Board of Governors of Mount Royal College v. Mount Royal Faculty Association

AI-0596

GRIEVANCE ARBITRATION AWARD

IN THE MATTER OF A COLLECTIVE AGREEMENT

BETWEEN:

THE BOARD OF GOVERNORS OF MOUNT ROYAL COLLEGE

(hereinafter called "the Employer")

AND:

THE MOUNT ROYAL FACULTY ASSOCIATION

(hereinafter called "the Association")

AND IN THE MATTER OF GRIEVANCES OF DR. ALFRED G. BUCHANAN

(1) Failure to provide documents 72 hours in advance.

(2) Refusal to grant Tenure.

ARBITRATION BOARD: ALAN V. M. BEATTIE, Q.C. - Chairman

RONALD O. NEUMAN, Q.C. - Employer Nominee

DR. MARTIN S. SEREDIAK - Association Nominee

HEARING: CALGARY, December 5, 1988

March 8, 1989 (Preliminary Issue)

May 11, May 12, June 22, July 13, July

14, August 2, August 3, 1989

2

APPEARING FOR THE ASSOCIATION

APPEARING FOR THE EMPLOYER

William J. Johnson - Counsel

William J. Armstrong - Counsel

Dr. Alfred G. Buchanan - Grievor -

Witness

Tom Wood - Vice-President, Academic,

Member of Professional Standards

Committee - Advisor and Witness

Ray Sloan - Tenured Member of

Department (Chairman 1985-86) -

Witness

Dr. Ken Cummin - Tenured Member of

Department - Witness

Marc Chikinda - President - Observer

Hugh MacLeod - Former President -

Observer

Adrian Kershaw - Dean of Science and

Technology (since 1985-86) - Witness

Yvette Swendson - Tenured Member of

Department - (Chairman 1987-88) -

Witness

Dennis Leask - Tenured Member of

Department (Dean of Science and

Technology 1981-85) - Witness

Dr. Izak Paul - Tenured Member of

Department (Chairman 1984-85, 1986-

87) - Witness

Bruce Mahon - Director, Human Resources

- Observer

Carolyn Hudson - Employee Relations

Manager - Observer

(The witnesses are sometimes referred to in this Award by their initials)

3

INDEX

EXHIBITS

PAGE

I.

JURISDICTION AND PRELIMINARY ISSUES

(1)

Interim Award issued April 21, 1989 (attached to this Award)

1

(2)

(3)

Application of Scope of Review Criteria, and Rulings on

Admissibility

First Grievance in Nature of Preliminary Objection

2

3

II.

PERTINENT PROVISIONS OF COLLECTIVE AGREEMENT AND

TENURE APPLICATION GUIDELINES

III.

EVIDENCE

(1)

Educational and Employment Background

4

(2)

(3)

Agreed Statement of Facts

5

7

Members of the professional Standards Committee ("PSC"),

Tenured Members of the Department of Chemical and Biological

Sciences ("the Department"), and the Dean.

Chronological Sequence of Events/Documents, Extracts from

Exhibits, and Testimony

(4)

(5)

8

Additional Testimony

78

IV.

POSITION OF THE ASSOCIATION

(1)

(2)

Scope of Evidence (with particular reference to Dr. Cummins)

85

86

Preliminary Issue: Failure to Provide Documents 72 Hours in

Advance (Subject of the First Grievance)

Confidentiality

Procedural Fairness (including "audi alteram partem")

Guidelines

(3)

(4)

(5)

(6)

87

90

95

96

Whether Irrelevant Facts Considered; Whether Decision

Unreasonable and Unfair

(7)

Remedies/Damages

97

V.

POSITION OF THE EMPLOYER

(1)

(2)

Scope of Evidence (with particular reference to Dr. Cummins)

98

Preliminary Issue: Failure to Provide Documents 72 hours in

Advance (Subject of the First Grievance)

Confidentiality

Procedural Fairness (including "audi alteram partem")

Guidelines

(3)

(4)

(5)

(6)

100

102

105

106

Whether Irrelevant Facts Considered; Whether Decision

Unreasonable and Unfair

(7)

Remedies/Damages

108

4

VI.

DECISION

Introductory

(1)

(2)

Scope of Evidence (with particular reference to Dr. Cummins)

Preliminary Issue: Failure to Provide Documents 72 hours in

Advance (Subject of the First Grievance)

Confidentiality

Procedural Fairness (including "audi alteram partem")

Guidelines

109

110

(3)

(4)

(5)

(6)

114

120

138

139

Whether Irrelevant Facts Considered; Whether Decision

Unreasonable and Unfair

(7)

Remedies/Damages

142

EXHIBITS

1.

2.

3.

Collective Agreement (1986-87)

Collective Agreement (1987-89)

Grievance, December 14, 1987 (failure to provide documents 72 hours in

advance.)

4.

5.

6.

Grievance, December 18, 1987 (refusal to grant tenure.)

Letter of hire, May 28, 1984.

Bundle of documents considered by PSC in October/November 1987 including

application for tenure submitted by A. Buchanan, supporting documents and

recommendations from Chairman and Department, being (by page number):

1.

2.

Table of Contents

Application for Tenure Form, September 30, 1987, including peer

evaluation form, Chairman's Evaluation by I. Paul for Grievor's second

semester (Winter 1985)

14.

Chairman's Evaluation by R. Sloan for Grievor's fourth semester (winter

1986)

21.

30.

Chairman's Evaluation by I. Paul for Grievor's sixth semester (winter 1987)

Candidate's (i.e. Grievor's) comments re: Chairman's Evaluation (winter

1985)

33.

Letter to Mr. Lee (Student) from Registrar's Office, June 24, 1985 (re:

Withdrawal of Complaint form), with copy to signatories

5

34.

Complaint form from students received June 5, 1985 re: "conflict between

laboratory instructor and course instructor"

35.

37.

Candidate's (Grievor's) response to Chairman's Evaluation - winter 1987

Memorandum from Messrs. Paul, Sloan, and Leask to the Grievor, July 3,

1985 re: Chairman's Evaluation

38.

39.

Memorandum to PSC from Y. Swendson, October 19, 1987, agreeing with

unanimous recommendation of the Department members that the Grievor

not be granted tenure

Peer observation form, December 4, 1985, evaluator: Jean Miller, with

comments by Grievor

46. Peer evaluation form, December, 1985, evaluator: Romeo Calosing, with

comments by Grievor

51.

56.

61.

66.

Peer observation form, December 3, 1986, evaluator: Mardy Roberts, with

comments by Grievor

Peer evaluation, November 28, 1986, by K. Cummins, with comments by

Grievor

Peer observation form, March 24, 1987, evaluator: Donna Taylor, with

comments by Grievor

Letter from T. Wood to the Grievor, October 7, 1986, re: revised tenure

application brochure

67.

75.

"Tenure Application Guidelines" approved by PSC August 20, 1984.

Summary of Student Evaluations of the Grievor as an instructor and of the

Grievor's courses

103. Peer evaluation form, March 19, 1987, evaluator: Eileen Woytowich, with

Grievor's comments

109. Memorandum from all members of the Department to the PSC, October

19, 1987, unanimously recommending that the Grievor not be granted

tenure

110. Curriculum vitae of the Grievor including employment history, education,

other relevant experience, research interests, professional memberships,

societies, Mount Royal College committees, publications and abstracts

6

115. Course outlines and related materials

130. Letter from the University of Calgary Faculty of Medicine, Department of

Microbiology and Infectious Diseases to the Grievor, September 19, 1985,

re: adjunct appointment

132. Letter from the University of Calgary Faculty of Science, Department of

Biology, to the Grievor, March 5, 1986, inviting the Grievor to accept a

position as Adjunct Assistant Professor in the Department

134. Letter from the University of Calgary Kananaskis Centre for Environmental

Research to T. Paul, July 17, 1985

135. Press release, April 24, 1986, re: MRC instructors involved in research

project

137. Information regarding Grievor's professional activities, professional

development, participation in further education, workshops, etc.

7.

Memorandum from I. Paul to Y. Swendson, September 30, 1987, "A. Buchanan's

comments re: Chairman's evaluations of Winter'85 and Winter'87"

8.

9.

Letter from D. Leask to Y. Swendson, October 15, 1987, Stouffer matter

Memorandum from Grievor to PSC, October 19, 1987, "Response to Izak Paul's

memo, September 30, 1987" (re: Stouffer)

10.

11.

12.

Memorandum from A. Kershaw (Dean) to PSC, November 10, 1987

Memorandum from Grievor to PSC, November 12, 1987

Memorandum from K. Cummins to Dr. D. Baker (Chairman, PSC) November 19,

1987

13.

14.

Memorandum from tenured members of the Department (excepting K. Cummins)

to PSC, November 24, 1987 (detailed summary of reasons for recommendation

that Grievor not be granted tenure)

Memorandum from K. Cummins to PSC, November 25, 1987 (response to

November 24 memorandum)

15.

16.

Memorandum from Grievor to PSC, November 27, 1987

Letter from D. Baker to the Grievor, November 30, 1987 (belatedly providing

documentation)

7

17.

18.

19.

Letter from D. Baker to the Grievor, December 1, 1987 (recommendation of PSC

not to grant tenure)

Letter from Grievor to D. Baker, December 7, 1987 (requesting a hearing by the

Board of Governors)

Memorandum from Board of Governors' Secretary to the Grievor, December 9,

1987

20.

21.

Memorandum from D. Baker to Board of Governors, December 14, 1987

Letter from Academic Vice-President, Students' Association, to members of the

Board of Governors, December 14, 1987

22.

23.

Petition to the Board of Governors signed by 383 students

Letter from D. Baker to the Grievor, December 15, 1987 (approval by Board of

Governors of recommendation by PSC that Grievor not be granted tenure)

24.

Letter from Mr. Mahon (Director, Human Resources) to the Grievor, December

16, 1987

25.

26.

Letter from Mr. MacLeod of the Association to D. Baker, December 21, 1987

Letter from Messrs. Wood and MacLeod to Board of Governors and Association,

March 10, 1988 (unable to resolve grievances) and subsequent correspondence

relating to grievances and arbitration

27.

Letter from Mr. Chikinda (President, Association) to Mr. McAlister, October 14,

1988 (advising of right to attend hearing because of possible effect on position)

28.

29.

Tenure Application Guidelines

Letter from Mr. Johnson to Mr. Armstrong, December 21, 1988, outlining

particulars of claim

30.

31.

Response by Mr. Armstrong to Mr. Johnson, May 8, 1989

Memorandum from A. Buchanan to Assistant Registrar January 20, 1986, with

attached memorandum from R. Sloan (Chairman) to A. Kershaw (Dean), January

13, 1986

32.

33.

Schedule of classes Fall 1987

Memorandum from A. Kershaw (Dean) and I. Paul (Chairman) to "Chemical and

Biological Sciences file", December 15, 1986, re: "A. Buchanan and L. Kozody",

8

together with memorandum from Messrs. Paul, Sloan, and Leask to the Grievor,

July 3, 1985 (also P. 37 of Exhibit 6)

34.

35.

Memorandum from Grievor to Y. Swendson, November 3, 1987

Memorandum from PSC Recording Secretary to PSC, November 30, 1987,

"memorandum from S. Blackie, G. Crowe"

36.

Memorandum from A. Kershaw (Dean) to G. Trump and the Grievor, November

24, 1986

37.

38.

Summary of Minutes of meetings of PSC, Fall 1987, relative to the Grievor

Extracts from Minutes of meetings of PSC, Fall 1987, relative to the Grievor (86

pages)

39.

40.

41.

42.

43.

44.

Memorandum from I. Paul to the Grievor, November 27, 1986, "proposed

meeting re: microbiology laboratory instruction"

Memorandum from I. Paul to the Grievor November 28, 1986 (responding to

Exhibit 39)

Memorandum from Y. Swendson (Chairman) to PSC, September 30, 1987,

"Request for Clarification of PSC Form 101, Section E, No. 6(Page 6)"

Memorandum from D. Baker to Y. Swendson October 5, 1986 (response to

Exhibit 41)

Memorandum from Y. Swendson to PSC, October 28, 1987 (responding to

Exhibit 9)

By-law 13.1.2.4 of Association

9

GRIEVANCE ARBITRATION AWARD

JURISDICTION AND PRELIMINARY ISSUES

I.

The parties agreed that the Arbitration Board has been properly appointed, and

has jurisdiction.

(1)

Interim Award issued April 21, 1989 (attached to this Award)

This Board heard argument and issued a decision with respect to the preliminary

issue of this Board's scope of review. The Interim Award, issued April 21, 1989 is

attached hereto and includes a summary of the facts, a summary of the grievances, the

pertinent provisions of the Collective Agreement and Tenure Application Guidelines, a

summary of evidentiary issues arising out of an exchange of letters between Counsel, a

summary of the position of the parties on the preliminary issue, and the decision of this

Board as to the scope of its jurisdiction to review. The decision included the following

conclusions:

"1. The standard which must be attained by the PSC is one of "procedural

fairness. An arbitration board, sitting in review, must assess whether the committee has

exercised its discretion in a fair, unbiased, non-discriminatory and good faith manner.

2. In making the foregoing assessment of procedural fairness an arbitration

board should judge the committee's proceedings and decision against the standard of

"fairness" (which, in most instances, will equate with "reasonableness" because it will be

judged on the basis of a "reasonable man's view") but not review all details of the

information submitted to the committee. In other words we are not undertaking a de

novo hearing.

3. The PSC being a joint, collegial committee, which has developed its own

quidelines, deference is to be paid to the views of the committee members who are in a

better position than arbitrators, to assess a tenure application in their own academic

institution. If the decision of the committee was made in accordance with the terms of

the Collective Agreement, and the Guidelines, in a procedurally fair manner, an

arbitration board should not substitute its opinion "on the merits". It is the "correctness"

of the process, not the "correctness" of the decision which we are reviewing..."

4. As a general rule, a committee such as the PSC is entitled to decide that the

rejected tenure applicant not be informed of the names of persons who provided

information to the PSC, on a confidential basis, but is entitled to know specifics of the

charges or complaints made against him and is entitled to a fair opportunity to correct or

contradict them. It is entirely possible that as a result of evidence led by the Grievor, the

Employer may be required, in rebuttal, to lead evidence to satisfy this Board that the

PSC dealt with the charges or complaints against the Grievor in a proper way.

(2)

Application of Scope of Review Criteria, and Rulings on Admissibility

10

As we stated in the Interim Award, "it is in the application of those principles

(regarding scope of review) and in determining where the admissibility line is to be

drawn, that the difficulty arises"; and "we propose to set out the principles which, in our

opinion, have been settled, recognizing that there will be specific admissibility issues to

be addressed in the course of the hearing."

Such admissibility issues arose throughout the hearing. Generally speaking, we

attempted to avoid a strict, inflexible standard of admissibility, premised on our belief

that although our jurisdiction does not extend to assessing the merits of each concern

about the Grievor, we must determine whether irrelevant/improper factors were taken

into consideration; we can only make that determination after receiving evidence of the

particulars which were taken into account by the PSC and the conclusions based

thereon. It was within this context that the Employer elected, in the course of the

Hearing, to introduce in evidence, the extensive Minutes of the meetings of the PSC

(with respect to the Grievor only); Counsel for the Employer made it clear that the

Minutes are of proceedings which are recognized as being confidential, which

confidentiality it is considered appropriate to waive, for the limited purposes of this

hearing, in order to provide as complete an account as possible of the deliberations of

the PSC. The Minutes, comprising 86 pages, were entered as Exhibit 38, after the

Association had concluded presentation of its evidence, on the understanding that the

Grievor could be recalled to give evidence with respect to the Minutes (he was not

recalled).

The difficulty in drawing the line on admissibility became most pronounced with

respect to evidence proposed to be given by K. Cummins, a witness called by the

Association. These arguments by Counsel, on this issue, will be addressed in the

"Position" of each party, sections of this Award [IV(1) and V(1)], and the decision of the

Board set out at the commencement of the "Decision" section of this Award [VI(1)].

(3)

First Grievance in Nature of Preliminary Objection

The first grievance is in the nature of a Preliminary Objection, based on the

failure of the PSC to provide the Grievor with certain documents seventy-two (72) hours

prior to a meeting with the Committee, as required by Article 4.4.6.2 of the Collective

Agreement. The Employer acknowledges that the documents were not, through

inadvertence, provided within the prescribed time frame. The Association seeks a

declaration that the proceedings and recommendation of the PSC are null and void. It

was agreed by Counsel that the issue could only be properly addressed at the

conclusion of all the evidence, including that relating to the second grievance (denial of

tenure). The issue is addressed under the heading "Preliminary Issue: Failure to

Provide Documents 72 Hours in Advance" in each of the "Position of the Association",

"Position of the Employer", and "Decision" sections of this Award.

II.

PERTINENT PROVISIONS OF COLLECTIVE AGREEMENT AND TENURE

APPLICATION GUIDELINES

11

See pp. 3, 4, and 5 of the Interim Award (attached).

EVIDENCE

III.

(1)

Educational and Employment Background

The Grievor is forty-five (45) years of age. He has a B.Sc. in Natural Sciences, a

M.Sc. and a Ph.D. in Microbiology, the latter obtained in 1978. His employment history

is:

1974-81:

1981-82:

Sessional Lecturer in the Biology teaching unit, University of Manitoba

Assistant Professor in the Microbiology Department, University of

Manitoba

1980-82:

1982-83:

Residency/Fellowship at University of Manitoba Faculty of Medicine,

Infectious Diseases and Medical Microbiology

Clinical Microbiologist, University Hospital, London, Ontario and Assistant

Professor, Department Microbiology and Immunology, Faculty of

Medicine, University of Western Ontario (ended March 1983)

1983-84:

1984-87:

Unemployed from March, 1983 to August, 1984.

Instructor, Department of Chemical and Biological Sciences, Mount Royal

College (commenced August, 1984)

He has been involved in numerous research interests, and is a member of a

number of professional societies. He has served on the following Mount Royal College

committees:

-

Chairman, Professional Development Committee

Chairman, Program Committee

Academic Standards Committee

Project Team on Curriculum

Grievance Committee

Educational Development Centre Advisory Committee

Educational Development Centre Evaluation Committee

Departmental Selection Committee

Professional Development Representative to ACIFA

He has authored or co-authored a number of publications and abstracts since

1976, including one publication in each of 1984, 1985, and 1986 (pp.112, 113 of Exhibit

6).

(2) Agreed Statement of Facts

12

The Agreed Statement of Facts, submitted to us by Counsel, was summarized

for purposes of the Interim Award (see attached). The Agreed Statement of Facts, in

full, follows:

"1.

Pursuant to the Colleges Act, there is a collective bargaining relationship

between the Mount Royal Faculty Association and the Board of Governors

of Mount Royal College covering all academic staff members. The grievor,

Dr. A. Buchanan, was an academic staff member and was at all material

times subject to the collective agreements in force form time to time

between the Faculty Association and the College (Exhibits 1 and 2).

2.

3.

In 1984, Dr. Buchanan was hired as a tenure track instructor in the

Department of Chemical and Biological sciences. As such, he was due to

apply for tenure in the Fall of 1987 pursuant to Article 4 of the collective

agreement (Exhibit 5).

In the Fall of 1987, Dr. Buchanan applied for tenure pursuant to the

provisions of the collective agreement. Such applications are considered

by the Professional Standards Committee which is created under the

collective agreement. In the Fall of 1987, the members of the committee

were:

Chairman: D.N. BAKER, President (Ex Officio)

Members:

T. WOOD, Vice-President Academic (Ex Officio)

LYNNE A. DAVIES, Instructor in Nursing and Allied Health

(appointed by M.R.F.A.)

MARGARET E. OSBORNE, Instructor and Coordinator in

Nursing and Allied Health (appointed by M.R.F.A.)

ROBERT A. McDOUGALL, Director of Credit Extension and

Part Time Studies (agreed upon fifth member)

4.

5.

In addition to the terms of the collective agreement the committee itself

has set rules and regulations for its own proceedings (Exhibit 28).

The Professional Standards Committee was provided with a bundle of

material including the application of Dr. Buchanan, the necessary

supporting documents and the recommendations of the Department

Chairman and the tenured faculty members of the Department (Exhibit 6).

6.

In the course of its proceedings, the Professional Standards Committee

interviewed Dr. Buchanan and a number of other individuals and received

a variety of documentation (Exhibits 7 to 15 inclusive). Keith Cummins,

one of the tenured members of the Department, later recommended that

tenure be granted (Exhibit 12).

13

7.

8.

Part of the process laid down by the Professional Standards Committee is

a recommendation from the Dean of the appropriate area. In the case of

Dr. Buchanan, the Dean was Adrian Kershaw. On November 9, 1987, Dr.

Buchanan met with Dean Kershaw and the following day Dean Kershaw

sent a memorandum to the Professional Standards Committee which had

attached to it notes of the November 9, 1987 meeting (Exhibit 10).

On the morning of November 30, 1987, the Professional Standards

Committee learned that Dr. Buchanan had not received a copy of either

the November 10, 1987 memorandum of Dean Kershaw or Dean

Kershaw's notes of the November 9, 1987 meeting. The deadline pursuant

to Article 4 of the collective agreement for the Professional Standards

Committee to make its recommendation to the Board of Governors was

December 1, 1987.

9.

The Chairman of the Professional Standards Committee provided the

November 10, 1987 memorandum and the November 9, 1987 notes

together with other documents to Dr. Buchanan on the morning of

November 30, 1987 (Exhibit 16) and the Professional Standards

Comnmittee met once again with Dr. Buchanan at 4:30 p.m. that day to

hear any comments Dr. Buchanan had with respect to those notes.

10.

11.

On December 1, 1987, the Professional Standards Committee

recommended to the Board of Governors that Dr. Buchanan not be

granted tenure (Exhibit 17).

On December 14, 1987, the Board of Governors met to consider the

tenure recommendation of Dr. Buchanan and those other instructors who

had applied for tenure that Fall. The Board of Governors received petitions

from faculty and students (Exhibits 21 and 22) and Dr. Buchanan made a

presentation to the Board prior to their reaching a decision. The Board

accepted the recommendation of the Professional Standards Committee

and Dr. Buchanan was so advised the following day (Exhibit 23).

12.

13.

Dr. Buchanan filed two grievances on December 14 and December 18,

1987 (Exhibits 3 and 4). The first grievance related to the fact that Dr.

Buchanan had to respond to the memorandum and notes of Dean

Kershaw without having had the documents for 72 hours. The second

related to the decision of the Board of Governors to accept the

recommendation of the Professional Standards Committee.

Dr. Buchanan was released from the College December 31, 1987 and

provided with severance payment set forth in the collective agreement

(Exhibits 24 and 25).

14

14.

15.

The two grievances were processed concurrently through the grievance

procedure and submitted to arbitration (Exhibit 26).

The parties agree that, should the grievance be granted in whole or in

part, the Board should retain jurisdiction regarding issues of monetary

compensation or other issues regarding remedies..."

(3)

Members of the Professional Standards Committee ("PSC"), Tenured

Members of the Department of Chemical and Biological Sciences ("the

Department"), and the Dean

The members of the PSC are set out in Paragraph 3 of the Agreed Statement of

Facts above.

The tenured members of the Department are (in order of their appearances as

witnesses at the arbitration hearing):

-

Dr. Ken Cummins

Ray Sloan (Chairman 1985-86)

Yvette Swendson (Chairman 1987-88)

Dennis Leask (Dean of Science and Technology 1981-85)

Dr. Izak Paul (Chairman 1984-85, 1986-87)

Eileen Woytowich (did not testify at the arbitration hearing)

The Dean of Science and Technology, whose jurisdiction includes the

Department of Chemical and Biological Sciences, has, since 1985-86, been Adrian

Kershaw.

The members of the Department, including the Chairman, are members of the

Association. The Dean is the first level of management.

As earlier stated, all members of the Department, and the Dean, initially

recommended to the Professional Standards Committee that the Grievor not be granted

tenure. Dr. Cummins subsequently changed his opinion and made both written and oral

representations to the Professional Standards Committee.

(4)

Chronological Sequence of Events/Documents, Extracts from Exhibits, and

Testimony

August 15, 1984, Commencement of Employment (Exhibit 5): In accordance with

the letter of hire dated May 28, 1984, the Grievor was offered "a tenurable position as

instructor of microbiology in the Department...effective August 15, 1984." A copy of the

current collective agreement was enclosed, and the specific conditions of employment

included the following:

"Tenure: ......

15

You will be responsible for preparing and submitting your application for

tenure in conformity with the requirements of the Professional Standards

Committee. Please consult the Chairman of your Department for

information and assistance...."

Winter 1985, Chairman's Evaluation by I. Paul (Exhibit 6, p.7): This evaluation was

performed at the beginning of July, 1985, following the completion of a full teaching year

by the Grievor. This is a significant document in these proceedings because it is

apparent that the negative aspects of the Evaluation remained as significant concerns

of the tenured members of the Department, and of the PSC, when they considered the

Grievor's application for tenure in October and November, 1987. The Evaluation

included reference to:

-

Ten of twenty-four students in a biology course filed a student grievance

against the Grievor (grievance was subsequently withdrawn, but I. Paul

still considered the matter to be of concern);

-

Student evaluations indicate "scores are approximately equivalent to our

Department average", and "include a mixture of positive and critical

statements". Concern expressed by I. Paul about comments that include

the words "intimidating", "arrogant", and how some students feel about

Grievor's answering of student questions; indicate a possible lack of

adequate and/or appropriate communication

-

"Although Dr. Buchanan was fully aware of the fact that peer evaluations

were required, he failed to arrange for these peer evaluations to be

conducted";

-

Involved in professional development activities and participated in

professional associations;

As reported to I. Paul by two students, a possible instance of unethical

behavior in making critical remarks, in front of a class, about the abilities of

and performance of duties by G. Crowe" (the sessional lab instructor who

taught the labs in the Grievor's courses); Grievor stated he had no

recollection of having made such remarks;

-

Absent from the College for one week without having informed the

Chairman in advance; he now understands that unauthorized absences

are unacceptable;

Great deal of difficulty cooperating with G. Crowe, which A. Buchanan

believes results from her lack of confidence; I. Paul rejects the Grievor's

explanation. Two meetings were scheduled among the Grievor, G. Crowe,

and I. Paul. At the second meeting, R. Sloan was also in attendance.

Personality conflict became apparent as the cause of a lack of adequate,

16

appropriate communication. G. Crowe has been a loyal, reliable, and

hardworking member of the Department for many years, and is not

incompetent. She has not had problems with lecturers before. The Grievor

has requested that G. Crowe not be re-hired, and I. Paul rejected the

request.

-

Generally favorable comments about classroom observations, course

content and curriculum

"Based on the information contained in this evaluation, some serious

concerns are raised about Dr. Buchanan's interaction with colleagues and

students. I. Paul discussed the concerns with R. Sloan (Chairman of the

Department in the following year) and D. Leask, (Dean). A memorandum

signed by the three was directed to the Grievor, advising of concerns and

of specific expectations regarding his future interaction with colleagues

and students".

