Besides the procedural limitations inherent in the Cromwell Report that render its contested factual conclusions essentially worthless, the conclusory nature of its legal conclusions equally undermine its persuasiveness.

The principle substantive legal controversy was whether an offer was made to Dr. Azaravo and she accepted that offer, in which case the former dean’s actions would have amounted to a breach of contract, not merely repudiation of an offer.

Justice Cromwell disposes of this question in a couple of sentences:

The law of contract formation is notoriously ambiguous, and as a non-Canadian lawyer, I am in no position to comment on whether the communications between the Assistant Dean and Dr. Azarova were sufficient to form a contract under Canadian law. What I do know, however, is that Justice Cromwell reaches his conclusion that no contract was formed without any legal analysis. He simply concludes, without applying the relevant doctrinal elements of a contract to the facts, that no contract was formed. As students who have taken my classes know, that kind of defective reasoning can never earn more than a passing mark. It is certainly not what we would expect from a retired Supreme Court Justice.

But whether a breach of contract occurred is a mere distraction from the principle issue: was the dean motivated by an improper purpose when he took an adverse employment decision against Dr. Azarova, whether we call that termination of an offer or breach of a contract? This too is a complex claim, entailing substantive elements — what is an improper motive, and is it even relevant in an administrative post subject to the dean’s discretion — and an evidentiary component, namely what kind of evidence is required to show an improper motive if indeed motive is legally relevant in determining the validity of the dean’s action?

Although Justice Cromwell fails to describe the substantive legal framework structuring his inquiry, we can assume that he agrees that the former dean, even if he had plenary authority over who filled that office, did not have the right to exclude a candidate based on the political complaints of third parties unrelated to the academic and professional qualifications of the candidate. Indeed, he states that the University agreed with that position as well.

But Justice Cromwell crucially omits the evidentiary burden that those challenging the former dean’s decision must meet in order to prevail. I discussed this glaring omission in a recent twitter thread. While he gave his notorious conclusion — “I would not draw the inference that the Dean’s decision was influenced by improper considerations resulting from the Alumnus’ inquiry” — he leaves out the evidentiary basis that was required for him to reach a contrary conclusion.

We don’t know, for example, if he was of the view that proof of wrongdoing against a dean can only be satisfied by “clean and compelling” evidence — a standard a little less demanding than the criminal law’s requirement of beyond a reasonable doubt — or whether he was applying the “more likely than not” standard which is ordinarily what prevails in civil litigation, or whether he was applying an even more demanding standard, namely, that the dean could only be found to have violated his duties if no innocent explanation can be posited for his conduct. Given the procedural limitations of his inquiry, his conclusions are consistent with all of these standards. The fact that he did not tell us what standard of proof he was applying is just another reason why his findings can’t possibly bind any third-parties.

Even assuming he was a court of last resort (which the former Justice Cromwell was not), different evidentiary standards have an important role in determining the preclusive effects of a judgment. Accordingly, if he believed that he could not find against the dean in the absence of clear and compelling evidence, or only if no innocent explanation could be found for his conduct, than his evidentiary requirements would be much more demanding than that of a different tribunal, that of the Canadian Association of University Teachers, for example, or that of a trial court applying a more likely than not standard.

In short, because Justice Cromwell did not explain to us the relevant evidentiary demands required to prove the case, we are not in a position to know whether his conclusions should be respected by third-party observers who may not be bound to the same evidentiary demands. He might believe, for example, that given the role of the dean in the governance structure of the university, his discretionary actions should only be overturned with clear and convincing evidence. But that concern would not bind CAUT in its deliberations, which are concerned not with the dean as an administrator, but with the effect of a decision on academic freedom. In short, the former dean might be entitled to broad, even sweeping, deference in one forum, but little to no deference in another, given the difference in the nature of the remedies at stake.

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.”