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

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.”