July 3, 1985, Memorandum from Messrs. Paul, Sloan and Leask to the Grievor

(Exhibit 6, p.37): The memorandum, signed by I. Paul (Chairman of the Department),

R. Sloan (Chairman for 1985-86) and D. Leask (Dean of Science and Technology)

stated:

"The Professional Standards Committee Chairman's Evaluation which you

are receiving with this memorandum contains information that raises serious

concerns about your interaction with colleagues and students. The problems that

have occurred have arisen, we believe, from inadequate and inappropriate

communication. To ensure that these problems do not reoccur, we are writing to

inform you of specific actions expected of you in the future. These expectations

are as follows:

1.

2.

Peer evaluations must be conducted in accordance with the Professional

Standards Committee's directions.

All aspects of communication with students must be improved so that:

(a)

(b)

students clearly understand your expectations of them, and

problems with students are promptly resolved.

3.

Cooperation and communication with Mrs. Gwyn Crowe must be improved

to prevent a repetition of this past year's experiences. You are directed to

conduct a weekly meeting with Mrs. Crowe and any other lab instructor

you teach with, at a mutually convenient time, to plan and discuss all

information relevant to the teaching of the labs. It is your responsibility to

ensure that lab instructors clearly understand all information required for

the effective teaching of the labs."

17

December 4, 1985, Peer Observation by J. Miller (Exhibit 6, p.39): Very positive. The

evaluator stated:

"In summary, I found Al's class to be well-presented, informative, and

interesting. He is to be commended for his skills in making microbiology

meaningful to the students. His genuine interest, creativeness, and enthusiasm

are real assets to the class."

December 1985, Peer Evaluation by R. Calosing (Exhibit 6, p.46): Very positive.

Summary of review reads:

"I find Dr. Al Buchanan a very competent teacher. He is not only

knowledgeable in his field, but can also communicate his expertise appropriately

and relevantly."

Winter 1986, Chairman's Evaluation by R. Sloan (Exhibit 6, p.14): This Evaluation,

pertaining to the Grievor's fourth semester, was highly complimentary. It indicated that

the Grievor had placed well above the Department average in 12 out of the 14

categories in the student evaluations, and slightly above in the other 2 categories. "The

students perceived the instruction received to be of high quality and marked by

excellence." The students acknowledged the Grievor "as being humorous, interesting,

knowledgeable, easygoing, available, fair, enthusiastic, helpful, understandable,

conscientious, and hardworking." Reference was made to research projects in which the

Grievor was involved and membership in professional associations. He noted that the

Grievor "maintained amiable relationships with all faculty and most support staff" and

"most faculty members would indicate that his association could be described in the

following terms: polite, friendly, courteous, professional, helpful." Reference was made

to the lack of improvement in cooperation and communication with G. Crowe; in R.

Sloan's opinion "both individuals were equally responsible". G. Crowe tendered her

resignation and the Grievor assumed her workload and maintained it to the termination

of the semester. Extensive community involvement on behalf of the College noted.

Evaluation of a class conducted by the Grievor was very complimentary. The evaluation

closed with the comments:

"Dr. Buchanan has this year contributed a great deal to the Department of

Chemical and Biological Sciences. He has provided academically sound courses,

placed high in students' estimation of his teaching attributes, and has made a

conscientious attempt to enhance the visibility of the Department within and

outside of the College."

R. Sloan was the Acting Chairman of the Department while I. Paul was absent for the

academic year 1985-86, on professional leave.

November 21, 1986, Peer Evaluation by K. Cummins (Exhibit 6, p.55): Very positive.

Summary of review states:

18

"I have found Dr. Buchanan to be an excellent teacher in all respects. His

presence is a tremendous asset to Mount Royal College."

November 24, 1986, Commendation from Dean Kershaw (Exhibit 36): States:

"He (Jim McNeil) told me about the excellent job you are both doing in

your capacities as Arts and Science advisors...I put the highest priority on this

kind of service to students, and your particular work as advisors sets a standard

for the rest of the Faculty of Science and Technology!"

November 27, 1986, Memorandum from Grievor to I. Paul (Chairman)(Exhibit 39):

The subject is the "proposed meeting re: Microbiology Laboratory Instruction". The

Grievor states:

"I am hereby recording my strong objection to the process and intent of the

proposed meeting on Friday, November 28, 1986 with yourself, Adrian Kershaw,

and Lily Kozody, such meeting being initiated by concerns reported to you by Lily

Kozody, who has not even afforded me the courtesy of informing me of such

concerns.

As the instructor for the Microbiology course in which Kozody is employed as

laboratory instructor, such concerns should have been first discussed with me.

The position you have taken seriously undermines my credibility, and ultimately

compromises my efficacy as an instructor in the department.

I am also formally requesting that Jeff Sheedy, who had assisted with course

instruction during my illness, be present at this meeting."

A copy was directed to Dean Kershaw.

November 28, 1986, Memorandum from I. Paul to the Grievor (Exhibit 40):

This response to the Grievor's memo of November 27 reads:

"Since you have decided to formally accuse me with seriously undermining your

credibility and ultimately compromising your efficacy as an instructor, I feel

compelled to provide you with a formal reply.

Being a man of few words, let me simply state that your accusation is absolutely

false. The fact that your accusation is not followed by any detailed explanation or

rationale clearly indicates that your accusation is simply subjective and has no

objective basis in fact. If you wish to provide me with the details of your rationale,

I would be pleased to reply to any points you may wish to raise.

19

Regarding your objection to the "process and intent" of the proposed meeting

and your view that Lily's concerns should have been first discussed with you, let

me simply repeat what I told you when I first spoke with you about this matter.

Lily advised me that she has tried to have meaningful discussion with you but,

being unsuccessful, decided to approach the chairman with her concerns. You

may disagree with her view of the situation and you may indeed be correct;

however, the only way to resolve this matter under these circumstances is to

meet and discuss and hopefully resolve whatever problem may exist. I need not

remind you that this is not the first time that I have had to deal with the same

issue and that I am being consistent by once again arranging to have a meeting.

I see nothing wrong in arranging for this meeting to occur and I fail to understand

your objection to the "process" (i.e., evaluating the information and deciding upon

a meeting) and "intent" (i.e., hopefully resolve whatever problem may exist).

Adrian has agreed that a meeting is warranted and, furthermore, has agreed to

attend the meeting.

Regarding your request that Jeff Sheedy be present at the meeting, let me again

simply repeat what I told you when I first spoke with you concerning this request.

Jeff will definitely be able to present whatever information he wishes to provide.

He will do this after Lily, Adrian, you and I complete our discussion. Adrian and I

have agreed that Jeff will present his information to the two of us. My

understanding is that Jeff will provide information that will support your view of

the situation - if anyone is at a disadvantage it is certainly Lily who will not be

present to provide a rebuttal to Jeff's comments at that time. The important point

is that Jeff will definitely be able to provide whatever information he feels is

important."

A copy was directed to Dean Kershaw.

December 3, 1986, Peer Observation Evaluation by M. Roberts (Exhibit 6, p.51):

Very positive, including the statements:

"I found the class to be very enjoyable--in spite of it being a topic about which I

was quite unfamiliar. I found I could follow the information presented with ease

and enjoyed the instructors manner and style. Although the atmosphere was

relaxed and remarks and jokes were exchanged with the students, there was no

question that the information was important and that the students would be

reponsible for knowing the material. I found Al to be a very competent and

professional instructor."

December 15, 1987, Memorandum to Department File from A. Kershaw and I. Paul

(Exhibit 33): Reports on meeting in late November of A. Kershaw, I. Paul, the Grievor

and L. Kozody, the substance of which is included in the next following document

(Winter, 1987, Chairman's Evaluation) under the heading "Cooperation with

Colleagues".

20

Winter 1987, Chairman's Evaluation by I. Paul (Exhibit 6, p.21): This evaluation was

for the Grievor's sixth semester. I. Paul refers to the student evaluations being

"generally above the average in our Department", refers to the three positive peer

evaluations confirming that the Grievor is an effective instructor, with which Dr. Paul

agrees, sets out professional commitment and activities and makes particular reference

to the Grievor obtaining an appointment as an Adjunct Assistant Professor at the

Department of Biology, University of Calgary. On the other hand, his comments include:

"6. Other

As already indicated, Al is undoubtedly a very knowledgeable and

effective instructor. However, classroom instruction is not the only activity that

faculty members are engaged in. Interactions with colleagues and students are

also important activities that must be successfully attended to. Al has had

difficulties in the past in this regard and was formally advised (July 3/85 memo)

that:

a.

communication with students had to be improved so that students

clearly understand Al's expectations of them and that problems with

students be promptly resolved; and

b.

cooperation and communication with the lab instructor be improved

to prevent a repetition of previous difficulties.

interactions with colleagues and students have occurred again. I am concerned

by these problems; however, at the same time, it is impossible to ignore the fact

that Al is a very knowledgeable and effective instructor. I find it very difficult to

determine whether the latter attributes are of primary importance and,

consequently, if the problems described are of secondary importance.

Student Evaluations - A.2

In general, the written comments that recurred focused predominantly on Al's

enthusiasm, knowledgeability and overall classroom skills that were widely

admired by the students. The evaluation clearly indicated that Al is an effective

instructor. In addition to the many positive comments, there were also a number

of critical comments. Among the latter, I am concerned by those that report Al's

open criticism of the lab instructor (L. Kozody) and the discomfort of some

students over the "sexual connotations" of some classroom statements.

It should be pointed out that during the latter portion of the Winter semester, a

group of students came to my office to complain about their unsuccessful

discussions with Al regarding their concerns about the marking of a research

paper. I described the students' concerns to Al and scheduled a meeting at which

the students and Al could exchange their views. Four of the students attended

the meeting and expressed their concerns and disagreement with Al's

21

expectations regarding the research paper and the attendant effect on the

marking of the research paper. Al expressed his views on the issue and his

disagreement with the students' views. At the end of the semester, one student

appealed the mark awarded on the research paper; however, the Marks Appeal

Committee decided to leave the mark unchanged.

Cooperation with Colleagues - C.7.

Al has again experienced difficulties in his interactions with colleagues. Towards

the end of the Fall semester, his lab instructor (L. Kozody) made allegations of

harassment and unprofessional behaviour by Al. Adrian Kershaw (Dean of

Science and Technology) and I investigated these allegations and jointly wrote a

report of our investigation. We found that most of her allegations could not be

substantiated. However, in one incident, Al was described by a witness as having

behaved unprofessionally and having ignored L. Kozody's repeated questions

regarding the identification of a microbiological specimen. A. Kershaw and I

concluded that a perceptual problem existed and, more specifically, that a radical

change in L. Kozody's perception of the relationship between herself and Al had

been triggered by:

1.

2.

her possible reaction to some negative student comments on

evaluation documents; and

her becoming aware of the G. Crowe affair.

A. Kershaw and I were informed by both Al and L. Kozody that they were willing

to meet and attempt to work out their difficulties. However, before this could

occur, L. Kozody announced that she would not return to teach in the Winter

semester because she was convinced that, in her view, Al's behaviour and the

relationship between them would not improve.

At a subsequent meeting to review this matter with Al, A. Kershaw

summarized the information appearing in the written report. He

emphasized the view shared by the Dean and the Chairman that Al was a

conscientious, dedicated and professional instructor. He also stated that

Al's high expectations may have been a contributing factor and that some

responsibility for the problem lay with Al. Al was advised to be more aware

of lab instructors' perceptions. Specific recommendations were provided to

Al to help ensure that such problems don't occur again."

March 19, 1987, Peer Evaluation by Eileen Woytowich (Exhibit 6, p.103): Positive,

including the following summary of review:

"Al is well-organized and has a pleasant manner. He creates an effective learning

environment through a variety of teaching techniques."

22

March 24, 1987, Peer Evaluation by Donna Taylor (Exhibit 6, p.61): Positive.

May 26, 1987, Commendation from President Baker (Exhibit 6, p.148): Refers to

personal dedication and commends the Grievor for:

"...your significant contribution to the quality of the College environment through

the work of the Project Team on Curriculum Approvals."

September 30, 1987, Grievor's Comments Regarding Chairman's Evaluation

(Winter 1985) (Exhibit 6, p.30): It is obvious that considerable discussion took place at

the Department meetings and PSC meetings, as well as there being testimony before

this Board, concerning the "tone" and lateness of this response (and the response to the

Winter '87 evaluation, below). It was apparent that the responses were prepared by the

Grievor specifically for inclusion in his Tenure Dossier. The Grievor's response was as

follows:

"GENERAL COMMENT

Izak Paul's overly negative evaluation is not an accurate record or reflection of

my activities and performance at Mount Royal College.

SPECIFIC COMMENTS

a)

Student evaluations (p.1. chairman's evaluation) The student

grievance filed was withdrawn (see copy) Its impact on this

evaluation is questionable and likely irrelevant.

b)

The majority of student comments were most favourable, in direct

contrast to the view reported by Izak Paul. Comments included the

following. "Instructor very helpful and shows concern for students,

"very motivated, unique person", "obviously knows his stuff, by far

the best I've had at MRC". The student grievance filed refers to

"open conflict between laboratory and course instructor" and does

not support Izak Paul's inference of a possible lack of adequate

and/or appropriate communication between Dr. Buchanan and his

students. I have been open, honest and approachable in all contact

with students, advising on career choices based on questionnaires

at the beginning of the courses. The comments from Biology 1218

were not even referred to by Izak Paul.

c)

Professional Behaviour (p 3. Chairman's Evaluation)

1.

Professional development

My involvement in the Kananaskis Research Centre project

covered the period May 20th to August 14th, 1985.

23

2.

Participation in Professional Associations

The following were omitted by Izak Paul and should be duly noted.

-

Active membership in,

1.

2.

American Society for Microbiology

Canadian College of Microbiologists (Registered

Microbiologist)

3.

4.

Sigma XI Scientific Society

Canadian Hospital Infection Control Association

(CHICA)

-

Publication "Selective and differental liquid medium for C.

Difficile". J. Clinical Microbiology

Attended several Professional Development Workshops (see

list)

C3

C4

ethical behaviour (p3 chairman's evaluation)

I have not made critical remarks about the abilities and

performance of duties by Gwynn Crowe at anytime. I have stated

that Gwynn Crowe was schooled in bench-oriented microbiology

and may not be familiar with the more academic aspects of the

discipline.

responsibility (p3)

I have discharged all my responsibilities at Mount Royal College

with due and requisite dispatch, meeting departmental, college, and

other deadlines are required. I have acted at all times in as

professional a fashion as possible. I have braved mid-winter's wrath

to drive to Red Deer Hospital to obtain microbiology cultures for

classes from Dr. David McNaughton, a colleague; and have made

several visits to Foothills Hospital for similar purposes. I make

every effort possible to ensure that favourable circumstances are

created for effective delivery of course I teach, I am at Mount Royal

most evenings and weekends ensuring that viable cultures and

other materials are available as necessary. It is therefore, rather

disheartening to see Izak Paul attempt to brand me as irresponsible

simply because I left the college in May during intersession to

attend a funeral. I had marked all examinations and forwarded final

24

marks to the Registry before leaving. I am not aware of "students

actively searching for me" as Izak Paul asserts; there were not

messages etc. with the departmental secretary to support his

assertion.

5.

Cooperation with colleagues (p3)

The chairman's negative evaluation of cooperation with colleagues rests

solely on reported contact with Gwynn Crowe. Regretably he ignores the

fact that I have worked exceedingly well with members of the department -

giving guest lectures without renumeration, volunteering information and

exchanging ideas with other faculty (see letter from Dr. Peter Wallis -

Kananaskis Research Cente).

I have repeatedly told Chairman Izak Paul that Gwynne Crowe refuses to

accept my role and expertise as a well qualified, superbly trained

microbiologist and Instructor. Her refusal to accept me in the position for

which I was hired relates to her perception of "having "screamed" at me in

front of students (see student's grievance); in the presence of Izak Paul

and Ray Sloan, Gwynn Crowe has called me "God-damn 'Lazy", dirty

remarks which may be perceived as overly racist nature. Her hostility to

me has been markedly vigorous and quite open. Gwynn Crowe's attitude,

hostility and lack of acceptance of my role has made effective cooperation

with her virtually impossible. My efforts to provide an effective course to

students enrolled in Microbiology at Mount Royal College have been

seriously compromised by Gwynn Crowe.

6.

Initiative (p3)

I initiated contact with Dr. Peter Wallis at Kananaskis and have applied to

the Foothills Hospital Infectious Diseases Unit and the Biology Department

of the University of Calgary for Adjunct Professor appointments (see

enclosure). Izak Paul does not consider these initiatives of note. They

speak for themselves.

D.

1.

College committment of (p.4 Chairman's evaluation)

Committee involvement

Contrary to Izak Paul's comment (none) I am a member of the following

committees:

i)

Professional Development - Chairman

ii)

Academic

Standards

(Academic

Council

Standing

Committee)

25

D3. Community involvement

"None" as stated by Izak Paul is incorrect. My involvement with the

Kananaskis Research Centre, and a presentation to Calgary High

Schools' Biology Teachers should be noted.

G.

Other (p 6. Chairman's evaluation)

The "serious concerns" about my interaction with colleagues and students

as presented by Izak Paul are largely unfounded being based on what he

has repeatedly stated as "his interpretation of events". Nearly all of Izak

Paul's negative evaluations were based on "hearsay" innuendo, and overt

misinterpretation. I am distressed at the efforts made to discredit my

performance at Mount Royal. I am disturbed to have been told by Dennis

Leask (Dean of the Faculty of Science and Technology) of Izak Paul's ill

conceived concerns prompting the soliciting of information from Shauna

Stouffer (a member of the Microbiology Nursing class) in an effort to find

information of possible use in an attempt to supposedly document alleged

"unethical/unprofessional behaviour". I am totally committed to being as

effetive an instructor as is humanly possible at Mount Royal College. I

display and have a genuine regard and concern for students. I am well

liked by colleagues and students, and I deeply resent Izak Paul's attempts

to portray me as otherwise. Students have appreciated my efforts as

supported by the Nursing graduating class invitation to be guest speaker

at graduation exercises (see copy enclosed)."

A copy of the response was provided to I. Paul on September 30.

September 30, 1987, Grievor's Response to Chairman's Evaluation (Winter 1987)

(Exhibit 6, p.35): The same observations as to tone and lateness of the response were

made at the PSC meetings, the evaluation having been prepared and delivered to the

Grievor several months prior to September 30. The Grievor's response read as follows:

"GENERAL COMMENT

The evaluation submitted by Izak Paul as departmental chairman for Winter 1987

states that "Al has difficulties interacting with colleagues and students". This

statement is grossly misleading, unfair and objectionable. Izak Paul's "musing"

on the relative importance of what he perceives as my difficulties is a thinly veiled

attempt to assign even greater weight to his misleading interpretation of events,

an interpretation which is not only potentially damaging - but more important -

does not represent an appropriate or fair assessment of my performance at

Mount Royal College.

SPECIFIC COMMENTS

26

1.

Student Evaluations

a)

b)

c)

Izak Paul states that he is concerned by "those that report Al's open

criticism of the lab instructor (L. Kozody) and the discomfort of

some students over sexual connotations of some classroom

statements". The simple student comment relating to L. Kozody

reads "I feel he put Lily down in the lab...." a misconception if there

ever were one". I have never criticized Lily Kozody openly to any

student; to the contrary I made every effort to increase students'

acceptance of L. Kozody by numerous positive comments and

introductions preceding lab sessions. Lily Kozody was hired solely

on my recommendation.

The same student (a, above) also felt that there was some "sexual

connotation...such as readjusting his zipper (!!!!). Presumably I

should have left my zipper open! I had related the circumstances to

Izak Paul during discussion of student comments, and am

somewhat surprised to see its presentation out of context. I had

also pointed out to Izak Paul that the student evaluations were

conducted during lectures on sexually transmitted disease, a topic

which cannot be taught without reference to the subject! These

attendant circumstances are curiously absent from Izak Pauls'

evaluations.

Student grievance; research paper

Izak Paul states in his evaluation (page 7) that "a group of students

came to complain about their successful discussions with Al...about

marking of a research paper" to provide feeble support for his

questionable assertion that I have difficulties interacting with

students. This is an abhorent attempt to present questionable

interpretation in its most biased and damaging form. An equal

number of students expressed to Izak Paul strong support for

marks assigned to the research papers - a fact conveniently

ignored by Izak Paul.

My expectations with regard to the research paper were

unequivocally stated in 2 one hour lectures and in a presentation

from Mount Royal College Library services. Objections to the

research paper surfaced only after the marks were assigned. One

student filed a grievance relating to her mark leading to an

independent review of her research paper by other faculty and

agreement with the mark I had assigned. The students who

complained to Izak Paul disagreed with my evaluation of their

research paper - that was their only reason for complaining to Izak

Paul, not some generalized difficulty as Izak Paul asserts!

27

2.

Presumed Difficulty with Colleagues

Izak Paul contends that there were difficulties interacting with Lily

Kozody yet his comments, and those in Adrian Kershaw's report,

clearly indicate that the perceived difficulties were of L. Kozody's

creation, namely: "a radical change in L. Kozody's perception of the

relationship between herself and Al Buchanan". Izak Paul contends

that I have difficulty interacting with colleagues on the basis of Lily

Kozody's bizzare irrational response to "negative student

comments etc." (page 8 Paul's summary). This generalisation is a

gross misleading exaggeration which does not represent my

interaction with students and colleagues here at Mount Royal have

been overwhelmingly positive, as supported by students' comments

such as "Al is a wonderful and talented lecturer". The instructor is

enthusiastic and interested in helping student", "Don't have Al get

sick again!" etc. I object strongly to Izak Paul's weakly disguised

efforts to suggest that there is a significant problem."

A copy of the response was provided to I. Paul on September 30.

September 30, 1987, Memorandum from I. Paul to Y. Swendson, "Al Buchanan's

Comments re: Chairman's Evaluations of Winter '85 and Winter '87" (Exhibit 7)

(completed and delivered to Y. Swendson on October 9): The memorandum is

lengthy but, because it documents most of the matters (including the "tone" of the

Grievor's response), which form the basis for the PSC's recommendation against

tenure, the memorandum is reproduced in full:

"I am writing to provide a response to Al Buchanan's comments on the

Chairman's Evaluations of Winter '85 and Winter '87. I received copies of these

comments from Al only this morning, September 30, 1987, the very last day for

compilation of documents for submission to the PSC. Although this leaves me

with insufficient time to carefully formulate a written response, I will attempt to

comply with your request that I provide my response today.

Before providing responses to his specific comments, I wish to make a general

comment. Al claims that my evaluations are not accurate and are based on

misinterpretation. This claim is simply false. I have always written objective

evaluations. The fact of the matter is that I have no reason not to be objective.

Response to Comments on Winter '85 Evaluation

Al Buchanan received this evaluation just prior to my going on professional leave

('85-'86) and therefore could not inform me during my absence that there were

omissions (e.g., society memberships) in the evaluation. However, I returned to

the College in August 1986. During the entire 1986-87 academic year (and the

past 6 weeks of this new academic year), he never informed me either verbally or

28

in writing of his concerns regarding any omissions. Had he done so, I could have

easily revised the evaluation to rectify any omissions. His failure to communicate

relevant information over that 13 month time period is his responsibility.

That being stated, let me go on to comment on the nature of the omitted

information. The omitted information falls under the categories of society

memberships, publications, professional development workshops, committee

involvement, etc. It is impossible for me to know what activities the non-tenured

faculty members have been involved in without asking the non-tenured faculty

members for this information. Therefore, prior to writing the chairman's evaluation

of non-tenured faculty members, I have always asked every candidate, including

Al, for this information, I am confident that if the PSC were to ask the other non-

tenured faculty members in our department, they would confirm having received

a written request from me for this information. Indeed, I am confident that Al

himself would confirm having received such a request several months ago, prior

to my writing of the '86-'87 evaluation. Had I received the information from Al

prior to the writing of the '84-'85 evaluation, I would have certainly included it. I

have no reason not to have included it. Nevertheless, as indicated above, even

after the writing of this evaluation, once having identified these omissions, Al

could have advised me of these omissions and I could have easily revised the

evaluation to rectify any omissions. The fact that this information was

communicated to me only today, more than 13 months after my return, is clearly

his decision. That being stated, I wish to indicate here that, as shall be noted

below, some of Al's "new" information is false information.

Response to Specific Comments:

A.

Student Evaluations

a) I never received any written communication from the Registrar's office

regarding the resolution of the joint Student Grievance. My understanding

of the events is that the students did not pursue the grievance (a passive

process in contrast to the active process of withdrawing the grievance).

Some of the students apparently left Calgary immediately after the end of

the semester and consequently could not participate in further

proceedings. I disagree with Al's claim that this grievance is irrelevant.

When almost half the class files a joint Student Grievance against an

instructor (unprecedented in our department), I feel it would be

irresponsible of the chairman not to refer to it when writing an evaluation

of that instructor.

b)

I stated in the evaluation that the student comments "included a mixture of

positive and critical statements". I did not, as suggested by Al's comments,

indicate an absence of positive statements. I did, however, state that "I am

concerned" by certain specific critical comments (e.g., "intimidating",

"arrogant"). As chairman, I was pleased to see positive comments on Al's

29

and all other instructors' student evaluations. However, in this case, the

positive comments are accompanied by several serious critical comments,

comments that cannot be ignored by the chairman in the writing of the

valuation. In his comments, Al has focused exclusively on the positive

comments and fails to address the critical comments. In the evaluation, I

refer to these comments, not only because of their critical nature, but also

because they were followed by the filing of the joint Student Grievance. I

should point out that although this may have been the first time that such

critical comments were made by students, it certainly was not the only

time that these types of comments were addressed to Al by his students

(see my response below to comments on the Winter '87 Evaluation).

Despite Al's claim to the contrary in his comments, these critical

comments (e.g. "arrogant", intimidates", student concerns about Al's

answering of student questions) are, in my view, clearly indictive of a

"possible lack of adequate and/or appropriate communication" with his

students. Finally, with regard to Al's claim that my evaluation does not

refer to the Biology 1218 student evaluation, let me point out that the first

two sentences of my comments in this section (i.e., section A.2) of the

evaluation refer to "evaluations", the plural form of the word specifically

being used to indicate all student evaluations including that for Biology

1218.

B.

C.

Peer Evaluations

Although Al provides comments on other aspects of my evaluation he has not

addressed the fact that I report that he failed to arrange for required peer

evaluations during the '84-'85 academic year.

Professional Behaviour

1.

Professional Development

Al's comment that he was involved in a research project from May 20 to

August 14 implies that I did not describe this fact in my evaluation. My

evaluation (page 3) clearly describes this activity. It is described as

occuring during a portion of intersession since it did not occur from May 1

to May 20. Furthermore, I wrote this evaluation in early July 1985 and I

had no way of knowing that this research activity would continue until

August 14, whether it be with or without a holiday period. Had Al informed

me of this fact upon my return from the professional leave, I could have,

as indicated above, revised this description.

2.

Participation in Professional Associations

30

As already indicated, had Al provided me with this information, I would

have included this information in either the original or a revised version of

the evaluation.

3.

