resolve what actually happened, the Cromwell Report was just another step in covering up serious wrongdoing at the University of Toronto, and another case of academic administrators failing to respect academic freedom, especially when if it relates to Palestine and Israel.

Read More

Muslim Students at Berkeley Respond to Wajahat Ali’s Atlantic Piece, “A Muslim Among Israeli Settlers”

Jun 01

Since The Atlantic published Wajahat Ali’s piece, “A Muslim Among Israeli Settlers,” a firestorm has erupted within the North American Muslim community, largely focused on what seemed to most Muslim and pro-Palestinian readers to be an apology for Zionism, and the author’s relationship with the controversial Muslim Leadership Initiative.  I personally found the piece offensive for many reasons, particularly the way in which it tended to equate the religious fanaticism of the Israeli settlers with the determination of the Palestinians to resist their messianic fantasies.  I was particularly offended by his incredulous reaction to the Palestinian in Khalil (Hebron to those unable to move beyond the time frame of the Old Testament) who, despite being surrounded by fanatic Israeli settlers, was unwilling to sell his house to them for $4 million, or for any price.

In any case, there have been several excellent critiques of this article on Facebook, including this one by Sylvia Chan-Malik, deconstructing the sympathetic language Wajahat used to describe the Zionist settlers, with the judgmental and hectoring rhetoric he reserved for the Palestinians.  Hafsa Kanjwal also had on her Facebook page an excellent critique of Wajahat’s attempt to set the Kashmiri struggle against that of the Palestinians and exposed it for a classic case of “whataboutery”, noting her disgust as a Kashmiri that her struggle would be used to undermine that of the Palestinians.  Many others have been disgusted by his reaction of running to the Atlantic, and publishing there a complaint about the Muslim reaction to his first piece, which led the Islamic Society of North America to disinvite him to their annual conference.  He is now taking on the appearance of a free speech martyr as a result.

I have said before, and I will say it again: I greatly admire Wajahat’s work on Fear, Inc., the Roots of the Islamophobia Network.  It is ironic that since teaming up with MLI, he is actually cooperating with some of the very same funders of the Islamophobia Network in the name of inter-religious dialogue.  In a brief exchange with Wajahat on Facebook a couple of weeks ago after his first Atlantic article, I told him that he was not entitled to speak anywhere, and that he had to take responsibility for his participation in MLI, and he could either admit it was a mistake (which I counseled him to do), or defend it, and try to persuade us that we are mistaken.  But he could not attempt to hide from it, pretend it was not a big deal, and then resent being excluded by Muslim groups who find collaboration with Uber-Zionists to be, well, at a minimum, distasteful.

What many of us may not have heard, however, is the voices of Berkeley MSA students from the years Wajahat mentioned in his Atlantic piece. One of them sent me an essay he wrote in response to the Atlantic piece, defending the Berkeley MSA against Wajahat’s charges, and basically calling him out for many half-truths.  With his permission, I am reproducing the response below:

Read More

University of Illinois Rescinds Offer to Professor for his Anti-Israeli Tweets

Aug 06

This morning, I read this disturbing report that the University of Illinois rescinded an offer it made to a professor to join its faculty on account of his anti-Israel tweets. It is important that we write to the University of Illinois protesting this decision.  Please consider sending an e-mail the University Chancellor, Phyllis Wise, explaining why this decision is not consistent with the values central to a university in a democracy.  Her e-mail address is chancellor@illinois.edu (or in the alternative, pmischo@illinois.edu).  Here is the note that I sent her:

Read More

Ilana Feldman, Professor of Anthropology at George Washington University, on Israel’s Long-Standing Policy of Isolating Gaza

Jul 29

Ilana Feldman, an anthropologist at George Washington University, has written this informative post on Israel’s evolving policy of isolation of Gaza, which is now reaching its crescendo in “Operation Protective Wedge.” She concludes with the following bleak assessment of life in Gaza:

“So Gazans are immobilized in every sense: cut off from other members of their community, isolated from the “international community,” deprived of economic opportunity, basic goods, and access to advanced medical care. Imposed immobility is itself a form of violence against people, and it cruelly magnifies the violence of military assault. The current catastrophe in Gaza is a product of years of preparation. Restriction of Palestinian movement goes back to their displacement in 1948. And mobility management has been a central tactic of Israeli occupation since 1967. The phone call ahead of the bomb, the “roof knock” (a small bomb) ahead of the lethal strike, are twists in this long trajectory. That sometimes the phone call is not followed by a strike underscores its potency in psychological warfare. These tactics are yet another weapon in the massive arsenal deployed against Palestinians.”

Read More

Hamas “Defense” Spending Compared to Israel According to Israel’s Shin Bet

Jul 28

When Israeli propagandists talk about Hamas diverting resources from needy Palestinians to fight Israel, keep this factoid in mind, courtesy of Shin Bet, Israel’s intelligence services (from WikiLeaks):

“According to the leaked cable, Gaza’s de-facto Hamas government spends an estimated budget of US$290 million annually, on a population of approximately 1.5 million residents. The PA’s budget is four times bigger, at approximately US$1.24 billion in 2010. The PA provides services to about 2.4 million residents in the West Bank, as well as covering some of the costs of certain services for Gaza’s residents. The Shin Bet estimates that Hamas uses US$40 million (13.8% of its budget) for military and security needs, and invests the remainder in administration and civilian projects. Israel, by comparison, ran a budget of US$96 billion in 2010 (for a population of 7.6 million), and spent 18.6% of it on military and security purposes – so that, ironically, even according to Shin Bet estimates, Israel spends proportionately more on its military than Hamas spends.”

Read More