Ethical Behaviour

It is unfortunate for all parties concerned that the Student Grievance

committee never met to consider the concerns of the students. At the time

that I wrote the evaluation, my understanding was that the students would

eventually meet with the committee and that this matter would be

resolved. In my evaluation, I reported that I had been informed of a

"possible instance of unethical behaviour". After two students

independently informed that Al had criticized, in front of students, the lab

instructor for his courses and that other students in the class would verify

these statements (i.e., during the Student Grievance proceedings), I felt

that it would be irresponsible of me, as chairman, to ignore these

statements and not to refer to them pending the outcome of the Grievance

procedure. It is worthy to note that in his own comments (page 1, section

b), Al himself quotes that the student grievance refers to "open conflict

between laboratory and course instructor".

4.

Responsibility

The comments in my evaluation stated that Al was absent from the

College for one week without having informed me in advance. I never

stated that there might not have been a valid reason for his absence.

Students were indeed "actively searching for him" because I recall two

students asking me where he was and, furthermore, the department

secretary asking me where he was because a student had been looking

for Al. Whether or not there was a valid reason is not the point. The key

element in my comments was that Al did not inform me (or the department

secretary) of his absence. If indeed there was a need to be absent for a

full week, Al could have easily telephoned me or the department secretary

just prior to or during the first day or two of the week he was absent. He

never did so. His failure to communicate this information is his

responsibility.

5.

Cooperation with Colleagues

The comments in my evaluation focused on Al's difficulties with Mrs.

Crowe because effective cooperation with the lab instructor is no doubt

the most important aspect of cooperation required for the effective

teaching of a science course that includes laboratory instruction. In his

comments, Al states that he is a "superbly trained microbiologist and

Instructor." No-one in our department, including Mrs. Crowe, has ever

stated anything to the contrary. Mrs. Crowe, in my view, never had any

31

difficulty accepting his role and expertise just as she had never had any

difficulty accepting the role and expertise of the other lecturers with whom

she had taught these laboratories. In his comments, Al states that "in the

presence of Izak Paul and Ray Sloan, Gwynn Crowe has called me "God-

damn lazy". I recall that, at the second meeting described in my

evaluation, Mrs. Crowe did call Al "lazy". I have asked Ray Sloan and he

also recalls this statement. However, neither one of us recalls her using

the words "God-damn". We both recall the specific context in which the

word "lazy" was used. Gwynn called Al "lazy" in the context of describing

her concerns and frustration over the state of disarray that the

Microbiology prep Room was developing into and Al's expectations that

she be responsible for cleaning up certain items that she had never had

responsibility for in previous years with previous colleagues. Finally, let me

suggest that, if so desired, the PSC may wish to interview Mrs. Crowe to

directly ascertain whether or not the concerns expressed by Dennis

Leask, Ray Sloan and myself were valid.

6.

Initiative

The work done at the Kananaskis Research Centre had already been

referred to under the category of Professional Development in my

evaluation. It would have been redundant for me to state it again here.

Regarding the Adjunct professor appointment, I recall Al asking me

whether it would be possible or feasible and my positive response.

However subsequent to that conversation, I do not recall Al

communicating to me any information regarding his pursuit of the

appointment during that academic year.

D.

College Commitment

1. Committee Involvement

In his comments, Al states that he was a member and, indeed, Chairman

of the Professional Development Committee. The records of the Mount

Royal Faculty Association show tht the following individuals were

members of the PDC during the '84-'85 academic year:

Elaine Mullen

Maureen Bogdanowicz

June Smith

Romeo Calosing

Sharon Moore

Melvin Pasternak

Mardy Roberts, Chairman

32

According to these records, Al was neihter a member nor Chairman of this

committee. In his comments, Al states that he was also a member of the

Academic Standards Committee. The records of the College Secretariat

show that the following faculty members were members of the ASC during

the '84-'85 academic year:

Janet Bruce

John Cooper

Romeo Calosing

George Narayan

According to these records, Al was also not a member of this committee.

Thus, contrary to Al's claim, the records show that he was not a member

(or chairman) of either committee,

3.

Community Involvement

In his comments, Al states that my statement of "None" is incorrect and

that I should have noted his involvement with the Kananaskis Research

Centre and his presentation to Calgary High School Biology Teachers. In

my evaluation, the former is noted under the category of Professional

Development and the latter is noted under the category of Participation in

Professional Associations. Al may disagree with me as to which is the best

category under which each activity should be noted, but it is misleading for

Al to suggest that I did not make note of these activities since I definitely

did make note of these activities.

G.

Other

In his comments, Al states that my concerns are based on my

interpretation of events and that they were based on "hearsay" and

misinterpretation. Let me state that my concerns were not, as he states,

"unfounded" since they were shared by Dennis Leask and Ray Sloan as

well. Furthermore, they were not based on "hearsay" since the information

from Mrs. Crowe, some of the comments on the Student Evaluations and

the filing of he joint Student Grievance were all direct causes for concern.

In his comments, Al states that Dennis Leask told him that I solicited

information from Shauna Stouffer (a Nursing student) in order to find

information to document unethical or unprofessional behaviour. This claim

by Al Buchanan is a complete fabrication. With a charge as serious as

this, I could not rely solely on my recollection of events that occurred three

years ago. I therefore asked Dennis Leask whether or not this claim is

true. Dennis has unequivocally told me that he never told Al what Al has

claimed and, furthermore, that he never discussed this topic in any

manner with Al. If so desired, the PSC may wish to interview Dennis to

33

receive direct confirmation of this fact. Regarding Shauna Stouffer, let me

state very clearly that I do not know her and tht I never solicited

information from her. Not knowing her and not knowing how to contact

her, I asked her father, Don Stouffer, if he would contact her to verify the

fact that I neve solicited information from her (it turns out that she was on

holiday in Utah at the time that I am writing this response). Shauna

Stouffer can confirm that Al's claim is a fabrication. If so desired, the PSC

may wish to interview Don Stouffer and/or Shauna Stouffer to receive

direct confirmation of this fact. This fabrication by Al Buchanan is in my

view a clear act of unethical and unprofessional behaviour.

Response to Comments on Winter '87 Evaluation

In his general comments, Al states that my reporting of difficulties in interactions with

colleagues and students is a "grossly misleading, unfair and objectionable" statement.

With all due respect, let me state that Al's claim is itself misleading since there is firm

documentation of these difficulties. The latter include the difficulties with his new lab

instructor (L. Kozody) as documented by Adrian Kershaw (Dean of Science and

Technology) and myself, the comments by some students on the Student Evaluations

and the complaints of the students who met with Al and me, as documented in my

evaluation. Al's attempt to sweep away these reported difficulties is unacceptable. It

would have been irresponsible for me, as chairman, not to refer to them when writing

the evaluation.

Response to Specific Comments:

1.

Student Evaluations

In his comments, Al states his objection to my expressing my concerns regarding

open criticism of the lab instructor and the discomfort of some students over

sexual connotations of some classroom statements. In his comments, Al

suggests that only one student expressed discomfort over sexual connotations;

in fact, three students did so. These student comments by themselves would

have warranted attention. However, in light of the previously reported open

criticism of Mrs. Crowe (see above) and the report by three students of other

students' discomfort over Al's classroom description of a certain sexual act (see

below), I felt that it would be totally irresponsible for me not to refer to these

student criticisms when writing the evaluation.

In his comments, Al also objects to my description of the students' complaint

about the research paper. The description in my evaluation is relatively succinct;

however, since Al has raised this matter in his comments I wish to provide a

more thorough description of the events that transpired and the comments made

by the students. In early April, while working in my office, a group of students

numbering approximately 7-8 individuals came to my office to complain about

their unsuccessful discussions with Al regarding their concerns about the

34

marking of a research paper. As is my usual practice (although this rarely

occurs), I advised the students to meet with Al to discuss and try to resolve their

concerns directly with him. They stated that they had already met with him and

had found their discussions frustrating and unsuccessful. They stated that they

had come to me because they wanted to voice their dissatisfaction to the

chairman of the department. I told them that I would agree to meet with them to

hear their concerns but only if Al would be present at the meeting as well. They

agreed and, therefore, I subsequently described the students' concerns to Al and

scheduled a meeting for April 9. When I arrived in the lab area (where I had told

the students to meet me prior to our going to the nearby meeting area), there

were approximately 10 students waiting. When I asked them to follow me to the

meeting area, only 3 of the students started to accompany me. The rest of the

students were initially uncertain as to whether or not to come to the meeting and,

despite the encouragement of the 3 students who chose to come, after about one

minute the others indicated that they were not going to come to the meeting. The

meeting began with Al, myself and 3 students in attendance but after a period of

time, a fourth student joined the meeting. During the meeting, the students made

a series of statements, almost all of which Al rejected as untrue. The main theme

of the students' complaint, as I described in my evaluation, was "their concerns

and disagreement with Al's expectations regarding the research paper and the

attendant effect on the marking of the research paper." Amont the specific

criticisms made by students at the meeting were the following:

1)

the students stated several times and in various ways that they

were not clear about the marking scheme and did not understand,

in advance, Al's expectations;

2)

3)

Al criticized students in class by stating that those who got a poor

mark did not put enough effort into it;

prior to this meeting, Al had made remarks to the students in class

that resulted in the other dissatisfied students being afraid to come

to this meeting;

4)

5)

despite telling the students that there would be no extensions past

the established deadline, Al did give some students extensions past

the deadline;

the students felt that Al, at certain times, humiliated and ridiculed

students and that some students were afraid to answer questions in

class because they were afraid of being publicly "put down" if their

answer was wrong.

Al emphatically and repeatedly disagreed with or denied essentially all of the

above student statements. Furthermore, among his other statements, he also

stated that:

35

1)

2)

the students were trying to coerce him into changing their marks;

the students' dissatisfaction was due to their failure to obtain an

adequate mark;

3)

4)

5)

he would not change his standards;

he had acted fairly;

the reason for requesting the meeting was to attempt to have him

change their marks.

The students disagreed with or denied essentially all of these statements. The

meeting came to an end when both Al and some of the students indicated that

they had to go to their next class. When I returned to my office, I found 3

students waiting for me who wished to speak to me about the topic of the

meeting. I told them that they should have come to express their views at the

meeting and asked them whey they didn't. They replied that they disagreed with

the students who attended the meeting and did not wish to end up arguing with

their fellow students. I told them that they were wrong not to come to the meeting

because it was the appropriate time and place to express their views.

Nevertheless, I asked them to express their views on this topic since it appeared,

in fairness to Al, that they supported his views. They told me they felt that Al had

acted fairly and that he marked the research papers fairly. I asked them how they

did on their research papers and they all indicated they had received relatively

good marks and were satisfied. The students then went on to state that it was

unfortunate that some students "don't understand" Al. They stated that some

other students were not comfortable with the way Al described certain things in

frank terms. They stated, as an example, that Al had described to the class the

homosexual practice of inserting a fist into a rectum and that some students were

not comfortable with Al's frank (but not vulgar) description. The students also

stated that some students were afraid to answer questions in class because of

their fear of Al's response if they were wrong.

I discussed the above information with Adrian Kershaw (Dean of Science and

Technology). We agreed that it was difficult to know how to handle the

information provided by the second set of students because the latter had

decided not to come to the scheduled meeting where the other students and Al

could hear their comments and because of the double-sided nature (i.e., a

mixture of both positive and critical comments) of the information. I did feel,

nevertheless, that in fairness to Al it would be appropriate to tell him that some

other students came to tell me they felt he had marked the research papers fairly.

I did not, as Al states in his comments, "conveniently" fail to mention the

supportive statements made by the second set of students. I decided that if I

were to mention the supportive statements in my evaluation, I would also have to

mention the critical statements and, in view of the fact that these students did not

36

want to state their views at an open meeting, neither supportive nor critical

remarks would be reported. This decision was imade in fairness to Al since he

was not present to provide a rebuttal to the critical comments. I am certain that Al

disagrees with these critical comments in the same way that he disagrees with

the critical statements made by the first set of students who attended the

meeting.

At the time that I wrote the evaluation, I decided that, in fairness to Al, I would not

report the critical comments; however, now that Al has expressed his objection to

my not reporting the supportive comments, I feel obliged to report both sets of

comments. Furthermore, the critical comments about Al's frank descriptions

provide support for my concerns about the Student Evaluation comments

expressing the "discomfort of some students over the 'sexual connotations' of

some classroom statements". Moreover, the critical comments about the feat of

answering questions by some students in class provide support for my concerns

about Al's "difficulties in interactions with ...students". It should be noted that the

latter critical comments (i.e., fear of answering questions by some students in

class) were reported independently by both those students who attended the

meeting and those students who waited to speak to me after the meeting.

2.

Cooperation with Colleagues

In his comments, Al claims that Adrian Kershaw and I "indicate" in our report on

the L. Kozody matter, that the difficulties in interacting with her "were of L.

Kozody's creation". Our report states nothing of the kind. We stated that we

concluded that a change in her "perception of the relationship between herself

and Al" occurred, an event that cannnot be interpreted as indicating that the

difficulties were of her "creation". In his comments, Al also states that my

concerns are based on L. Kozody's "bizarre irrational response to 'negative

student comments'." In our report, Adrian and I state that there was a "possible

reaction to some negative student comments". I do not understand why Al has

interpreted a "possible reaction" as being a "bizarre irrational response".

Furthermore, I do not understand why Al has chosen to ignore, in his comments,

the statement that Al had "behaved unprofessionally" in one incident. Moreover, I

do not understand why Al has chosen, in his comments, to ignore the statement

made by the Dean that "Al's high expectations may have been a contributing

factor and that some responsibility for the problem lay with Al". In addition,

although it was not stated in the report, the Dean advised Al that if such a

problem were to occur again, it would have an impact on his status at the

College. This concern stated by the Dean, plus the two (ignored) statements

referred to above, all provide support for my expression of concern about Al's

interactions with colleagues. This concern is even more significant when one

considers the fact tht the previous lab instructor, Mrs. Crowe, had suddenly

resigned in the semester taught immediately prior to this one. Contrary to Al's

claim that I made "weakly disguised efforts to suggest that there is a significant

problem", I believe that I accurately presented the major points appearing in the

37

report signed by both Adrian and myself. The members of the PSC may wish to

read this report for themselves to verify the statements in my evaluation. The

information in this report definitely supports my expression of concern about Al's

difficulties in his interactions with colleagues.

I wish to apologize for the length of this memo. However, I feel that it was

essential for me to respond to all of Al's comments and allegations. I also wish to

state that I am perplexed by the general tone of his comments and by his general

attempt to suggest that I am the only one who has expressed concerns about

items discussed in the evaluations. In addition to students expressing their

concerns and two successive lab instructors expressing their concerns (and

ultimately leaving rather than continue working with Al), it should be noted that, in

addition to myself, the previous (acting) chairman, Ray Sloan, the previous Dean,

Dennis Leask, and the current Dean, Adrian Kershaw, have all signed memos

addressed to Al expressing concerns. Thus, in addition to students and myself, 5

faculty members and admininstrators have also expressed their concerns.

October 13, 1987, Meeting of PSC (Exhibit 37, pp.1-4): The PSC acknowledged

receipt of information from Department Chairman on the eligibility of nine candidates,

including the Grievor. Decided on interview dates of November 10, 24, and 25.

October 15, 1987, Letter from D. Leask to Y. Swendson (Exhibit 8): The letter

states, in part:

"As a consequence of Dr. A. Buchanan's use of my name in reference to

events noted on page 2 of his comments re: Chairman's evaluation - Winter

1985; I am obliged to respond....

My involvement centres on the section of Dr. Buchanan's response

involving myself, namely:

'I am distressed at the efforts made to discredit my performance at Mount

Royal. I am disturbed to have been told by Dennis Leask (Dean of the Faculty of

Science and Technology) of Izak Paul's ill conceived concerns prompting the

soliciting of information from Shauna Stouffer (a member of the Microbiology

Nursing class) in an effort to find information of possible use in an attempt to

supposedly document alleged "unethical/unprofessional behavior".'

My response:

1.

2.

I did not tell Dr. Buchanan anything regarding Dr. Paul's actions at any

time.

My discussions with Dr. Buchanan concerned his options in responding to

an evaluation that he considered unfair.

38

3.

Dr. Paul's actions were those appropriate to a chairman's responsibilities

based on the information available at the time.

4.

5.

Dr. Paul did not solicit information from Shauna Stouffer.

As Dean, it was my job to be in a position to arbitrate a potential dispute

between a chairman and a faculty member. I asked the Dean of the

Faculty of Community and Health Studies, Don Stouffer, in whose Faculty

the Nursing department resides, whether or not he had any information

regarding this class. He warned me of a potential conflict of interest as his

daughter was in the class. I asked him, as Dean, whether or not he was

aware of problems in the class. He said there were. We agreed that both

of us would await representation through the formal existing channels.

6.

7.

I asked Dr. Paul to discuss the situation with the Nursing Department.

I am unaware of any actions by either Dr. Paul or myself that fit the

description given by Dr. Buchanan."

October 19, 1987, Meeting of Tenured Members of the Department: The meeting, to

consider the application by the Grievor for tenure, lasted all day. The Grievor was

interviewed for approximately an hour at the end of the meeting. We heard considerable

testimony as to the manner in which the meeting was conducted. Chairman Swendson

stressed the confidential nature of the Tenure Dossier and the proceedings of the

Department. She arranged for only one copy of the Tenure Dossier to be available so

that the information would not become more widely disseminated. She was aware that

four of the six members, having been either Chairman of the Department or Dean of the

Faculty had prior knowledge of at least some of the documentation. It was noted that

documents were missing from the Tenure Dossier, including a peer evaluation in the

Grievor's first year, and the letter of "reprimand" from the Chairman and the Dean of

July 3, 1985 (Exhibit 6, p.37).

At the conclusion of the meeting, a memorandum was prepared and signed by the six

members of the Department (Exhibit 6, p. 109). It was directed to the PSC, and read:

"The Department of Chemical and Biological Sciences, in accordance with the

directives of the Professional Standards Committee and its Chairman,

unanimously recommend that Dr. Al Buchanan not be granted tenure."

An issue raised at the Arbitration Hearing by counsel for the Association was whether

the memorandum constituted the "summative evaluation and recommendation

concerning tenure in memo form" prescribed in D.6 of the Tenure Application

Guidelines. Asked the question in cross-examination, Y. Swendson testified that she

considered it to be "summative" and that she did not feel a responsibility to outline the

reasons in greater detail. She considered that specific information was provided in the

Tenure Dossier and would be provided to the PSC, as requested, during the interviews

39

of the members of the department. D. Leask testified that in his view the Department

members were putting forward a recommendation and that to set out in detail the

perceptions of the members would prejudice the PSC in its review of the Dossier

information. He considered it to be a "summative evaluation". T. Wood contrasted

"summative" with "formative" and was of the opinion that the memorandum did

constitute a "summative evaluation". It was his view that if a recommendation is

negative there is an interview process at which any details would be provided.

Later that day, the memorandum was delivered to the Grievor with the request that he

sign the document (as is prescribed in the Tenure Application Guidelines). He refused

to do so on the basis that he was "not in agreement with the finding", which was so

noted by Y. Swendson on the memorandum.

An issue which was obviously of considerable significance to the members of the

Department was the response of the Grievor to a question of K. Cummins. He had

asked the Grievor whether there were any problems or mistakes which he had made

during his time at the College and which he would have changed. The Grievor's

response, according to the six Department members who addressed the issue during

their testimony at the Arbitration Hearing, was that there had been no mistakes or

problems. R. Sloan testified that he was "quite disappointed with the answer"; he

advised the PSC during his interview on November 21 that it represented an example of

what he considered to be the Grievor's inability to handle criticism. Y. Swendson

testified that she was "considerably stunned" by the answer because she felt anyone

makes mistakes over three years, and can learn and improve, otherwise the person is

not growing as a teacher. She said that K. Cummins had "attempted to bail him out by

rephrasing the question" but there was no change in the answer. As documented in the

Minutes of the PSC proceedings (Exhibit 38, p. 40) Y. Swendson advised the PSC,

during her interview on November 21, that she was taken aback by the Grievor's

answers and that his defiance "blew me away". She said that someone with that kind of

attitude, who was unwilling to analyse and to examine himself, could not adjust. D.

Leask testified that the answer "stood out in my mind" and "bore some significance"

because he was aware of circumstances that, if he had been in the Grievor's position,

he would have liked to have changed. I. Paul testified that, "I was surprised to hear it as

were, I believe, all of the other faculty members in light of the documented difficulties we

were all familiar with". Before the PSC on November 21, I. Paul said that the interview

influenced him in his final decision, the Grievor's "firm denial of having made any

mistakes or acknowledging problems (being) difficult to accept" (Minutes, Exhibit 38,

p.37). K. Cummins advised the PSC on November 21: "AGB showed no regret, did not

acknowledge that he made any mistakes or would change anything. When I asked if he

would do anything differently, he responded that he would try not to work with Gwyn

Crowe for as long as he did. I saw this as an ungracious attitude for him to take" (Exhibit

38, p.32). E. Woytowich advised the PSC, on November 24: "....he was adamant that

there were no problems and that there was nothing that needed to be changed. The

only thing which AGB said that he would do differently would be to not keep a certain

lab assistant around as long as he did" (Exhibit 38, p.47).

40

The Minutes of the Grievor's interview with the PSC on November 20, 1987

provide the Grievor's view of the meeting, and his response to the question of K.

Cummins (Exhibit 38, pp. 19, 20, 21):

"The Department had met most of the day. I was only party to the meeting for 10

to 15 minutes.

I am as surprised as you are that I received the negative recommendation.

I have done everything that I could for the Department - professionally and as an

instructor, even to the point of endangering my health by returning early after

surgery.

I thought I had an amicable relationship with the Department.

I suggest to you that there are several undefined issues. I believe that my

application was rejected - dismissed on limited negative values.

I view my relationship with the Department to be cordial, warm and friendly."

AGB was then asked what his thoughts were on what happened. He replied that

he found this:

"rather disturbing - six people that I work with to come up with a

decision based on limited issues. Maybe because I am the new man on

the block or collective xenophobia".

One member reviewed with AGB the Department's concern about Dr.

Buchanan's reaction and response to the questions during the interview which dealt with

AGB's changing anything or having made any mistakes, and in fact being unwilling to

admit that he had made a mistake or done anything wrong.

AGB responded by stating:

"To say that I deny there is a problem or that I ever make mistakes is unfair and

not indicative of me. My comments do not reflect this.

I admit that my behavior is challenging and that I had a problem with G. Crowe,

and I have made mistakes on my application with dates. But it is unfair to

characterize me as arrogant..."

AGB was asked to describe how he did act in the meeting with the Department,

and if he indicated that he thought there were no concerns or problems. AGB stated:

"I would still say that the student evaluations were not representative, but I would

not say that there were no problems, and that I was not concerned.

41

I said that I was not perfect.

I did not get the feeling that I had participated in the meeting or defended myself

about the Chairman's evaluations.

The Department thanked me for my contributions and actually it was somewhat

nebulous..."

The Grievor testified as to his belief at the end of the meeting that it was unlikely

he would be recommended for tenure. He attempted to obtain reasons from the

Department for their decision (memorandum, November 3, Exhibit 34) and was told that

he would be given that information by the PSC. (He received a copy of the Department's

memorandum with detailed reasons on November 25, the date it was issued.)

October 19, 1987, Memorandum from Grievor to PSC, "Response to Izak Paul's

Memo, September 30, 1987" (Exhibit 9):

"1.

Committee Involvement.

Membership on Academic Standards Committee, and Chairman or

Professional Development Committee refers to the period 1985-1986.

(See PDC mem. attached).

2.

Other (re: Izak Paul's memo, September 30, 1987, p.11.12.)

The statements which I made previously in response to Izak Paul's 1985

evaluation, namely; "I am disturbed to have been told by Dennis Leask

(dean of the faculty of Science & Technology) of Izak Paul's ill-conceived

concerns prompting solicitation of.....", do not say that Izak Paul solicited

information from Shauna Stouffer, nor was that the intent of said

statements.

To the best of my recollection the statements I made represent "in

essence at least" information provided by Dennis Leask, a view-point

supported by Dennis's memo. of October 15, 1987, item 5., which states "I

asked the Dean of the faculty of Community & Allied Studies, Don

Stouffer, in whose faculty the nursing department resides, whether or not

he had any information regarding this class". (see memo from Dennis

Leask, dated October 15, 1987)"

Copies of the memorandum were sent to I. Paul, Y. Swendson and D. Leask.

October 22, 1987, Meeting of Tenured Members of Department: On further reflection

after the October 19 meeting and a further review of the Tenure Dossier, K. Cummins

was reconsidering his position on the recommendation. He felt that he did not have

ample opportunity at the October 19 meeting to review the Dossier, it being the first time

42

he had seen any of the material, although he recognized the objective of confidentiality

resulting in there being only one copy of the file made available. He requested that the

tenured members of the Department meet again to re-evaluate the recommendation.

Although he disagreed with some of the Grievor's actions, on balance he thought the

Grievor should be granted tenure or at least a one year extension of probation. The

meeting was lengthy and involved a review of virtually all the information which had

been discussed at the October 19 meeting. K. Cummins presented his viewpoint that

the decision should be based "objectively" on the Tenure Dossier. D. Leask testified that

it "is perfectly appropriate where careers are at stake to have full and complete hearings

and a series of meetings were held so that a full and complete discussion of Dr.

Cummins' concerns would be allowed".

The Department members, other then K. Cummins, remained of the view that the

recommendation against tenure should stand.

October 26 (approximately), Meeting of I. Paul, Y. Swendson and K. Cummins:

This meeting was held at the home of I. Paul and was requested by K. Cummins. K.

Cummins had prepared a memorandum setting forth reasons for changing his mind. He

had requested I. Paul and Y. Swendson to review it. They had pointed out errors and

concerns and he requested the meeting with a view to discussing the matters. I. Paul

testified that K. Cummins had decided, after the discussion, not to submit his

memorandum to the PSC. I. Paul and Y. Swendson testified that K. Cummins had

changed his mind a number of times before he did submit a memorandum to the PSC

(see below).

November 10, 1987, Memorandum from A. Kershaw to PSC and Notes of

November 9 Meeting with Grievor (Exhibit 10):

"I am recommending that Dr. A. Buchanan not be granted tenure. The reasoning

behind this recommendation is as follows:

1. Student interaction and teaching ability

There is no doubt in my mind that Dr. Buchanan is a very good instructor.

Student evaluations and my own observations as I pass by his laboratory

indicate that, on the whole, he has an excellent rapport with most of his students.

Also, he is knowledgable in his field and respected by his colleagues outside of

the institution.

With respect to the negative comments regarding his explicitness in

dealing with sexual matters I feel that such complaints are inevitable when he is

dealing with sexually transmitted diseases - in any cohort there are bound to be

some who have difficulty with such material. However, Dr. Buchanan should

have taken student views into account and moderated his use of explicit

language.

43

The incident with Dr. Buchanan's fly I feel is relatively trivial and I am sure

there will be no repetition.

The student deputation which approached Dr. Paul in Winter 1987

regarding a research paper that Dr. Buchanan set represented a significant

proportion of that class. However, Dr. Paul reported to me that a second

deputation of students had been to see him to express their satisfaction with the

research paper assignment. In making my recommendation I have chosen to

disregard this particular incident since the comments of the two groups with

respect to the nature of the assignment counteract each other.

Nevertheless, there was, in that exchange, reference made to a somewhat

intimidating attitude towards students. This mirrors some of the statements made

in the formal student evaluations. Such statements are, however, counteracted

by numerous student comments regarding his willingness to help students and

respond to their questions. Given these two counterposing general viewpoints on

Dr. Buchanan's interaction with students I have chosen not to take the question

of intimidating attitude as problematic but as something which should be

addressed over time by Dr. Buchanan. To date Dr. Buchanan appears not to

have taken any action in this area.

On balance then, I feel that some students do indeed react negatively to

Dr. Buchanan's teaching style and methods. However, so large in number are the

positive comments on his teaching performance that I cannot but feel that, in

terms of the tenure decision, by themselves they are not of overwhelming

relevance. That is not to say that Dr. Buchanan has no room for improvement.

Manifestly, he does, but I had hoped that the problems would have been

addressed in time.

2. Relations with Colleagues

With respect to his relations with his colleagues there are a number of

factors which influenced by decision:

1.

2.

3.

4.

the Gwen Crowe matter and its impact on the students (see

attachment)

the Lily Kozody matter and its impact on the students (see

attachment)

conflicts which have occurred with other support staff over the past

couple of years of which I am aware

my impression that he is not a team player

44

These four factors raise questions in my mind concerning the contribution

Dr. Buchanan will make to the Department over time. In some departments there

are individuals who contribute little or nothing to the ongoing welfare and

development of the department. Indeed, these individuals are simply not asked to

help, thus throwing a greater burden on the rest of the members. I do not wish to

see this happen in the Department of Chemical and Biological Sciences.

My concerns over the manner in which he relates to his colleagues is

further compounded by the nature and tone of the written interaction between Dr.

Paul and Dr. Buchanan (part of the tenure application file). Further, I have been

unable to identify any evidence that Dr. Buchanan is willing to allow that there

may have been some problems with both the way he interacted with his

colleagues and with his dealings with his students. This does not augur well in

my opinion for the kind of flexibility that is necessary to ensure productive

working relationships.

In summary, as Dean, I feel that I must concern myself with the long term

welfare of the Department. I am greatly concerned about the kind of contribution

tenured members make to a department. Since I have reservations about Dr.

Buchanan's relationships with his colleagues over time, and notwithstanding his

generally good record as an instructor, I must recommend that he not be given

tenure."

Attached to the memorandum were the following:

"Notes from Meeting Between

Dr. A. Buchanan and A. Kershaw:

November 9th, 1987

AK stated that he was not going to recommend for tenure. Stated that felt that

student evaluations were generally good and, while there was room for

improvement, the evaluations specifically were not critical in decision. Reviewed

concern over relationships with colleagues and AK said that major concern was

with the long term welfare of the department and AK's doubts about the

contribution AB would make.

AB was then given the opportunity to respond:

Student/Curriculum matters

AB referred to the following:

1.

2.

made consistent efforts to extend and develop the courses he

taught

has helped team teach BIOL 1230

45

3.

4.

has been Arts and Science Advisor (still is)

formulated body fluids policy (Comment: AB did not initiate policy.

IA's brought issue to IP. IP asked AB and YS to develop a draft.

Request made in early Winter 1987 with a deadline before end of

semester. Finished after end of semester. Asked to re-draft it on

basis of recommendations from Biology instructors. Several other

individuals have had input.)

5.

6.

chaired department's brown bag seminars

intends to discuss extending MIBI 1212 over two semesters with

nursing faculty

7.

intends to discuss development of an infection control course with

nursing faculty

8.

had discussed developing a cell biology course with Sondra Corff

had given guest lectures in Environmental Technology program

has provided seminars to high schools on behalf of the department

presented a seminar at the U of C

9.

10.

11.

12.

13.

made presentation to Calgary high school teachers

increased enrolment in MIBI 2241 from 25 to 45 at his suggestion

(Comment: IP increased capacity from 2 to 3 lab sections. Cannot

recall being approached by AB)

Colleagues

1.

Kozody issue - felt that only criticism was AK's statement that

perhaps his expectations were too high.

2.

Crowe issue - AB was never accepted by GC from the moment he

arrived.

His only concern was that the best possible course be given. Any conflicts were

not all AB's fault.

3.

Izak Paul's evaluations

46

-

inappropriately unfair and overly negative (Comment: IP feels that

they were objective. Other faculty members felt they were

objective.)

-

AB in his rebuttal was simply commenting on aspects of the

evaluation as per the PSC procedures

has consistently scored above the departmental average in student

evaluations. Does the best possible that he can for the students.

One concern is to impart accurate information and to stimulate and

motivate students.

4.

5.

When people have quit, AB has put in lots and lots of extra hours

without extra compensation. (Comment: AK attests to this.)

Fact that AB is not a member of the coffee gang doesn't mean that

he does not interact socially with the Department. Also it does not

mean that he will not be productive in the Department. Asked:

"where is there room for diversity?" All have different styles and

approaches. AB's may not reflect what everybody does but can't

see how he has not been effective in the past. Cannot see a valid

concern over his productivity in the Department. (Comment:

diversity not an issue here. Indeed, it is welcomed. Concern is over

choice of methods to achieve a productive input into the

Department.)

6.

7.

8.

He's been on everything from the Grievance Committee to faculty

selection committees. What more does he have to do?

There are letters on file from IP and AK to the University attesting to

his contribution.

Made every effort to help the Department. Even endangered his

health by a premature return to work because he was aware of

problems developing.

9.

Pointed out that at one point AK had found AB working in the prep

room at 2:00 p.m. on a Saturday afternoon and had said that didn't

want him coming in at the weekends to do prep work for the labs.

Did not want to have him doing menial work - AK afraid of losing

him because his services too valuable to the Department.

(Comment: AK was concerned that had a Ph.D. doing menial work

- an inefficient use of time. Concerned that faculty member would

look elsewhere if felt that he was being put in a position where he

had to perform a lot of relatively simple tasks which were time

consuming. It should be pointed out, however, that prep work was

47

part of his workload and that schedules had been adjusted such

that weekend prep was not necessary.)

10.

11.

AB felt that cannot question his willingness to put out and to

contribute to the Department and the College.

Spends summers doing research for own professional

development. Doesn't have to; doing it for his own interest and to

maintain his professional competence for the benefit of the

students.

(AK told AB that he would bring this information to the notice of the P.S.C.)"

This memorandum and notes of meeting constitutes an important document in

these proceedings, not only because it identifies the reasons for Dean Kershaw's

recommendation, but because it is the documentation which was not provided to the

Grievor, as required by Article 4.4.6.2 of the Collective Agreement "no less than 72

hours prior to any meeting with the committee" (the subject of the First Grievance). The

evidence regarding the omission, and the Grievor's knowledge or lack of knowledge of

the contents of the memorandum, is set out under the "November 30 meeting of PSC"

subheading.

November 10, 1987, Meeting of PSC (Minutes, Exhibit 38, pp. 7-12): A. Kershaw

was interviewed at length with respect to his November 10 memorandum and his

recommendation not to grant tenure. The Minutes reveal that discussion included the

following topics (quotations are from the Minutes):

-

PSC became aware that the memorandum of July 3, 1985 (Exhibit 6, p.

37) had not been included by the Grievor in his Tenure Dossier.

"In his opinion the disturbing thing is that there are problems and room for

improvement and that AGB does not really believe this".

The use of expressions such as "intimidating", "arrogant"; "there is no

evidence that AGB has addressed the problems pointed out to him".

"There have been two incidents involving colleagues and the concern

exists that if tenure is granted there will be difficulties with the third person"

(Taylor?).

-

"AGB is not a team player".

"Concerned about what will occur in the department in the long run if AGB

is granted tenure".

48

-

"the tone of the documents between AGB and I. Paul 'really worry' ACK as

does AGB's denial of there being any problems".

-

Kozody situation.

Documents missing from AGB's Tenure Dossier are not, in his opinion, the

result of premeditated dishonesty.

-

"Uneasiness" about Stouffer case.

Reviewed four criteria for tenure: "Professional qualifications and

competence" considered a pass/adequate (reference in the Minutes to

competence being "not adequate" was corrected by A. Kershaw in his

testimony), repetitions of concerns lead to not giving high marks in this

area; "Performance of duties and responsibilities: "Has not done

everything asked of him and appears to have flippant attitude toward

requests from some members of the department", passes in the category

of teaching responsibilities; "Professional commitment and activities":

Pass, does well; "Commitment to the College and collegial activity: Pass

on involvement in committees. However, not a team player and not

prepared to co-operate with other members of the department in a

constructive fashion. In regard to collegial activities in the department an

"F". "Looking into the future he is not convenced at all that AGB will make

a constructive member of the department, which must operate as a team".

-

Recently AGB had made the comment "that he did not hold many of his

fellow department members in esteem". ACK found this to be a

disparaging remark about people teaching in the same department.

Suggested interviews with Sheedy, Blackie and/or Crowe.

Y. Swendson was interviewed. Items discussed included:

-

The depth of thought and evaluation which the department had given.

Department had based its deliberations on the tenure criteria as stated in

the PSC brochure; reviewed each of these criteria.

-

Difficulties in relations with lab instructors, now including a problem with a

third lab instructor.

She had interviewed Blackie and Sheedy at AGB's request; all information

treated in confidence; the interviews confirm previous information; it was

agreed that the contents of the interview should not be divulged either to

the Grievor or the committee because of the "condition of complete

49

confidence"; PSC to consult Grievor to determine whether he wished

information to be provided to the PSC by the instructional assistants.

-

AGB did not have a Peer Evaluation performed in Year 1.

AGB absent from the college for one week without authorization in Year 1,

leading to a reprimand.

-

AGB did not comply with all stipulations in the letter of July 3, 1985.

AGB had refused to identify a lab specimen for lab instructor when

requested to do so.

-

Tenure file contains false claims regarding committee memberships as

well as omissions of some information.

Significant student concerns, including allegations about sexual

connotations of some of his classroom behavior.

Unprofessional in his conduct with Izak Paul and in the manner in which

he handled criticism.

Interpersonal relationships with department members are very poor; AGB

cannot handle criticism well (reference to department meeting in which

AGB had replied that he had made no mistakes and did not see where he

had to improve).

-

Since department's recommendation, continued harassment by AGB of

department members.

Unanimous recommendation of the department against tenure was

unusual.

Four tenure criteria reviewed as a total picture/a holistic approach with

everything being given equal value.

YS asked to rate AGB in each of the four criteria, replied she could not do

this on the spur of the moment but would provide the information at a

future meeting if desired.

-

Suggested that I. Paul and the lab instructors be interviewed by PSC.

The Grievor was interviewed and the Minutes reveal, among other things:

50

-

Review of procedures of PSC, and the right and responsibility of the PSC

to gather information from any area which it deems appropriate in

reaching its decision.

-

Explained why he came to the College.

Two student grievances were a result of misinformation and were

eventually withdrawn; majority of student evaluations were positive.

-

"I am not perfect, some find my approach different, but I do not believe

such dominance should be placed on negative comments; this does not

represent the true interactions with students and colleagues; the

recommendation came as a surprise".

-

G. Crowe never accepted him or his qualifications. She made overly racist

comment with no apology.

Explained problems with L. Kozody which "were not, in his view,

insurmountable".

In context of "confidentiality" of the interviews by Y. Swendson with S.

Blackie and J. Sheedy AGB replied "that if decisions are being made

about one's career, than one should be aware of all information, but that

he understood the need for confidentiality in this case".

-

"Wanted people with whom he is currently working to be interviewed in

order to have a complete picture, and would prefer to know what was said

since information should be made an integral part of the evaluations of

interactions with colleagues".

"Comments about him being arrogant and intimidating are in the minority"

and have decreased.

-

"His students receive enthusiastic, enlightening and stimulating lectures".

As to discrepancy in the Tenure Dossier documentation concerning

committee memberships, confusion resulted from using the calendar year

and not the academic year; has since corrected.

-

Asked his reaction to the seriousness of the July 3, 1985 Memorandum,

he replied that he did not consider the issues to be serious.

Apologized for not having arranged Peer Evaluation in the first year and

accepted "full responsibility"; was "unsure of the timing as well as not

being aware of the seriousness of the (tenure) process; "thought better to

wait until I had a better feel for who to ask to do this".

51

-

Has made every attempt to improve communications with students.

Made every attempt to improve communications with G. Crowe.

Asked why he waited so long before replying to the 1985 Chairman's

Evaluation, did not provide a convincing answer.

-

Reviewed memorandum of September 30, 1987 from I. Paul to Y.

Swendson (Exhibit 7): AGB believed I. Paul statements regarding

discussions with G. Crowe resulted from a "difference in recall of the

incident and the language".

-

I. Paul in his evaluations "focused on the overly negative comments".

Open conflict with G. Crowe was indicative of the lack of acceptance by G.

Crowe of me or my position, role or expertise; "I categorically deny that I

ever criticized G. Crowe in front of the students at any time".

-

Was remiss in being absent in Year 1 for one week without informing I.

Paul (was attending a funeral).

Asked why, if he considered I. Paul's judgments in the evaluation

inaccurate, he didn't raise the issues and try to resolve them, he

responded "I have asked myself this many times...I should have done that.

Upon I. Paul's return I did discuss this with him".

-

Re S. Stouffer "I did not intend to imply that I. Paul solicited this

information".

Described his meeting with the tenured Department members (see

"October 19 Meeting", above).

Discussion as to his response, in the October 19 meeting with the

Department members, that he had done nothing wrong (see "October 19

Meeting", above).

-

Asked to comment on how he views his future working relationship in the

Department and what he would do, knowing of the negative

recommendation, he made several comments about continuing to co-

operate, acknowledging serious concerns that must be addressed and

intention to do everything he could to ensure that the problems and

perceptions are resolved and to correct wrong perceptions; "it is a

sobering experience and I have learned a great deal".

52

-

Apologized for the "obvious error" in stating, in the Tenure Dossier, that he

had a Peer Evaluation for his first year; he had not meant to mislead the

PSC.

-

Failure to submit student evaluations for the fall 1985 semester, in his

Tenure Dossier, was an "unintentional omission" and he "was remiss".

On the issue of the concern expressed by Dean Kershaw regarding the

"tone" of the exchange AGB used in responding to I. Paul as indicating a

deterioration, he responded that "to single out I. Paul by name was poor

judgment and that he should have been impersonal", "was reacting to a

decision that has major implications on his career; "this situation could

have disasterous consequences and there may be incidents of over-

reaction involved but that he is under great stress now".

-

Requested that Sheedy and Blackie, current lab assistant and instructor,

be interviewed.

The interview with the Grievor started at 8:50 p.m. and was concluded at 11:15 p.m.

November 12, 1987, Memorandum from Grievor to PSC (Exhibit 11):

"In considering my application for tenure, I am respectfully asking the

Professional Standards Committee to consider the following:

1.

What relevance or significance was assigned to the Chairman's

report/evaluation for 1986 by Ray Sloan, at the department and/or

Committee level?

2.

Is there an apparent similarity or pattern in comments/concerns raised by

former Chairman Dr. Paul and the department's final recommendation,

particularly the two reasons given by the present Chair, Yvette Swendson,

for not granting tenure, namely;

-

continuing concerns of interaction with students

continuing concerns of interaction with colleagues

3.

4.

To what extent does the department's final recommendation reflect

concerns raised by Dr. Paul?

At the department meeting to decide on recommendation for tenure did all

six tenured faculty actually examine separately and individually the

information contained in the file submitted to support my application for

tenure?

53

5.

Department's reasons for recommendation vs. those by Dean.

Thank you for considering my request and application."

November 17, 1987, Meeting of Tenured Members of Department: The meeting was

to review the process which had occurred at the PSC to date, in anticipation of

interviews of Department members by the PSC on November 21. At the Arbitration

Hearing the testifying members were asked whether Chairman Swendson had made a

comment about the Grievor's demeanor during his interview with the PSC on November

10, to the effect that he was more "humble" at the PSC meeting than he had been at the

October 19 meeting with Department members. Y. Swendson responded "heavens no, I

wouldn't do that". K. Cummins recalled a reference by Y. Swendson to the Greivor

being "not humble" which was to be kept confidential. R. Sloan recalled Y. Swendson

commenting that the Grievor "had taken a different approach at the PSC and she was

surprised at his change in attitude before the PSC"; he recalled Y. Swendson stating

that the information, as all information relating to tenure matters, was confidential. D.

Leask recalled Y. Swendson commenting that she had heard the Grievor was "more

subdued" at the PSC than in the interview with the department; Y. Swendson had said

that the comment was in confidence and he understood it to be part of the process of

having a right to know the current status but not to discuss matters with persons other

than tenured members of the Department. I. Paul had no recollection of the matter

being discussed.

November 19, 1987, Memorandum from K. Cummins to D. Baker (Chairman, PSC)

(Exhibit 12): The introductory page of the memorandum states:

"I must apologize for addressing the attached memo directly to the

Professional Standards Committee rather than through the proper channel of

chairperson, department tenure evaluation committee. Time does not permit this

luxury since the Professional Standards Committee will meet in a very short time.

The attached report is not a result of a sudden, last minute change of

mind. Since the initial recommendation against Dr. Buchanan, I have become

increasingly concerned and convinced that an iniquity could occur. Commending

a day after the initial department meeting, on October 19, I have had serious

reservations about the basis and objectivity of my own decision and it has taken

much time, questioning and discussion for me to arrive at a position which I am

happy with. By placing an emphasis on what is in the tenure file, which, as the

name implies, should contain all relevant information to permit evaluation of the

candidate, objectivity is ensured. This means that any objective or subjective, off

the record, comments must be discounted unless the comments are written up

for objective scrutiny in the file.

This report is not as comprehensive as I would like, but in the time

available its the best I can produce."

54

The memorandum proceeds to analyze the Grievor's teaching performance

based on student evaluations, refers to the few negative comments as not indicating

any major problems although there is some indication of "a need for improvement. K.

Cummins explains why the student grievances, which were withdrawn, should not have

any significant impact, and that the problem with G. Crowe was "attributed to a

personality conflict due to a lack of adequate and appropriate communication". He

expresses the opinion "that interaction difficulties are relatively unimportant so long as

teaching performance is satisfactory and student evaluations do not indicate serious

concerns". The problem with the lab instructor, Kozody, was determined, by A. Kershaw

and I. Paul to not be the Grievor's fault, other than, perhaps, his high expectations.

K. Cummins refers to the very favourable chairman's evaluation in the Winter of

1986 (by R. Sloan).

On the subject of the Grievor's response to the Chairman's Evaluations 1985 and

1987, he states:

"The personal nature of Dr. Buchanan's response to the chairman's

evaluations 1985 and 1987 is of concern and is unacceptable. Dr. Buchanan,

despite possessing a strong personality, must learn to be more professional and

mature in his written responses to an objective evaluation by his chairman. The

various chairman's evaluations and instructor responses indicate a breakdown of

effective, relaxed communication between the chairman and the instructor. For a

tenure candidate, it is essential to make every effort to cooperate and get along

with your chairman, and not respond in personal terms to impersonal criticism by

the chairman.

Dr. Buchanan describing the chairman's concerns as "ill conceived" is

quite breathtaking yet forthright. Dr. Buchanan's tactless comments at least

indicate that he speaks his mind, which, in this particular case, is small

consolation. It is my opinion that Dr. Buchanan's perfectionistic or defensive

attitude results in his difficulty in accepting criticism.

I do not consider the direct, forthright, private and honest communication

concerning what Dr. Buchanan perceives to be the truth in anyway

unprofessional or unethical.

Dr. Buchanan's sensitivity to adverse comments results in apparently

minor issues being blown out of all proportion to their worth. Thus, for example, a

misunderstanding over the interpretation of a single sentence (Shauna Stouffer)

becomes a major focus to the detriment of the proper focus: the instructional and

professional track record of the candidate.

The communications between the chairman and the candidate

(candidate's response to chairman's evaluation 1985-87, instructor's response to

candidate's response Sept. 1987) is, in my opinion, symtomatic of personal,

55

rather than technical, problems. The candidate in my opinion is doing his level

best to do his job and finds himself subjected to some objective criticism by the

chairman. The candidate, on receiving criticism immediately climbs onto a high

horse and throws a few grenades at the chairman.

The candidate's concern about information and other issues not included

in the chairman's evaluations (1985, 1987) could have been more amicably

addressed instead of lobbing over grenades labelled with various accusations

against the chairman. The candidate appears to be excessively defensive and

must learn not to shoot from the hip."

He refers to the Grievor having "become very defensive" regarding the omitted

information issue. He also characterizes the problems in the areas of "professional

behaviour", "initiative", and "community involvement" as reflecting "the candidate's

defensive position".

He states that the incorrect statements regarding committee membership was a

mistake and not as a result of an intention to deceive. The "misunderstanding" with

respect to Stouffer was "caused, I would guess, by the candidate's excessively

defensive condition" and was not a lie, or in anyway unprofessional or unethical.

K. Cummins says it is important to note that, since January 1987, there have

been no documented problems with Dr. Buchanan's laboratory instructors. Reference is

made to research projects in which the Grievor has been involved, college committees

on which he has served and workshops attended as well as the Certificate of

Appreciation for making the College a better place in which to live. He expresses "a

personal viewpoint":

"Al is a talented and outstanding instructor. The grapevine has told me that Dr.

Buchanan can occasionally be rather earthy in his rhetoric in lectures and this

earthiness helps the material sink in. He is forthright in his opinions and

possesses tremendous vitality. He is humorous and socialises with colleagues

within the college as a whole. He appears to (be) very well liked by his college-

wide colleagues."

It is K. Cummins' "strong recommendation, based upon the four evaluation areas,

that Dr. Buchanan be granted tenure".

A copy of the memorandum was provided to the Grievor.

November 21, 1987, Meeting of PSC (Minutes, Exhibit 38, pp. 24-45): The meeting

lasted all day. D. Leask, R. Sloan, H. MacLeod (President of the Association), K.

Cummins, I. Paul and Y. Swendson were interviewed. Much of what is recorded in the

Minutes is a repetition of opinions expressed earlier, and referred to above. We believe

that little purpose would be served in setting out, at length, the statements made.

Instead the subject matters discussed will be identified.

56

D. Leask: Relationships with lab instructors (Crowe and Kozody); problem with

colleagues; response by Grievor to Chairman's Evaluations in 1985 and 1987. He

expressed reluctance to discuss matters without the Grievor being present because of

the ethics clause in the Association By-Laws.

R. Sloan: Crowe situation; July 3, 1985 memorandum; Kozody situation; personal and

interpersonal issues within the department; does not take criticism well; relations in the

department would be "rather tense" if Grievor was granted tenure; has stronger

thoughts now on the recommendation because of actions that have occurred since.

H. MacLeod (President of Association): Had read Tenure Dossier with permission of

Grievor; (concern expressed by PSC member on the appropriateness of the Association

President appearing on behalf of a candidate for tenure); confident instructor; instruction

in the classroom should be the principle criterion and the interpersonal category the

least significant; has been improvement in relationship with subordinates and in "earthy"

comments; difficulty for Grievor if tenure denied and employment ends December 31;

"uneasiness that there is intolerance to any differences in behaviour"; explained ethics

clause in Association By-Laws about no comments being made without person being

informed of them.

K. Cummins: (PSC members had read his memorandum of November 19) Crowe

matter; outstanding teacher; had talked to J. Sheedy and S. Blackie; Grievor "can be a

bit tactless", speaks his mind, becomes defensive; Kozody matter; feelings should not

come into the decision; diversity of opinion is healthful; problem arose when Grievor

identified weaknesses in the Environmental Technology program to Y. Swendson.

I. Paul: Interactions with students and colleagues; comments on student evaluations;

antagonistic and hostile attitude ("relentless staring"); Crowe and Kozody; "low-level

friction with other members of the department, both faculty and support staff"; Grievor's

response to chairman's evaluations; conflicts with Grievor ("the problem is you, Izak");

Stouffer matter; incorrect dates for committee memberships in Tenure Dossier;

interview at Department meeting (no problems or mistakes); response to criticism is to

deny there is a problem and change focus of the problem from the issue to a personal

attack; inappropriate and insensitive analogy (Hitler and Keegstra); situation between

himself and Grievor could not be resolved; his remaining would adversely affect the

department; the stress "has affected me badly".

Y. Swendson: Defiance at department meeting (no problems or mistakes); unwilling to

compromise to assist reducing costs; arrogant reaction to offer of assistance in finalizing

Tenure Dossier; "Mickey Mouse" courses in Environmental Technology; "makes me feel

inadequate", "tries to put me down and make me feel like an inferior"; relations with the

lab instructor have improved since January 1987; Grievor submitting November 12,

1987 memorandum to PSC "is indicative of the way AGB behaves"; addressed the

questions raised in the Grievor's November 12, 1987 memorandum; Grievor has "a very

different attitude" within the Department than in the College generally; "bullying by the

candidate to find a weak link, even to the point of imposing on a personal relationship,

57

has interrupted the normal flow of our Department" (reference to K. Cummins); do not

see the Grievor as a constructive and contributing member of the Department; failure of

PSC to support the recommendation will lead to grievances, faculty and chairman must

be able and willing to make tough decisions in the future; no racism factor; inappropriate

for Association President to be called in to meet with the PSC (did not have all the

available or relevant information). The PSC requested of Y. Swendson a more detailed

written statement indicating how the department rates AGB based on the criteria for

tenure ("would have done this originally but lateness of meeting"). The PSC directed her

to invite J. Sheedy and S. Blackie to come to the PSC meeting on November 24 for

interviews, with Y. Swendson present, but not the Grievor, "as it would establish a

precedent where a candidate could be present for all sessions of PSC".

November 24, 1987, Memorandum from Tenured Members of the Department

(excepting K. Cummins) to PSC (Exhibit 13):

"As requested by the Committee, we are enclosing a detailed summary of our

reasons for the recommendation that Dr. Alfred Buchanan NOT be granted

tenure at Mount Royal College.

Our reasons for the recommendation are based on the 4 criteria contained in the

PSC Guidelines of Dr. Buchanan's tenure file.

1.

PROFESSIONAL QUALIFICATIONS

Dr. Buchanan's qualifications are adequate for the position and in fact required

for this position as a Biologist in the Department of Chemical and Biological

Sciences. We expect members to engage in many activities for their personal

professional development, as Dr. Buchanan has done.

2.

PERFORMANCE OF DUTIES AND RESPONSIBILITIES

Over the past three years, Dr. Buchanan has instructed in the three Microbiology

courses offered by our department: MIBI 1212, 1218 and 2241. During that time

period, there were a number of concerns related to his performance of duties and

responsibilities. Most notable were concerns raised about his interactions with

students and colleagues.

a.

Students

The student evaluations were generally positive, but were within the normal

range for our department. Indeed, we expect all instructors to strive to achieve a

high level of competency in this area. The written comments recorded on the

student evaluations did point to some problems in the instructional process: e.g.

arrogance, intimidating attitude, sexual connotations, etc. We had expected to

see improvement in these areas over the course of three years. Although these

concerns were expressed by a relatively small number of students, it is essential

58

that the critical statements of a minority of students be acted upon, especially

when the instructor is dealing with sensitive areas. These comments are unique

to Dr. Buchanan in spite of other instructors' teaching similar material in other

courses. Despite being aware of these concerns, there has been no

improvement in this area.

In addition to the written student criticisms, the submission of an

unprecedented (in our department) Joint Student Grievance (June, 1985) against

Dr. Buchanan and the verbal critical statements made by students (e.g. the

student complaints in Winter 1987 regarding their lack of understanding of Dr.

Buchanan's expectations of them as well as the fear of answering questions in

class) also indicate ongoing problems with students. Despite being aware of

these concerns, there has been no improvement in this area.

It should be noted that the memo of July 3, 1985 (an administrative directive

unprecedented in our department), jointly signed by Dean Dennis Leask,

Chairman Izak Paul and Acting Chairman Ray Sloan, specifically directed Dr.

Buchanan to improve all aspects of communication with students such that:

a. students clearly understand his expectations; and

b. problems with students are promptly resolved.

It is our view that Dr. Buchanan has clearly failed to comply with both

components of this directive.

b.

Colleagues

Dr. Buchanan has displayed recurring difficulties with his closest

colleagues, his laboratory instructors. This is evidenced by the fact that two

successive lab instructors chose to leave rather than continue to work with Dr.

Buchanan. The first lab instructor, Mrs. Gwynn Crowe, had taught laboratories in

these courses successfully and without any difficulty for many years prior to Dr.

Buchanan's arrival. The subsequent laboratory instructor, Ms. Lily Kozody, was

interviewed and recommended for employment by Dr. Buchanan himself, a trust

provided in good faith by the Acting Department Chairman, Ray Sloan. Despite

her acknowledged competence, Ms. Kozody also found it impossible to continue

working with Dr. Buchanan.

The candidate has had two colleagues, members of the MRFA, working

as lab instructors, who lost their positions as a consequence of conflicts with Dr.

Buchanan. This is unprecedented in our department. It is our view that Dr.

Buchanan did not treat his lab instructors as colleagues, but rather as inferiors. In

the case of one individual, Gwynn Crowe, her prior record of service to the

college was exemplary and included successful service with 2 previous

microbiology instructors. In the case of the second lab instructor, Lily Kozody, we

59

are concerned that her actions to rescue his courses when he was hospitalized

for an extended period were not recognized and she too departed through

conflict. These two major problems with Dr. Buchanan's closest colleagues

seriously disrupted the teaching of the Microbiology courses and the working

atmosphere in the department.

It should be noted that the memo of July 3, 1985, signed by Mr. Leask

(Dean), Dr. Paul (Chairman) and Mr. Sloan (Acting Chairman), directed Dr.

Buchanan to improve cooperation and communication with his lab instructor. It is

our view that Dr. Buchanan failed to comply with this directive, not only once but

twice and consequently he has demonstrated a blatant disregard for an

administrative directive at MRC.

c.

Other Matters

With regard to the performance of duties and responsibilities, we have

noted that Dr. Buchanan failed to arrange for a peer evaluation during his first

year at Mount Royal College as required by the Professional Standards

Committee Guidelines. Furthermore, Dr. Buchanan was absent for a full week

during the first year without informing anyone of his whereabouts, either prior to

or during that time period.

3.

PROFESSIONAL BEHAVIOR

In Dr. Buchanan's comments on the Chairman's Evaluations from 1984-

1985 and 1986-1987, he made a number of misleading and inaccurate

statements. These include:

a.

b.

c.

claims that information was omitted when clearly, it was not

false claims regarding committee memberships

false claims regarding solicitation of information from a student

In addition, it is the view of all tenured faculty members that the general

tone of Dr. Buchanan's comments was extremely unprofessional.

Subsequent to the past Chairman's response to Dr. Buchanan's

comments, Dr. Buchanan objected to only two of the many points raised in Dr.

Paul's response; consequently this indicates that Dr. Buchanan did not object to

all of the other statements appearing in Dr. Paul's response.

All of these factors, in our opinion, show a serious lack of professional

behavior on the part of Dr. Buchanan. We also feel that this behavior indicates

that the candidate is unable to respond constructively to criticism.

60

4.

COMMITMENT TO THE COLLEGE

We feel that a commitment to Mount Royal College requires that all of us

recognize the need for ongoing improvement. During the personal interview (at

the meeting to discuss Dr. Buchanan's tenure application), Dr. Cummins

explored Dr. Buchanan's views as to whether or not Dr. Buchanan had had any

difficulties or problems during his probationary period and whether there was

potential for improvement. In response to these questions by Dr. Cummins, Dr.

Buchanan emphatically stated that he had had no difficulties or problems during

his first three years at the College and that he did not feel that there was any

need for improvement.

In our view, this attitude seriously jeopardizes the future productivity and

performance of duties by our department.

RECOMMENDATION

We strongly recommend that Dr. Buchanan NOT be granted tenure."

The memorandum was signed by Leask, Paul, Sloan, Swendson and Woytowich.

November 24, 1987, Meeting of PSC (Minutes, Exhibit 38, pp. 46-53): The PSC

interviewed E. Woytowich, J. Sheedy (Instructional Assistant for the Biology Labs), S.

Blackie (Lab Instructor), and D. J. Stouffer (Dean - Faculty of Community and Health

Studies):

E. Woytowich: No direct dealings, evaluated and gave Grievor high points on teaching;

"quite high handed" in his labs; "the feelings (working relationships in the department)

are tense but could be in a worse situation if this continues".

"He does cause difficulties because not all people go along with him; he is hot

tempered. We all feel these things at times but must learn control. It is more a

matter of total personality than just one thing. The Department gave a lot of

thought before it came down like it did; this was really a difficult stand - would

have been easier to accept him and not have made this recommendation. I will

be leaving (retiring) at the end of December so I could have been one of the

good guys and just gone along and not taken this stand, but I considered it very

important and in the best interest of the Department."

J. Sheedy (after being advised that the proceedings are conducted in confidence): Has

always had a good working relationship with the Grievor; close friends with the Grievor;

Grievor appears to get along with people he works with and has no problems; with

Crowe it is hard to say what the problem was; Kozody situation was not the Grievor's

fault; understands Grievor's humour but some, including students, have been upset by

it.

61

S. Blackie (after being advised that the proceedings are confidential): First year Grievor

was at the College it was very difficult to work with him (example, Crowe); not enough

time to do the work required; initially he treated the lab instructors "like dirt" and was

inflexible, now is more reasonable and seems to have more respect; not treated as a

colleague but "just cheap labour".

D. J. Stouffer: Confirmed that his daughter had not met with I. Paul and in fact does not

know him.

November 25, 1987, Memorandum from K. Cummins to PSC (Exhibit 14):

"3.

Professional Behavior

The facts indicate that not all tenured faculty feel that Dr. Buchanan's

comments were extremely unprofessional.

My report indicates in the clearest possible way that:

page 4,

para 3

1) "I do not consider the direct, forthright, private and honest

communication concerning what Dr. Buchanan perceives to be the

truth in anyway unprofessional or unethical."

Page 4, paragraph 1 of my previous report indicates that Dr.

Buchanan must learn to be more professional and mature but this

statement does not indicate that he has behaved extremely

unprofessionally or even unprofessionally.

page 4,

para 2

2) Dr. Buchanan describing the Chairman's concerns as "ill

conceived" is breathtaking yet forthright.

page 4,

para 2

3) It is my opinion that Dr. Buchanan's perfectionistic or defensive

attitude results in his difficulty in accepting criticism. I have orally

expressed my views on this matter to the P.S.C.

4.

Commitment to the College

I have orally expressed my views on the personal interview to the P.S.C. I

have indicated, amongst other things, that Dr. Buchanan was in an

extremely defensive position. Whereas his inability to indicate serious

deficiencies was readily apparent in his personal tenure meeting and led

me to a decision against him, after examining the documented facts I think

otherwise.

His commitment to the College is well documented through committee

work, workshops, off campus activities, etc."

November 25, 1987, Meeting of PSC (Minutes, Exhibit 38, pp. 55-71): The

committee interviewed I. Paul briefly and the Grievor extensively.

62

I. Paul: The PSC, after reviewing documentation obtained from the Human Resources

Department, noted that the Grievor had supplied different dates for prior employment on

each of the curriculum vitae he had submitted to the College and on the Pension

Registration form. The Chairman explained that the PSC had requested I. Paul to

appear because he was Chairman at the time the Grievor had been hired and was also

a member of the Selection Committee, and the PSC wished to review the interview

process and eventual hiring. I. Paul referred to inquiries which he had made of persons

at two other universities and said that although there had been two "negative

comments" the Grievor had been placed on the short list and after interviews, and the

committee being favourably impressed, the job offer was extended to him. Asked why

something had not been done during the three years the Grievor was on probation, he

responded that when the problem with Kozody arose he believed the Grievor's

employment should be terminated; he had discussed the situation with Dean Kershaw

but did not push for termination because the Dean "did not agree with him fully on the

seriousness of the problems".

The Grievor: The interview was lengthy and covered virtually all of the subjects which

had been discussed previously as well as new subjects. The Grievor was advised, at

the conclusion of the interview that "the PSC would welcome any further written

submissions....to address any issue or to clarify any point". He was requested to

respond and to make any comments he wished to the department's written

recommendation of November 24 and/or the process, all of which must be submitted

before November 30 at 10 a.m. The Grievor did respond by memorandum (Exhibit 15)

on several of the issues. Since that memorandum is reproduced in full ("November 27,

1987, memorandum from Grievor to PSC", below), reference will here be made

primarily to the issues raised and responses by the Grievor, together with several

quotations from the Minutes of the PSC.

-

Deficiencies in the Tenure Dossier had been noted and outlined in a

memorandum of November 23 which had been delivered to the Grievor's office;

he had not been to his office and had not received the copy so he was provided

with a copy at the meeting.

Grievor noted that he had not received the Department's memorandum until

11:50 a.m. that day and had since been in a two hour lecture so that his

comments would be subject to these limitations (the meeting with the PSC

started at 6:00 p.m.).

Scores on student evaluations were significantly better than the Department

averages.

-

Criticism of performance by students were in the minority.

Negative student comments: "I objected to the editorial license taken by the

Chairman and the weight given to negative comments....I do acknowledge that I

63

may at times appear arrogant and intimidating but sometimes this is necessary

when teaching students. I have modified course content."

-

The July 3, 1985 administrative memorandum: He would have been a "complete

and utter idiot not to modify my behaviour if it offended the majority of students....

It was probably inspired by I. Paul's interpretation of the data presented....I am

not saying that he did not have the right to do this, but I believe that he put

greater weight on the negative comments." The Grievor believed he had

complied with the directive; "I tried my level best".

No difficulties with the present lab instructor or assistant. Discussed G. Crowe

problem: "caused by the technical problems as well as G. Crowe's unwillingness

to accept him". He "guessed he could be overly demanding" and "I have high

expectations of myself and others" but "I do not think this is sufficient grounds to

not grant tenure".

-

Discussed Kozody: "in my opinion it was an over-reaction (by her) to negative

student evaluations (of her)"....."Friendly relationship in the beginning and it was

strange what had happened".

Views lab instructors as colleagues: "I don't see myself in the supervisors role or

them as inferior"; knows of no problems in relationships with J. Sheedy and S.

Blackie.

As to how he believed the perception of department members came to be what it

was: "If I could answer that I would not be in this pickle now. What they see me

as is different from my view....Sure I had some problems but what about the

abundance of information and documents that illustrate all of the good things that

I have done (gave several examples). I do not think the department members

reviewed the documents separately and individually. I don't see how six

members of the department that I have worked with for three years without any

major difficulties could decide that I now have very serious problems which

preclude my continuing here at the college....I just don't see the evidence in the

Tenure Dossier. I really believe that the mechanics by which the information was

reviewed is the problem."

-

A committee member pointed out that the PSC had interviewed all six tenured

department members and each had clearly stated that he/she did not take this

situation lightly and that the department's decision was considered seriously

because of the consequences of the action. There was difference of opinion

between some PSC committee members and the Grievor as to whether the

department members had fully reviewed the information in the Tenure Dossier.

Asked what he would do to change the department's perception of his image: "I

must share some of the responsibility and must get off my duff and correct these

perceptions.... I was unaware of these perceptions so it is difficult to respond" (a

64

PSC member commented that the Grievor had been informed of these concerns

over a long period of time).

-

Asked to comment on his reaction to criticism: "Would accept criticism if it were

necessary and relative. Acknowledged that his response to I. Paul was irrational

and added that he must apologize for this....Repeated his claim that the relative

weight assigned to the four criteria does not accurately represent or indicate his

performance."

Requested to comment on his defensive reaction to the department's request for

self assessment: "stated that he would 'beg to differ' regarding being

defensive....I admitted that I was human and that I am not perfect. I never said

that I have made no mistakes and never said nor implied that I was perfect, but

the questions I was asked were pointed and meant to verify the department's

perceptions".

-

What he would do to mend the breach in the department: "First, have a heart-to-

heart talk with members of the department to determine exactly what I have

done".

A PSC member read the memo from the Grievor to Dean Kershaw (Exhibit 37)

regarding the proposed meeting with L. Kozody, said that the tone of the memo

was the concern and that there is evidence of longstanding conflict regarding

criticism and the Grievor's reaction to criticism; stated that the impression is that

the Grievor displays denial, resentment or tries to persuade the person making

the comments that he doesn't understand; I. Paul's evaluations appear fair and

objective: "I made repeated attempts to discuss the evaluations with I. Paul and

the response was always 'it is my right as Chairman and my responsibility as

Chairman and these are my interpretations'."

-

"The evidence will suggest and is right that I over-react to criticism but the

question is really whether this should preclude my continued and productive

employment here. I have to ask the relation of this in comparison with all the

other factors."

A PSC member noted that the conflict would appear to auger ill for the

department and already is disruptive in the department: "I am aware of the

problem and I can only react in a fashion to change the problem or the

perception of the department. My obvious responsibility is to correct this and

rectify these perceptions. AGB acknowledged this situation has consumed

energy, created stress, been a source of tension and strained relationships in the

department. The problems have been identified. I was not aware of these

perceptions before so I could not react because I did not know about them." (A

member disputed his contention that he had just learned of these problems and

stated that he had been informed of these concerns over a long period of time.

The member referred to several documents....and noted that AGB could have

65

reacted and addressed the perceptions of the department in a much different

manner than he did.)

-

Deficiencies in documentation of Tenure Dossier:

Peer evaluation - Year 1: "True, this was not performed.... I accept this as

my responsibility. The omissions have resulted from ignorance on my part;

lack of information. This is the first time I have applied for tenure....Every

process varies."

Dates of employment provided by AGB on various documents, particularly

at University of Western Ontario (dates shown were July 1982 to March

1984): "No, the correct date is March 1983. This is not a deliberate error. I

was unemployed for the period March 1983 to August 1984."

-

"I have the utmost respect for my colleagues; if I did not respect them and have

the greatest acceptance for the knowledge among the faculty, I would ignore

them".

Asked if he had received Tenure Application Guidelines with his letter of offer:

"Yes I did, and it was my responsibility to be sure that everything was included

and that every 'i' was dotted and 't' crossed and that all the information was

accurate. I failed in this respect, but it was not deliberate."

-

A member noted that AGB's typical reaction appears to be defensive and

reactive rather than problem-solving in approach: "I made attempts to meet in a

problem solving situation but was met with a brick wall, and this is now being

perceived incorrectly. I intend to address this situation to the best of my ability to

modify my behaviour. Now that I am aware of the problem it will be the priority to

ensure my continued productive employment. I have learned a lot from this. I

must take responsibility for not fullfilling expectations. I must pay attention to

details. I must reassess how others perceive me. I must not alienate others--

would do better to keep my mouth shut. This has been a very sobering

experience. I find it very difficult to react positively when people make gross

misrepresentations about me, but I must realize that there are reasons for these

statements. Regardless of what happens I have to have some insight as to what

went wrong.....But I cannot understand why the department did not point any

redeeming features I have." (The chairman responded to AGB's statement by

summarizing the positive qualities identified by the PSC in the course of its

interviews and deliberations, being: competent instruction, professionally active

and lends credibility to the department, possesses required academic

credentials, active in college committees, apparently well regarded personally

outside the department.)

-

Asked to comment on the tenure process: "I would have liked to have been in the

Department meeting when the decision was arrived at. I think that they had made

66

the decision before I went into the room. This situation could have been avoided

or resolved by addressing the issues in this setting. There was no subsequent

meeting with tenured Department members since that one meeting. AGB

indicated that he was not aware of all the issues until the PSC interview and then

had to comment on specific concerns and points in an intelligent manner. The

applicant should be party to all discussions and should have access to all parts of

the process...

A tenure candidate should be given all documents as well as due time to

formulate an adequate response."

November 27, 1987, Memorandum from Grievor to PSC (Exhibit 15):

"Some tenured members of the department of Chemical & Biological

Sciences have recommended to the Professional Standards Committee (Memo

November 24, 1987) that I not be granted tenure. It is my belief that the reasons

for the recommendation by some of the tenured faculty are not appropriately

supported by the available evidence submitted in the application for tenure and

from other sources, including the memorandum sent to the Professional

Standards Committee on November 9, 1987 by Dr. Ken Cummins, a tenured

member of the department of Chemical & Biological Sciences. The reasons for

my belief that the recommendation that I not be granted tenure is not

appropriately supported by the available evidence are described in considering

the four areas which provide the focus of evaluation for tenure.

1.

Professional Qualifications

The memorandum from some of the tenured faculty members of the department

of Chemical & Biological Sciences agrees that my qualifications are adequate for

the position, and that I have engaged in many activities "for personal professional

development". Examination of available documentation on the application file for

tenure clearly supports these statements. My performance in this area is

apparently satisfactory.

2.

Performance of duties and responsibilities

The memo from the department indicates that concerns were raised about

interactions with students and colleagues.

a)

Students

The tenured faculty members agree that the student evaluations were

generally positive but were within the normal range of our department.

However, examination of the tenure application file (Chairman, evaluation

for 1986) (item 1) "my examination of these results indicate that in twelve

of the evaluation points Dr. Buchanan placed well above the department

67

average, while in two categories (9 and 10) he placed slightly below the

average. The results of these evaluations indicate that the students

perceived the instruction received to be of high quality and marked by

excellence". The memo states that "student evaluations point to some

problems in the instrucitonal process e.g., arrogance, intimidating attitude,

sexual connotations etc., and concludes that "there has been no

improvement in this area". The data avilable in the tenure file does not

support this conclusion. The remarks relating to "intimidating, impulsive,

arrogant" first appeared in Biology 2241 Winter 1985 (see item 2,3. Dr.

Ken Cummins memos. November 19, 22, 1987) and do not appear again.

The remarks on "sexual connotations" occurs once (Biology 1212 Fall

1986) and were not stated subsequently. This remark in itself was possibly

questionable since it referred partially to my "doing up my zipper in class

as sexual connotation!!". The data submitted in the tenure application file

clearly indicates that considerable improvement was achieved, contrary to

the interpretation suggested by the recommendation. Dr. Cummins memo

of Nov. 19 (page 2, item 2) states (under conclusions) "in my opinion

these results for #15 or mean of #1-14 indicate that no problems exist with

Dr. Buchanan's instructional ability. The negative comments which were

made were expressed by a relatively small number of students as pointed

out by the tenured members of the department. Dr. Cummins also states

(page two; item 2) that any major problems like those mentioned would

appear more than four times in a class of 75. It is interesting to note that

Dr. Buchanan's student markings #9(4.38) and #14(4.51) are outstanding

despite the four negative comments". Similar comments were made with

respect to other courses, e.g., "indicates an improvement to a satisfactory

level" (comparing an average ranking of 3.76 for seven courses since Fall

1984 to a ranking of 4.00 for the last four courses from Winter 1986). The

data available in the file shows marked improvement based on the

subsequent absence of significant negative students comments, and on

improved objective rankings noted.

The student grievance was filed in June 1985 (item 4) long after grades

had been assigned and was withdrawn subsequently. One would expect

that if a serious issue existed it would have been raised earlier and be

acted upon, not withdrawn as it was. It should be noted that the student

comments for this course (Biology 2241, Winter 1985) do not indicate a

serious communication problem. With respect to the memo of July 3, 1985

jointly signed by Dean and Chairman, I faithfully, to the best of my abilities,

complied with all 3 components of the directive. Copies of a memo sent to

the laboratory instructors to comply with the directive are enclosed (item

5). To ensure that students clearly understood my expectations I have

routinely given a detailed course outline stating objectives, performance

evaluations etc. (see item 6) I have also arranged for Carol Sinanan

(Library Services) to address students on procedures for completing

research assignments (item 7), and discussed at great length how

68

research articles should be written, and how they would be graded (item

8). I have requested that students themselves decide on an examination

format, and have used whatever format they have agreed to. I have

discussed any problems which have arisen with students at any time, and

gladly attended a meeting with Chairman and three students to discuss

problems. I have even asked students to indicate their interests and

attempted to advise them as to career choices etc. (see item 9). In

summary, I have complied with all components of the directive given in the

July 3, 1985 memo.

b)

Interaction with lab instructors.

1. Gwynn Crowe

Colleagues

It is my opinion that the difficulties experienced with Mrs. Crowe were

based largely on an apparent technical problem, namely "that Mrs. Crowe

was not able to compensate for new methods, procedures and directions

of Dr. Buchanan" (See Chairman evaluation of 1986, item 9). Mrs. Crowe

in my opinion did not accept my role as instructor in the course and

displayed an attitude which could have been interpreted as somewhat

racist, calling me "God-damn lazy, dirty". It should be pointed out that Mrs.

Crowe resigned her position when in consultation "with Dean Kershaw

Mrs. Crowe was informed that her services for this particular course would

not be reinstated in the fall semester 1986." (Chairman's report item 10). I

regret that these problems arose with Mrs. Crowe, and would certainly

have preferred a more amiable working relationship. The decision to

terminate her appointment was made by the Dean and Chairman.

2.

Lily Kozody

The Dean and Chairman did not conclude that I was at fault in the

difficulties encountered with Lily Kozody. "A. Kershaw, I. Paul, and other

witnesses saw no evidence of friction between L. Kozody and A.

Buchanan before the allegations were made, on the contrary, the two

parties appeared to be getting on well together. We found that A.

Buchanan had been complying with the requests of the memorandum of

July 3, 1985 regarding his dealings with G. Crowe". (item 11), memo dated

December 15, 1986. The report gives reasons for the radical change in

Lily Kozody's perception of her relationship with me (page 2, item 11), and

indicates my willingness to resolve difficulties. It should be noted that on

page three of this same document (memo dated December 5, 1986) the

dean and chairman "emphasized the view that A. Buchanan was a

conscientious, dedicated and professional instructor. Lily's actions to

rescue my course when I was hospitalized were certainly well recognized.

69

Every single topic that Lily lectured on was done after we had both

reviewed the material from my hospital bed: the examinations set were set

by me while hospitalized and during recuperation, and they included Lily's

name as instructor in the course. (item 12). I was extremely grateful to Lily

for assisting in the course and repeatedly expressed such gratitude. I

recognized her efforts. The joint report by Dean and Chairman does not

even adress this issue as to be expected if indeed it had been

documented.

The statement (page 3, tenured faculty memo. Nov. 24, 1987) that a

"blatant disregard for an administrative directive at MRC" is not supported

by available data. I sent memos to the laboratory instructors (see item 4)

informing them of regular meetings as required by the directive given. The

report by Dean and Chairman (dated Dec. 15, 1986) clearly states on

page 2 item 11, that I complied with the directive (July 3, 1985) given

previously by Dean Leask, Chairman Paul, and chairman-designate

Sloan.

c.

Other matters

I accept full responsibility for not having arranged for a peer evaluation

during my first year at Mount Royal and apologize for having failed to do

so. All subsequent evaluations were duly effected.

I was absent from the college for a week (to attend a funeral on very short

notice), but once I became aware of the proper procedure to follow, I have

requested written authorization for absences (see item 13).

I have performed all my duties and responsibilities with diligence,

dedication and unreserved effort. The problems which have existed have

not seriously disrupted the teaching of microbiology courses and the

working atmosphere in the department. There is not evidence in student

evaluations, or from other sources which indicate disruption as would be

expected if such was the case. Microbiology courses continue to be

interesting, informative, entertaining, valuable, and well received by

students, based on student evaluations. Peer evaluations do not indicate

that my teaching has been any other than "dynamic, enthusiastic,

interested in students, striving to meet their learning needs as effectively

as possible" (item 14, peer evaluations, others in tenure dossier).

The Dean and Chairman's memo (Dec. 15, 1986) (item 11) clearly do not

indicate any disruption in Microbiology courses or working atmosphere in

the department which would have been expected if indeed that was the

conclusion.

3.

Relationship with current laboratory instructor.

70

Mrs. Sheryl Blackie has been the laboratory instructor in Microbiology as

of January 1987. To date we have maintained a warm, friendly and

productive interaction. We continue to plan laboratory exercises together

weekly, and we both have worked harmoniously with the laboratory

assistant, Jeff Sheedy. No problems have been brought to my attention,

and I have even assumed laboratory instruction duties for Mrs. Blackie so

that there would be no loss of income when previous commitments

necessitated her being away. I will certainly do all possible to maintain the

present interaction.

3.

Professional behavior

I have indicated to the Professional Standards Committee (memo Oct. 19, 1987

Item 15) that claims re committee membership arose from reference to the

calendar year for 1985 instead of the academic year 1985-85. It was not my

intent to mislead the committee, the information was submitted in error. With

respect to the "false claim of solicitation", as pointed out (in the memo of Oct. 19,

1987, item 16), Dennis Leask did state that he had contact with Dean Stouffer,

"whether or not he had any information regarding his class." I did not imply that

Chairman Paul had solicited information from a student.

The data available in my tenure file does not show "a serious lack of professional

behavior" on my part. A report jointly authored by Dean Kershaw and Chairman

Paul stated unequivocally that "A. Buchanan was a conscientious, dedicated and

professional instructor. (See page three, item 11 memo of Dec. 15, 1986). The

Chairman's evaluation of 1986 (included in tenure dossier) describes my

behavior as "polite, friendly, courteous, professional and helpful". The Chairman's

evaluations in 1985 and 1987 do not raise any questions of lack of professional

behaviour, nor is there any evidence from any other source (student comments,

peer evaluations, etc.) to indicate a serious lack of professional behavior. It is

certainly not the view of "all tenured faculty members that the general tone of Dr.

Buchanan's comments were extremely unprofessional "(see Dr. Cummins

response to memo Nov. 25, 1987, item 17.) My comments in response to the

Chairman evaluations should not have been stated as they were. In calmer, more

rational moments, such would not be the case. However, the statements made

indicated a level of extreme frustration, attempts at achieving some

understanding were repeatedly answered by the response - "as chairman of the

department, that is my perception."

Frank, outspoken comments do not necessarily reflect unprofessional behaviour

although I indeed may have been overly sensitive to criticism, the guidelines set

out by the Professional Standards Committee clearly states "applicants are

encouraged to comment on all evaluation materials whether by students, peers,

chairmen or department." The Chairman's evaluation of 1985 (page 5, item E

classroom observations) states "Dr. Buchanan accepted these suggestions as

constructive comments" which indicated that under appropriate circumstances I

71

do respond constructively to criticism. The fact that I have modified my course

presentation, format and content, based on critical comments does support a

positive response to warranted appropriate criticism.

4.

Commitment to college

I believe that I have served Mount Royal College, the department and the

community well. I have given unreservedly of myself. I have participated in

numerous committees at Mount Royal (see Chairmans evaluations 1985, 86,

1987 and items 18, 19). I am constantly striving to better myself professionally

through attendance at several professional development workshops (seminar

etc.) (see above items), as recognized by the recommendations from tenured

faculty dated Nov. 24, 1987. I have obtained an adjunct professorship at the

University of Calgary, (with references from Dean Kershaw and Chairman Paul,)

(items 20, 21) indicating ability "to make a significant contribution (Kershaw)." "I

am confident that his research activities would continue to be productive and that

his involvement in your department would contribute to the research productivity

of your department (I. Paul). Incidentally the Chairman also describes my

"teching abilities as clearly well above average."

I have served the department as Chairman of its Brown Bag seminar series,

developed a policy on Body Fluids, given suggestions for course development,

team taught Biology 1230, appointed Arts/Science advisor, on the

recommendation of the department!! (see items 22, 23). I have been a

committed, dedicated member of Mount Royal College ever since the day I

started working here. I have assumed instructional duties without added

compensation (The Chairman's 1986 evaluation) and continue to participate to

the best of my abilities in department and college activities.

I believe my performance in all four areas on which tenure is granted has been

satisfactory. I have greatly enjoyed working at Mount Royal College. I have made

many friends here both within the faculty and student population, and have

enjoyed a very pleasant interaction with the many faculty that I have had contact

with on committees and other college activities. Mount Royal College has offered

me an excellent opportunity to carry on my passion for teaching the discipline

that I have spent most of my adult life trying to master. I feel that I belong here,

and that my efforts can make a difference. In the event that I am allowed to

continue here, I will give to the college, the department, and the community, the

best that I can in every respect. I will do all possible to ensure that harmonious,

productive, and professional interaction with all my colleagues here at Mount

Royal continue.

November 30, 1987, Morning Meeting of PSC (Minutes, Exhibit 38, pp.72-80): The

Grievor and Dean Kershaw were interviewed.

The Grievor:

72

-

asked to comment on the reasons, in his opinion, that five of the six tenured

department members have recommended that he not be granted tenure: "This is

largely a reflection of the lack of familiarity with the files. If each and every

member of the department had examined the file, it would have been much fairer

to the candidate (me). I should have been present at the meeting so I could have

cleared up any misunderstanding, but I walked into the meeting, was there ten to

fifteen minutes, and was thanked for my contributions. I could tell from the

questions that a decision had been reached." (A member responded that this

point has been covered and that the PSC had already stated that it could not

accept the proposition that other department members were not knowledgeable

of the contents of the dossier.)

-

"If I had such problems, why wasn't I terminated earlier? The 1985 and 1987

Chairman's evaluations and my response to them triggered this reaction. If I had

acted in this 'unprofessional and shitty way for three plus years, why was I not

fired?' AGB said that he approached I. Paul sometime before the end of

Winter/87 term and told him that he (AGB) had great difficulty with the

editorializing of his Chairman's evaluations, and that he (AGB) viewed them as

overly biased." (The Chairman explained that the issue before the PSC was

granting of tenure and not dismissal with cause.)

-

Dean Kershaw's memorandum to the PSC (Exhibit 10): "AGB stated that at the

meeting A.C. Kershaw told him that he was concerned about the future of

working relationships in the department, and that to his (AGB's) recollection, this

was the sum total of the discussions with A.C. Kershaw." The Grievor stated that

he had not been privy to the documents which ACK submitted to the PSC and

the Chairman requested that the recording secretary make a copy of the

documentation for AGB, which was done. A member referred to the last two

paragraphs of ACK's memorandum as being the "nub of the concerns" and

asked AGB to comment: "I find this very difficult to accept. I am not aware of

Adrian Kershaw trying to determine if there has been any improvement. You

must realize that I am at a disadvantage because I just received this document. I

would like to have the basis for these comments...there seems to be

inconsistencies in these comments." A member pointed out that these are ACK's

perceptions and AGB's response to others' perceptions has been to not

acknowledge there are problems: "AGB agreed that this perception has emerged

but he questioned how accurate this was and how much it should be weighted."

-

One member stated that he had observed in the interviews that AGB seems very

reactive and defensive, saying that he acknowledged weaknesses in theory but

rarely admitted to any in practice. He remembered that AGB's strong response to

evaluation and criticism was a major matter of concern to his colleagues. An

invitation for dialogue was available after the first year when the concerns were

first noted, and it is difficult to understand why AGB never approached the

Chairman: "AGB pointed out a number of ways in which he has responded

favorably to criticism. He acknowledged that at times he does overreact."

73

The Grievor retired from the meeting at this point. (He was subsequently

provided with the additional material, together with letter from Dr. Baker of

November 30 (see below).

A.

Kershaw:

-

was advised of the PSC just learning that AGB had not been copied on the

November 10, 1987 memorandum from ACK to the PSC: ACK apologized and

said that this had been an oversight on his part. He had, however, met with AGB

on November 9 to appraise him of his (ACK's) recommendation and the reasons

for it.

He said it was a difficult recommendation, and he was relying in large measure

on reports from others; "he is concerned because others are concerned and AGB

has not acknowledged the problems and/or concerns. I cannot recall him (AGB)

ever saying that he recognizes that he has problems or being willing to address

problems...the concerns about the interractions with colleagues is the reason for

the negative recommendation and AGB's unwillingness to address these

concerns. This is my personal view...I have struggled with this one. I find myself

in a difficult position...there is little doubt that he is one of the better instructors in

Science and Technology. I have some reservations about the way he handles

some of his classes. He certainly had problems in the past with Gwen Crowe and

Lily Kozody. There has only been a few months experience with Yvette

Swendson to see if there will be problems there. What does give me concern is

the opposition of five of the six tenured members of the Department are

recommending against tenure, and that these people have a day-to-day

knowledge of AGB. Put all of this together as well as other information...ACK

reported an incident which had occurred about one year ago. ACK said that it ws

late in the afternoon and the lab area was quiet and that he and AGB got into a

conversation and that AGB was discussing different university-transfer courses,

in particular the Environmental Technology courses and the poor quality of the

courses at MRC, and that the people teaching these courses were not "quite up

to snuff"; he held most of his colleagues in low regard. ACK said that he

reluctantly recommends against granting tenure."

-

A PSC member asked if AGB does in excess of what is expected of other faculty

members: "If I was to look at others in our Faculty, he is one of the more

energetic...he is doing research, serving on committees and active in

professional areas."

November 30, 1987, Letter from D. Baker (Chairman, PSC) to the Grievor (Exhibit

16):

"As you know, the Professional Standards Committee was unaware until today

that you had not received a copy of the Dean's written recommendation. On

learning this, the Committee immediately provided you a copy, time to read it,

74

and then reviewed the document with you. The Committee wishes to provide you

with the opportunity to respond in a more considered way, preferably in writing, to

that document.

In the course of the hearings, the Committee received materials in addition to

that originally submitted to you. Most of that additional documentation was

supplied by you, but some was supplied by others. In order to ensure that you

have had access to all of that supplementary documentation, the Committee has

reviewed all documentation to identify any of which you might not have a copy.

For your information, I am enclosing the following documents to ensure that you

have complete documentation:

-

Recommendation of Dean Adrian Kershaw to the Professional

Standards Committee, dated November 10, 1987 (with

attachments);

-

Notes from Meeting between Dr. A. Kershaw and A. Buchanan,

dated November 9, 1987;

-

Information contained in your Human Resources file; and

memorandum from S. Blackie and G. Crowe dated September 13,

1985.

As the Committee is operating in the context of a contractual deadline, it must

request your response by 4:30 p.m. today. Should you wish to provide such a

response, please deliver it to the Secretary to the Committee, Jackie Makenny.

Should you wish to deliver your remarks in person, the Committee will be

meeting at 4:30 p.m. today in the President's Meeting Room.

Thank you in advance for your cooperation."

November 30, 1987, Afternoon Meeting of PSC (Minutes, Exhibit 38, pp.80-86): The

meeting reconvened at 4:30 p.m. and the Grievor was informed by the Chairman that

the Grievor was permitted to respond to the Dean's memorandum of November 10 and

any other documentation, and to provide any other additional comments he wished to

the Committee. The Chairman added that the Grievor had been supplied all

documentation in the possession of the PSC.

-

A PSC member referred to the two most substantive points made by the Dean,

the recurring patterns of troubling student comments and persistent concerns

about his interactions with colleagues, and said that the PSC had no reason to

believe that these concerns rested on any materials other than those made

available to the PSC and to the Grievor. "He noted that if a person's career is on

the line, then that person should have all data made available, rather than it

being on a subjective basis only."

75

-

A PSC member commented that the points raised in the Dean's memorandum of

November 10 had been discussed with AGB on a number of occasions during

the tenure interviews and were not new to him nor the Committee: "AGB

responded by noting that it would be wise for a new Dean to go along with the

Department's recommendation. I am not clairvoyant, but I can see the benef its...

it would have been better if the Dean had arrived at his decision alone."

AGB said that continued productivity was discussed with the Dean, but AGB was

not aware that this meant dealings with colleagues. He stated that he did not ask

ACK exactly what was meant by continued productivity. The Department's

recommendation was not discussed at the November 9 meeting with ACK. AGB

said that he would like to know how ACK made the statements that he (AGB)

was not a team player nor interested in the Department.

AGB gave the PSC members additional documents to substantiate his

participation in department and college activities, his interaction and cooperation

with department members, and that he and Izak Paul do interact; and stated that

"in contrast to what the Dean has said, this information is a factual picture that

truly represents my cooperation and interaction."

-

A PSC member said that he had real trouble in understanding why AGB and

ACK did not discuss the Department's recommendation.

The matter of interviews with S. Blackie and J. Sheedy by the PSC were raised

by AGB. The PSC responded "that it did convey the substance of any interviews,

including those with Sheedy and Blackie" and that "on balance, our interviews

with the two people did not alter the Committee's perception of your interractions

with others". The Chairman stated that the remarks of individuals were treated in

confidence and will remain in confidence.

-

D. Baker asked if AGB "had anything further to add" and AGB "stated that he did

not".

The afternoon meeting lasted for 1 hour and 35 minutes, following which the PSC

reviewed the documentation, the recommendations, the evidence of the interviews and

the strengths and weaknesses of AGB, and formulated its recommendation and the

reasons for it.

-

Moved that the PSC recommend to the Board of Governors that A.G. Buchanan

not be granted tenure and be released for the following reasons (set out in

December 1, 1987 letter, below). The motion carried unanimously, and the

meeting was adjourned at 9:00 p.m.

December 1, 1987, Letter from D. Baker (Chairman of the PSC) to the Grievor

(Exhibit 17):

76

"I am writing to advise you that the Professional Standards Committee has

decided to recommend to the Board of Governors that you not be granted tenure.

In reaching its decision, the professional Standards Committee reviewed

thoroughly the following documentation:

-

Your original tenure application;

Supplementary materials supplied by you;

Written information supplied by others, copies of which have been

provided to you;

-

Your written and oral responses to that documentation.

In addition, the Committee interviewed each of the six tenured members of the

Department of Chemical and Biological Sciences (including the Chairman), the

Dean of the Faculty of Science and Technology, the current laboratory instructor

and laboratory assistant, and, at your request, the President of the Mount Royal

Faculty Association. It also met with you on four occasions.

In its review of your application, the Committee assessed the evidence before it

in the light of the criteria for tenure established by the Committee and applicable

to your candidacy. Those criteria involve the assessment of professional

qualifications, performance of duties and responsibilities, professional behavior

and commitment to the College.

Having weighed all of the evidence at its disposal, the Professional Standards

Committee has decided unanimously not to recommend you for tenure for the

following reasons:

- Inconsistent and inaccurate documentation of employment history;

- Failure to provide the full complement of peer evaluations in satisfaction

of tenure requirements;

- Incomplete and inaccurate documentation in the dossier submitted in

application for tenure;

- Inadequate and belated response to patterns of concern expressed by

students and colleagues;

- Persistent difficulties in working relations with colleagues and

supervisors in the Department resulting in alienation;

- Unconstructive and untimely response to evaluation by supervisors; and

- Recommendation against tenure from five of six tenured members of the

Department (including the Chairman, two former Chairmen and a

former Dean), and from the current Dean.

In reviewing the substantial issues, the Committee was mindful of the fact that

tenure involves a long-term commitment by the College to an employee and that

consideration of tenure applications involves a host of factors relating to the

capacity of a candidate to constitute an integral member of a well functioning and

77

harmonious College Department. After reviewing all of the evidence, Committee

members became persuaded, on balance, both by the evidence presented and

by its hearings, that your attitude was not conducive to long-term effective

working relations in the Department.

Should you wish to write a response to this recommendation for consideration by

the Board of Governors, please forward it to me no later than December 7, 1987,

so that it can be submitted to the Board with the Committee's report and

recommendation."

December 7, 1987, Letter from Grievor to D. Baker (Exhibit 18):

"I do not agree with the recommendation by the professional Standards

Committee that I not be granted tenure, and I am respectfully requesting a

hearing by the Board of Governors of Mount Royal College before it makes its

decision."

December 9, 1987, Memorandum from Board of Governors Secretary to the

Grievor (Exhibit 19):

"Attached, for your information, is a list of the documents regarding your tenure

application that have been given to the members of the Board of Governors with

their agenda packages for the December 14, 1987 meeting.

In addition, the full set of documents considered by the Professional Standards

Committee is available for Board members to peruse prior to the meeting."

December 14, 1987, Memorandum from Dr. Baker to Board of Governors:

Recommends that seven individuals be granted tenure effective December 14, 1987,

one individual receive an appointment of further probationary period to June 15, 1988,

and that the Grievor be released effective December 31, 1987.

December 14, 1987, Letter from Academic Vice-President, Students' Association,

to Members of the Board of Governors (Exhibit 21): The letter encloses a petition

that was circulated throughout the student population. It requests that the Board of

Governors review and reconsider the decision made by the PSC to deny tenure to the

Grievor. The letter refers to the Grievor's college involvement, visibility, and being an

outstanding and an exceptional educator. After referring to the four criteria, the letter

states that the students "wondered to what degree an instructor's ability to teach has on

the granting of tenure and thus his security within the College?" The concluding

paragraph states: "The students attending MRC are striving for exceptional education,

so if we at MRC are not striving for exceptional educators, then why are we here?"

December 14, 1987, Petition Signed by 383 Students of MRC (Exhibit 22): The

petition makes a very impassioned statement on behalf of the Grievor who is described

as having "been for three and one half years consistently and outstandingly a credit to

78

his department and faculty, to the College and to the teaching body at the College". It

expresses concern that the Grievor, the reputation of the College and the students

should not suffer as the result of an error. The petition requests a careful and prompt

reconsideration of the application for tenure "to ensure that the outcome is truly in line

with policy intent, with simple justice, and with the best interests of the College and its

people".

December 14, 1987, Meeting of Board of Governors: Dr. Buchanan was permitted to

make a brief presentation to the Board. The Board accepted the recommendation of the

PSC that the Grievor not be granted tenure, and that he be released as an employee of

MRC effective December 31, 1987 (confirmed by letter of December 15, Exhibit 23).

(5) Additional Testimony

Some of the testimony of witnesses at the arbitration hearing is incorporated in

the foregoing section of this award. Other testimony, which we consider to be pertinent,

follows:

The Grievor:

-

Asked in cross-examination what else he would have done had he received a

copy of Dean Kershaw's memo at least 72 hours in advance of the November 30

PSC meeting, the Grievor responded:

(a)

Would have requested that A. Kershaw be present at the meeting with the

PSC and himself to explain reasons for not recommending tenure. (T.

Wood, a member of the PSC, testified that the PSC has never allowed

confrontation of witnesses by candidates or candidates by witnesses.)

(b)

(c)

Would have asked PSC to look at a memorandum co-authored by A.

Kershaw and I. Paul. (T. Wood testified that the document was before the

PSC; it is Exhibit 33 in these proceedings.)

Would have asked the PSC to consider, in A. Kershaw's presence, the

contrast between A. Kershaw's memo of December 15, 1986 (Exhibit 33)

and his November 10 memo to the PSC, the basis for A. Kershaw's

conclusion that he was not a "team player", and A. Kershaw to state his

opinions as to the nature of the Grievor's interractions with other

colleagues (the response of T. Wood (a) above is applicable).

(d)

Would have requested that the PSC interview the Director of Student

Services (Mr. McNeil) and scientists with whom the Grievor had worked

(e.g. Dr. Costerton, Dr. Peter Wallace, and others) as to their impressions

of his potential productivity and team spirit. (T. Wood testified that the PSC

would give due consideration to the Grievor's request but he had already

been asked, in previous PSC meetings, if he wished the PSC to interview

79

others. The PSC would have weighed whether further interviews were

likely to yield any information which would significantly affect the PSC's

judgment. It is not the usual procedure of the PSC to allow candidates to

line up a group of supporters to appear before the PSC.)

(e)

(f)

Would have prepared, in detailed form, with all relevant information, a

response in written form to A. Kershaw's recommendation.

Would have reminded A. Kershaw that he had recommended that the

Grievor be granted adjunct status at the University of Calgary (that

information was before the PSC and A. Kershaw had testified to that

effect).

-

The Grievor was questioned regarding the meeting between Dean Kershaw and

the Grievor on November 9 and ACK's notes (part of Exhibit 10) which "reviewed

concern over relationships with colleagues, AK's major concern with the long-

term welfare of the Department and AK's doubts about the contribution AB would

make": The Grievor didn't recall that being discussed "in the context as it was

stated". The Grievor said "he did question my continued contribution to the

Department, but not my relationship with colleagues as a dominant factor".

Asked in cross-examination why, if he did not know before November 30 Dean

Kershaw's reasons for not recommending tenure, he had asked the PSC to

compare the Department's reasons and the Dean's reasons (Exhibit 11);

"exactly, irrespective of what the Dean's reasons were...I had no basis for

knowing what his reasons would be." When it was suggested that he must have

known the topics discussed were going to be of concern in the Dean's

recommendation, he stated, "it was a free-form discussion with him as Dean. I

had no idea what his report would be based on or his reasons for not

recommending tenure."

-

The Grievor said in direct examination that if the recommendation were based on

the four criteria in the guidelines, there would have been "no logical or

reasonable decision other than to grant tenure." Asked in cross-examination if it

followed that all persons involved in the decision were illogical and unreasonable,

he responded "yes, that would be a fair comment, but I suggest the initial

decision of the Department was of paramount important in all subsequent

decisions."

-

Asked in redirect examination whether he had been given the "substance" of the

concerns: "I didn't even get the substance in some cases, and I don't know what

the specific interviews yielded."

Referred in cross-examination to the offer of employment (Exhibit 5) and the

statement in connection with preparing and submitting the application for tenure,

to "please consult the chairman of your department for information and

80

assistance", and asked why he did not do so: "I didn't walk around with the letter.

It should be done in conjunction with the chairman." Asked if he was saying that

the Chairman should have taken the initiative: "That's one way of interpreting it".

-

Asked in cross-examination whether the PSC made it clear it would not attribute

comments to individuals because of confidentiality: "Yes, they'd raised the

negative comments and asked for my response...my request for information

regarding Sheedy and Blackie and the tenured members of the Department were

not answered, either in substance or identification of the parties, or in linkage of

any information in any way."

K. Cummins:

-

He referred to having heard many subjective comments from members of the

Department which were not included in the Grievor's file or written material. In

response to a question from a Board member as to whether he had any reason

to believe that any of those comments, which were not in writing, had reached

the PSC: "No, I don't believe so, I'd be very surprised if they did." He stated that

he had not said anything to the PSC about the comments.

-

His decision was based "objectively" only on the tenure file and interviews with

Sheedy and Blackie.

"The time I was spending on this was all-consuming. I was living in fear and

trepidation of student evaluations."

Asked if he was limited in any way in what he could say to the PSC: "I was

limited from my own naive viewpoint about the tenure file." (Reference to

restricting himself to the file only.) "There were no limitations at all; the last

question from the PSC was whether there was anything else I wanted to say."

R. Sloan:

-

In the case of both Crowe and Kozody "the blame had been attributed to the

individual by Dr. Buchanan; he indicated that both were incompetent"; Mr. Sloan

did not accept that they were incompetent.

-

Asked in cross-examination whether the Department had dropped the ball in not

putting in a more detailed evaluation to the PSC: "No, we had considered in

rather copious detail all the information presented to us and in a verbal manner

spent many hours deliberating the documents."

-

He was not aware of there being any difficulties between the Grievor and

students in the Grievor's third year.

81

-

He was concerned that Sheryl Blackie was "part of the ongoing disruptive

relationship, although she was not as vocal as Crowe and Kozody.

"We were conscious of confidentiality throughout. All information was to remain

within the department and the PSC."

A. Kershaw:

-

Asked in cross-examination whether he had, in the November 9 meeting with the

Grievor, used the expression "team player": "I'm sure I conveyed that impression

to him".

-

Asked in cross-examination whether one of his major concerns was the fact that

five of the six tenured department members had recommended against tenure:

"Yes, it was an important consideration." Asked if it influenced him: "No, it

corroborated my own feelings."

-

"I spent a lot of time on the case, it is not something I was doing lightly."

Kozody was part of the "pattern of difficulties".

Relationships with the Grievor in the Department reflected "a general lack of

collegiality". Asked in cross-examination whether he had discussed that with the

Grievor: "Probably not in those exact words, but in principle."

-

He recognized that the Grievor was a good instructor and conducted good

research, but "there were other issues to take into account which were germane

to the long-term interests of the Department."

-

With respect to his recommending the Grievor as an adjunct professor at the

University of Calgary: "technical competence is the main focus".

He was concerned about "the tone" of the Grievor's response to the Chairman's

evaluations in 1985 and 1987.

Y. Swendson:

-

"I feel very strongly that these things are confidential." Asked if she felt it was a

breach of confidentiality to review documents prepared by other people, she

responded that it made her somewhat uneasy, but they were under directions

from the Chairman of the PSC to review the documents.

T. Wood:

-

Explained procedure of PSC including tenure application guidelines (Exhibit 28)

established in accordance with Article 4.4.1 of the Collective Agreement.

82

Standard procedure is to begin with interviews of the Department Chairman,

Dean, and candidate. At the conclusion of the interview, the candidate's tenure

dossier is reviewed together with information obtained from the interviews and a

determination is made as to whether more investigation is required, such as

submission of other documents or interviewing of other people. If there are points

of concern, the PSC may recall people who have already been interviewed. The

Secretary is asked to review each dossier for completeness; it is not unusual to

find a missing document. They then try to determine whether the omission is

inadvertent or otherwise. If major ingredients are missing, they attempt to

establish by interview if there is a good reason for the omission, and if so, it is

typical to recommend a further year's probation. If it is considered that the

omission is deliberate, that calls for a different response. There is "no formal

calculus for the judgment; the PSC attempts to review each case on its own

merits against the four criteria" (prescribed in the Tenure Application Guidelines).

The PSC members arrive at a recommendation which is typically by consensus.

There have only been one or two dissenting votes in the eight years he has

served on the PSC. Written notice of the recommendation goes to the Board of

Governors and the candidate by December 1 (as prescribed in Article 4.4.8). "It is

one thing to review it (all the information), it's another thing to value it or weight it.

The best evidence of what we considered is in the minutes. It is not an exact or a

scientific process."

-

Confidentiality: Throughout the eight years that Mr. Wood has been a member of

the PSC, the only person, other than PSC members, present during an interview

is the person being interviewed. The PSC members are typically admonished at

the beginning of each year regarding the confidential nature of the proceedings.

The prime justification for confidentiality is "to encourage frank and full discussion

on relatively confidential personnel matters". It 'is expected by those involved in

the process that the proceedings will be in confidence. The PSC has never

permitted people other than the PSC members to confront those who are being

interviewed by the PSC; instead, if there is an unresolved area of discussion,

people who have been interviewed may be recalled. It is not a quasi-judicial

proceeding, and legal counsel never appear before the PSC. Minutes of the PSC

have always been maintained in confidence with the recognition that they could

ultimately be subpoenaed in legal/arbitration proceedings. The PSC considered

that an "unusual circumstance" was the interviewing of Sheedy and Blackie;

since Yvette Swendson was the Chairman of the Department and had

interviewed them previously in confidence, it was considered appropriate for Y.S.

to be present during the interviews of those two persons, to ensure that Y.S. and

the PSC were not hearing different accounts and therefore operating on different

perceptions. Asked in cross-examination whether, because of the desire for

confidentiality, the Grievor was not given a full and effective opportunity to

respond, "No, if we heard things that we felt were significant, we addressed them

to AB"; they did not say that such and such a person accused him of being

arrogant and condescending, but rather put it to him on the basis that he was

perceived in that light. Student evaluations are kept strictly confidential, for good

83

reason. The Collective Agreement requires anything in writing to be conveyed to

the candidate, but not everything which is stated in interviews. There is a climate

at the College of confidentiality which is based on the premise that "full disclosure

can create lots of problems and animosity". The PSC is cognizant of the ethics

clause in the Faculty Association By-Laws regarding confidentiality and tries to

ensure that it is respected to the extent possible; the PSC has decided to

operate, and has operated for many years, on the basis that the specific person

who made a statement will not be identified, but the nature of the statement will

be put to the candidate.

-

Towards the conclusion of the November 10 PSC meeting, and the interview of

the Grievor, the Grievor was asked whether "there were other people who he

would like for the PSC to interview", and "if there were additional documents

AGB wished to submit".

-

"By the end of the November 30 meeting, we felt we'd spent a great deal of time

and had gone to great lengths to ensure a fair hearing, fair process, and

objective assessment".

Asked whether the PSC was aware of the adjunct professorship, "Certainly, it

was a recommendation of both the Chairman Dean...I would expect them to

support an adjunct professorship unless there were serious reservations. In

those roles, you do whatever you can to enhance the credibility of the instructor

and the Department."

-

Asked in cross-examination if the PSC had identified any material in the

interviews which they did not consider, "We tried to be very careful to identify all

concerns, so that the candidate can respond; some things don't add anything of

substance and are not considered."

Asked in cross-examination if the fact that the Department members had

recommended against tenure was a reason for the PSC's decision, "Yes.

Department members are centrally involved in making decisions regarding their

colleagues, as it should be. We take the recommendations of the Department

about hiring, tenure, etc., very seriously. In each of the interviews with tenured

Department members, we heard repeatedly that they felt it was a matter of deep

and future concern to them as members of the Department, including those who

had not worked closely with Dr. Buchanan. However, it was not the 'mere fact'

that there was a recommendation from the Department. We investigated

extensively. The 'mere fact' triggered concern, then we undertook investigation

and asked the Department to consider the application in accordance with the

guidelines, and inquired of others. Ultimately we have to reach a judgment by

trying to weigh perceptions, judgments, while keeping focused on the criteria. If

we became concerned that the Department itself had not conducted a fair

process, was biased, unreasonable, or unfair, we would challenge that. The

84

Committee probed very carefully, which, as a matter of fair process, we must. We

explore every possibility of hidden agenda, hidden reasons, bias, prejudice."

-

Asked why the reasons for the PSC's recommendation (Exhibit 17) did not refer

to each of the four criteria in the guidelines, "the contract doesn't require that. We

did go through it on the basis of the guidelines; we constantly requested all

people we spoke with to address the four criteria. The reasons were not framed

with explicit reference to the criteria. I can try retroactively to make it fit": points 1,

2, and 3 could fit within criteria (a) and (b); point 3 could also fit under criteria (b)

and (c). Point 4 falls within criteria (b) and possibly (c); point 5 falls within criteria

(b) and (c) and perhaps (d); point 6 comes within criteria (b) and possibly (c);

point 7 comes within criteria (b) or (c) or possibly (d). Point 8 "I just see as a

continuation of the foregoing" points.

-

"It was the perception of a number of colleagues that his immediate response to

criticism is defensive. When this was put to Dr. Buchanan (by members of the

PSC), including his reluctance to change and reluctance to heed urgings of

supervisors on certain points, and his response invited, in their view Dr.

Buchanan had not changed; (his response) contributed to the perception of an

attitude of inflexibility."

"We heard 'arrogant' numerous times; there was a 'broad convergence of

perception' and we put that to Dr. Buchanan...we heard even from Dr. Buchanan

an acknowledgement that he might be perceived in that way, although he did not

see himself to be condescending, inflexible, or arrogant...we did not look at the

views of only one person, we looked at the overall assessment and the broad

perception."

Asked in cross-examination about one of the reasons for the recommendation,

"persistent difficulties in working relationships with colleagues and supervisors..."

(Exhibit 17) and whether the PSC got evidence other than written evidence in

that regard, "Yes, the evidence of Blackie herself as well as Izak Paul's

memorandum of September 30, 1987, the memorandum of December 15, 1986

(Exhibit 33), Izak Paul's memorandum of September 30, 1987 (Exhibit 7) and

testimony from Ray Sloan that it was 'pivotal' in his judgment".

-

Asked whether the Grievor's criticism of the Environmental Technology program

was ever raised with the Grievor, "I don't think so. I don't think the PSC

considered it significant."

Asked in cross-examination whether the reference, during Izak Paul' interview by

the PSC on November 21, to "Hitler and Keegstra" was raised with the Grievor,

"we raised what we took into consideration. We did not raise this one."

Asked in cross-examination to comment on how strongly Yvette Swendson had

put her position to the PSC, while denying that it was a "threat". "I do recollect

85

that as a PSC member, (I don't like the suggestion that we need heed the

admonition of the Department) we felt it not appropriate. The members of the

PSC worked very hard as a group of people to reach a fair and balanced

judgment, without consideration of how the decision would be perceived by one

or other parts of the College."

I. Paul:

-

"I thought the two memos written by the Grievor criticizing my evaluations were

not written in a professional manner, and I believe other faculty members reacted

the same way."

-

"When doing the evaluation in 1987, I still saw him as 'conscientious', 'dedicated'

as an instructor, and as 'professional' as an instructor, with some reservations

and concerns about the students' perceptions.

With respect to the Association By-Laws on confidentiality ("must provide

colleague 72 hours in advance with comments"), "I didn't do it in writing. I didn't

know what was to be asked...for that matter, Dr. Buchanan gave memos to

Yvette Swendson regarding my evaluations without giving me copies, and they

were written, which is a breach of the by-laws."

-

He was aware of difficulties between the Grievor and Sheryl Blackie.

"I was concerned by the general tone of his comments where he suggested I was

the only one who had expressed criticism when there were students and five

faculty members who had done so."

IV. POSITION OF THE ASSOCIATION

(1) Scope of Evidence (with particular reference to Dr. Cummins)

Counsel for the Association advised that he wished to introduce evidence of

discussions between K. Cummins and others, which might serve to establish

improprieties, inconsistencies, and irrelevancies including:

-

discussions at the Department level which the Association alleges were

improper;

discussions between Dean Kershaw and Dr. Cummins, including discussion on

reasons for the recommendation which were in conflict with those in Dean

Kershaw's recommendation;

-

interviews of Sheedy and Blackie by Dr. Cummins;

86

-

conversations of Hugh MacLeod with Dennis Leask and Yvette Swendson raising

suspicions as to what was going on.

Counsel for the Association contended that the mandate of an arbitration board is

to ensure the safeguards of the Collective Agreement are enforced and in particular to

ensure that the recommendations of the Department and the PSC are made in

accordance with the Tenure Application Guidelines. If the process is flawed initially, it is

flawed at the PSC level. The objective is to get to the bottom of what occurred, and a

liberal interpretation on admissibility should be adopted. As K. Cummins stated in his

memorandum of November 19, 1987 (Exhibit 12), "any objective or subjective, off-the-

record comments must be discounted unless the comments are written up for objective

scrutiny in the file."

(2)

Preliminary Issue; Failure to Provide Documents 72 Hours in Advance

Subject of the First Grievance)

Counsel argued that Article 4.4.6.1 and -.2 of the Collective Agreement

specifically prescribe that an applicant for tenure "shall be provided with copies of all

documents submitted" to the PSC and "shall be provided such copies no less than 72

hours prior to any meeting" with the PSC.

As is stated by the Court in the Nisga's case (below), the failure to give the

prescribed notice went beyond being a technical defect and constituted a breach of the

rules of natural justice. It therefore goes to jurisdiction and the decision to recomend

against tenure is void. In these circumstances, it is irrelevant whether the Grievor was

prejudiced by the failure.

When a rule is mandatory, it is not up to a tribunal, such as the PSC, to speculate

on what could have been done if the proper time had been allowed. (See Timpauer

below). The "purposive approach" can have no application in the present situation. In

any event, the evidence clearly shows the possibility of harm to the Grievor from the

noncompliance with the Collective Agreement.

Counsel relied upon:

Nisga's Trial Council v. Environmental Appeal Board et al, (1988) 32 Admin.L.R.

319 (B.C.S.C.)

Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98, (1988)

31 Admin.L.R. 311 (Alta. C.A.)

Timpauer v. Air Canada et al, (1986) 18 Admin. L.R. 192 (Fed. Ct. [App. Div.])

(3)

Confidentiality

87

This issue, which was addressed on a preliminary basis by this Board in its

Interim Award, deserves further consideration by the Board, because the initial

conclusions represent a misinterpretation of the law.

It is, in law, "privilege" which the Employer is relying upon as the basis to

preclude the admission of relevant evidence.

As is clear from the cases (below), including Slavutych, there have to be very

serious considerations to justify allegations affect Lag a person's career being kept

confidential from him. The onus is on he who claims confidentiality. There has not been,

in this case, evidence as to the necessity of a policy of confidentiality.

The Employer's position has been inconsistent; information given by those

interviewed, which was given in confidence, was then presented to this Board by the

Employer, in the form of the PSC Minutes, without the confidentiality being waived by

those who gave the information. If, as the Employer claims, the information was

confidential for the PSC, it should not be disclosed at this arbitration hearing; once

confidential, always confidential.

However, the position of the Association is that the information should not, in any

event, have been considered confidential during the PSC proceedings. The evidentiary

tests set out in Wigmore on Evidence (see Slavutych below) were not met. The climate

within the College environment is reflected in the By-Laws of the Association (Exhibit

44);

"When presenting a professional judgment on a colleague at the request of an

appropriate college committee or authority, the member has the obligation both

to the colleague and to the college to be fair and objective, and must provide the

colleague, at least 72 hours in advance, with written copies of his statements."

The Collective Agreement itself provides that any document submitted shall be provided

to the applicant 72 hours prior to his meeting with the Committee, i.e. there is no

confidentiality for written communication. In the context of natural justice, there should

not be a distinction drawn between written and oral communication; such a distinction

does not make sense, and puts the Grievor at a distinct disadvantage.

The Board should be guided by the decision of Arbitrator Teplitsky in the Ontario

College of Art case (below):

"I am unable to detect any legitimate interest in confidentiality when the

person (i.e. a colleague or department head) tenders a criticism in respect of a

person who has no power to injure his critic. Although confidentiality in the area

of criticism is likely to spawn critics it is equally likely to foster irresponsible

criticism. Indeed Slavutych itself is an example of intemperate criticism protected

by confidentiality. In my opinion, if an equal is unwilling to criticize without a

protective cloak of confidentiality, the criticism is better left unsaid. It is unfair to

88

the person criticized not to know the source of criticism. Without such knowledge

the person criticized is in no position to challenge the objectivity of the critic."

It has become apparent in the course of this Hearing that precluding relevant

evidence on the basis of confidentiality has resulted in unfairness to the Grievor:

(1)

Despite the denial of Y. Swendson, it is clear from the evidence of several

witnesses that she was privy to, and that she conveyed to members of the Department,

the PSC's assessment of the Grievor's demeanour before the PSC ("more humble").

Such evidence can be considered as establishing either that there was a breach of

confidentiality, or that there was, in fact, no confidentiality other than to keep information

from the Grievor.

(2)

To the same effect is the evidence that Y. Swendson was permitted to be present

when the PSC interviewed S. Blackie and J. Sheedy; it is to be noted that Y. Swendson

is the person who would authorize the renewal of S. Blackie's contract. This situation

calls into question not only the purported confidentiality, but the fairness of a person in

the position of authority of Y. Swendson being present during the interview, a person

whose presence alone could have an impact on the information being presented.

Counsel relied upon:

Slavutych v. Baker et al. (1973) 5 W.W.R. 723 (Alta. S.C., App.Div.); (1975) 4

W.W.R. 620 (S.C.C.)

The Council of the Ontario College of Art and The Ontario College of Art Faculty

Association (1988, Teplitsky, Ontario, Unreported)

Sopinka and Lederman, The Law of Evidence in Civil Cases

Re Moysa and Labour Relations Board et al. (1986) 28 D.L.R. (4th) 140 (Alta.

Q.B.)

Bell et al. v. Smith et al. (1968) 1 O.R., S.C.R. 664 (S.C.C.)

Pearce v. Foster and Others (1885) XV Q.B.D. 114 (C.A. of England)

Small v. Nemez (1963) 1 O.R. 91 (Ont. High Court of Justice)

Bullock & Co. v. Corry & Co. (1878) III Q.B.D., Vol. 356 (Q.B.D. of England)

Calcraft v. Guest (1898) 1 Q.B. 759 (Q.B.D. of England)

Mann v. American Automobile Insurance Company (1938) 1 W.W.R. 538

(B.C.C.A.)

89

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America,

Local 2-69 and Ontario Relations Board (1985) 85 CLLC 12,177 (S.C., Div., of

Ont.)

(4)

Procedural Fairness (including "audi alteram partem")

The manner in which these proceedings were conducted, both at the Department

and the PSC level, denied the Grievor the benefit of procedural fairness to which he is

entitled. As is stated in Jones and de Villars, Principle of Administrative Law, a fair

hearing requires that although evidence may be adduced through any method, the

person involved must have an opportunity to contradict prejudicial evidence. A person

has to be given a chance to rebut information, subject to the qualification that he need

not be told the source if that is contrary to the public interest (which, the Asociation

argues, it is not in this case); and although every detail need not be disclosed, sufficient

indications of the objections must be given to allow the party to answer them, for: "that

is only fair. And the board must at all costs be fair. If they are not, these courts will not

hesitate to interfere" (from Principles of Administrative Law, above, p.208, citing a

decision of the Queen's Bench Division in England).

Judicial decisions preceding that of the Supreme Court of Canada in Kane

(below) become irrelevant, such as McWhirter (cited and referred to in Interim Award).

It is well established in jurisprudence that when a person's job is on the line, the

standard of justice is high. The PSC therefore was under a heavy onus to provide full

particulars to the Grievor for his response, a principle which should be paramount over

that of confidentiality. It is not sufficient to look to the outcome and make an

assessment, either in the case of the PSC or this Board, that particular evidence would

not have any impact; if the process is wrong, the recommendation cannot stand. The

principle is established that "each party to a hearing is entitled to be informed of, and to

make representations with respect to, evidence which affected the disposition of the

case". (Cohnstaedt, below, at p. 313)

Where there are rules and guidelines, it is mandatory that they are followed.

They were not, in this case, in several respects, including the failure to provide

documents 72 hours in advance of the final PSC meeting: (see (2) Preliminary Issue,

above, and (5) Guidelines below).

If, in an investigating process, a committee fails to disclose, or misrepresents,

what is at issue, it breaches the principle of audi alteram partem ("hear both sides").

As an example, at the November 30 a.m. meeting, the Grievor was advised by the PSC

that he need not worry about interractions between himself and Izak Paul; as it is

apparent that the PSC relied on those interractions, the Grievor was misled. Similarly, in

the December 1, 1987 letter from the PSC to the Grievor (Exhibit 17) reference is made

to "persistent difficulties in working relation with...supervisors"; even accepting that there

was any problem between I. Paul and the Grievor, the PSC did not inform the Grievor of

particulars of any problems with other supervisors. The Grievor was not told of any

90

problems between himself and Y. Swendson or A. Kershaw. These are examples of

situations in which incorrect or insufficient information was provided.

The failure to disclose what each person was saying to the PSC is a breach of

the audi alteram partem rule. There were numerous comments by the Grievor,

throughout the Minutes, indicating that he was having difficulty responding without

knowing the source of the information.

The information provided to the PSC during interviews included the references to

"intimidating", "arrogant", "condescending", "mickey mouse courses" (reference to

Environmental Technology), "bullying", "staring down", yet these specifics were not

addressed to the Grievor so that he could respond. It is not sufficient that the PSC tell

the Grievor, in effect, that even if they did not advise him of some specifics, there was

other similar evidence in documents.

Further examples of specific information received by the PSC but not put to the

Grievor include:

-

November 10 Minutes: Taylor, "flippant", "does not hold fellow members in high

esteem", "problem with third lab instructor";

-

November 21 Minutes: "Attacked Lily Kozody professional capabilities", "using

and abusing people", "staring down", "low-level friction", incident in which AGB was

"rude", and "behaved badly", "inappropriate and insensitive", analogy (Hitler and

Keegstra), the circumstances (re: Kozody) which were "different from the

documentation", discussion with Y. Swendson about "reducing costs", making Y.

Swendson "feel inadequate and inferior";

-

November 24 Minutes: Blackie's reference to working too many hours, Blackie's

suspicion that she was not rehired because of AB, Blackie's allegation that they were

treated "like dirt" and "cheap labour", no indication to the Grievor that D J. Stouffer was

interviewed;

The reference in the Minutes of the November 15 PSC meeting to criticisms from

people at the University of Western Ontario and University of Manitoba and the

reference by I. Paul to a "major problem" (re: Kozody) show that the interviews (not the

documents) led the PSC to its conclusions.

The Employer relies upon the decision having been taken in "good faith"; even if

that is the case, it does not absolve a breach of fair procedure. Counsel for the

Employer also attempts to draw a distinction between "natural justice" and "procedural

fairness". Viewing the law historically, starting with the Nicholson case (referred to in

Interim Award) it is apparent that the concepts are becoming as one. This conclusion is

indicated in Jones and de Villars Principles of Administrative Law (below) in which the

title of the chapter is "Natural Justice and the Duty to be Fair". The Employer likens an

91

application for tenure situation to probation in industry; that is not consistent with the

Guidelines, an application for tenure involving a totally different environment.

The decisions in Nicholson (referred to in Interim Award) and Kane (below)

indicate the sequential development of the law; Nicholson recognizes the duty of fair

procedure, and Kane is a further step in defining that duty (p. 682; "...he should be told

the case against him and be afforded a fair opportunity of answering it").

Counsel relied upon:

Jones and de Villars, Principles of Administrative Law (1985)

Julius Kane and Board of Governors of the University of British Columbia (1980)

1 R.C.S. 1105 (S.C.C.)

Board of Education v. Rice and Others (1911) A.C. 179 (House of Lords,

England)

Bennett v. Wilfred Laurier University et al. (1984) 15 Admin. L.R. 49 (Ont. C.A.)

Kalair v. Minister of Employment and Immigration (1984) 10 Admin. L.R. 107

(Fed. ct., C.A.)

Cohnstaedt v. University of Regina (1986) 12 C.C.E.L. 265 (Sask. C.A.); Appeal

allowed in part (as to damages) by Supreme Court of Canada (1989, not yet

reported)

Kuntz v. College of Physicians and Surgeons of British Columbia (1987) 24

Admin. L.R. 187 (B.C.S.C.)

Board of Education of Northern Lights School Division No. 113 of Saskatchewan

v. Barrett, Nicolas and Reiss (1988) 3 W.W.R. 500 (Sask. C.A.)

Danakas v. War Veterans Allowance Board, Canada (1985) 10 Admin. L.R. 110

(Fed. Ct., C.A.)

Ross v. The Warden of Kent Institution et al.; The Attorney General British

Columbia (intervenor) (1987) 25 Admin. L.R. 67 (B.C.C.A.)

Rice v. National Parole Board (1985) 16 Admin. L.R. 157 (Fed. Ct., Trial Div.)

Bull v. MacLeod, Chairwoman of the Prison for Women Disciplinary Tribunal

(1986) 25 Admin. L.R. 229 (Fed. Ct., Trial Div.)

H v. The Queen et al. (1985) 17 Admin. L.R. 39 (Fed. Ct., Trial Div.)

92

(5)

Guidelines

Where a rule goes to natural justice, it is mandatory and must be respected. It is

irrelevant whether the Grievor was prejudiced by the breach of the rules (see Nisga's

Tribal Counsel below).

There is not only the failure to provide the documents 72 hours before the final

meeting of the PSC on November 30, but the fact that the Grievor only received the

November 24 Department reasons (Exhibit 13) a few hours before the November 25

meeting of the PSC; he was given an opportunity to respond in writing, and did respond,

but there is an element of unfairness in requiring him to reply, in such a short period of

time, at the meeting of November 25.

The Department recommendation of October 19, 1987 (Exhibit 6, p. 109) did not

constitute a "summative evaluation" as is required by the Tenure Application Guidelines,

and does not contain adequate detail explaining the recommendation (see Hutfield

below). It is not up to the PSC or this Board to speculate on what additional information

could have been presented by the Grievor if he had been allowed proper time to

respond; the breaches of the Guidelines denied the Grievor natural justice (see

Timpauer below).

A further significant breach of the Guidelines is that the reasons provided by the

PSC to the Grievor, in its December 1, 1987 letter (Exhibit 17) do not fit into the

categories set out in the Guidelines. One has to be suspicious of reasons when there is

no attempt made to match up the reasons/?/

V.

POSITION OF THE EMPLOYER

(1)

Scope of Evidence (with particular reference to Dr. Cummins)

The nature of the evidence which the Association proposes to introduce, if

admitted, would serve to expand not only the particulars of the grievance, but the scope

of the hearing. The admission of such evidence would be contrary to the scope of

evidence criteria established in the Interim Award.

What the Department did, collectively or as individuals, before it made its

recommendation to the PSC, is not relevant. It is the information which was conveyed to

the PSC by the Department, whether in documents or interviews, and the information

which was relied upon by the PSC, which is relevant.

Everyone in the Department is entitled to his or her opinion. It is how the

particulars of the basis for the opinion were provided to the PSC which is the proper

subject of inquiry for this Board.

(2)

Preliminary Issue: Failure to Provide Documents 72 Hours in Advance

(Subject of the First Grievance)

93

There is no doubt, and it was acknowledged throughout by the Employer, that

there was a defect in the procedure and a violation of Article 4.4.6.2 of the Collective

Agreement. It is equally clear that the procedural defect resulted from inadvertence.

Dean Kershaw was not aware, nor were the members of the Board, until November 30,

1987, that the Grievor had not received a copy of Dean Kershaw's memorandum of

November 10, 1987 and notes of meeting with the Grievor on November 9, 1987

(Exhibit 10). Dean Kershaw expressed his regrets about the oversight, but advised the

PSC that the notes represented an accurate summary of what had been discussed, i.e.

the Grievor was aware of those matters. It is to be noted that the Grievor directed a

memorandum to the PSC on November 12 (Exhibit 30), only three days after his

meeting with Dean Kershaw, requesting that the PSC consider the "Department's

reasons for recommendations vs. those by Dean"; the memorandum would certainly

suggest that the Grievor was aware of the Dean's reasons, which could only have

resulted from discussion at the meeting on November 9.

The PSC, faced with the technical defect, decided to give the Grievor the

maximum possible time to review and comment on Dean Kershaw's memorandum,

while at the same time complying with the December 1 deadline (Tenure Application

Guidelines) for the PSC's recommendation to the Board of Governors, with a copy to

the candidate.

The assessment which has to be made is as to the effect of the PSC's failure and

the key is what the Grievor would, and could, have done had he been given the

memorandum 72 hours in advance. The Grievor testified that he would have requested

the PSC to interview Dean Kershaw and himself at the same time so that he could put

certain things to Dean Kershaw; Mr. Wood testified that the PSC never allows the

candidate to confront a witness. They are interviewed separately, and if necessary to

clarify a disputed issue, are recalled. It is not a trial. The Grievor also said he would

have asked the PSC to interview other persons. The PSC had, in earlier meetings with

the Grievor, extended that invitation to him, and had interviewed those people whose

names the Grievor had put forward. Other information which the Grievor said he would

put before the PSC was already there (e.g. memorandum regarding Kozody matter).

The Grievor had already been given, prior to November 30, ample opportunity to

address the identified concerns, those concerns being the same as those addressed by

Dean Kershaw in his memorandum of recommendation. He was given a further number

of hours on November 30 to submit any further information to the PSC, and he availed

himself of that opportunity. The failure to comply with the 72 hour guideline is a mere

technicality that does not justify voiding any part of the process. The Grievor was not

prejudiced by the oversight, and there has been no miscarriage of justice. The hearings

are not judicial or quasi-judicial; each minor technical defect cannot void the process.

Counsel relied upon:

Archer Memorial Hospital and The United Nurses of Alberta Local 29 (Chrapko

Grievance), (Beattie, Alta., 1988, unreported)

94

(3)

Confidentiality

The only complaint which the Association has with the PSC's tradition of

confidentiality is that the sources of negative comments are not revealed by the PSC.

The Grievor would prefer to have each item of entitled to know the names of those who

have given specific information, and the specifics of that information, rather than the

substance.

Counsel relied upon those cases to which he referred in argument at the

Preliminary Hearing, and which are cited in the Interim Award, attached.

(4)

Procedural Fairness (including "audi alteram partem"):

The only issue properly before this Board is: what was the extent of the obligation

on the PSC to disclose the allegations against the Grievor, and was that obligation met?

The standards by which the process of the PSC is to be judged are set out in the Interim

Award.

It is clearly the "substance" of the concerns about the Grievor that must be put to

him; and he must then be given an opportunity to respond. It is surely sufficient that

colleagues say that he is "arrogant, "condescending", etc., and that those allegations

are put to him without revealing the specific source(s) or every last instance upon which

the allegations are based. In this case, there was a great deal of information presented

to the Grievor, both in documentary form and through four interviews with the PSC. He

has, furthermore, had the benefit of reviewing the detailed Minutes of the proceedings,

for purposes of this Hearing. A review of the Minutes themselves indicates the very full

and complete process which the PSC undertook. The Grievor cannot be heard to say

that he did not know what all the concern was about.

It will be possible in any process to find one or two insignificant details which are

not specifically addressed (e.g. the "mickey-mouse" Environmental Technology

courses); such items serve only as examples of overall perceptions, and it is those

perceptions which must be put to a candidate, for him to address.

There was not, as the Association suggests, any breach of the Guidelines by the

Department not providing what the Association considers to be a "summative

evaluation". As far as the Department and the PSC were concerned, the

recommendation (Exhibit 6, p.109) was a "summative evaluation". The basis for the

objection by the Association is that the recommendation did not provide sufficient

detailed information for the Grievor to rebut. Even if the Association is correct in its

argument, any deficiency was rectified by the Department providing comprehensive

reasons in its memorandum of November 24, 1987 (Exhibit 13), a copy of which was

provided to the Grievor shortly before the November 25 meeting with the PSC and well

in advance of the November 30 meeting with the PSC. There can, therefore, be no

suggestion of prejudice being suffered by the Grievor, from his not knowing the

95

particulars. The principles of the "purposive" approach, set out in the Archer Award

(above) are applicable.

Nicholson (below) is the foundation case for the duty of fairness, and establishes

that an administrative tribunal need not have a hearing, need not allow lawyers, need

not put every detail of the case against a person, need not name its informants, and can

give the substance only.

The fact that the Department, and the PSC did not set out their recommendations

in the language of the four criteria of the Tenure Application Guidelines does not void

the process, particularly when it is apparent from the Minutes that they specifically

referred to, and were guided by, the criteria throughout their deliberations. On

November 25, they even requested the Grievor to rate himself on the four criteria. It is

clear that, although the recommendation was not expressed in terms of the criteria, the

criteria were always present in the minds of the PSC members, and that those criteria

were "fully canvassed" (see Glendenning, and Greenlees cases, below).

Rebuttal to Association's Position: The concept of duty of fairness is different than the

natural justice principle of audi alteram partem. Many of the cases cited by counsel for

the Association are in a quasi-judicial setting in which the principles of natural justice

apply, not just the duty of fairness, which applies in the present case. The cases cited

by Counsel for the Association involve circumstances far removed from those in the

present case i.e. the applicant not being given a chance to say anything, a blanket

recommendation without any reasons, etc. Although the principles expressed in the

parole cases cited by counsel for the Association are, in the main, appropriate to the

present case, those cases involve the liberty of the subject which leads to a strict

interpretation similar to that in criminal cases. Even in the context of audi alteram

partem, it is not, as the Association contends, a breach of that rule not to disclose

sources, as is indicated by the authority cited by the Association.

Counsel relied upon:

Selvarajan v. Race Relations Board, (1976) 1 All ER 12 (C.A.)

Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of

Police, (1978) 88 D.L.R. (3d) 671 (SCC)

McWhirter v. Governors of the University of Alberta (No. 2), (1979) 103 D.L.R.

(3d) 255 (Alta. C.A.); leave to appeal to S.C.C. refused

Re Bennett and Wilfrid Laurier University et al., (1983) 150 D.L.R. (3d) 738 (Ont.

High Ct., Div. Ct.)

Re Glendenning Motorways, Inc. and Royal Transportation Ltd. et al. (1975) 59

D.L.R. (3d) 89 (Man. C.A.)

96

Re Greenlees Piledriving Co. Ltd. v. Eurocan Pulp & Paper Co. Ltd. (1972) 3

W.W.R. 881 (B.C.C.A.)

(5)

Guidelines

The foregoing argument on (4), above, is partially applicable to this section of the

argument. What must be remembered is that "guidelines" are precisely that; they are

not rules, regulations, or by-laws. There is a significant difference between such

guidelines and statutory by-laws as in the Hutfield case referred to by counsel for the

Association.

Furthermore, the four criteria which are prescribed in the Guidelines are

preceded by the words: "evaluation of candidates for tenure will focus upon the

following four areas:..." to direct that the PSC will "focus upon" is not to direct that the

four criteria are exclusive considerations. Each of the criteria is very broad; they are not

rigidly defined. In any event, the PSC clearly utilized the four criteria in their interviews

on November 10 and 25, asking for specific statements in relation to the criteria from

Dean Kershaw, Chairman Swendson and the Grievor.

(6)

Whether Irrelevant Facts Considered; Whether Decision Unreasonable and

Unfair

No irrelevant facts were taken into consideration by the PSC. It was appropriate

for the PSC to inquire into the circumstances at the time that the Grievor was hired.

Such considerations are only irrelevant if one starts from the premise of the Grievor, i.e.

that a candidate should only be judged on his performance in a classroom. By asking

questions, the PSC demonstrated its desire to search out as thoroughly as possible the

reasons for the recommendation because, as everyone agrees, the importance is

obvious when a person's job is at stake.

"To see ourselves as others see us" (Robert Burns) summarizes the evidence

given by the Grievor on cross-examination. He believes the only logical and rational

outcome of the process was that he be granted tenure, and because that was not the

result, he believes it to have been an illogical and irrational process. As a result, this

hearing was, at times, more in the nature of an Examination for Discovery as the

Association searched for defects in procedure. Short of a full-blown judicial inquiry,

those involved at the Department and PSC level believe that they could not do more

than they have. There is no evidence of bias or bad faith so that the issue really comes

down to whether any technical breaches in the procedure should void the entire

process.

It must be remembered that what is being dealt with is denial of tenure at the end

of a probationary period. The PSC conducts a search for an opinion on whether the

candidate is to be given permanent employment. There is a long probationary period

and a detailed, involved process, but fundamentally the process is no different than a

probationary process anywhere. The object is not to try all the facts, but to reach an

97

overall decision which is based on honest opinions. The passage from McWhirter,

quoted at p. 15 of the Interim Award (commencing "to take a hypothetical scenario...") is

applicable in the present case, as is the statement from the succeeding paragraph in

McWhirter:

"The opinions of colleagues are surely of themselves of value..."

Rebuttal to Association's Position: The PSC was clearly endeavouring to reach a

consensus, not to evaluate every individual piece of information. The process is akin to

a personnel evaluation at the end of the year, based on the opinions of those involved.

The findings of the PSC include an assessment of the Grievor's conduct before the

PSC, as part of the whole exercise. The PSC was looking for the same sort of thing that

the Department was looking for on October 19. The Grievor says he will "go to the

grave" without understanding the result, which is believable and sad; the PSC was

looking for the Grievor to recognize how other people reacted to him. The fact that he

seems unable to recognize and accept the opinions of his peers, has no bearing on the

question before this Board of whether the process itself was fair. The PSC was trying to

understand how someone with a good background and good reviews (despite some

negative comments) had virtually the whole Department and the Dean recommending

against tenure.

(7)

Remedies/Damages

To get to this stage, the Board will have to find that there was a failure on the part

of the PSC and its duty of fairness (i.e. a defect which was significant and not merely

trivial or technical.) If the Board concludes that there must be a new hearing, it does not

follow that there must be a new PSC. As in the case of a court allowing a certiorari

application, the matter is remitted back to the same board or panel, unless there if a

finding of bad faith or bias. If this Board is so inclined, it would be appropriate to direct

that any further PSC proceedings be limited to giving the Grievor another opportunity to

respond.

VI.

Introductory

The following portion of this Award sets forth the decision of the Board on each of

DECISION

the subjects addressed by Counsel in argument (see foregoing portions of the Award

under "Position of the Association" and "Position of the Employer").

The Interim Award issued by this Board April 21, 1989 (attached to this Award) is

discussed, in a summary manner, in Section I.(1) of this Award, and the principal

conclusions on scope of review stated. They are applied in making the determinations

on the principal issue of "Procedural Fairness" (Sections (4) and (6) of this Decision,

which follow).

98

(1)

Scope of Evidence (with particular reference to Dr. Cummins): Ruling

This subject is addressed, in a general manner, in Section I.(2) of this Award. As

there indicated, the difficulty in drawing the line on admissibility became most

pronounced with respect to evidence proposed to be given by K. Cummins, a witness

called by the Association (and with respect to evidence proposed to be given by another

possible witness, Mr. MacLeod). Prior to K. Cummins' testifying, the nature of the

evidence proposed to be introduced, and its admissibility, was discussed. At the

conclusion of argument by Counsel, the Board (Dr. Serediak dissenting) ruled on the

issue. The ruling, now stated in somewhat more comprehensive terms, follows:

As stated in the introductory part of this Award ("I.(2) Application of Scope of

Review Criteria, and Rulings on Admissibility"), we attempted throughout the hearing to

avoid a strict, inflexible standard of admissibility, recognizing that we must determine

whether irrelevant/improper factors were taken into consideration. However, we are of

the view that the type of evidence sought to be introduced by the Association, through

K. Cummins, is outside the parameters of relevant and admissible evidence. The only

evidence which is relevant to this Arbitration Hearing is that which was before the PSC,

either in documentary or verbal form. Private discussions among Department members,

or even discussions at the Department meeting, unless they were conveyed to the PSC,

or unless they might serve to show that the Department members were acting in bad

faith, are of no concern. It is not our mandate to examine the entire information-

gathering process. To permit the type of evidence sought to be introduced by the

Association would be opening a very wide door to an extent well beyond the scope of

review established in our Interim Award. If we were to open this Hearing to that extent,

we might well next be asked to allow students to be called and cross-examined with

respect to the student evaluations of the Grievor.

K. Cummins stated in his memorandum of November 19, 1987 (Exhibit 12),

"Any objective or subjective, off-the-record comments must be discounted

unless the comments are written up for objective scrutiny in the file."

We do not agree with K. Cummins' terms of reference. We believe the PSC's process is

appropriate and proper, i.e., information obtained in interviews, as long as the Grievor

was given the substance of the information, and an opportunity to respond, is properly

taken into consideration by the PSC. In any event, K. Cummins acknowledged in the

course of his testimony that he did not believe that any "off-the-record comments" at the

Department level, or among members of the Department, were mentioned during the

PSC proceedings. Had he testified otherwise, we would have received evidence as to

what was said to the PSC members, collectively or individually.

(2) Preliminary Issue; Failure to Provide Documents 72 Hours in Advance (Subject

of the First Grievance)

99

We accept, and adopt, the argument of Counsel for the Employer (Section V (2)

above).

Counsel for the Association relied upon several decisions including that of the

Federal Court of Canada (Appeal Division) in Timpauer (above). In that case, the

Canada Labour Relations Board had ruled that it did not need to hear certain witnesses

which the applicant proposed to call, in order for the Board to decide on whether there

was an "imminent danger" to the applicant because of his reaction to tobacco smoke.

The Court found, at p.209:

"By refusing to hear their evidence, the Board denied the applicant natural

justice. The fact that such evidence might not have assisted the applicant was

not a valid reason for refusing to hear it."

Even if the same rules of natural justice apply to the PSC as to the Canada

Labour Relations Board, the facts in the two cases are distinctly different. There was no

refusal by the PSC to hear further witnesses which the Grievor proposed to call. He had

been given the recommendation of Dean Kershaw and notes of the November 9

meeting (Exhibit 10) several hours before meeting for the final time with the PSC on

November 30. His response to Dean Kershaw had already been set out, in the main, in

Dean Kershaw's notes of his November 9 meeting with the Grievor, which had been

information provided to the PSC on November 10. He gave a further response at the

afternoon meeting on November 30, including "additional documents to substantiate his

participation in Department and College activities, his interaction and cooperation with

Department members, and that he and Izak Paul do interact."

The Grievor had advised the PSC that Dean Kershaw had not mentioned

anything about inter-relationships with colleagues or about not being a "team player",

yet at the November 30 a.m. meeting he advised that Dean Kershaw "told him that he

was concerned about the future working relationships in the department".

The Grievor was asked, at the November 30 meeting, whether he "had anything

further to add" and stated that "he did not".

It is now, months later, at the Arbitration Hearing, that the Grievor suggests there

were other people he would have asked the PSC to interview, and other information

which he would have presented to the PSC. We do not believe that it is any more

appropriate for us to speculate on whether the Grievor, with 72 hours notice rather than

6 hours notice, would have made these further suggestions to the PSC than it was for

the Canada Labour Relations Board to speculate on the effect of evidence which the

applicant actually proposed to call at the time of the hearing, the fact is that he did not

make any such requests to the PSC at the time.

We are also satisfied, for the reasons stated by T. Wood in evidence, that even if

the Grievor had made the further requests of the PSC, they would either not have been

granted, or any information which would have been forthcoming was already before the

100

PSC. It is also to be noted that the stated purpose of the Grievor requesting that the

PSC interview other witnesses was "as to their impressions of his potential productivity

and team spirit". Productivity was not an issue, nor was "team spirit" outside the

Department, and it was people outside the Department whom he suggested he would

have called as witnesses.

The arbitral approach which we consider appropriate to an issue of this nature

was extensively discussed in the Archer Memorial Hospital award (above) in which the

board stated, at pp. 20-23:

"The even more compelling argument is the philosophy behind the

'purposive' approach which, in our view, makes sound labour relations sense. It

is the same philosophy which found statutory expression in the Ontario Labour

Relations Act, Section 44(6), providing that a board of arbitration may extend the

time limits set out in a collective agreement for taking any step in the grievance

procedure where there are reasonable grounds for the extension and the

opposite party will not be substantially prejudiced. The provision in the Ontario

Act does not, of course, have any bearing on an Alberta case, nor did it have a

direct bearing in most of the Ontario decisions cited. We refer to it only to indicate

that the thinking of several arbitrators in that province has been reflected in the

statute. (Cases are then cited in which the 'purposive' approach has been taken).

We endorse the approach of the aforesaid Ontario arbitrators and find that

the preferable characterization of the time limit requirements in Article 25 is that

they are directory, not mandatory. The determinations to be made, therefore, are

whether the Employer had reasonable grounds for not complying with the time

limits and whether the Grievor was prejudiced by the delay..."

We have no hesitation in finding that the Employer had reasonable grounds for not

providing the documents to the Grievor 72 hours in advance, and that the Grievor was

not prejudiced as a result. The omission was clearly an unintentional oversight and one

for which Dean Kershaw expressed regret. It is understandable that there could be an

oversight of this nature, given the extensive documentation involved in the tenure

application.

The first grievance, on the preliminary issue of failure to provide documents 72

hours in advance is, accordingly, denied.

(3)

Confidentiality

We adopt the reasoning of the Employer's Counsel ("Position of the Employer"

Section V.(3) above). We offered our preliminary views on the issue of confidentiality in

the Interim Award (pp.18-20) and these views remain unchanged.

It was not on the basis of confidentiality that the substance of any subject matter

was withheld from the Grievor. It is the Employer's position that it put to the Grievor the

101

substance of everything which was deemed of any significance in their consideration of

the matter before them. If there were, in fact, allegations withheld, T. Wood testified that

it would have been because they were deemed not to be of any consequence in the

decision. There would, of course, have been an abuse of the process and a denial of

procedural fairness if, under the guise of confidentiality, the substance of material

information was not addressed to the Grievor, and he were not given an opportunity to

respond. This subject will be addressed in Sections (4) and (6) of this Decision (which

follow). Suffice it to say, on this specific issue of confidentiality that, in our view, the only

information which was withheld from the Grievor on the basis of confidentiality was the

identification of specific allegations made by specific persons.

The Association contends that the Grievor's lack of knowledge of the sources

prejudiced his ability to respond. We are not persuaded by the Association's argument

for several related reasons. Assuring those being interviewed of confidentiality has been

the acknowledged practice of the PSC conclusion appears to "fly in the face of" the

forgoing statement from Ruiperez and then stated:

"Although the decision is an oral one, any statements which fall from

Houlden, J. A. are entitled to the greatest respect. In this case, however, I

consider myself entitled to disagree because the observation is 'obiter dictum'

and not supported by reasons or analysis."

We do not agree with Arbitrator Teplitsky, and we believe that his view is one held by

only a minority of judges and arbitrators. However, we are of the view that the issue is

not ours to decide, for reasons which will, hopefully, become apparent in the following

discussion.

It is not our mandate to decide if confidentiality should be the practice in the PSC

proceedings. That philosophical determination can only be addressed by the parties. It

is, under the Collective Agreement, within the jurisdiction of the PSC to make its own

rules, and it is to be remembered that the PSC is a joint, collegial committee. The PSC

has decided that confidentiality is essential to the interview process, to elicit frank

discussion, and everyone involved, including the Grievor, was well aware of the

procedural rules.

Counsel for the Association relied on the decision of the Alberta Court of Appeal

in Slavutych (cited above). The decision was based on a finding of bad faith which the

Court said precluded the grievor from the protection afforded by privilege, as would

normally be his right (the Supreme Court of Canada reversed the Alberta Court of

Appeal on that finding, but agreed otherwise with the Court of Appeal's statement of the

law regarding privilege). The issue in that case was not similar to the instant case; here

for many years; and everyone involved in the process knew the rules, including the

Grievor, who stated, before the PSC, that he "understood the need for confidentiality in

this case" (Minutes of November 10, Exhibit 38, p.15). The practice was based on the

reasoning which is found in many judicial and arbitral decisions (some of which were

summarized in the Interim Award, attached to this Decision, at pp.18-20), and was

102

explained at the Hearing by T. Wood and Y. Swendson. That philosophy found

expression in the Ontario Court of Appeal Decision in Re: Ruiperez and Board of

Governors of Lakehead University (1963), 147 D.L.R. (3d) 154 at 156:

"We agree with the majority of the Divisional Court that because of the

legitimate interest in maintaining confidentiality in proceedings of this nature, it is

unnecessary that the sources of the information be identified; but for a fair

hearing the essence or substance of the information must be disclosed to the

applicant, and he must be given an opportunity to respond to it".

The opposing philosophy is found in the award of Arbitrator Teplitsky in the Ontario

College of Art case (cited by Counsel for the Association in Section IV(3) above),

wherein the Arbitrator stated, at p.6:

"...I am unable to detect any legitimate interest in confidentiality when the

person (i.e. a colleague or department head) tenders a criticism in respect of a

person who has no power to injure his critic. Although confidentiality in the area

of criticism is likely to spawn critics, it is equally likely to foster irresponsible

criticism. Indeed, Slavutych itself is an example of intemperate criticism protected

by confidentiality. In my opinion, if an equal is unwilling to criticize without a

protective cloak of confidentiality, the criticism is better left unsaid. It is unfair to

the person criticized not to know the source of criticism. Without such knowledge,

the person criticized is in no position to challenge the objectivity of the critic."

In reaching his conclusion, the Arbitrator sought to minimize the impact of the Ontario

Court of Appeal decision in Ruiperez when he acknowledged that his it is the

confidentiality of statements by persons other than the Grievor, which was being

protected. The policy considerations justifying confidentiality were discussed, at length,

in the decisions of both the Court of Appeal and the Supreme Court of Canada, the

latter being summarized in the Interim Award at pp.18-20. The view expressed by

Spence, J., who delivered the judgment of the Supreme Court of Canada, is noteworthy

in the present context of the academic community. In considering "...the question of

privilege", he examines the four fundamental conditions outlined by Wigmore (see

Interim Award, p. 19) and states, at p.626:

"...as to the second condition, certainly confidentiality was essential to the

operation of a procedure whereby fellow members of the University staff were

requested to give their opinions as to an application for such an important right

as tenure. These persons were working every day together, and it would be

simply impossible to have the statement made by one at the request of the

University authorities in reference to the worth of another known either to him or

to the balance of the staff. As to the third condition, surely it is in the interest of

the University community that the relationship between colleagues must be

fostered, and that the proper procedures for granting tenure to members of the

University staff must be furthered. As to the fourth condition, all of the elements

103

which I have just recited stress the desirability of the preservation of the

confidential nature of the communication..."

The PSC or this Board cannot be affected by the By-laws of the Association. It is

a matter for discussion between the parties as to whether, in the future, a process can

be agreed upon which is compatible with By-Law 13.1.2.4 (Exhibit 44) or the

Association may have to consider whether PSC proceedings are to be expressly

excluded from the application of the By-Law. Certainly the existing By-Law places the

Association members, who are interviewed by the PSC, in a difficult position. The rules

of the PSC and the By-Law cannot coexist without one or the other being breached.

Although those testifying may take comfort in the realization that the substance of any

remarks that they make are addressed to the Grievor, they are not in a position to give

"written copies" of their statements to a candidate for tenure "at least 72 hours in

advance". This Board and the PSC are bound to act in accordance with the terms of the

Collective Agreement and the Tenure Application Guidelines, which leaves us without

any ability to require compliance with the By-Law.

We will now address the specific examples of alleged breach of confidentiality

put forward by Counsel for the Association in argument:

(a) It is contended that the comment by a PSC member(s) to Y. Swendson (the Grievor

was "more humble" at the PSC meeting than at the Department meeting), and her

passing on that comment to the tenured members of the Department indicated a breach

of confidentiality. Although we accept that the comment was made by Y. Swendson at a

meeting of the Department members, we do not consider that such a comment, whether

initially made inside or outside the PSC deliberations "in confidence", and relayed by Y.

Swendson "in confidence" was a breach of confidentiality, or, for that matter, could have

any negative implications for the Grievor. If anything, it would be expected to enhance

the Department members' view of the Grievor, since they were obviously negatively

affected by his earlier "no problems or no mistakes" attitude which he took at the

meeting with Department members. We perceive nothing sinister or prejudicial in the

comment, and consider it one which might be expected in the ongoing discussions. The

significant fact is that it was made, and conveyed, in confidence, and cannot be

construed, as Counsel contends, as a breach of confidentiality.

(b) it is contended that the presence of Y. Swendson when the PSC was interviewing J.

Sheedy and S. Blackie indicated that there was, in reality, no cloak of confidentiality. We

reject the contention. The information being given was information which had already

been given to Y. Swendson during her interviews of the two persons. Whether her

presence would have a significant effect on S. Blackie in particular is not a

confidentiality issue. We will, however, make the observation that we would have

preferred that the PSC not have invited Y. Swendson to the meeting, although we do

not consider it likely that her presence would had an effect one way or the other in view

of her having already heard the information. In any event, the information provided by J.

Sheedy was supportive of the Grievor; and although S. Blackie described her

104

relationship with the Grievor as still being less than fully satisfactory, she acknowledged

that there had been a marked improvement in the Grievor's attitude.

(c) The Association contends that the Employer's position on confidentiality was

inconsistent in that it introduced in evidence, before this Board, the "confidential"

Minutes of the PSC proceedings without obtaining a waiver of privilege from those who

had testified in confidence. To some extent, this contention of the Association puts the

Employer in a position of "damned if you do, and damned if you don't". By having the

record of the proceedings available, everyone involved, and particularly the Grievor and

this Board, are made aware of everything which was discussed at the PSC, and

addressed to the Grievor. Although it served to prolong the arbitration proceedings, it

enabled a very thorough review, including cross-examination, to be undertaken. It is

acknowledged that no formal waiver was obtained from those who testified in

confidence, but none of those persons, including the Grievor, had any objection to the

minutes being produced. The purpose of the Employer itself giving a limited waiver, for

purposes of all the facts being before this Board for its review, was explained and not

challenged. Most of those who were interviewed by the PSC and who testified before

this Board indicated that they had no objection to the Grievor being made aware of the

comments made by them; and, for that matter, the substance of most of those

comments was contained in the written documents which were made available to the

Grievor, as required.

(4) Procedural Fairness (including "audi alteram partem")

Apart from the confidentiality issue (above), there appears to be virtual

consensus as to the legal/arbitral principles by which the PSC and this Board must be

guided. What is really in issue is the extent of information which must be provided by

the PSC to the Grievor, and whether the PSC fulfilled its responsibility in that regard.

Reference is again made to the Interim Award (attached) and to the summary of

the main conclusions in the Interim Award (recited in Section I. (1) of this Award).

Another relatively recent summary of the jurisprudence is found in the Wilfred

Laurier University case (cited in Section V. (4) above), at p.740:

"Where a university deals with a tenure application of a staff member, or

disciplines a staff member, it must act fairly and if it does not do so it will be

subject to judicial review in the nature of certiorari: see Paine v. University of

Toronto et al. (1981), 34 O.R. (2d) 770, 131 D.L.R. (3d) 325, and Kane v. Board

of Governors of University of British Columbia, (1980) 1 S.C.R. 1105, 110 D.L.R.

(3d) 311, (1980) 3 W.W.R. 125. It must advise the member of the essence or

substance of detrimental information against him so that he may respond to it: Re

Ruiperez and Board of Governors of Lakehead University (1983) 41 O.R. (2d)

552, 147 D.L.R. (3d) 154 (Ont. C.A.). The reason for this arises not just from the

contractual relation of employment between the parties but the public nature of

105

the proceedings, and the drastic consequences if tenure is refused or an

employee with existing rights is dismissed or disciplined."

It is also important to bear in mind the caution which has been expressed in

numerous cases involving a joint collegial body such as the PSC. We take note again of

the words of Arbitrator Soberman in the University of New Brunswick Award, which are

quoted at p.20 of the Interim Award:

"In the absence of procedural unfairness, the substantive issue of whether Dr.

Thompson merits promotion to professor would in our opinion fall within a range

where committees might reasonably differ. Accordingly, we should not substitute

our own assessment if the University processes, properly conducted, might come

to a contrary result."

There would be no purpose served in this case by our attempting to distinguish

between the principles of natural justice and the principles of procedural fairness. We

tend to agree with Counsel for the Association that the distinction between the two, if

there is any distinction, is becoming increasingly difficult to draw. The standards which

we must apply are well settled and were set out in the interim Award.

We have no hesitation in stating that the PSC, and the tenured members of the

Department, devoted an extraordinary amount of time and effort to the process. We also

have no hesitation in stating that all concerned acted in a good faith, unbiased and non-

discriminatory manner in a conscientious effort to arrive at a decision which would be in

the best interest of the Department and the College. The opposing points of view are

well and objectively summarized by A. Kershaw in his memorandum of November 10,

1987 (Exhibit 10) and K. Cummins in his memorandum of November 19, 1987 (Exhibit

12). A review of those two documents (which are set out virtually in full, in Section 11.(4)

above) serves to focus upon the concerns with which the tenured members of the

Department were wrestling in reaching their decision. There can be no doubt that the

same concerns identified by A. Kershaw had been put to the Grievor by the PSC, on

several occasions, and that he was given a full opportunity to respond.

The case really comes down to the question of assigning relative importance, or

emphasis. The Grievor, and the Association, place primary emphasis on the teaching

abilities of the Grievor (which no one seriously disputes) and strive to minimize (and in

some instances dispute the existence of) other express concerns such as relationships

with colleagues, and attitude. I. Paul (who the Grievor obviously believes is primarily

responsible for the case against him) expressed the difficulty he was experiencing in

assigning relative importance:

"I am concerned by these problems; however, at the same time, it is impossible

to ignore the fact that Al is a very knowledgeable and effective instructor. I find it

very difficult to determine whether the latter attributes are of primary importance

and, consequently, if the problems described are of secondary importance."

106

The Grievor's perspective, at the November 25 PSC meeting was:

"The evidence will suggest and is right that I over-react to criticism, but the

question is really whether this should preclude my continued and productive

employment here. I have to ask the relation of this in comparision with all the

other factors."

The Alberta Court of Appeal in McWhirter (cited and quoted in Interim Award) put

in perspective the type of basic issue which was facing the PSC in this case:

"To take a hypothetical scenario, assume the head of the department inquired

from a colleague of McWhirter as to his opinion of McWhirter's contribution.

Assume the colleague said he thought there was little contribution. The head of

the department might then say: 'Why do you say that?' One answer might be: 'I

am simply not impressed.' The head might press further. He might say: 'Why are

you not impressed?' and the colleague might say: 'Well, I cannot put my finger on

particular examples, but that is my opinion.' Or, by the same token, the colleague

might be impressed with, again, not having specific reasons at hand.

It is to be borne in mind that the head of the department could in this manner

obtain a consensus, although there might not be the detailed information which

might have been possible under cross-examination in a Court of law. The

opinions of colleagues are surely of themselves of value, and these opinions

were certainly obtained by the secret ballot."

(It is to be remembered that the Court of Appeal in McWhirter was considering a case in

which, after "wide consultation", and the candidate having appeared before the

committee, a secret ballot was conducted and the result was against tenure. In the

course of the committee's deliberations, opinions had been expressed and conclusions

of fact reached on which the candidate was not given an opportunity to be heard. The

Court of Appeal decided that the secret ballot process was acceptable. As we stated in

the Interim Award, we believe that the "rigid standard of review" in McWhirter should

now be considered as somewhat expanded, since the subsequent decisions in cases

such as Kane.)

Regardless of the extent to which the standard of review may be considered as

expanded, since McWhirter, the "hypothetical scenario" strikes us as still having a very

solid basis in common sense. On a variation of the hypothetical scenario, if it is proven

that a candidate is a superb teacher but his interactions with most of the colleagues in

his department have caused alienation, is not the honestly stated and fair opinion of

each department member to the effect that the long term welfare of the department

would not be served by the continuing presence of the candidate, sufficient grounds in

itself for denying tenure? An arbitration board must, of course, assess whether the

opinions are honest and fair, or whether bad faith, discrimination, or unfairness were

present.

107

To move from the hypothetical to the actual situation in this case, it is clear from

all the evidence that the reaction of the Grievor in two situations, during the tenure

application process, were considered to be particularly revealing of the Grievor's attitude

and to have caused the tenured members of the department, and the PSC, great

concern, being:

(a) The "unconstructive and untimely" responses of the Grievor to Chairman Paul's

evaluations of Winter 1985 and Winter 1987: From our perspective it is difficult to

comprehend how the Grievor would, at a time when he was seeking tenured status,

display such poor judgment, and, only after questioning about it at the PSC meetings,

admit his error. To have, with little if any foundation, made statements including:

-

accusing Chairman Paul of deliberately omitting information

evaluations being based on "'hearsay', innuendo, and overt misinterpretation"

"efforts made to discredit my performance"

I. Paul's "illconceived concerns prompting a solicitation of information"

"deeply resent(ing) Izak Paul's attempts to portray me as otherwise"

I. Paul making a statement which is "grossly misleading, unfair and

objectionable"

-

I. Paul's "'musing' on the relative importance of what he perceives as my

difficulties is a thinly-veiled attempt to assign even greater weight to his misleading

interpretation of events...which...does not represent an appropriate or fair assessment

of my performance"

-

"these attendant circumstances are curiously absent from Izak Paul's

evaluations"

-

"an abhorrent attempt to present questionable interpretation in its most biased

and damaging form"

-

"a fact conveniently ignored by Izak Paul"

"not some generalized difficulty as Izak Paul asserts!"

"a gross misleading exaggeration"

"I object strongly to Izak Paul's weakly disguised efforts to suggest that there is a

significant problem"

108

is, to say the least, to throw down the gauntlet. It is clear from both the documentary

evidence and interviews that the other members of the Department considered

Chairman Paul's evaluations to be objective. It should therefore come as no surprise

that the Department members and the PSC would react very negatively to the Grievor's

responses. It is also to be noted that the responses were not made in the normal

course, but very belatedly, and only so that they could be included by the Grievor in his

Tenure Dossier.

K. Cummins, writing to the PSC in support of the Grievor (November 19, 1987

memorandum) expresses the concern and consternation: