Pope v. The Owners, Strata Plan V1S30

Pope v. The Owners, Strata Plan V1S30, 2017

BCHRT 45 ()

British Columbia Human Rights Tribunal

Lorna June McCue

Complainant

v.

University of British Columbia

Respondent

Date of Decision

Before

British Columbia Human Rights Tribunal, Norman Trerise

File No.

Appearances

Lorna June McCue, on her own behalf

Michael Wagner and Julie Menten, Counsel for the Respondent

Keywords

Aboriginal Peoples — Sex Discrimination — employment promotion and

remuneration denied — stereotype — Education — Race, Colour and Place of

Origin — tenure denied to female aboriginal university professor — discriminatory

treatment in employment on the basis of sex, race, and ancestry

Employment Evaluation and Testing — evaluation procedures free from cultural

and gender bias — evaluation procedures to assess job performance and to determine

promotion — individual assessment as alternative to setting discriminatory standard —

Reasonable Accommodation — duty to accommodate short of undue hardship —

aboriginal status for professor — Discrimination — adverse effect discrimination —

bona fide justification — Meiorin/Grismer test — multiple grounds

Evidence — sufficient evidence and case to meet — credibility — refusal to call witness —

adverse inference — Trade Unions — discriminatory application of collective

agreement

Summary

The B.C. Human Rights Tribunal dismissed a complaint filed by June McCue against the

University of British Columbia. Ms. McCue, who was a member of the Faculty of Law,

alleged that she was denied tenure and promotion to Associate Professor, as well as

performance salary adjustments ("PSA") and merit pay, because of her Indigeneity and

her sex. More specifically, Ms. McCue alleged that female Indigenous scholars

predominately use an oral-based approach to scholarship and her scholarship was

assessed by UBC in a manner that did not properly value the significance of her non-

traditional approach as an Indigenous female law scholar. Ms. McCue is a hereditary

chief of the Ned'u'ten First Nation.

In earlier decisions the Tribunal clarified that Ms. McCue's complaint was not a direct

attack on the collective agreement between UBC and the Faculty Association or on the

Guidelines to Promotion and Tenure Procedures ("Guidelines"). Rather her complaint

alleged discrimination in the way the Guidelines were applied to her.

Ms. McCue was hired into the Faculty of Law in 1998 and went on tenure track as an

assistant professor effective July 1, 2000, for a three-year term. She was eligible to be

considered for promotion and tenure in her seventh year, the academic year 2006-2007.

When she was re-appointed for a second three-year term in 2004, Dean Marianne

Bobinski supported her re-appointment but expressed concern that Ms. McCue had not

yet begun to publish original, peer-reviewed contributions to legal scholarship at the

expected rate. The letter informed Ms. McCue that the law faculty would expect to see

five to six peer-reviewed, significant publications by the time Ms. McCue sought tenure,

and that under the collective agreement's Guidelines scholarly activity, teaching, and

service would be considered in the tenure process.

Because of concerns about her rate of publication, Ms. McCue was removed from any

administrative duties, and her teaching load was significantly reduced so that she taught

no courses in the fall of 2004 and only one course in the spring of 2005. These

adjustments were made in order to assist Ms. McCue with respect to the work that she

needed to do to obtain tenure.

In 2006, Ms. McCue sought and was granted an extension so that her application for

promotion and tenure was pushed to 2005/09. She was re-appointed to a one-year term

for the 2009-2010 academic year. Ms. McCue's application for tenure was prepared in

2009 and 2010, and, after a number of delays, the Faculty Promotion and Tenure

Committee reviewed her file in June 2010. Ms. McCue had no peer-reviewed

publications.

While the ultimate decision on promotion and tenure is made by the President of the

University, then Stephen Toope, recommendations are made to the President by the

Promotions and Tenure Committee of the law faculty, and also by the University's Senior

Appointments Committee.

In June 2010, Ms. McCue made an oral presentation in support of her application to the

Faculty Committee and she requested that the Committee apply a framework

appropriate to her case as an Indigenous scholar and teacher. The Tribunal found that

this was a request for accommodation of Ms. McCue's work as an Indigenous scholar in

relation to the collective agreement's standard for promotion and tenure. She requested

that her oral presentations and professional contributions be considered as a scholarly

activity.

Ms. McCue took the position that, although her published materials are not peer-

reviewed articles, they should be counted as traditional scholarship. She also took the

position that as an Indigenous person she disseminates her knowledge orally and that

the number of invited presentations that she had given over her academic career

demonstrates that her ideas and theories and principles have been communicated to

diverse audiences. Ms. McCue pointed to her professional contributions in bringing the

voice of Indigenous peoples to the international level through submissions to

international treaty bodies, and to her service work, which she asserted should also be

considered under the category of scholarly activity.

In November 2010, the Faculty Committee recommended that Ms. McCue not be

promoted and not be given tenure. The Committee considered Ms. McCue's submissions

related to her professional contributions and service work in conjunction with traditional

scholarship and non-traditional scholarship, including oral presentations, and concluded

that the work was insufficient in quality and quantity to meet the standards for

promotion and tenure.

The Tribunal found that the Committee considered all of the information Ms. McCue

brought forward about her teaching, professional activities and scholarship. However, it

noted that one of the problems was that Ms. McCue presented no evidence regarding her

oral presentations at conferences, with the exception of one article in a law review

derived from a presentation she had made. Although she wished to have these

considered as scholarly activity, there was no evidence regarding the precise content of

the presentations made.

In April 2011, Dean Bobinski wrote to the President, Stephen Toope, joining the Faculty

Committee in recommending against promotion and tenure.

Ms. McCue responded to the Faculty Committee's recommendation by making a more

direct request for accommodation. She contested that the Faculty Committee had treated

her candidacy as atypical and non-traditional. She opined that the Faculty's use of

conventional standards, norms and policies was inappropriate. She suggested to the

President that he should make a recommendation based on an equitable paradigm and a

multi-track assessment of her scholarly activity; restart the process according to an

agreed-upon framework; or send all of the evidence to external referees to assess

according to the equitable paradigm and multi-track assessment of scholarly activity.

The Faculty's recommendations were reviewed by the Senior Appointments Committee,

which voted unanimously against Ms. McCue's candidacy for tenure and promotion.

In June 2011, President Toope concluded that Ms. McCue's record did not meet the

criteria for promotion or tenure.

The Tribunal found that Ms. McCue is an Indigenous woman protected from

discrimination on the grounds of race, colour, ancestry, place of origin and sex. She was

adversely impacted by being denied promotion, tenure, salary adjustments and merit

pay for the years 2009 through 2011. The Tribunal found that the adverse impact was

caused solely by the President's decision. Recommendations of the Faculty Committee

and the Senior Appointments Committee were preliminary steps in the process, but they

did not result in decisions but merely in recommendations.

The central issue for the Tribunal was whether Ms. McCue's indigeneity and sex were

factors in the decision to deny her tenure and promotion. Ms. McCue's claim is that UBC

did not accommodate her indigeneity by considering her candidacy in a sufficiently

broad context to allow her work to be fairly evaluated.

However, the Tribunal found that the evidence did not support this. The UBC witnesses

testified that they did approach Ms. McCue's work from the perspective she requested.

However, the material she assembled for UBC to consider could not be evaluated. The

Tribunal found that the information Ms. McCue provided about her oral presentations

did not allow evaluation of the depth, significance or quality of the presentations in

question — or of the quantity of work involved or duration of the presentation. Her

curriculum vitae provided only cursory information regarding these presentations, and

there was literally nothing for the University to evaluate.

The Tribunal concluded that Ms. McCue was not denied tenure and promotion because

of her indigeneity and sex but because she failed to ensure that her work was properly

preserved and explained so that it could be evaluated. The Tribunal accepted that it was

not necessary that oral presentations be written or presented other than orally. However,

the work must be capable of evaluation if it is to ground a candidacy for promotion or an

award of tenure.

The complaint was dismissed.

Cases Cited

Bradshaw v. Stenner, 2010 BCSC 1398 (), 2012 BCCA 296: 68

British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U. (1999),

1999 652 (SCC), 35 C.H.R.R. D/257 (S.C.C.): 185, 228

British Columbia v. Hutchinson (No. 4), 2004 BCHRT 58, 49 C.H.R.R. D/348: 283, 299

British Columbia v. Hutchinson (No. 2), 2005 BCSC 1421, 54 C.H.R.R. D/468: 213, 299

Canada (Attorney General) v. Johnstone, 2014 FCA 110, 79 C.H.R.R. D/324: 281

Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3

S.C.R. 624: 292

Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 68

First Nations Child and Family Caring Society of Canada v. Canada (Attorney

General) (No. 15), 2016 CHRT 2, 83 C.H.R.R. D/207: 210

Health Sciences Assn. of British Columbia v. Campbell River and North Island

Transition Society, 2004 BCCA 260, 50 C.H.R.R. D/140: 280

McCue v. University of British Columbia (No. 1), 2012 BCHRT 354, CHRR Doc.

12-0354: 4

McCue v. University of British Columbia (No. 2), 2014 BCHRT 57, CHRR Doc. 14-0057:

6, 286

McCue v. University of British Columbia (No. 3), 2016 BCHRT 9, CHRR Doc. 16-0009:

10, 208, 242, 278, 294, 310, A331

Moore v. British Columbia (Education), 2012 SCC 61, 75 C.H.R.R. D/369: 184

Québec (Comm. des droits de la personne et des droits de la jeunesse) v. Bombardier

Inc., 2015 SCC 39, 82 C.H.R.R. D/274: 284

R. v. Kapp, 2008 SCC 41: 96, A41, A136, A207

R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324 (C.A.): 301

Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302, 52

C.H.R.R. D/430: 211, 300

SELI Canada Inc. v. C.S.W.U., Local 1611 (No. 8), 2008 BCHRT 436, 65 C.H.R.R.

D/277: 302

University of British Columbia v. Berg (1993), 1993 89 (SCC), 18 C.H.R.R.

D/310 (S.C.C.): 299

Van Hartevelt v. Grewal, 2012 BCSC 658: 68

Legislation Cited

I.

INTRODUCTION

[1] Lorna June McCue filed a complaint against the University of British Columbia ("UBC")

alleging that UBC discriminated against her in her employment contrary to s. 13 of the Human

Rights Code [R.S.B.C. 1996, c. 210] ("Code") on the basis of race, colour, ancestry, place of

origin, marital status, family status and sex ("complaint"). The complaint arose out of the

denial by UBC of Ms. McCue’s tenure and promotion to Associate Professor applications and

her applications for performance salary adjustments ("PSA") and merit pay awards.

[2] The Tribunal proceeded with the complaint only on the grounds of race, colour,

ancestry, place of origin, and sex, and only in respect of the denial of promotion and tenure

and the denial of PSA and merit pay in 2009, 2011, and 2011.

[3] UBC denies that it discriminated against Ms. McCue.

A.

The History of the Proceedings

[4] In McCue v. University of British Columbia (No. 1), 2012 BCHRT 354 [ CHRR Doc.

12-0354] ("McCue (No. 1)"), a decision respecting the timeliness of the complaint, the

Tribunal accepted for filing Ms. McCue’s allegations that she was denied PSA and merit pay

from 2009 to 2011 for discriminatory reasons. The Tribunal also accepted for filing Ms.

McCue’s allegation of discrimination in being denied promotion and tenure on June 29, 2011,

leading to her ultimate termination as a Faculty member in the Faculty of Law at UBC.

Allegations in the complaint relating to being denied study leave were not accepted for filing.

[5] Promotion and tenure are self-explanatory, however, PSA and merit pay need some

explanation. On the evidence, merit pay is awarded for performance in scholarly activity,

teaching, and service in the previous academic year. PSA takes into account performance over

a period of time that is worthy of recognition, the relationship of the person’s salary to that of

other faculty members considering total years of service, and market considerations. In other

words, it is intended to reward a faculty member for overall performance. The process involves

submitting an activity report and CV to allow consideration, in each category, of relevant

scholarly, teaching and service activities.

[6] In McCue v. University of British Columbia (No. 2), 2014 BCHRT 57 [ CHRR Doc.

14-0057] ("McCue (No. 2)"), the Tribunal dealt with UBC’s application to dismiss the

complaint, which was unsuccessful. As a preliminary issue on that application, UBC sought

clarification on the scope of the allegations accepted in McCue (No. 1). The Tribunal

determined that McCue (No. 1) did not accept for filing any allegations of discrimination that

could reasonably be characterized as being based on the grounds of family status or marital

status. The Tribunal found that McCue (No. 1) accepted for filing the allegations of

discrimination on the basis of sex, race, colour, ancestry and place of origin. The inclusion of

sex as an accepted ground was based on Ms. McCue’s submissions that female Indigenous

scholars predominately use an oral-based approach to scholarship and her scholarship was

assessed by UBC in a manner that does not properly value the significance of her non-

traditional approach to scholarship as an Indigenous female law scholar.

[7] In McCue (No. 2) the Tribunal noted:

… I remind the parties that any allegation that the collective agreement is

discriminatory is outside the scope of this human rights complaint, as it is presently

filed. The complainant does not claim in her complaint that the provisions of the

collective agreement are discriminatory, nor has she named the Faculty Association as

a party to her complaint. Rather, in her allegations, the complainant is focusing on the

manner in which the collective agreement was applied in assessing her scholarly

contributions. Accordingly, the question of whether the collective agreement, itself, is

discriminatory is not before the Tribunal (at para. 42).

[8] Subsequently, in a letter decision of May 5, 2015, the Tribunal stated that in the

intervening years since McCue (No. 2) Ms. McCue had reiterated that her complaint related to

how the collective agreement between UBC and the Faculty Association ("CA") and the

Guidelines to Promotion and Tenure Procedures at UBC ("Guidelines") applied to her, rather

than issues related to the system of evaluation itself. The Tribunal stated:

She reiterated that she does not require the Faculty Association to be present because

she is not attacking the system of evaluation.

[9] Ms. McCue, on several occasions during the course of the hearing, confirmed

that she is not attacking the system of evaluation but is focusing on UBC’s application

of the CA.

B.

The Parties’ Agreements

[10] The parties are in agreement that:

a.

b.

c.

the complaint does not allege that the CA or Guidelines are discriminatory;

the complaint challenges UBC’s application of the CA and Guidelines;

the hearing will be bifurcated into issues on the substance of the complaint, followed

by a separate remedy hearing if Ms. McCue is successful with her complaint; and

d. this decision may import the chronical of the evidence of Dr. Frances Henry, Dr. Jo-

Ann Archibald and Dr. Marie Battiste directly from McCue v. University of British

Columbia (No. 3), 2016 BCHRT 9 [ CHRR Doc. 16-0009] ("McCue (No. 3)").

C.

The Evidence

[11] The evidence in this hearing was extensive. Ms. McCue, Dr. Francis Henry, Dr. Jo-Ann

Archibald, and Dr. Marie Battiste all gave evidence on behalf of Ms. McCue. Dr. Henry was

accepted as an expert in the experience of Indigenous Faculty at universities. Professor

Archibald was qualified as an expert in the fields of Indigenous knowledge, Indigenous oral

traditions, and Indigenous community-based research. Dr. Battiste, a full professor at the

University of Saskatchewan and a senior Indigenous academic researcher in Canada, gave

evidence about peer review.

[12] Professor Stephen Toope, Professor Mary Anne Bobinski, Professor Robin Elliot,

Professor Claire Young, and Professor Susan Boyd all gave evidence on behalf of UBC.

Professor Toope was UBC’s president at the relevant time and made the ultimate

recommendation regarding Ms. McCue’s application for promotion and tenure. Professor

Bobinski was the Dean of the law faculty. professors Elliot, Young and Boyd were members of

the law faculty; professors Elliot and Young gave evidence about the Faculty’s involvement in

Ms. McCue’s promotion and tenure application, while Professor Boyd gave evidence about the

role of the committee which advises the president.

[13] I am satisfied that all of the witnesses did their best to provide fair and unbiased

evidence to the Tribunal in this proceeding. I resolve differences in the evidence on material

matters in the course of outlining the facts below.

[14] The hearing of this matter involved 19 days of evidence, all of it provided by academics.

The evidence is voluminous. To aid the readability of the decision, I have set the evidence out

in Appendix A. In the body of the decision, I outline the chronology of events leading up to Ms.

McCue’s application for promotion and tenure and make findings of fact.

II.

THE COLLECTIVE AGREEMENT AND GUIDELINES TO PROMOTION AND

TENURE AT UBC

[15] Promotion in this case refers to promotion from assistant professor to Associate

Professor.

[16] Tenure is significant both to the professor and the University. For the professor, it is

meant to protect academic independence and autonomy — once granted, there is very limited

review of a professor’s work. In the case of an assistant professor, if it is not granted in the

mandated timeframe, their employment comes to an end. For the University, as Professor

Bobinski testified, there is a very strong connection between the quality of faculty and the

reputation of the University and its ability to attract students, research funding, and other

faculty members. It is tenure that ensures the quality of faculty and it is therefore very

important to UBC.

[17] Professor Toope testified that when he came to UBC he took advice from a number of

other university presidents all of whom told him that the most important set of decisions he

would take as a president related to the granting of tenure and promotion. That flowed from

the fact that universities are judged ultimately on their reputation and reputation is dictated

largely by the reputation of faculty members. As a result, who is chosen to be on faculty has a

profound implication for the entire university. He testified:

… there is a limited number of tenure-track appointments in the University and they

represent an expenditure potentially of hundreds of thousands, if not more than a

million dollars over the lifetime of a professor. So, it’s probably the most important

commitment that one can make as a person who exercises a public office within the

University.

[18] Professor Toope testified that it is extremely difficult to reverse a tenure decision.

Tenure is meant to be a fundamental protection for academic independence and autonomy.

Tenure exists to ensure that once granted a professor will not be challenged on his or her

beliefs or the type of work that they do. Because of that there have been all sorts of protections

that have grown over time to support tenure. So it is very, very difficult to undo a granting of

tenure. In the entire time Professor Toope was at UBC there were only three cases in which

tenure was undone and they all related to very grave breaches of standards.

[19] Professor Toope testified that the protections related to tenure are essentially that

there is very limited scope for review or assessment of actual work undertaken by a professor

once he or she is granted tenure. There are processes to make sure that some work is being

done but there can never be a question of the content of the work being done, only the amount

of work being done. The faculty association in any great university will be very careful to be

asking hard questions if there is any hint that a professor’s academic freedom is being

questioned or undermined post-tenure.

[20] To give context to the issues and facts, I summarize the criteria and process for

promotion and tenure as set out in the CA and the Guidelines.

[21] It is common ground that the CA in force at the point of UBC’s alleged discriminatory

denial of promotion and tenure, PSA and merit pay was the 2010–2012 version. The process

for promotion and tenure has various stages, beginning with the head (in this case the Dean),

and involving the department (in this case the Faculty of Law), Dean, Senior Appointments

Committee ("SAC"), and the President.

[22] Ms. McCue held the rank of assistant professor. An assistant professor who is

promoted to Associate Professor by the seventh year of service is granted tenure. Otherwise, in

the seventh year a recommendation must be made about whether to grant tenure (CA art.

2.03(f)). The Guidelines provide that extensions to the "tenure clock" are automatically

granted for maternity and parental leaves (subject to the candidate’s wishes) and medical

leaves (on a case-by-case basis). An individual may only be reviewed once for tenure in the

instructor or professor stream (2.3.1).

[23] If the decision is not to grant tenure after the maximum period of term appointments,

there is normally then a one-year terminal appointment (art. 2.03(g); Guidelines 4.9.2, 10.3).

A person does not acquire tenure by reason only of holding an appointment that extends

beyond the maximum period of such appointments, which is eight in the case of an assistant

professor (arts. 2.03(h) and (i)).

[24] Promotion to Associate Professor and tenure do not necessarily go hand in hand. An

assistant professor may be granted tenure but not promotion.

A.

Promotion to Associate Professor

[25] Promotion to Associate Professor is addressed in art. 3.07. It normally requires

evidence of successful teaching and of scholarly activity beyond that expected of an assistant

professor. The candidate will be judged on the following criteria:

·

teaching (as defined in art. 4.02 set out below),

sustained and productive scholarly activity,

ability to direct graduate students, and

willingness to participate and participation in the affairs of the department and the

University (art. 3.07(a)).

[26] In exceptional circumstances, initial appointment at this rank may be based upon

evidence of the candidate’s potential to meet these criteria, including the opinion of scholars

or other qualified persons familiar with the candidate’s work and capability (art. 3.07(b)).

B.

The Criteria for Appointment, Reappointment, Tenure and Promotion

[27] The criteria for appointment, reappointment, tenure and promotion are set out in art.

4 of the CA. Article 4.01(a) identifies teaching and scholarly activity as the principal criteria,

and service as an important consideration:

·

candidates (except in relation to senior instructors) are judged "principally on

performance in both teaching and in scholarly activity",

service to the academic profession, university, and community is important but "cannot

compensate for deficiencies in teaching and in scholarly activity",

·

competence is required both in teaching and in scholarly activity (except in relation to

senior instructors),

appointments without term are granted to individuals who have maintained a high

standard of performance in meeting the criteria set forth below and show promise of

continuing to do so. (art. 4.01(a))

[28] The Guidelines provide that competence is required in both scholarly activity and

teaching (as appropriate for the rank), and a particular strength in one of these areas cannot

compensate for a deficiency in the other. Service is important but cannot compensate for a

deficiency in teaching or scholarly activity.

1.

Teaching

[29] Article 4.02 defines teaching as including:

… all presentation whether through lectures, seminars and tutorials, individual and

group discussion, supervision of individual students’ work, or other means by which

students, whether in degree or non-degree programs sponsored by the University,

derive educational benefit.

[30] The Guidelines provide that teaching includes:

… all activities by which students, whether in degree or non-degree programs

sponsored by the University, derive educational benefit. This may include lectures,

seminars and tutorials, individual and group discussion, supervision of individual

students’ work (undergraduate and graduate), or other means (3.2).

[31] Article 4.02 provides that the University will assess an individual’s entire teaching

contribution. The Guidelines provide that this assessment occurs within the context of the

discipline (3.2.2). The assessment is based on:

… the effectiveness rather than the popularity of the instructor, as indicated by

command over subject matter, familiarity with recent developments in the field,

preparedness, presentation, accessibility to students and influence on the intellectual

and scholarly development of students (art. 4.02).

[32] The Guidelines set out indicators of effectiveness as including:

… command over subject matter, familiarity with recent developments in the field,

preparedness, presentation, accessibility to students, and influence on the intellectual

and scholarly development of students. (3.2.3).

[33] Consideration shall be given to the ability and willingness of the candidate to teach a

range of subject matter and at various levels of instruction (art. 4.02; Guideline 3.2.3).

[34] The methods of teaching evaluation may vary and may include:

… student opinion, assessment by colleagues of performance in university lectures,

outside references concerning teaching at other institutions, course material and

examinations, the calibre of supervised essays and theses, and other relevant

considerations (art. 4.02; see also Guideline 3.2.4).

[35] Formal procedures shall be used to seek the opinions of students or of colleagues (art.

4.02; Guideline 3.2.5).

2.

Scholarly Activity

[36] Article 4.03 regarding scholarly activity provides that judgment is based mainly on the

"quality and significance of an individual’s contribution". Further:

Evidence of scholarly work varies among the disciplines. Published work is, where

appropriate, the primary evidence. Such evidence as distinguished architectural,

artistic or engineering design, distinguished performance in the arts or professional

fields, shall be considered in appropriate cases (art. 4.03).

[37] The Guidelines provide:

3.1.1 Under the Agreement, scholarly activity "means research of quality and

significance, or, in appropriate fields, distinguished, creative or professional work of a

scholarly nature; and the dissemination of the results of that scholarly activity".

3.1.2 Judgment of scholarly activity is based mainly on the quality and significance

of an individual’s contribution.

[38] The Guidelines also spell out the three forms of scholarly activity:

3.1.3 Evidence of scholarly activity varies among the disciplines. Scholarly activity

can take three forms: (1) traditional scholarship; (2) scholarship of teaching; and/or

(3) professional contributions. Cases can be based on one or a combination of these

forms but the form of scholarly activity should be determined in advance in discussion

between the head and the candidate so that appropriate referees are chosen and

appropriate criteria are applied at all stages of the review.

TRADITIONAL SCHOLARSHIP

[39] With respect to traditional scholarship, the Guidelines, which reflect art. 4.03 of the

CA, provide:

3.1.5 Published work is, where appropriate, the primary evidence. The expectations

of published works will vary depending on the discipline. Consideration should be

given to the quality of the journals and the impact of the work.

SCHOLARSHIP OF TEACHING

[40] Article 4.03(a) of the CA provides that, for the scholarship of teaching, "scholarly

activity may be evidenced by originality or innovation, demonstrable impact in a particular

field or discipline, peer reviews, dissemination in the public domain, or substantial and

sustained use by others". The following example is provided:

For example, textbooks and curriculum reform that changed academic understanding

or made a significant contribution to the way in which a discipline or field is taught

might constitute useful evidence of the scholarship of teaching whereas textbooks or

curriculum revision of a routine nature would not. (See also Guideline 3.1.8)

[41] The Guidelines provide that under the CA, scholarship of teaching ranks equally with

scholarly research, and offer notes to assist in assembling the relevant evidence (3.1.6):

·

Scholarship of teaching is not synonymous with excellent teaching; rather it makes a

broader contribution to the improvement of teaching and learning beyond one’s own

teaching responsibilities (3.1.7).

·

It must be demonstrated that an individual is a leader, or possesses outstanding stature

or expertise, in the scholarship of teaching (3.1.9).

Evidence of assessment of the significance and impact of a candidate’s scholarship of

teaching is essential. External peer evaluation is particularly important (3.1.10).

Work that is not published in a refereed system that makes a significant contribution

should be specifically evaluated by the external referees (3.1.11).

PROFESSIONAL CONTRIBUTIONS

[42] Article 4.03(b) addresses "professional or clinical studies", providing that in these

areas, scholarly activity may be evidence by research on or the creation of:

·

significant applications of fundamental theory; or

significant forms and applications of professional or clinical practice.

[43] As well, work with professional, technical, scholarly or other organizations or with

scholarly publications which falls within the definition of scholarly activity may also be

considered.

[44] The Guidelines provide: "Such evidence as distinguished architectural, artistic or

engineering design, or distinguished performance in the arts or professional fields, shall be

considered in appropriate cases" (3.1.12). Cases where scholarly activity is through

professional contributions may arise in any department or faculty (3.1.13). Under the CA,

creative or professional work of distinction ranks equally with scholarly research; since it is

not always easy to assess the quality of this work, the Guidelines offer notes to assist in

assembling the relevant evidence (3.1.14):

· Professional contributions should not be of a routine or repetitive nature; it is

insufficient to merely practice a profession or act as a consultant (3.1.15–16).

· Creativity though difficult to define has been mentioned as the criterion of excellence; a

positive case has been made if it is shown that an individual is a leader in a field or

possesses outstanding stature or rare expertise in a field; an example is given of work

with a significant impact (3.1.17–18).

· A useful Guideline is that promotion to professor should require the candidate to have

achieved an international reputation, and promotion to Associate Professor should

require the candidate to have made an impact and have achieved a reputation well

beyond UBC and preferably a national reputation (3.1.19).

· Work that is not published in a refereed system that makes a significant contribution

should be specifically referred to in referees’ letters so that its merit is clearly apparent.

Where possible, this work should be made available to referees (3.1.20).

· Written work must be available for peer assessment and referees’ reports should assess

its merits. Reports that are strictly confidential should not be listed as publications,

although the professional activity which led to them (e.g., membership on a

Commission) may well be significant evidence of the professional stature of the

candidate and should be presented as such (3.1.21).

3.

Service to the University and the Community

[45] Article 4.04 deals with service to the University and the community, which includes

the community at large. The following examples are provided:

Such service might include administrative or supervisory work, service on committees

and university bodies, all continuing education activity in the community including

professional education, special work with professional, technical, scholarly or other

organizations or with scholarly publications not falling within the definition of

scholarly activity, membership on or service to governmental or public councils and

boards, and other forms of academic, professional, and public service. (See also

Guideline 3.3.2.)

C.

Procedures for Appointments, Reappointments, Tenure and Promotion

[46] Article 5 of the CA addresses procedures for appointments, reappointments, tenure

decisions, and promotion. Decisions are made by the Board of Governors on recommendation

of the President (art. 5.01(a)).

[47] The Guidelines provide that the process for tenure and promotion decisions typically

spans the academic year leading up to July 1, which is the effective date for decisions about

tenure and promotion (2.2.1). In terms of timing, the Guidelines provide that the head (here

the Dean) should develop a list of referees as early as possible so as not to delay departmental

consideration (2.2.4). Heads and departments are encouraged to have reports and

recommendations to the Dean by November to allow for the Faculty Advisory Committee to

meet in January and February (2.2.5). Deans are encouraged to send their recommendations

by the end of March to allow the President to receive recommendations and make a decision

well in advance of July 1 (2.2.6).

1.

Meeting with the Head (Dean)

[48] The process begins with the head’s meeting with the candidate (Guidelines 2.2.2). This

occurs by June 30 the year before the assessment is made (CA art. 5.02(a)). The purpose of

this meeting is to identify any potential difficulties with the candidature, assist the candidate

with any concerns, and to discuss:

·

the timing of the next review,

the criteria and expectations of the next review, including how teaching, scholarly

activity and service will be assessed,

the candidate’s record including their successes, any potential difficulties and how

concerns may be addressed, and

where relevant, the information and documents required for the review to proceed

(art. 5.02(b)).

[49] According to the Guidelines (4.1.1), the purposes of the meeting include:

· review criteria and expectations for reappointment, promotion and tenure,

· identify areas of scholarly activity (i.e., traditional publications, scholarship of teaching

and/or professional contributions) that will be assessed and how those areas will be

assessed,

· identify if case will be considered under more than one area of scholarly activity (i.e. a

hybrid or blended case) and what type of evidence of scholarship will be sent to

referees. For example, a case may have elements of both traditional scholarship and

professional contributions,

· identify strengths as well as those areas requiring improvement or presenting potential

difficulties,

· >assist the candidate with any concerns,

· when a review is pending, advise the candidate that it is his or her responsibility to

provide an up-to-date curriculum vitae and other relevant information to the head,

prior to a date set by the head, provided that this date is no earlier than September 1 of

the year in which the case is being considered.

[50] It is the candidate’s responsibility to provide an up-to-date curriculum vitae ("CV")

and other relevant information to the head before the meeting (art. 5.02(a)). The Guidelines

confirm that the candidate must supply the necessary documentation by a date set by the head

(2.2.3).

[51] After the meeting, the head must prepare a memorandum agreed to by the candidate

which records the matters discussed (though they may not agree on the evaluations or advice

provided (art. 5.02(d) and Guidelines 4.1.3)).

2.

The Candidate’s File

[52] It is the candidate’s responsibility to provide the file to be reviewed by September 15

(or other date the head agrees to) (art. 5.03(a)). Until the President’s decision, the candidate

or university has the right to supplement the file with new, unsolicited information or a

response to particular concerns that emerge in the documentation (art. 5.03(b)). The

Guidelines provide that new solicited information should only be material that has been

obtained following required or other recognized procedures (4.5.1).

[53] The Guidelines provide that the CV and Publications record should be in the UBC

format but may be adapted (4.2.1), and must be up-to-date and dated (4.2.2). Addendums can

be added, but it should be made clear at what stage of review the information was added.

Updates should provide only new or revised information with the effective date, rather than a

full revised CV. Addendums should be sent to the head if the review is at the departmental

level or otherwise to the Dean (4.2.2; 4.5.2). Further, the head or Dean will review the

supplemental information to ensure it is appropriate to add to the file and, if it is not, should

return it to the candidate with reasons (4.5.3).

3.

Consultation and Referees

[54] Article 5.04 deals with departmental consultation. With respect to referees, the head

must solicit letters of reference from four external referees on the quality and significance of

the scholarly (including professional, and/or creative) achievements of the candidate (art.

5.05(a); Guidelines 4.4.1, 4.4.5). At least two of the referees shall be taken from a list of names

supplied by the candidate (art. 5.05(b); Guidelines 4.4.3–4.4.4).

[55] The Guidelines also provide:

4.4.2 External referees should be at arm’s length; that is, persons whose

impartiality cannot be doubted. They may not include such categories as relatives,

close personal friends, clients, current or former colleagues, former thesis advisers,

research supervisors, and normally should not include grant co-holders or co-authors.

They can include such categories such as former instructors who were not supervisors

or professional committee members.

[56] The candidate is not to be informed of the names of the referees from whom

letters are solicited (4.4.6).

4.

Departmental Standing Committee (Faculty Committee)

[57] Article 5.06 deals with the meetings of the departmental Standing Committee which

makes a recommendation (by majority) about the candidacy (art. 5.06(g)). In this case, the

departmental Standing Committee is the Faculty Committee. The head chairs this committee

but does not vote (art. 5.06(d)). The committee normally only considers material obtained

following required or other recognized procedures; it will not normally consider material

solicited by the candidate and unsolicited material. If it does consider such material and that

material does not support the candidate, its contents must be revealed to the candidate who

gets a reasonable opportunity to rebut or explain the contents (art. 5.06(e)).

[58] If serious concerns about the candidacy arise in the departmental standing committee,

the head shall inform the candidate of that fact and provide reasons for the concerns with

enough detail to allow the candidate to have a meaningful opportunity to respond either orally

or in writing, at the option of the committee, and to introduce further relevant evidence. The

committee selects a member to prepare a summary of the referees’ opinions (which does not

identify the referees) to be provided to the candidate (art. 5.06(f)).

[59] The Guidelines provide that the head must provide a summary of the discussion and a

summary or copies of the external letters of reference (modified to protect confidentiality and

identity), and the candidate must be given the opportunity to respond in writing and to

introduce further relevant evidence before the vote is taken (4.6.1). The head must also inform

the candidate in writing of the recommendations being forwarded to the Dean (4.6.2) and the

reasons for a negative recommendation including the areas in which the candidate is deemed

to have failed to satisfy the applicable criteria (4.6.3). The reasons may be provided by way of

a copy of the letter of recommendation forwarded to the Dean (modified to protect

confidentiality and the identity of referees). The candidate should be invited to make a timely

response to the Dean which will be added to the file (4.6.4).

5.

Dean’s Recommendation to the President

[60] The Dean forwards his or her recommendation to the President together with

recommendations received from the department (art. 5.11(a)). At the same time, the Dean

informs the candidate in writing of his or her recommendation (art. 5.12(a); Guideline 4.7.1).

In some circumstances the Dean must provide reasons to the candidate:

If the recommendation of the Dean is negative, in opposition to the recommendation of the

head or the departmental standing committee, or for reasons not raised by the head or the

departmental standing committee, the Dean shall provide detailed and specific reasons in

writing to the candidate including the respect in which he or she is deemed to have failed to

satisfy the applicable criteria. (art. 5.12(b); Guideline 4.7.2)

[61] This may be done by giving the candidate a copy of the Dean’s letter of

recommendation to the President (art. 5.12(c); Guideline 4.7.3).

[62] The candidate is asked to make a timely written response, which is added to the file

(art. 5.12(d); Guideline 4.7.3).

6.

Review by the SAC

[63] The SAC reviews the recommendations to the President (art. 5.14(a)). The President

may request a further review of a case by the Dean (art. 5.14(b)). Article 5.14(e) describes the

mandate of those who make recommendations to the President and the factors the President

will consider:

Given that the University strives to foster excellence in teaching, scholarly activity and

service, the mandate of all involved in a reappointment, tenure and/or promotion

review is to make recommendations which ultimately advise the President on

individual cases, in accordance with:

i.

the provisions of this Agreement;

ii.

concepts of procedural fairness in the University context;

iii. consideration of appropriate standards of excellence across and within faculties

and disciplines.

In addition to considering the merits of the candidate’s teaching, scholarly activity and

service, the President will also consider all relevant contextual factors.

[64] The Guidelines provide that the SAC will judge the candidate’s file on its merits, in the

context of its mandate to examine the candidate’s achievements with regard to teaching,

research, and service to the University, to the disciple [sic], and to the broader community

(9.3.1). Further:

9.3.2 Such deliberations will incorporate a consideration of general criteria of

scholarship and scholarly and teaching excellence, particularly as these are identified

and defined by the external referees, in prior reviews by the department and Faculty

Committee, and by the Dean of the Faculty as set out in his/her letter of

recommendation and his/her presentation(s) to SAC during its meetings.

9.3.3 In evaluating a candidate’s scholarship and teaching contributions, SAC will

accept and consider comparative information on the relative merits of the candidate’s

achievements within the disciplinary background of the candidate.

9.3.4 In its consideration, SAC will assess the information contained in each

candidate’s file in terms of the impartiality of prior judgments, particularly in terms of

its obligation to ensure that criteria of fairness have been employed and that the rights

of the candidate to fair and equitable treatment have been maintained.

7.

The President’s Decision

[65] The President informs the candidate in writing of the decision on whether or not a

recommendation is to be forwarded to the Board of Governors (art. 5.15(a); Guidelines 4.8.1,

10.1). If the recommendation is negative, the President shall provide detailed and specific

reasons in writing to the candidate, including the respects in which he or she is deemed to

have failed to satisfy the applicable criteria (art. 5.15(c); Guidelines 4.8.2, 10.2).

8.

Arbitration

[66] The President’s decision to deny reappointment, tenure, or promotion may be subject

to arbitration (art. 5.16(a)). The Faculty Association may appeal (Guideline 10.4). Upon notice

of appeal, the University provides to the Faculty Association a copy of the candidate’s file

reviewed by the President, subject to provisions regarding confidentiality and protecting the

identity of referees (art. 5.16(b); Guideline 10.5).

III.

MS. MCCUE’S TENURE AND PROMOTION PROCESS

[67] In this portion of the decision I set out a summary of the chronology of the events and

those portions of that evidence I consider essential to this decision. It will also constitute my

findings respecting certain essential facts.

[68] Where it has been necessary for me to decide what evidence to accept, I have applied

the factors set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951

252 (BC CA), [1952] 2 D.L.R. 354 at p. 357 (B.C.C.A.), as fleshed out more recently by Van

Hartevelt v. Grewal, 2012 BCSC 658, paras. 30–35, and Bradshaw v. Stenner, 2010 BCSC

1398 (), 2012 BCCA 296.

[69] The list of factors which may be considered in assessing credibility is extensive. From

that list, the factors which were up of particular assistance to me were:

a.

b.

c.

d.

powers of recollection;

whether the testimony harmonizes with independent evidence;

how the evidence fits into the general picture revealed on a consideration of the

whole of the case; and

whether evidence was in "harmony with the preponderance of the probabilities which are

practical and an informed person would readily recognize as reasonable in that place and in

those conditions": Faryna v. Chorny.

[70] Ms. McCue is Dene, a First Nations language group, and holds the position of

hereditary chief. She is a member of the Ned‘u’ten First Nation.

[71] Ms. McCue was hired in the Faculty of Law initially in 1998 and went on tenure track

as an assistant professor and Director of First Nations Legal Studies ("FLNS") effective July 1,

2000, for a three-year term. She was eligible to be considered for promotion and tenure in her

seventh year — the academic year 2006/07.

[72] As Director of FNLS, she was charged with developing the law faculty program beyond

the existing curriculum in the Indigenous law field.

[73] Ms. McCue performed productive work in that role, notably in creating the concept of

the Centre for International Indigenous Legal Studies ("CIILS"). The CIILS Project Needs

Assessment was a two year project during which Ms. McCue visited eight First Nations

communities, considering needs of First Nations when coming into relationship with the law.

[74] During this period, Ms. McCue applied for maternity leave for her second child. Ms.

McCue sought and was granted a "pre-tenure extension" of one year. The effect of this was to

postpone her promotion and tenure candidacy academic year to 2007/08.

[75] Dean Bobinski succeeded Dean Blom, QC as Dean of the law faculty on July 1, 2003.

Early in the 2003/04 year, Dean Bobinski assigned professors Claire Young and Wes Pue to

mentor Ms. McCue.

A.

2004 Reappointment to a Second Three-Year Term

1.

April 26, 2004, Letter from Dean Bobinski

[76] In a letter dated April 26, 2004, Dean Bobinski wrote to Ms. McCue advising that she

was prepared to recommend Ms. McCue for a reappointment to a second three-year term as

an assistant professor. However, that letter expressed concern that Ms. McCue had not yet

begun to publish original, peer-reviewed contributions to the legal scholarship at the expected

rate. It set out that contributions to scholarship necessarily involve a combination of quality

and significance, and that the law faculty would expect to see five to six peer-reviewed,

significant publications by the time Ms. McCue sought tenure.

[77] The letter identified that, under the CA, scholarly activity, teaching, and service would

be the focal point of the tenure process. It identified that candidates for appointment,

reappointment, tenure or promotion are judged principally on performance in both teaching

and scholarly activity. It identified that service to the UBC and the community are also

considered important.

[78] The letter identified that art. 4.03 of the CA provides that "judgment of scholarly

activity is based mainly on the quality and significance of an individual’s contributions". The

letter further pointed out that scholarly activity is defined as "research of quality and

significance" the results of which are disseminated.

[79] In the April 26, 2004, letter, the Dean informed Ms. McCue that, due to the concern

respecting her rate of publication, she was being completely removed from any administrative

responsibilities for the FNLS program effective immediately, and that her teaching load for the

scholastic year 2004/05 was being significantly reduced so that she would teach no courses in

the fall of 2004 and only one course in the spring of 2005. Normally, she would teach two

courses in each term. The Dean also described the mentoring program in place for Ms. McCue

at that time and encouraged Ms. McCue to continue working with Associate Dean Wes Pue. All

of this was put in place "in order to assist you with respect to the work that you need to do to

attain tenure and promotion, in particular, the scholarly publications that must be produced

in order to meet the University standard for the granting of tenure and promotion".

[80] Ms. McCue’s master’s thesis and an "Afterword" book chapter were acknowledged by

the Dean to demonstrate potential for scholarly contribution.

[81] Ms. McCue testified that she understood that the CA could be interpreted more broadly

than the letter suggested. She did not challenge the letter however.

2.

2004/05 and 2005/06 Property Law Course

[82] After her reappointment in 2004, Ms. McCue began teaching a first-year Property

course in the spring of the 2004/05 year. She began introducing more First Nations content

into the curriculum and encouraged others teaching the course to do the same. She had never

taught the subject before but again taught the course in the 2005/06 academic year. Towards

the end of the course in the 2005/06 year, certain students were obstructing her class. They

formed a social media site dedicated to opposing her teaching. The issue was the Aboriginal

content of the Property Law course. She found the events very traumatizing. The matter was

investigated with ambiguous conclusions but a statement that "based on the information

received during our inquiry, we find that there is sufficient subtle or indirect evidence to

support the conclusion that there was discrimination arising from the conduct of at least some

of the students in the class".

3.

January 31, 2006, Letter from Dean Bobinski

[83] Ms. McCue met with Associate Dean Claire Young on April 26, 2005, and with

Associate Dean Wes Pue on December 13, 2005. In a letter dated January 31, 2006, Dean

Bobinski wrote to Ms. McCue, indicating that those meetings were part of ongoing discussions

regarding expectations for continued reappointment and consideration for tenure. The letter

said Ms. McCue had advised Professor Young that she would forward her a draft of a a major

scholarly project by May 3, 2005 and complete her draft after a consultation process

scheduled for July.

[84] In the letter, the Dean said she had re-emphasized the need for Ms. McCue focus to her

efforts on publishing the scholarly work necessary for continued reappointment and

consideration for tenure and promotion. Dean Bobinski said she told Ms. McCue that she

would need to submit three substantial pieces for publication by the end of the 2005/06

academic year in order to establish a proper basis for the reappointment’s review process in

2006/07 and to ensure that the pieces were published well in advance of the tenure review

process. Ms. McCue would be expected to submit two to three additional pieces early enough

in the 2006/07 year to be published by the date of the tenure and promotion review process.

[85] The Dean’s letter confirmed a discussion requiring Ms. McCue to:

1.

focus on significant, substantial peer-reviewed or equivalent law review/journal

articles rather than book chapters

2. keep other activity, such as conferences, to a minimum, unless there is a direct

connection between the conference and the opportunity for an immediate peer-

reviewed or equivalent publication;

3. continue to work closely with your colleagues and mentors on drafts for publication;

and

4. start to identify to work with specific potential publishers due to the long timelines

associated with the peer-review process.

[86] The letter said that the meeting involving Associate Dean Pue addressed the fact that

Ms. McCue had not completed her scholarly projects on the timeline discussed in April. The

letter said that Ms. McCue had indicated she might be in a position to submit an article for

possible publication by January 2006. There was a recognition of issues Ms. McCue had felt

had impeded her productivity including a family tragedy and the ongoing sense of loss and

anger because of the reduction in her administrative duties. The letter indicated that Ms.

McCue had advised she did not feel as comfortable with formal mentoring by professors Pue

and Young as she felt with more informal arrangements. It noted that Ms. McCue advised that

she felt able to move forward with her work because of the recognition that her engagement in

scholarship would be personally fulfilling and that it would provide the foundation for her to

remain in academia. It concluded by stating:

I hope that you have enjoyed a productive period for your research and scholarship since our

last meeting. Please let me know about your progress with submitting draft articles for

publication as well as about any acceptances for publication. As you know, I am very

concerned about whether or not you will be able to produce scholarly publications at the rate

necessary to provide a basis for the reappointment process in 2006–07. The reappointment

process is a very significant pre-condition to any possible consideration for tenure in

2007–2008.

My colleagues and I remain ready to work with you to help you to achieve your scholarly

promise and potential. At this point, my understanding is that you would prefer to pursue

informal mentoring for your research and scholarship. You have not identified any other

specific support you might need to accomplish your scholarly objectives. I want to encourage

you to let me know about any barriers to your scholarly work and to request support for your

research and scholarship.

4.

July 31, 2006, Extension of Reappointment Review

[87] On July 31, 2006, Ms. McCue sought and received a further extension for one year of

her reappointment review scheduled for 2006. The extension also pushed her promotion and

tenure application date to 2005/09.

5.

January 2008 Letter from Dean Bobinski and Reply from Ms. McCue

[88] On January 14, 2008, Dean Bobinski wrote another letter to Ms. McCue regarding her

review for reappointment and following up on communications in the summer and fall of

2007. The letter said that Dean Bobinski remained concerned that Ms. McCue had "not yet

begun to publish original, peer-reviewed contributions to the legal scholarship at the expected

rate". The letter repeated the expectation of five to six peer-reviewed, significant publications

prior to seeking tenure in 2008/09. It stated that Dean Bobinski had expressed concern that

Ms. McCue had not met her expressed goals with respect to the publication. It indicated that

Ms. McCue expressed the view that she would be able to publish a number of pieces in the

near future.

[89] The letter also confirmed that the Faculty’s review of teaching would not include Ms.

McCue’s teaching evaluations from the Property class of 2005/06. It reminded Ms. McCue

that she had the right, up to the President’s decision, to supplement her reappointment file.

[90] Ms. McCue said she refused to sign the letter because she disagreed with its contents.

She said that she still did not believe that she had to do peer-reviewed publication. She

believed the CA provided for other forms of publication, but she did not say this to Dean

Bobinski or any other member of the administration.

[91] On January 29, 2008, Ms. McCue replied to Dean Bobinski’s letter. She raised

concerns that her ongoing health issues were not addressed. She sought clarification on

whether the Faculty Committee could review non-peer-reviewed contributions as well as peer-

reviewed publications during the reappointment process. No indication is given of any issue

with publishing peer-reviewed pieces. She expressed concerns that her teaching, which was

not a problem prior to the January 14, 2008, letter, was raised as a concern for the

reappointment process. While acknowledging her 2005/06 teaching evaluations would not be

considered, she questioned whether all of her teaching evaluations for the Property Law

course should be excluded due to concerns that she was teaching in an environment "that can

be hostile/become hostile because of my ancestry/gender, and not my teaching style".

6.

April 2008 Extension

[92] Ms. McCue requested a further one-year extension due to stress arising from the

investigation into student conduct in her Property class during 2005/06. Dean Bobinski

supported her application, which was granted on April 18, 2008. The one-year extension of

the tenure clock meant that, rather than her current appointment terminating on June 30,

2008, it was extended to June 30, 2009. Accordingly, in the 2008/09 year, she would be

reviewed for reappointment and her review for tenure would take place in 2009/10.

7.

November 2008 Letter from Dean Bobinski

[93] In a letter dated November 16, 2008, Dean Bobinski acknowledged the extension of

Ms. McCue’s tenure clock. The letter emphasized that Dean Bobinski has expressed a concern

that Ms. McCue has not met her previous goals with respect to publication of peer-reviewed

contributions to legal scholarship. Further:

You have consistently expressed the view that you would be able to publish a number

of pieces in the new future. However, as we have discussed, scholarly productivity is

established in part by sustained scholarly work rather than solely by the number of

publications in process at the time of your review of reappointment or tenure.

[94] The letter confirmed that the investigation report respecting the Property Law class

evaluations from 2005/06, in redacted form, would be made available to the Faculty

Committee dealing with reappointment. It confirmed Dean Bobinski’s understanding that Ms.

McCue would be working with professors Christie and Mickelson to develop the materials that

would be used for the reappointment review. It again confirmed Ms. McCue’s right to

supplement her file up to the President’s decision.

8.

December 2008/January 2009 Letter from Dean Bobinski and Reply from

Ms. McCue

[95] On December 15, 2008, Dean Bobinski again wrote to Ms. McCue about her review for

reappointment. Professor Bobinski said that the letter was intended to serve as the

memorandum recording her discussions with Ms. McCue in the summer and fall of 2008

regarding her candidature. The letter said that the reappointment decision would be based in

part on a consideration of Ms. McCue’s progress in meeting the Faculty’s and University’s

standards with respect to scholarly productivity. The letter repeated the concern that Ms.

McCue had not yet begun to publish original peer-reviewed contributions to the legal

scholarship at the expected rate. It repeated the expectation of five to six peer-reviewed,

significant publications. The letter also advised Ms. McCue that publishing a book or

monograph would be relevant to a tenure review but, if it is to demonstrate scholarly

productivity and progression, it would have to represent significant changes or advances from

the work that formed the basis of Ms. McCue’s initial appointment (i.e. her thesis). Again, the

letter pointed out:

You have consistently expressed the view that you would be able to publish a number

of pieces in the near future. However, as we have discussed, scholarly productivity is

established in part by sustained scholarly work rather than solely by the number of

publications in process at the time of your review for reappointment or tenure.

[96] Ms. McCue responded on January 22, 2009. She confirmed that she had signed the

December letter to indicate that the matters contained therein are ones that were discussed.

She thanked Dean Bobinski for outlining her opinion regarding the number and type of

publications typically expected for promotion and tenure, but did not indicate that she

considered it inappropriate to expect her to meet the scholarship standards set out in

Professor Bobinski’s letter or that she was incapable of or unwilling to meet those standards.

Ms. McCue raised the fact that she had received a project research grant and reported on the

status of that project. She indicated that she had completed an article regarding R. v. Kapp,

2008 SCC 41 (), [2008] 2 S.C.R. 483 ("Kapp’s Distinctions"), had provided a joint

Faculty talk on the case, and was expanding the article to submit to a law journal. She

indicated that she was working on a book chapter and that she hoped to complete a co-

authored case comment on another decision. She further updated her service and commented

on how the investigation report of the 2005/06 Property Law evaluations would be handled.

B.

2009 Reappointment to a One-Year Term

[97] I find that Ms. McCue requested consideration of non-peer-reviewed publications as

scholarly activity in her 2009 application for reappointment for the 2009/10 academic year.

[98] Ms. McCue’s reappointment was confirmed for the 2009/10 calendar year. Under the

CA, Ms. McCue’s review for tenure had to occur in this year.

[99] In a letter of April 22, 2009, Dean Bobinski confirmed that Ms. McCue was

recommended for reappointment for 2009/10. The letter repeated the concerns about the lack

of evidence of scholarship and the reassurances that Ms. McCue has provided to Dean

Bobinski about being able to publish. It also pointed out that student evaluations (excluding

2005/06) were a concern.

C.

2009/10 Ms. McCue’s Promotion and Tenure Application

1.

Requirement of the Collective Agreement

[100] As set out above, the collective agreement requires that the candidacy of an applicant

for promotion and tenure must be launched in the seventh year of eligibility. In Ms. McCue’s

case, that is 2009/10. Ms. McCue challenges that her final year was 2009/10 by asserting that

Dean Blom, QC assured her teaching relief for one calendar year whether or not she remained

Director of the FLNS. I note that on each of the three extensions to her tenure calendar, Ms.

McCue was informed that her candidacy was extended one year. At no time prior to her

testimony in this proceeding did she assert that the alleged Blom agreement should have

affected her tenure calendar. Ms. McCue was cross-examined on that issue and therefore knew

that UBC did not accept that evidence. She did not call, Professor Blom, QC (as he now is) to

corroborate her statement. I do not accept her evidence because her contemporaneous actions

were not consistent with it. I find that Ms. McCue’s candidacy was to be considered in

2009/10 as a result of the extensions granted her.

2.

July 30, 2009, Letter from Dean Bobinski

[101] On July 30, 2009, Dean Bobinski sent Ms. McCue another letter respecting Ms.

McCue’s progress towards meeting the standards required for tenure and promotion. It was

similar in content to the December 15, 2008, letter.

3.

The Parties’ Understanding of Ms. McCue’s Application at this Stage

[102] I find that UBC’s understanding of Ms. McCue’s application for tenure and promotion

is reflected in the Dean’s correspondence. It expressed grave concerns given that, as at July

30, 2009, Ms. McCue had not publish[ed] peer-reviewed works despite repeatedly indicating

she would do so. Similar letters were provided by Dean Bobinski on January 31, 2006,

January 14, 2008, December 15, 2008, April 22, 2009, and July 30, 2009. Each of those

letters represented summaries by the Dean of discussions held directly with Ms. McCue with

the exception of the April 22, 2009, letter which set out the Dean’s decision with respect to

Ms. McCue’s reappointment as an assistant professor for the 2009/10 academic year.

[103] The letters were consistent in identifying that Ms. McCue had, in each of the direct

communications with the Dean, identified that she was in the process of publication and

would produce appropriate product in the future. The letters became more pointed,

identifying that publication must take place over time and that Ms. McCue could not expect to

rely on a flurry of publication as her candidacy date approached.

[104] The January 31, 2006 letter required Ms. McCue to focus on significant, peer-

reviewed or equivalent journal articles rather than book chapters and keep conferences and

other such activity to a minimum in order to concentrate on publication.

[105] I find that UBC consistently informed Ms. McCue of their expectations with respect to

scholarly activity, teaching and service over the period from 2004 through 2009.

[106] The evidence reveals that Ms. McCue did not state, in her responses to Dean

Bobinski’s letters, that because of her Indigeneity, she should not be required to publish peer-

reviewed articles and that she required an alternate metric. Nor did she state that to any other

faculty member at UBC. Rather she told Dean Bobinski that she was working on articles for

publication and would be publishing them. In particular, Ms. McCue did not articulate

concerns about UBC’s application of the CA standard respecting scholarly activity, nor did she

request an alternate approach. She did not sign the January 14, 2008 letter and considered

that action to highlight her disagreement with the Dean’s comments. It must be understood,

however, that the letter merely documented discussions between the Dean and Ms. McCue

during the summer/fall of 2007. Subsequent similar letters from the Dean were signed by Ms.

McCue.

[107] In contrast to UBC’s understanding, Ms. McCue testified that she did not understand

that she was not going to make it. She said she had just got reappointed so her work must have

counted. She characterized the letters as setting out Dean Bobinski’s view or opinion, and said

she registered the Dean’s concerns but did not do anything to address them. In her letter of

January 22, 2009, she had thanked Dean Bobinski for "outlining [her] opinion regarding the

number and type of publications typically expected for promotion and tenure". However, I

accept that the Dean did not perceive that comment as a challenge to the standard by which

Ms. McCue would be assessed. While it appears that Ms. McCue chose to give little weight to

the views expressed by the Dean, the fact that she did not expressly object to the stated metric

meant that she commenced her promotion and tenure process with UBC understanding she

was on a traditional scholarship track. Ms. McCue’s testimony on these points is difficult to

reconcile with the clear messages sent by Dean Bobinski.

[108] In this regard, I address an inconsistency in the evidence between Ms. McCue and

Professor Bobinski. Ms. McCue testified that in June of 2009 she had a conversation with

Dean Bobinski in which she asked whether the Dean was sure that her file would not be

considered on a traditional scholarship-only basis. She testified that Dean Bobinski had

responded, "Yes June — your file is being treated as a professional case". She testified that to

her that meant that she was not on a traditional scholar track, that the Faculty would also be

looking at her non-traditional contributions. Professor Bobinski denied that any such meeting

occurred. I find that it is more likely than not that this discussion did not occur.

[109] To that point none of the written documentation supports that Ms. McCue was

seeking assessment on a multi-track basis. Rather, the documentary evidence at that time

reveals the expectations of Dean Bobinski still centered on traditional scholarship.

Correspondence from the Dean to Ms. McCue on July 30, 2009, documented their discussions

and email correspondence during the summer of 2009 regarding Ms. McCue’s review for

tenure and promotion and did not include a reference to professional contributions. Ms.

McCue in a letter of May 4, 2010, to the Dean stated:

I have never agreed to any form of scholarly activity that you have raised nor have we

had a discussion about which track of scholarly activity my file is to be assessed.

[110] In a letter of May 20, 2010, Dean Bobinski wrote to Ms. McCue that she understood

that Ms. McCue and Professor Elliot had agreed in January 2010 that her application for

promotion and tenure would be considered both in terms of traditional scholarship activity

and professional scholarly activity. Professor Elliot’s notes of January 5, 2010 show that the

idea of professional contributions originated from his discussion with Dean Bobinski on

January 5, 2010. Given that there was no resistance from UBC to Ms. McCue being assessed

on multi-tracks, I am satisfied that Dean Bobinski would have put any such agreement into

writing as she later did in 2010. In any event, the date of this agreement does not affect the

outcome of Ms. McCue’s complaint. If she had understood in the summer of 2009, as she says

she did, that her contributions would be assessed also on the basis of professional

contributions, this would have resulted in more time to put together her CV supporting this

scholarly work.

4.

Preparation of Ms. McCue’s File

[111] Ms. McCue said that, in the fall of 2009, the process was underway to prepare a

dossier of documents for review by external referees. Initially Professor Young worked with

Ms. McCue on assembling that file as chair of the Promotion and Tenure Faculty Committee.

Professor Young was then replaced by Professor Elliot who then assisted Ms. McCue to

assemble her CV and dossier. The process however, was heavily delayed due entirely to Ms.

McCue’s failure to prepare the dossier in good time so she could be assisted with it by

Professor Elliot. Professor Elliot made it clear that he struggled to help Ms. McCue assemble a

dossier which would support her candidacy. His evidence, which is not disputed, is that Ms.

McCue promised delivery of the materials for her dossier on several occasions and failed to

deliver such that the package for external referees did not go to them until January 2015,

months after they should have gone out. I note that this pattern of delay, while Ms. McCue

bolstered her file, continued into late spring such that the Faculty Committee meeting with

Ms. McCue did not occur until June 9, 2010, rather than when it was intended to occur in

March/April 2010.

[112] Ms. McCue testified that she learned about the scholarship of teaching track when

preparing her dossier. She said that she told Professor Elliot that she had examples of

scholarship of teaching that she wanted to include in her CV but he refused to include any

evidence of scholarship of teaching. Professor Elliot testified that he and Ms. McCue did not

discuss scholarship of teaching. In cross-examining Professor Elliot, Ms. McCue suggested it

was Professor Christie who had told her this. I find it is more likely than not that Ms. McCue

and Professor Elliot did not discuss scholarship of teaching.

[113] The original CV of Ms. McCue was comprised of only 10 pages in total. I accept

Professor Elliot’s evidence that he was surprised and troubled by the thinness of Ms. McCue’s

CV which he had received near the end of December 2009. He met with Dean Bobinski on

January 5, 2010, and they discussed two reports that could be treated as professional

contributions. Dean Bobinski also recalled discussing with Professor Elliot whether they could

use some of the materials that had been provided to support a professional contributions

approach to scholarship in addition to traditional scholarship track approach. On January 6,

2010, Professor Elliot and Ms. McCue met. Thereafter, she revised her CV and it went out to

the referees and Faculty Committee on January 15, 2010.

[114] Ms. McCue’s January 15, 2010, CV consisted of 10 pages and did not reflect all of her

work. She testified she had many other examples of professional contribution but they were

not included in her dossier because she understood she was only to put in 2009 content. She

said that professors Shepherd and Christie had recommended putting her 2009 research

contributions into the CV and that she had interpreted that as only her 2009 contributions.

She said that Dr. Young also looked at her CV and that nobody mentored her that she needed

to have her whole tenure cycle in her CV dating back to 2000.

[115] I do not accept that Ms. McCue was told that she should include only her 2009

contributions or that she was told anything that would have led her to believe this. I agree with

Professor Elliot’s testimony that it would have been absurd for anyone to make this

suggestion. Further, it is clear that Ms. McCue’s dossier was not restricted to 2009

contributions. The January 2010 CV lists conferences in most years preceding 2009, and other

events between 2001 and 2008. The publications include works from 2003, 2005, 2007 and

2008 as well as 2009.

[116] Ms. McCue introduced into evidence six documents which she testified were the

publications included in the dossier assembled for the external referees:

a. Towards Recognition of our Inherent Rights as Indigenous Peoples" (39 pp.,

published in 2009),

b. Gratitude and Inspiration: An Honour Song for the Haundenosaunee" (11 pp.,

published in 2009),

c. Kapp’s Distinctions: Race-Based Fisheries, the Limits of Affirmative Action for

Aboriginal Peoples and Skirting Aboriginal Peoples’ Unique Constitutional Status

Once Again" (7 pp., published in 2008),

d. Calls to Reclaim Our Circles, Treaty-Making from an Indigenous Perspective:

Ned’u’ten-Canadian Treaty Model" (2 pp., published in 2005),

e. After-Word: Reflections/Possibilities, Box of Treasures or Empty Box?" (13 pp.,

published in 2003),

f.

New Modalities of Sovereignty: An Indigenous Perspective" (10 pp., published in

2007).

[117] Ms. McCue also testified that the external referees were not instructed to look for

scholarship of teaching criteria. As I have found, at this stage, Ms. McCue’s review was

proceeding on the basis of traditional scholarship and professional contributions, and this is

reflected in the letter to the external referees.

5.

Letters from the External Referees

[118] The first was dated March 8, 2010; it was redacted but Ms. McCue testified that it was

written by an external referee outside the University of British Columbia who was a specialist

in her field. It was one and one-third pages in length and describes Ms. McCue as "one of the

leading authorities on Canadian First Nations law and policy and Indigenous peoples’ human

rights in North America", a "rising star" with great potential as a teacher and scholar in the

field of Indigenous human rights and policy and Canadian First Nations law, "a respected

authority on Canadian First Nations law and particularly treaty rights and government

negotiating mandates in B.C." The six publications that she presented led this external

reviewer to say:

Reading those works reminded me of their clarity, incisiveness, and keen insight into

the intersections of Native knowledge, rapidly evolving Indigenous human rights

norms, and contemporary Canadian constitutional law discourse. For instance, I find

her pieces on ‘Kapp’s Distinctions’ and ‘New Modalities of Sovereignty’ to be highly

engaging works, and also important contributions to the legal literature on Indigenous

rights under Canadian domestic law. What Professor McCue does so well is to

combine her own unique perspectives as a Native scholar and traditional Ned’u’ten

chief with a firm analytical understanding of Canadian jurisprudence on Indigenous

rights and reveal the gaps and incommensurability between the two perspectives, and

then offer valuable insights and responses to bridging those gaps. In these and her

other works, she truly emerges as an intellectual leader of Canadian Native legal

scholarship, and I can say with confidence that her works will be read by the next

generation of Native law scholars in Canada as pioneering studies and some of the

best legal scholarship produced over the past decade on the intersection between

traditional and Native knowledge and Canadian law.

[119] That external reviewer considered Ms. McCue to be a "very strong candidate for

promotion to the rank of Associate Professor and tenure".

[120] The second external reviewer’s three-page review commented briefly on each of the

six pieces received and made the following comments:

All four of these pieces offer broad views of Indigenous rights. Professor McCue’s

mission appears to be to encourage us to re-think first principles. In this way, despite

their relative brevity, they are ambitious. None is particularly analytical, which makes

comparison with other scholars difficult. That said, one should not discount their

importance. It is easy to work within an existing framework. It is harder to envision

and advocate something entirely different.

The second book chapter is more analytical in focus. In "Kapp’s distinction", Professor

McCue argues that the judiciary, in upholding Indigenous fishing rights as lawful race-

based affirmative action, missed an opportunity to ground Aboriginal rights into

distinct status. Her argument is well-reasoned and, I think, both important and

correct. The characterization of legislation affecting Indigenous peoples as race or

status based has been much discussed in U.S. legal literature and case law, and I

suppose if I had one criticism it would be that Professor McCue did not avail herself of

this literature in formulating her argument.

The commissioned professional paper, "Towards Recognition of Our Inherent Rights

as Indigenous Peoples", was co-authored with three other lawyers. Professor McCue’s

self-identified contributions further and make more precise her thoughts on the

11importance of decolonization and apply them in a specific context. Given this

context, I think it clearly qualifies as relevant to tenure. Here as in earlier work

Professor McCue returns to the UN Declaration on the Rights of Indigenous Peoples

and argues its relevance in the defining of Indigenous rights in Canada. Professor

McCue submitted the piece to "demonstrate [her] work in the larger Indigenous legal

and political community", and she accomplishes that goal.

…

Professor McCue’s work indicates a commitment very likely to result in even greater

scholarly output in the years to come. The selections I reviewed indicate one direction

that future work might profitably take: toward arguing for decolonizing the language

of Indigenous rights and re-thinking the legal relationship framework in Canada …

[121] This external reviewer recommended Ms. McCue be promoted to Associate Professor

with tenure.

[122] The third external reviewer presented two pages dated March 18, 2010, and had the

following comments:

Professor McCue demonstrates outstanding intellectual insights and knowledge

regarding Aboriginal law that goes beyond the average professor at a similar stage in

their career who primarily specializes in the Aboriginal law field. Not only does she

demonstrate the standard expertise of Aboriginal rights doctrine, she does so from a

broader perspective tied to fundamental principles of human rights and equality. She

knows intimately the current criticisms of existing Aboriginal rights doctrine and how

it is contextualized in a history of colonization that branches out into other fields such

as the social sciences, ethics, politics and technology.

The work that she has completed to date shows a deep understanding of the law

generally, but most impressively in relation to Aboriginal law. This kind of

understanding can only come from someone that has intimately and systematically

interrogated the jurisprudence and literature in the field. That this is the case was not

surprising to me. Although I have not read her work prior to this assessment, I heard

her speak [redacted] at scholarly conferences. [redacted] I heard her speak was during

[redacted] Conference where she spoke of her nation’s traditional legal principles and

how they would be applied to a contemporary dispute. I subsequently relied on her

insights and referenced her presentation in a publication [redacted]. Ever since, I have

anticipated other opportunities to hear her speak. Most recently [redacted] she spoke

on the Indigenous response to the upcoming Olympics in Vancouver. Her

presentation was well balanced in terms of the various perspectives involved and she

identified them in a fair and detached manner, allowing the audience to make up their

own minds of which of the two general approaches regarding the validity of the

Olympics was most compellable.

I also have had the pleasure of [redacted]. She provided a framework based on the

Medicine Wheel philosophy as to how to ensure a complete and harmonious

Aboriginal law curriculum which impressed me greatly.

[123] That external reviewer recommended Professor McCue for promotion and tenure.

[124] The fourth external reviewer presented three pages and stated the following:

… Given this diverse and successful teaching activity, and her role as director of the

First Nations Legal Studies Program until 2004, it is not surprising that she had

negligible publishing activity while she was director. As an advisor to the equivalent

Academic and Cultural Support Services Program at my Faculty for many years, I

understand the significant demands made on the time of those in her position.

However, the scholarly activities between 2004 and the date of this application

continue to fall short of what would normally be expected today for promotion to

Associate Professor at a Canadian law school.

Professor McCue’s participation in domestic conferences in national and international

round tables, panels, workshops and other events on issues of Indigenous rights and

race demonstrates the respect held for her as an academic, individual and Hereditary

11chief … This engagement with the academic and Indigenous community is

commendable and should be taken as evidence of her scholarly activity along with the

Law Foundation of British Columbia grant (although there is no report on the

progress of the funded research which is to be completed July 2010). Particular note

should be taken of the grant because the legal academic culture is recently placing

greater emphasis on securing research funding for publication, student employment,

and graduate students. However, it is unfortunate that little of this activity has

resulted in any publication. Indeed the extent and diversity of engagements combined

with consulting/advising and commissioned work may have had an impact on the

ability to write and publish as expected of an assistant professor — a challenge which

many new academics face, but one which is sometimes particularly demanding for

Indigenous legal academics who are few in number and often have ongoing

obligations to the Indigenous community.

… The current record of publication is well below what would be anticipated for

promotion and in some institutions for tenure. However, if the chapter, case comment

and articles listed in her works in progress are published in the journals and books

anticipated and are of the length anticipated, the record of publication to support an

application for tenure and promotion to Associate Professor would likely be

satisfactory.

In your letter you asked me to speak to the originality and creativity of the candidate’s

work. Professor McCue’s unique perspective is demonstrated in her insightful

comment on R. v. Kapp in which she brings critical race and Indigenous legal theory

into her analysis. I was pleased to see that she continues to bring these perspectives to

her work in progress as there are few Indigenous legal academics who are engaged in

this form of legal critique. Her appreciation of how this impacts practical decision

making is also demonstrated in her numerous invitations and commissioned work (of

which she was one of four authors) on inherent rights and the Recognition and

Reconciliation Act for the All Chiefs Assembly.

[125] That external reviewer recommended that Ms. McCue be granted tenure but that she

not be promoted to the rank of Associate Professor until her level of scholarly activity reaches

that which would be expected of an Associate Professor of law. She stated, "In particular, the

significance, depth and diversity of publication fall short of what is anticipated. If this was not

a mandatory review, I would encourage reapplication for both tenure and promotion at a later

date. However, given Professor McCue’s other important teaching, community service, and

scholarly contributions, I recommend the granting of tenure without promotion if you have

confidence most of the works in progress will result in publication. There is nothing in the

applicant’s record to suggest the contrary".

[126] Ms. McCue pointed out that all of the external referees looked only at her 2009

template and did not see her entire contribution.

6.

March 30, 2010, Shepherds’ Report

[127] The report by professors Christie and Mickelson of March 30, 2010 ("Shepherds’

Report") addressed Ms. McCue’s application for promotion and tenure. While setting out that

Ms. McCue’s publications record did not meet normal expectations for a Faculty member at

this stage of her career, the report indicated that Aboriginal communities tend not to see the

objective of publication in peer-reviewed, refereed journals as pressing and many

communities would like to retain some control over the data or analysis developed in the

course of the research project. It said that because Professor McCue focused much of her

attention on the production of research that is meant to primarily benefit Aboriginal

communities, she may be assessed unfairly within this category and that, "Perhaps the Faculty

of Law might wish to lead the way in pressing this point around scholarly metrics".

[128] The report set out Ms. McCue’s early efforts building up institutional research and

scholarly capacity and pointed to more recent work. It commented on each of the non-refereed

publications. The Shepherds’ Report concluded:

Professor McCue’s low productivity to date, in the conventional sense of peer-

reviewed material, is attributable to some degree to the confluence of administrative,

teaching, and community responsibilities early in her tenure-streamed career,

addressed elsewhere in this document.

[129] Essentially the report presents arguments for viewing scholarship on a wider plane

but takes a very light-handed approach to the topic.

[130] I note that on June 3, 2010, the Shepherds’ Report was amended to outline further

impediments to publication in peer-reviewed journals of university-community research

initiatives in the Indigenous community and in the area of works in progress. The revised

report in my view makes no substantial difference to the thrust of the original report.

7.

April 19, 2010, Letter from Dean Bobinski

[131] In a letter dated April 19, 2010, Dean Bobinski outlined concerns held by eligible

members of the Faculty of Law respecting whether Ms. McCue met the standards for

promotion and tenure. With respect to scholarly activity, the letter stated that Faculty

members expressed concerns about whether and how Ms. McCue met the standards for tenure

or promotion, the lack of refereed or equivalent publications, the overall quality and quantity

of Ms. McCue’s scholarly activities, and Ms. McCue’s apparent lack of progress in completing

and publishing projects listed in her previous reappointment reviews. Faculty members

expressed interest in the external review letters received in connection with her application

but expressed concern about the possible gap between the recommendations in those letters,

the underlying analysis of her scholarly record, and the normal and expected levels of

scholarly productivity within the Faculty.

[132] As a result of those concerns, the letter invited Ms. McCue to review her file, CV and

publications record and to revise those documents if appropriate and submit any other

evidence of scholarly activity and dissemination whether or not through published works, so

the Faculty Committee had access to the broadest possible range of evidence regarding

scholarly activity and engagement permissible under the CA.

[133] The Faculty Committee letter provided Ms. McCue with the opportunity to respond to

their concerns orally, in writing, or by both oral and written submissions.

8.

May 4, 2010, Response from Ms. McCue

[134] On May 4, 2010, Ms. McCue requested that the Faculty Committee meeting scheduled

for May 5, 2010, be postponed. She said that there were serious procedural fairness and

substantive issues regarding her file in that her tenure and promotion process did not comply

with the University’s CA requirements. In particular, Ms. McCue said she had never agreed to

or signed an agreed memorandum in accordance with art. 5.2 of CA. The letter said:

You have yet to ascertain my disagreement in relation to any concerns you have raised

in my tenure and promotion process. This condition of the Collective Agreement had

not been met. I have never agreed to any form of scholarly activity that you have

raised nor have we had a discussion about which track of scholarly activity my file is to

assessed (sic) and thus Guideline 6.2(f) of the Guidelines to Reappointment,

Promotion and Tenure Procedures at UBC (2009–10) has not been met.

[135] I note at this juncture that it is not the Tribunal’s task to determine if UBC complied

with the process set out in the CA.

[136] The letter referred to the tenure and promotion process, starting with a meeting with

Ms. McCue, Associate Dean Claire Young and Ms. McCue in the summer of 2009 through to

the completion of Ms. McCue’s dossier in January 2010, stating that:

At no point during this part of the process did the administration identify any

potential difficulties with my candidacy and to assist with any concerns that I had.

Thus, there is no compliance with art. 5.02 of the Collective Agreement.

[137] Ms. McCue testified that this meant that the administration had not identified any

potential difficulties with her candidacy. This flies in the face of the letters from the Dean over

the period from 2004 and through 2010 outlining serious concerns respecting Ms. McCue’s

candidacy.

[138] Ms. McCue also asked that the Dean remove herself from Ms. McCue’s file based on

"the bias created by your roles as the Dean, head and committee referee and based on the

unreasonable short timeline for responding to your letter of concern from the Faculty

Committee". The letter does not contain a request for an alternate approach based on Ms.

McCue’s Indigeneity. Other than expressing concern about student evaluations in the Property

Law course, the letter made no mention of issues relating to how she was being evaluated.

9.

May 2010 Communications with the Dean

[139] In a letter of May 10, 2010, Dean Bobinski responded that she was not prepared to

stand down because there was no basis for the accusation of bias. 11The Dean also disagreed

that there had been any procedural irregularity and, because it was clear that Ms. McCue was

not ready to proceed, agreed to extend the timelines for Ms. McCue’s submissions from May 5,

2010, to May 17, 2010.

[140] In a letter of May 20, 2010, Dean Bobinski provided a further extension to May 28,

2010, to respond to the letter of concerns. She advised that the UBC Faculty Association had

asked for clarification regarding the basis upon which Ms. McCue’s promotion and tenure file

was to be reviewed. She said, "Based on previous discussions, my understanding is that you

have agreed that your promotion and tenure file will be considered both in terms of traditional

scholarship activity and professional scholarly activity". She said, "in particular, I understand

in your meeting with Professor Robin Elliot on January 6, 2010, this option was discussed and

agreed upon". The letter said that the external referees were asked to review Ms. McCue’s

scholarship activity from both a traditional and a professional contribution perspective.

[141] Ms. McCue disputes that such an agreement was reached on January 6, 2010, saying

first of all that it occurred between she and Dean Bobinski in 2009 and secondly that only the

Dean was capable of making that agreement, that it could not be made by professor Elliot. For

reasons set out above, I accepted the evidence of professors Elliot and Bobinski about their

conversation, recorded in Dean Bobinski’s May 20, 2010, letter.

[142] Ms. McCue testified that she was under stress coming up to May 28. Both she and the

Faculty Association asked to stop the process, but UBC did not agree. She said that, had the

process been stopped as requested, she could have prepared a proper dossier to go back to the

external referees which would allow them to get a full view of her contributions, and this

would also have allowed professors Christie and Mickelson to have a full view of her

contributions.

10.

May/June 2010 Ms. McCue’s Response and CV

[143] On May 28, 2010, for the first time, Ms. McCue identified that she had elected to have

her promotion and tenure file assessed as non-traditional and along multi-tracks that are

appropriate for an Indigenous scholar and teacher. She presented extensive additional written

materials in response to the letters of concern. A major component was a revised CV which

included much new content. The introduction to the CV says that an Indigenous interpretation

of the criteria for promotion and tenure include placing equal weight on teaching, scholarly

and professional activities and service. Among other things, the introduction also draws

attention to Ms. McCue’s Indigenous approaches, and identifies the need to recognize how she

cultivates relations with Indigenous Peoples and nations. It says the CV largely captures Ms.

McCue’s significant work and outstanding contributions to the field. It says that the CV is an

adaption of the tradition of her people, the Ned’u’ten, in that she is recounting for the reader-

listener, the history and current status of her sui generis work at the University.

[144] The CV in the area of scholarship states in part:

The impact of my scholarly and professional work is found with-in multi-tracks such

as teaching of scholarship, professional contributions, and traditional scholarship,

which include Indigenous Knowledge-based scholarship. The hallmarks of my

contributions to the academy are critical analysis, visionary, re-constituting, oral and

written forms of Indigenous based legal advocacy, as well as comparative and legally

pluralistic approaches to the scholarly activities I am invited and asked to undertake.

[145] Under the heading "Scholarship", the CV sets out research or equivalent grants Ms.

McCue had received, invited presentations that she engaged in, and conference participation.

It added a page of publications and other scholarly output and impact containing a variety of

reports and submissions. In the area of professional contributions, Ms. McCue says, as a legal

scholar working within her own Indigenous traditions, she works collaboratively and in ways

which build trust and that this vital work does not fit conveniently into an academic timetable.

She says the University needed to recognize that the timetable cannot be forced.

[146] The CV set out very limited publications. It set out 11 pages of journal articles, 18

pages of briefing notes for conference proceedings, 23 pages of book chapter contributions

and 13 pages respecting contribution to a commissioned paper. In all, on May 28, she

presented 30 additional written documents as evidence of her scholarly output and impact.

Her CV had expanded to 25 pages as opposed to the original 10 pages. The documents fell

under the categories of impact which included such things as promoting the CIILS project at

the United Nations, acting as a witness respecting water commission for A Citizens’ Inquiry on

11Canada-U.S. Relations published by the Council of Canadians, a listing in the Law Society

Benchers’ Bulletin amongst those lawyers who had contributed to the Law Society in 2007, an

outline of a project for the Legal Services Society and other such documentation, CIILS

materials, a UN submission from February 2009, several documents by peers recognizing her

work, and several written oral submissions.

[147] Ms. McCue testified that, given the timeframes provided to her, she was still not able

to provide all of the evidence of her work. In her covering letter of May 28, 2010, she said that

she would provide an addendum that would speak to her oral submissions.

[148] The delays persisted and compounded to the point that on June 8, 2010, Ms. McCue

was still submitting substantial volumes of material to the Faculty Committee in the late

afternoon of the day before her oral and written presentation. On June 8, Ms. McCue provided

a revised CV. It was now a 25-page document. The CV is significantly revamped in terms of its

presentation but makes essentially the same points as the May 28 CV with significant

expansion of the product under each of the headings incorporated into scholarly and

professional activities. It still incorporates no direct request for accommodation on the basis

of Indigeneity but, just as in the May 28 version, the request for an alternate approach can be

discerned by reading the document as a whole.

11.

June 9, 2010, Presentation to the Faculty Committee

[149] Ms. McCue made an oral presentation in support of her application on June 9, 2010.

At this presentation, she articulated her request that the Faculty Committee apply a

framework appropriate to her case as an Indigenous scholar and teacher. I find that this was a

request for accommodation of Ms. McCue’s work as an Indigenous scholar and teacher in

relation to the CA standard for promotion and tenure. That request encompassed a request

that her oral presentations be considered as a scholarly activity and that her professional

contributions and scholarship of teaching be considered as scholarly activity. Ms. McCue also

requested that, in the area of teaching, the investigation and the report of her first-year

Property course 2005/06 be taken into account in considering why she may have received

lower evaluations in the Property course than in her upper year courses in the Indigenous law

area. She also pointed out to the Faculty Committee that she had requested that her candidacy

be restarted but that UBC had denied the request.

[150] Ms. McCue took the position that, although her published materials are not peer-

reviewed articles, her interpretation of the CA is that published work, while primary evidence

of scholarship within the traditional scholarship track, is not the only form of evidence. She

took the position that her articles should count as traditional scholarship. Further, and

perhaps more importantly, she took the position that as an Indigenous person she

disseminates her knowledge publically and orally and that the number of invited

presentations that she had given over her academic career demonstrates that her ideas and

theories and principles have been communicated over diverse audiences.

[151] Ms. McCue pointed to her professional contributions in the revised CV including

working with Indigenous peoples to "bring their voice up to the international level through

submissions … where I have contributed theory to take on Canada’s land policies quite bluntly,

and where from 2006 onward even up to this past February, we have had human rights treaty

bodies call on Canada to account for the treatment of Indigenous peoples and their land

rights". To demonstrate her scholarly impact, she submitted that her professional

contributions, which are seemingly reasonably extensive, should be considered under the

rubric of scholarship of teaching.

[152] Further, with respect to scholarship, Ms. McCue pointed to what she accomplished as

Director of the FNLS Program from 2000 through 2004 including development of Aboriginal

content modules to encourage increased Aboriginal content in the law school curriculum,

being the architect of a "First Nations academic plan", and the conduct of a community legal

needs assessment wherein she headed a project to assess the legal needs of Aboriginal

communities across British Columbia to assist in structuring course offerings for a First

Nations Legal Studies Program. She provided other examples and concluded by the words:

I continue to be an advocate for Indigenous Peoples, especially marginalized peoples

that cannot afford legal advocacy, or services. I am successful in bringing their voices

to academia, to the public, to the students, no matter how controversial they are. I am

accountable to my people in that I continue to educate my own political leaders back

home as well as the youth, so that they [know] what are the legal issues that are facing

them, so my community service includes that work, which is also heavy. So, 11I feel

that I am at the stage of my career where I am at the Associate Rank and Tenured. I

have reached it through a different path than most, but I am advocating for you to

consider the path that I have taken, that is unique, that is because I am Indigenous,

that I incorporate my knowledge and my training from the past, that I fundamentally

work with the people on a collective level — that is how I do my work. I take a

collective approach to my work. I have many collaborations with people and because

of those collaborations, I have a huge network of colleagues, of peers, of people that I

connect with and that can only be a marker of someone that is at this stage in their

career.

[153] In essence, Ms. McCue advocated for her service to be considered not only under the

classification of service but also under the classification of scholarly activity.

[154] A transcript was created of Ms. McCue’s oral presentation to the Promotion and

Tenure Faculty Committee. Ms. McCue testified that her comments with respect to scholarly

activities including both traditional scholarship and professional contributions "speaks to how

I do my scholarly activity". The comments that she made are as follows:

Scholarly Activities

It is my election that in order for you to get a proper or true accounting of all my work

that you need a proper framework to assess my scholarly activities. Under the

Collective Agreement there are three ways that you can track my scholarly activities,

that is through traditional scholarship, scholarship of teaching and professional

contributions. So my CV has been revised to provide you [with] a way to access my

work along three tracks, … I do introduce in my CV a call to interpret the Collective

Agreement in an appropriate way for my case as an Indigenous Scholar and Teacher,

in that I do see my scholarly activities, my service, and my teaching as all balanced, as

all equal, as all reinforcing. That means that my work, therefore, crosses traditional

boundaries that you may be accustomed to in previous candidacies.

Traditional Scholarship

I do have published materials that are included in the binders that have been reviewed

[by] the external referees. One is in a Law Review in the States that [i]s not peered

[sic] reviewed. The others are not peered [sic] reviewed articles.

It is my interpretation of the Collective Agreement that published work is primary

evidence of scholarship along the Traditional Scholarship track, but it is not the only

form of evidence. In my view, by taking a wider interpretation of the Collective

Agreement of what it means to be published, my works should count. It is my position

that they count as Traditional Scholarship.

As an Indigenous person, I also disseminate my knowledge publically [sic] and orally,

and you can see by the number of invited presentations that I have given over my

career that a lot of my ideas and theories and principles have been communicated

across diverse audiences. Whether it is students, peers, teachers, Indigenous

communities, government, international UN bodies, I have been doing that orally, and

I have been doing that consistently. I do this because I have, if I can fit in the time, in

my fall and spring terms, I may have one or two days that I can get out and do that. I

no longer have to ask to participate in conference proceedings, I get invited. This is the

same for invitations to submit to journals or other places — I get invited. The pieces

you see are because I’ve been invited to contribute.

Professional Contributions

…

I have worked with Indigenous peoples to help support them and bring their voice up

to the international level through submissions that I have written in collaboration with

others where I have contributed theory to take on Canada’s land policies quite bluntly,

and where from 2006 onward, even up to this past February, we have had Human

Rights Treaty bodies call on Canada to account for their treatment of Indigenous

peoples and their land rights. So, in my view, these submissions on the work that has

flowed from the UN committees shows my scholarly impact. It shows the impact that I

am having in assisting Indigenous peoples to bring their voices to these bodies

through law, and that has been successful …

From 2002, a lot of my research and effort was put on the community legal needs

assessment for the Centre for International Indigenous Legal Studies that is in your

materials. In 2003 I did a summary of the World Conference Against Racism

proceedings that I attended in the previous two years for the Indigenous Bar

Association conference … In 2004, I began researching into the area of Peace &

Security, and how that can impact Indigenous peoples so you have a paper that I have

contributed to the Centre for Global Studies at University of Victoria. I want to

emphasize the impact of that paper because it was the first time that I ever presented

on the topic and yet I was put on a panel with other experts. Since then that

conference has been documented by the CBC and has been shown 28 times across the

country, and has reached over 1.4 million people in Canada. So my distribution of my

knowledge in that field, even though it was embryonic, reached a lot of people … In

2005, is when you start to see some of the written published work in the Law Reviews

and in book chapters. In 2006 is when I’m starting to submit to the UN with

submissions and to do that work.

… My professional contributions also include recent work where I have been asked to

work with other lawyers from Canadian Lawyers Abroad on a collaborative effort to

compare Canada’s treatment of issues like the criminalization of marital rape with

countries like Ghana, Malawi and Kenya. So I had the opportunity this February to go

to Nairobi, Kenya and be part of a team of women lawyers where we debated and

looked comparatively at the constitutional international dimensions of these issues for

women.

Scholarship of Teaching

In terms of scholarship of teaching, that is where you are disseminating knowledge

beyond your implementation of your courses and what you do in your courses. That is

my understanding of that criterion …

[As director of the First Nations Legal Studies Program] Aboriginal Content Modules

were made for courses to encourage our colleagues to increase their Aboriginal

content in the curriculum. I also came up with a First Nations academic plan right

when I started in 2000 in collaboration with my colleagues … and the First Nations

Law Students. That academic plan was vetted to many Indigenous scholars across the

country for feedback.

The Community Legal Needs Assessment that I conducted, when we went to interview

subjects in communities across British Columbia, we specifically told those interview

subjects that we will assess their legal needs and that we would use that information to

help structure the First Nations Legal Studies course offerings … That is another area

where my academic contributions have taken qualitative research and have based it on

actual need with our communities …

One more way that I have contributed to scholarship of teaching is through the

Aboriginal Cluster Co-ordination to try to improve the overall curriculum. What I have

done in that particular case is brought together all the professors teaching in the First

Nations Legal Studies Program, Adjunct and Full time, … from those consultations, an

Indigenous Law Course Wheel was created to possibly use as a survey course for the

Aboriginal Survey course. I have since restructured the Survey Course to allow that

Aboriginal Law Course wheel, and so I have provided that in the materials …

So based on a multi-track assessment of my scholarly activities, it is my opinion, that I

meet the criteria for Tenure and Promotion …

D.

November 3, 2010, Faculty Committee Recommendation

[155] The Faculty Committee recommended, in a letter signed by Dean Bobinski and

Professor Elliot on November 3, 2010, that Ms. McCue not be promoted to Associate Professor

with tenure or receive tenure without promotion. The Faculty Committee concluded, with

respect to teaching, that the record, without consideration of the 2005/06 Property

evaluations, did not include evidence of successful teaching beyond that expected of an

assistant professor. The Faculty Committee considered Ms. McCue’s submissions related to

the scholarship of teaching and professional contributions in conjunction with traditional

scholarship and non-traditional scholarship 11meeting the standards of the CA, including oral

presentations, and concluded that the work was insufficient in quality and quantity to meet

the standards for promotion and tenure.

[156] Professor Bobinski testified, and I find, that the Faculty Committee and she

considered all of the information Ms. McCue brought forward under all three scholarship

tracks — traditional, professional contributions and scholarship of teaching. She commented

that Ms. McCue had revised her CV to provide evidence about the three scholarly activity

tracks. She was also making a call for the use of a different type of weighting that would not

weigh scholarship and teaching more heavily than service but instead would view scholarship,

teaching and service as all balanced equally and all reinforcing. Professor Bobinski testified

that if the Faculty Committee had applied such a standard it would not be consistent with the

language of the CA.

[157] Professor Bobinski pointed out that Ms. McCue’s materials did not provide evidence

of the content of her oral publications at conferences with the exception of her publication of

an article in the Law Review derived from an oral presentation she had made. She said there

was no other evidence provided of the content of the presentations made. Accordingly, the

Faculty Committee was not aware of the precise content of those oral presentations set out in

the CV.

[158] Professor Bobinski was asked if there was sufficient information in the material

provided by Ms. McCue to allow evaluation of those oral presentations against the

requirements of the CA. She responded that she and the Faculty Committee considered the

presentations and evidence of dissemination within the parameters of the CA. She testified

that if the talk itself is published in some fashion it is possible to send it for peer review. In

such a case, she said, it is possible to get more of the sense of the nature and complexity of the

material. She said that from the standpoint of UBC, a peer-reviewed publication has broad

dissemination and the introduction of a candidate’s ideas that can influence over time in a way

that creates a record that reflects a thought in a particular time that subsequent scholars,

researchers, or policy-makers can engage with. She testified that Ms. McCue did not put

forward a clear record of exactly what she said at these conferences. She conceded that there

were some materials in the file compiled by Ms. McCue that showed the impact on others

referring specifically to an external reviewer who had seen Ms. McCue’s presentation and

found it helpful.

[159] About the invited presentations and conferences listed in Ms. McCue’s CV, Professor

Bobinski was asked about the difference between those contributions and traditional peer-

reviewed contributions. She responded that what Ms. McCue is addressing is secondary

evidence of scholarly activity. She described it as helpful as a way of indicating progression

within a scholarly career but not the sort of activity represented in published work. She said

the depth of analysis being evaluated and the overall worth of academic contribution being

evaluated is at a very different level and accomplishes a very different thing. She said,

however, that consideration was given to all of the components listed under traditional

scholarship in the CV.

[160] In addition, Professor Bobinski testified that both she and the Faculty Committee

gave consideration to service as Ms. McCue requested in her June 9 presentation to the

Faculty Committee. They gave service consideration, as well as scholarly activity consideration

to all elements listed as professional contribution in Ms. McCue’s oral submission and binder

of materials.

[161] The Faculty Committee’s decision stated that a minority of the Committee found that

Ms. McCue did provide sufficient evidence to demonstrate that she had achieved the level of

scholarly activity and future promise required for tenure, considered in the context of the

broadest range of evidence available under the CA. The minority arrived at their conclusions

after consideration of the position taken by external referees respecting the candidacy, their

assessment of her written work and her special role as an Aboriginal academic, including its

impact on the nature of her research and its oral nature, the impact of her role within

Aboriginal communities on her research dissemination and the very impact of her presence

within the Faculty on facilitating research informed by and sensitive to Aboriginal issues.

E.

December 2010 to May 2011: Submissions

1.

December 2010 Request for a Restart

[162] On December 6, 2010, Ms. McCue wrote to Dean Bobinski requesting specifically that

the review of her promotion and tenure application be restarted in the 2011/12 academic year.

Ms. McCue also raised procedural issues that are irrelevant to the issue of discrimination. On

December 17, 2010, Dean Bobinski responded, denying the request and stating that the

procedures followed were consistent with historical practice and the CA.

2.

January 18, 2011, Ms. McCue’s Response to the Faculty Committee’s

Decision

[163] On January 18, 2011, Ms. McCue responded to the Faculty Committee’s decision

denying promotion and tenure. Among other things, she said the reasons for decision reflect a

lack of understanding of her record which, if properly analyzed on a multi-track assessment

providing equal weight of her multi-tracked scholarly activities, teaching and service, provided

sufficient evidence demonstrating that her work exceeded the expected standard. She urged

an analysis of her record that is sensitive to her status as an Indigenous woman law scholar.

She provided a revised CV dated January 15, 2011.

3.

April 26, 2011, Dean Bobinski’s Letter to President Toope

[164] On April 26, 2011, and May 3, 2011, Dean Bobinski provided a letter to President

Toope in which she joined the Faculty Committee in recommending against promotion and

tenure and a letter to Ms. McCue informing her that she was not recommending her for

promotion to Associate Professor or for tenure. Dean Bobinski expressed significant concern

about both the quality and the quantity of Ms. McCue’s scholarly contributions. She did not

support Ms. McCue’s promotion stating she had not met the standards when considering all

three tracks of activity. Dean Bobinski said she would support tenure only if Ms. McCue

committed to publish her unpublished works in a timely manner.

4.

May 25, 2011, Ms. McCue’s Response

[165] Ms. McCue’s request for accommodation was more direct in her response to Dean

Bobinski’s recommendations provided to President Toope on May 25, 2011. In that

communication she contested that the Faculty Committee treated her candidacy as atypical

and non-traditional. She opined that the Faculty’s use of conventional standards, norms and

policies to review her application was inappropriate. She suggested as well that the

participants in the process were limited in number relative to those eligible to participate and

the recommendations therefore represented the limited expression of less than the full

complement of eligible Faculty members.

[166] Ms. McCue set out in her May 25 letter in some detail how her candidacy should be

approached and presented a substantially enhanced argument for acceptance of her

candidacy. She advocated for the recognition of the choices she had made as an Indigenous

woman law scholar to do scholarship with Indigenous peoples informed by practices that work

with Indigenous knowledge systems and ways of being. She suggested that the Faculty

Committee should have engaged in an in-depth analysis of her contributions both in the area

of teaching and scholastic achievement. She concluded by suggesting to the President (to

whom the arguments are addressed) a possibility of three approaches:

a.

Make a recommendation based on the evidence to date, with the equitable paradigm

proposed together with a multi-track assessment of her scholarly activity;

b. Re-start the process according to agreed-upon frameworks; or

c.

Send all of the evidence to all of the external referees to assess according to the

equitable paradigm proposed and multi-track assessment of scholarly activity.

[167] Ms. McCue’s CV dated May 25, 2011, added 11 pages of briefing notes regarding

conference proceedings, two book chapters and two additional pages of contribution to a

commissioned paper. Ms. McCue said she did not have the time to fully respond by the

timeline given. She said she did not hear back until June 14, 2011, and President Toope’s

secretary had asked that she complete her response by June 17.

F.

Review by the SAC

[168] The SAC unanimously voted against Ms. McCue’s candidacy.

[169] The SAC met with the Dean on May 27, 2011. Their notes state that the SAC were

informed by the Dean that:

a. The Faculty recognized that the material presented to the Committee indicates Ms.

McCue cares about teaching, that it is difficult to say whether low student evaluations

in Property relate to lack of teaching effectiveness or to student resistance;

b. A broad based contextual inquiry was made into scholarly activity and what it means

to be an Indigenous legal scholar. All three types of scholarship were considered;

c. The Faculty took seriously the arguments that consultations and oral presentations

may constitute scholarly 11contributions but much of the work was not capable of

third party evaluation.

[170] The SAC recommendations flowing from their consideration were that Ms. McCue not

be promoted to the rank of Associate Professor and that she not be awarded tenure at the rank

of assistant professor. The decision respecting promotion was due to lack of evidence of

sustained and productive scholarly activity, broadly defined within the context of the CA. The

decision respecting tenure without promotion was due to the lack of evidence of a high

standard of performance in relation to scholarly activity and teaching effectiveness in the

context of the non-traditional framework sought by Ms. McCue.

G.

June 17, 2011, Ms. McCue’s Final CV

[171] The final version of Ms. McCue’s CV dated June 17, 2011, was 32 pages. It added

nothing further to publications relied on. In each version of the CV the listed publications

were classified as non-refereed publications. There were no entries under the heading of

refereed publications in any of the CVs.

[172] The CV was accompanied by a 31-page submission by Ms. McCue responding to Dean

Bobinski’s recommendation to the SAC and President Toope prior to their recommendation

and decision respectively. Her response built on all of her submissions since the Faculty

Committee’s letter of concern covering much of the same territory outlined in Ms. McCue’s

submissions set out below. She called for her Indigenous scholarly activities, teachings and

service to be assessed with a culturally appropriate paradigm. She made allegations of:

systemic racism within the Faculty of Law slanting the playing field against her on her

promotion and tenure application, facing a hostile administration since the Faculty

Committee’s letter of concern, and facing, through the promotion and tenure process,

exclusion, marginalization, possible bias and devaluing of the diversity and representation she

brought to the academy.

[173] She took this further, asserting that:

The Faculty’s Reasons for Recommendation reflect a strategic and deliberate attempt

to not account for my status as an Indigenous woman law scholar.

[174] None of these serious allegations were pursued in Ms. McCue’s viva voce evidence or

her submissions in this proceeding.

H.

June 29, 2011, Decision of President Toope

[175] In a decision dated June 29, 2011, President Toope concluded that Ms. McCue’s

record did not meet the criteria for promotion to Associate Professor or for tenure.

[176] Professor Bobinski and Professor Toope testified, and the relevant CVs confirmed,

that Ms. McCue produced no record of the content, duration or makeup of the audience of her

oral presentations relied upon as scholarly activity. Both professors Bobinski and Toope

testified that UBC accommodated Ms. McCue by considering her application for promotion

and tenure in the widest possible context within the parameters of the CA. Professor Toope

testified that they did consider Ms. McCue’s oral presentations, the material she presented as

professional contributions, and the material she presented as scholarship of teaching, as

scholarly activity. He testified further that, as requested, he considered, where appropriate,

Ms. McCue’s service under the rubric of scholarly activity. Professor Toope testified, however,

that Ms. McCue’s dossier did not provide a record of her oral presentations which would allow

them to be evaluated. In his decision letter of June 29, 2011, he accepted the framework

advanced by Ms. McCue:

… I have reviewed all of the material that you have submitted as part of your file and

have, as you have encouraged in your letters of May 25 and June 17, 2011, considered

the evidence within a non-standard framework or culturally appropriate paradigm,

and in particular from a multi-track perspective including traditional scholarship, the

scholarship of teaching, and professional scholarly activity. I have accepted your

request to consider your file within the context and understanding of your "status as

an Indigenous woman law scholar" at UBC and that your "work is based on

Indigenous approaches, pedagogies, accessible engagement with Indigenous peoples

and different knowledge systems relating to law, law reform..". In so doing, I have

reviewed your file by considering the "nature of [the] synergistic balance between

scholarly activities, teaching and service". I have undertaken this review, within the

overarching framework of the Collective Agreement, as framed above, which I am

required to apply.

[177] Professor Toope concluded that, considering the evidence within this framework, her

scholarly record "does not demonstrate the significance of contribution or the dissemination

of the results of [her] activity expected for promotion or for tenure". He said further:

In assessing the quantity, quality, impact and dissemination of your contributions, I

do not believe that you meet the requirement of sustained and productive scholarly

activity for promotion to the rank of Associate Professor. I also do not believe that you

have maintained the high standard of performance in your scholarly activity required

for tenure as an assistant professor. I accept, in your case, that oral contributions and

community engagement are important work. However, in my view, there is

insufficient evidence that your work meets the high standard of quality and

significance required for tenure as an assistant professor (and it follows that it does

not meet the standard required for promotion to Associate Professor)".

[178] Professor Toope further concluded with respect to teaching that "given the context of

the first-year Property Law courses, I have placed minimal weight on those student

evaluations". He stated that he considered the other student teaching evaluations as well as

the balance of her teaching record within the context of her cultural perspective and concluded

that her overall teaching record did not yet demonstrate the standard of teaching beyond that

expected of an assistant professor. He concluded there was insufficient evidence to support

that Ms. McCue’s teaching met the criteria for promotion to Associate Professor, but that her

teaching met the standard required for tenure as an assistant professor. He concluded that

service was not an issue for Ms. McCue.

[179] I find that Dean Toope’s decision letter accurately sets out his reasons for concluding

that Ms. McCue had not met the appropriate standards for promotion to the rank of Associate

Professor or for tenure.

[180] Professor Toope stated plainly that, with respect to teaching, Ms. McCue’s body of

work met the standard required for tenure as an assistant professor but not for promotion to

Associate Professor.

[181] President Toope found that, on the balance of the evidence before him considered

from the broadest perspective, Ms. McCue’s teaching did not meet the standard for tenure as

an assistant professor.

[182] Professor Toope was clear in his evidence that the publication evidence put forward

by Ms. McCue in support of her candidacy was insufficient to establish the quality and

significance of her scholarly activity.

IV.

THE ISSUES

[183] The complaint was made pursuant to s. 13(1)(b) of the Code which reads:

13(1) A person must not

…

(b) discriminate against a person regarding employment or any term or condition

of employment

because of the race, colour, ancestry, place of origin … sex … of that person …

[184] Ms. McCue must prove, on a balance of probabilities, that she has a characteristic

protected under s. 13 (in this case, race, colour, ancestry, place of origin and sex); that she

experienced an adverse impact with respect to her employment; and that it is reasonable to

infer from the evidence that the protected characteristics were a factor in that adverse impact:

Moore v. British Columbia (Education), 2012 SCC 61 [ 75 C.H.R.R. D/369], para. 33. If Ms.

McCue does not establish these three elements, the complaint is not justified and must be

dismissed.

[185] If Ms. McCue is successful in establishing these three elements, the burden shifts to

UBC to justify its conduct. In British Columbia (Public Service Employee Relations Comm.) v.

B.C.G.S.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3 [ 35 C.H.R.R. D/257], para. 54

("Meiorin"), the Supreme Court of Canada set out the test for a bona fide and reasonable

occupational requirement under s. 13(4) of the Code. UBC must prove:

·

It adopted the standard for a purpose rationally connected to the performance of the

job

It adopted the standard in an honest and good faith belief that it was necessary to the

fulfilment of that legitimate work-related purpose;

It accommodated Ms. McCue to the point of undue hardship.

[186] In light of these principles, the issues in this case are:

a.

b.

c.

Has Ms. McCue established that her race, colour, ancestry, place of origin, and/or sex

were factors in UBC’s decisions denying her promotion and tenure?

Has Ms. McCue established that her race, colour, ancestry, place of origin, and/or sex

were factors in UBC’s decisions regarding PSA or merit pay?

If the answer to a or b is yes, has UBC established a justification for its conduct?

V.

SUBMISSIONS

A. Ms. McCue’s Submissions

[187]

With respect to the first element of her case, Ms. McCue submits that she has

established that she is Dene, a First Nations language group, and a hereditary chief of the

Dene; she is a member of the Ned’u’ten First Nations.

[188] Ms. McCue argues that UBC’s approach to assessing her applications for promotion

and tenure and for PSA and merit pay were based on preconceived, mischaracterized, and

unilateral ideas concerning her personal characteristics as an Indigenous female law scholar.

She argues that the Tribunal can take judicial notice of the Report of the Truth and

Reconciliation Commission of Canada and the United Nations Declaration on the Rights of

Indigenous Peoples (2007) ("UNDRIP"), which speaks to Indigenous rights worldwide.

[189] Ms. McCue argues that her protected characteristics include the choices that flow

from them, such as honouring and implementing her inherent Indigenous obligations as a

Ned‘u’ten chief and woman. She connects that to the evidence led, in these proceedings, both

by herself, Dr. Henry and Dr. Archibald respecting Indigenous oral traditions.

[190] She argues that the scholarly activity, teaching, and service she performed at UBC was

governed by her choices generated from protected grounds, which required her to ensure that

various aspects of her Indigenous scholarly contributions maintained integrity with her

Indigenous traditions in order to have credibility and be reputable with both Indigenous and

non-Indigenous societies.

[191] She argues that there is "ample evidence in this complaint that demonstrates [her]

work is capable of assessment and evaluation by qualified Indigenous law experts in [her]

field, and with further inquiry, if needed, Indigenous and legal profession peer referees from

communities [she] worked with over the years".

[192] She argues that her protected characteristics include who she is as an Indigenous

woman along with her Indigenous obligations. She says the term "Indigeneity" encapsulates

who she is as an Indigenous person, how she lives her life, the work she does and how she

interacts with people.

[193] She alleges that the metrics used to measure her work by UBC were culturally

inappropriate and led to discrimination by the failure to attach sufficient weight to her

Indigenous scholarship, teaching and service during her promotion and tenure candidacy.

[194] Ms. McCue submits that, in her accommodation proposals and requests, she was

proposing an alternate form of assessment could take place under a broader interpretation of

the CA and Guidelines. She suggests that she proposed UBC include Indigenous peer review

metrics to assess and measure her Indigenous scholarly contributions in an appropriate

fashion. She says she proposed Indigenous metrics and expectations, protocols and research

ethics, for Indigenous dissemination and knowledge production, mobilization and

transmission. She says that most of her professional contributions are vested by the places she

sends the research and scholarly writings to and that they could have been assessed by the

external referees in her candidacy process.

[195] Ms. McCue takes the view that oral dissemination of knowledge and research is

publication for purposes of the CA and points to positive statements respecting her work by

the external referees and her Indigenous peers, some of whom attended some of her oral

presentations. She suggested that UBC’s decision-makers, including the Faculty Committee,

SAC and President Toope, did not characterize her oral presentations as scholarly activity to

be assessed for quality and significance. I note that this submission flies in the face of the

evidence presented by UBC respecting how they responded to her requests for

accommodation.

[196] Ms. McCue submits that her oral presentations, viewed as scholarly activity, are

meritorious for promotion and tenure purposes if you take a broad interpretation of the CA

and Guidelines. She takes the position throughout that UBC took a narrow interpretation of

the CA and Guidelines respecting scholarly activity to exclude her oral presentations from

assessment and evaluation, resulting in the placing of Western considerations and peer review

of written work expectations as superior to her oral forms of communicating Indigenous

knowledge and disseminating knowledge generally. Once again I note that this is directly

contrary to the evidence given by UBC witnesses respecting the approach 11taken by the

Faculty Committee, the SAC and President Toope. Ms. McCue says that the minority of the

Faculty Committee considered her Indigenous heritage as key to her role at UBC and within

the Faculty of Law. She regarded their approach as a genuine attempt to recognize her

Indigeneity, which fuels her scholarly goals and contributions over her tenure cycle. In

addition, she views the external referees as capturing her Indigenous status and sex and

recognizing her unique position to meet her Indigeneity obligations. She suggests that the

majority of the Faculty Committee, Dean Bobinski, the SAC and President Toope, on the other

hand, regard her oral presentations as just conference talks or important work and do not take

her Indigenous scholarship seriously. She says this approach leads to the narrow

interpretation and application of the CA and Guidelines, which narrows the focus to only

written works that get published (un-refereed or not). She points to the fact that Dean

Bobinski found only 44 pages which could be assessed and weighted, with the result that Dean

Bobinski concluded that Ms. McCue did not have sufficient evidence of scholarship to meet

the standards for tenure at either assistant professor rank or promotion to Associate Professor

rank. She says that is not reasonable. Further, she says that if such an approach is upheld it

would lead to the ability of educational institutions as employers to unilaterally define and

regulate the identities of scholars who are Indigenous.

[197] Ms. McCue refutes President Toope’s evidence that her oral presentations could not

be evaluated because there was nothing to assess. She says that such conduct makes her oral

presentations invisible as publications. She says that it is key that the nature of her Indigenous

scholarship factors into the assessment of her work for promotion and tenure. She says:

What this means to me is that UBC’s individual and collective decisions and

recommendations by the decision-makers in my assessment review are not going to

accept the protection of my protected grounds or characteristics such as my cultural

traits of practicing by oral tradition and oral communication style were disseminating

knowledge, nor will they accommodate my protected grounds of Indigenous status

and sex and my choices that flowed from my protected grounds to do scholarship

differently at the University. This is discriminatory conduct and I argue that cannot be

justified as reasonable or necessary.

[198] Ms. McCue says that it would be a substantial compromise for her to accept that only

written forms and styles of scholarship are meritorious for consideration, assessment and

evaluation for weighting purposes. She says that to do so would be too great a personal cost to

her.

[199] Ms. McCue submits that the Tribunal member should accept the conclusions of the

minority of the Faculty Committee as evidence of UBC’s knowledge of her special role as an

Aboriginal academic in one or more of the following ways:

a. that Aboriginal communities have an oral heritage that ought to be recognized

through greater weight being provided to the candidate’s oral presentations as a form

of research dissemination under the CA;

b. that research dissemination within the CA ought to be understood, in this case, to

include the candidate’s role as someone available for consultation on key issues within

the Aboriginal community; and

c. the candidate’s presence within the Faculty generated very important and productive

facilitation of research, informed by and sensitive to Aboriginal issues.

[200] Ms. McCue refers to an external referee letter dated March 18, 2010, and states that

that external referee, on the basis of her oral presentations, which she witnessed, as well as

hearing Ms. McCue orally, was able to conclude that her work met the criteria set out in the

Conditions on Appointment provided to the external referees, and yet there is no mention of

that by those decision-makers who denied her candidacy. She says that external referee’s

letter, which recommended promotion to Associate Professor with tenure, represented an

approach of including oral presentations as publication in scholarly activity and a reasonable

person’s perspective, and an appropriate context, that such Indigenous scholarship is

meritorious assessable, and can be evaluated.

[201] Ms. McCue points out that UBC knew that the recruitment and retention of

Indigenous scholars was of utmost importance given its Aboriginal strategic academic plan.

She says that forcing her to do traditional scholarship only is assimilation. She said she never

agreed to what appropriate metrics should be used for her Indigenous scholarship. She says

that, while she does have examples of written published works in her CV (44 pages that [were]

ultimately weighted) her oral presentations as publications "did not even make it out of the

consideration gate".

[202] Ms. McCue states that the Code requires employers to meet procedural and

substantive elements of the duty to accommodate by working with an employee to facilitate

possible accommodation proposals. She says UBC should have worked with her to set up an

accommodation process, inquired into her cultural traits and the choices that flowed from her

Indigenous/sex status to explore why her behaviour was at odds with their expectations. She

argues that the duty to inquire was triggered in 2008/09 during the reappointment process

when professors Jackson and Wexler advocated for her oral presentations to be treated as

scholarship. She says the next occasion when UBC’s duty to inquire into her cultural traits was

triggered was when she alleges that she asked Dean Bobinski whether she was being assessed

as a non-traditional scholar and Dean Bobinski confirmed that she was being treated as a

professional case in the summer of 2009. She says the next occasion that the duty was invoked

was when the Faculty Committee viewed the March 18, 2010, external referee letter since they,

at that point, had knowledge of her Indigenous scholarship being assessed and positively

evaluated by an external reviewer. Ms. McCue says that since the Faculty Committee never

inquired into her Indigenous scholarship and other works, UBC failed in its duty to

accommodate.

[203] Ms. McCue points to her May 28, 2010, revised CV, in which she proposed that her

oral presentations be categorized as publications, and to her oral presentation of June 9, 2010,

when she requested that the Faculty Committee take a broader interpretation of what

publication means and consider her oral presentations. She says again the duty to inquire was

triggered on both occasions. Ms. McCue argues that UBC needed to seriously consider how

she could be accommodated. She says that it would not have been a huge burden or hardship

for the Faculty Committee to hold off on their decision until accommodation had been

properly investigated and agreement had been reached on the proper scholarly activity tracks

for assessment of her Indigenous scholarship. She says that UBC has failed to demonstrate or

prove that its reasons for denying her a fair assessment would result in undue hardship. She

says that UBC did not search for more accommodating application of the CA nor did it help

her search for possible solutions to the issue.

[204] Ms. McCue states that letters of support provided in relation to her oral presentations

and scholarly activities speak to the impact of that work and are key evidence that such works

are assessable and can be subject to evaluation by a larger idea of peer review or assessment.

She indicates that the minority of the Faculty Committee recognized her role as an expert in

her field, both internally at the Faculty of Law and externally. She said she asked that those

letters be included in her file. She said she asked for a restart of her process, but was denied

that accommodation. She says that as a result the external referees did not get to provide their

Indigenous law expert assessment of key and significant portions of her Indigenous

scholarship. She says that such an assessment would have provided UBC with more evidence

of her abilities to successfully meet criteria under the CA and understand her contributions to

Indigenous knowledge, decolonization theory and practice, and the international human

rights of Indigenous peoples. She says that by excluding her professional contributions as

scholarly activities through a narrow interpretation and application of the CA, UBC excluded

evidence of her Indigeneity obligations and the choices that flow from them.

[205] Ms. McCue states that during the course of her tenure-track cycle she conducted

significant original and creative Indigenous community-based research. She refers particularly

to the ("CIILS") Community Legal Needs Assessment, but says that her removal from the

directorship of the FNLS Program made it impossible for her to carry on the goals of the CIILS

and the FLNS Programs. She says, as a result, the works created and relationships established

were severed. She says she is adversely impacted at each level of her promotion and tenure

review when her Indigenous community-based research projects are treated as research in

progress and not assessable or cannot be evaluated as scholarship of teaching.

[206] Ms. McCue says that she was able to complete one pilot or seed research project by

the time she came up for her tenure and promotion process. She said she did report her

preliminary research findings to the research participant orally but was not in a position to

continue that relationship-building when she was denied promotion and tenure and

terminated from employment at UBC. She says that constituted an adverse impact since it

severed her from her abilities and capacities to fulfill her Indigeneity obligations and to

sustain relationship-building based on trust and reciprocity with that research participant.

She says the work was narrowly interpreted by UBC as research in progress and not assessable

to be ultimately weighted for evidence of performance for tenure or promotion beyond

assistant professor rank. She says that, while her internal peer referees 11saw this as unfair

and suggested a new metric to measure the time it takes to do this kind of Indigenous

scholarship and the different research output that such a project might create, she was left

with a complete blanket refusal to try and accommodate her. She says this discriminatory

conduct could have been avoided by measuring the research output as it was at the time the

project was completed. She says this could have been accomplished by asking her to provide

information about the project and obtaining feedback from the participants for the UBC

decision-makers to review and assess and evaluate. She says, however, that she was not asked

to do so. It is her position that following such a procedure would not constitute an undue

hardship to UBC. She said that, had the overall file been sent back to the external referees for

assessment, they would have been able to apply their expert qualifications to make such

assessment. She says UBC’s narrow interpretation of her community-based research projects

as not being scholarly activity adversely affected her candidacy.

[207] Ms. McCue submits that there is intersectionality between the ground of Indigenous

status and the ground of sex. She refers to Indigenous work encompassing a lot of community-

based research and teaching where she connected students with the community and created a

high level of community engagement. She says that includes a collaborative and collective way

of engaging with everyone she came in contact with in the course of her work. She argues that

it is largely female Indigenous law scholars who do this kind of work. She says that’s how she

connects these two characteristics. She points out that she is a female hereditary chief and

leader, with obligations to teach family and kids and the broader society. She says it is

inherently within her to express her sex in ways that conform to her Indigenous traditions.

She testifies that hers is a strong role for an Indigenous woman and added Indigenous women

have responsibility for taking care of land, territories, knowledge and Indigenous legal

traditions through communication with each generation. She says she is informed by how

mothers and aunts taught her to bring those teachings and ways of being within her work. She

sees her sex as being fundamental to that role, more so than male Indigenous professors.

[208] Ms. McCue refers the Tribunal to its own analysis of what is required of a

complainant to prove a nexus between the adverse treatment received and the grounds of the

complaint. She refers to McCue (No. 3), where the Tribunal stated at para. 142:

All that is required for the complainant to succeed is the Tribunal be satisfied that

UBC applied the Standard in a way that impacted Ms. McCue’s ability, on the basis of

her Indigeneity, to meet it.

[209] Ms. McCue argues that the established Indigenous cultural traits she claims as her

own influenced her failure to meet UBC’s standard, such that the grounds are a factor in the

adverse impact (McCue (No. 3), para. 138).

[210] Ms. McCue called the Tribunal’s attention to the Canadian Human Rights Tribunal’s

decision in First Nations Child and Family Caring Society of Canada v. Canada (Attorney

General) (No. 15), 2016 CHRT 2 [ 83 C.H.R.R. D/207] for the proposition that cultural

transmission of Indigenous languages and cultures is a generic Aboriginal right and that right

normally includes the incidental right to teach by means of oral description to a younger

generation; para. 106.

[211] Ms. McCue also refers me to UNDRIP, which sets out a range of human rights

standards applicable to Indigenous peoples. Ms. McCue refers to Radek v. Henderson

Development (Canada) Ltd. (No. 3), 2005 BCHRT 302 [ 52 C.H.R.R. D/430] for the well-

known proposition that racial discrimination is often derived from subtle, unconscious beliefs,

biases and prejudices (paras. 132–41).

[212] She suggests that the work she has done has been stereotyped, resulting in the

discriminatory way in which she alleges it was handled during the promotion and tenure

process.

[213] Ms. McCue also referred to British Columbia v. Hutchinson (No. 2), 2005 BCSC 1421

[ 54 C.H.R.R. D/468], seeking to draw an analogy between Indigenous obligations and the

legal obligations that are the foundation of the family status ground under the Code.

[214] Ms. McCue submits that it is important to have an Indigenous metric in the process.

She indicates that such a metric would have recognized trust building and the time required to

do the project. She says that is necessary to get the best advice available to provide an

understanding of Indigenous qualifications.

[215] Ms. McCue submits that ultimately it is the responsibility of UBC to make sure

everything is in the file before the Faculty Committee. Ms. McCue says that she was told by

Professor Elliot to include in her candidacy dossier only her 2009 research and publication

record. She says that she had to rectify the situation by getting her own mentors who are not

11biased. I note that there was no evidence presented respecting who those mentors might

have been. She suggested that she published orally and every year. She suggested that if UBC

had the correct lens to review her work, the majority of her professional contributions could

have been assessed. She testified that the FNLS Community Legal Needs Assessment was

heavily research focused and represented scholarship.

[216] Ms. McCue testified that the Shepherds’ Reports of 2009 and 2010 accurately assess

the nature of her scholastic work and called for a different metric. These reports are prepared

by designated faculty members to represent a peer review of a candidate’s work and is

provided to the Faculty Committee to assist them in the promotion and tenure process. She

testified that the metric applied by UBC was not appropriate to assessing her work and led to

an application of the CA in a narrow way which discounted her work by assessing it narrowly.

[217] Ms. McCue testified that just sending her work back to the external referees would not

be sufficient, but it would be necessary to determine what constituted scholastic activity for

her type of scholarship and that an Indigenous expert would be required to do that.

[218] Ms. McCue testified that it would be necessary to send an appropriate letter to the

external referees from the candidate and the Dean describing agreement on the appropriate

metric. She says she argued before the Faculty Committee that step needed to take place.

[219] Ms. McCue submitted that more time was required to create a project from

communities for Indigenous research. She said she was a victim of the effect of the extensions.

She has three extensions, one of which she says was contractually provided by Dean Blom, QC.

She argues, therefore, that her evaluation came up one year too early. I have rejected that

evidence earlier in this decision.

[220] Ms. McCue submits that her work needs to be reviewed by experts in her field. She

says that fits within the language of the CA and that it did not happen. Further, she suggests

that there was no agreement on what should be considered for her file and no agreement on

an appropriate metric with which [to] constitute an Indigenous measure.

[221] Ms. McCue takes issue with the fact that the assessment was a global assessment by

the Faculty Committee, the SAC and the President, with no specific evidence of how UBC

weighted her work.

[222] Ms. McCue stated that she had eight more pieces, which could have gone to the

external referees to assess, including her submissions to the UN, her consultation paper on

peace and security, her paper for the world conference against racism and others. She

suggested, in that light, that there are more pieces to analyze with clear directions, such as "if

you heard Ms. McCue speak what do you think?"

[223] Ms. McCue suggests that she needed proper mentorship for her type of work in order

to be properly expressed to the Faculty. She said that mentorship must match her abilities and

attributes and talents and that she did not receive that.

[224] Ms. McCue states that UBC’s negative decisions respecting tenure and promotion

arose from not assessing her work as valuable for assessment purposes. She said what ends up

happening is it becomes peripheral or ancillary instead of core, yet that Indigenous

scholarship and work is core to who she is and should be treated as core. She says, to really

capture her work, the assessment must be based on a broad interpretation and application of

the CA. She suggests that a "proper Indigenous metric" must be applied. She says that oral

presentations must be able to stand on their own next to her written work for publication.

[225] Ms. McCue submits that President Toope should have sought assistance because he

was incapable of doing an Indigenous peer review. Instead, he made a decision, which

negatively impacted her rather than sending the matter back to start again.

[226] Ms. McCue characterizes the treatment of external referees’ letters as inappropriate

and says that is because of the lack of experience that the Faculty Committee, SAC and

President Toope had in her field.

[227] Ms. McCue argues that, when she is treated as a traditional scholar without her

Indigeneity and without counting her community-based research, Indigenous-based research,

with appropriate time factors and outputs measured, and without counting her oral

presentations as publications, as a way to see how she’s communicating Indigenous

knowledge and theory, and without counting the places that she’s publishing in broader

venues, which many Indigenous scholars do to get outreach, as weighty, then the result is an

inaccurate perception of her work and who she is and how she’s adversely impacted in a

discriminatory way.

[228] On the subject of bona fide occupational requirement, Ms. McCue states that it was

difficult 11throughout the hearing to figure out what UBC’s standard was. She says that UBC

had opportunities to take a broader assessment of her file and interpretation of it, but there is

a dispute respecting what work she performed and what work qualified under the CA. She

questions whether UBC understood that she also has to be credible in the Indigenous

community with her Indigenous peers as well as in the legal profession with her legal peers, as

well as at the University. She felt like UBC did not understand that it is part of the role of the

scholar to connect and build, personifying the purposes under s. 3 of the Code. She argues that

the first part of the Meiorin test (is the standard rationally connected to the objective of the

work) if interpreted broadly, can be connected to the work that she performed and the nature

of the work that she performed.

[229] She submits the second part of the Meiorin test has to do with whether the standard

was bona fide and honest. She suggests that there was not a good faith attempt to set a proper

standard for measuring her work properly under the collective agreement. She says that she

and Dean Bobinski did not agree on how the file was supposed to be assessed at the beginning

of the tenure process. She says that they had a conversation on July 30, 2009, when she asked

Dean Bobinski whether she would be assessed as a non-traditional scholar and that Dean

Bobinski got back to her and told her that her case would be a professional case. And then she

says that in December of 2009 she asked Professor Elliot whether she could put her

community Legal Needs Assessment, and other works in her CV, as scholarship of teaching,

and was told that she couldn’t because he didn’t think she had evidence of that. She said she

trusted him, but that the advice was not correct.

[230] Ms. McCue says there wasn’t a good faith attempt at setting the standard for her file.

She says that a good faith standard-setting process would have required her agreement, it

would have required the normative process to determine what goes into the file, and it would

have to factor in her Indigeneity. She says, if you don’t have a bona fide standard set then you

don’t have a reasonable standard and you can’t justify your conduct. She says that there has

not been an honest attempt to get her agreement.

[231] Ms. McCue says that the effect of proceeding on the basis of two tracks is that a lot of

her work from 2000–2004 constitutes scholarship of teaching and was missed. Accordingly,

she says that the external referees did not have the third track and that, had they had it, they

would have had more information to evaluate, and the Faculty Committee would have the

benefit of that evaluation.

[232] On the issue of whether UBC could have accommodated without undue hardship, Ms.

McCue stated that they had lots of opportunities to understand that she is a different scholar

and an Indigenous scholar and should have inquired more into her work. She says that instead

there was no dialogue, no discussion and, despite further input into her file by her, no inquiry

into how she might be accommodated.

[233] Ms. McCue says that all along she asked to stop the process to explore

accommodation and nobody was listening. She says there was ample opportunity to meet the

duty to accommodate her procedurally and that it did not happen, to meet the duty to inquire

and that did not happen, to consult Indigenous law experts and that did not happen. She said

her accommodation request met a blanket refusal right across the board.

[234] Ms. McCue says she is not seeking special treatment. She is not seeking lower

standards be applied to her. She is seeking an individual process that gets to the heart of her

skills and attributes and true capabilities and gets to the heart of her Indigeneity obligations.

[235] Ms. McCue argues that sending her file back to the external referees would not have

been an undue hardship; getting agreement through proper process would not have been an

undue hardship. She says there would have to be a proper mentorship and engaged

Indigenous law experts to help set the accommodation and to ensure that the assessment of

the file is done properly. As she describes it, it is the Indigenous hand that is needed here.

[236] Ms. McCue argues that it is not true that she got mentorship along the track that was

appropriate for her. She said she did not get mentorship along a non-traditional scholarly

track for Indigenous scholarship.

[237] Ms. McCue argues that UBC did not take a broad approach because she does not see

her work being valued appropriately and respectfully in accordance with protecting her

Indigenous characteristics.

B.

UBC’s Submissions

[238] UBC submits that the issues to be determined are:

a.

b.

did UBC discriminate against Ms. McCue, contrary to the Code, when President

Toope denied her promotion and tenure?; and

did UBC discriminate against Ms. McCue, contrary to the Code, when Dean Bobinski

denied her PSA or merit awards?

[239] UBC submits that Ms. McCue has led little evidence respecting the PSA and merit pay

issue and has made few arguments about that. They say the essence of each question relates to

whether Ms. McCue’s employment record demonstrates excellence in scholarly activity,

teaching and service. UBC submits that both questions can be answered with reference to the

same evidence and legal analysis.

[240] UBC in its closing argument made three main arguments.

1.

No Challenge to the Standard

[241] UBC reminded the Tribunal that the complaint challenges UBC’s application (or

interpretation) of the CA language while reinforcing that Ms. McCue is not entitled to

challenge the standard itself.

[242] UBC expresses concern about the use by the Tribunal in McCue (No. 3) of the word

"interpretation". They submit that it is not open to the Tribunal to find that UBC’s

"interpretation" of the standard, which is shared by the Faculty Association, is discriminatory.

They say to do so would allow an impermissible collateral attack by Ms. McCue on the

standard itself. They say that if that is a possible outcome of this proceeding then the Faculty

Association should have been given an opportunity to participate in the proceedings. They

point out that Ms. McCue expressly chose to avoid the participation of the Faculty Association

by limiting her complaint to the "application" of the standard, and not to challenge the

standard itself.

[243] UBC recognizes, however, that the standard, as written and commonly understood by

UBC and the Faculty Association, is inherently flexible and can be appropriately adapted to

individual circumstances.

[244] UBC says that, however the words application and interpretation have been used in

previous interlocutory decisions in this proceeding, the scope of the complaint is limited to

considering whether UBC took a non-discriminatory view of the standard in the circumstances

of this case.

[245] UBC says that it is inappropriate for Ms. McCue to argue, or for the Tribunal to

accept, that UBC should not have applied the standard to Ms. McCue. They say the

appropriate question is whether UBC applied the standard in a sufficiently broad way in the

circumstances before them.

2.

Adverse Inference

[246] UBC points out that Ms. McCue did not call as witnesses, Professor Gordon Christie,

Professor Karin Mickelson, or the former Dean of Law, Professor Joost Blom, QC. UBC

submits that the failure to call key witnesses that could have given evidence on matters within

their knowledge can lead an adjudicator to draw an adverse inference that the evidence would

not have supported her position.

[247] UBC points out that Ms. McCue provided testimony that was critical of Professor

Christie and the advice he allegedly gave her when she was putting together her CV for

distribution to the external referees. They also point out that at various times she attributed

this advice to Professor Elliot, rather than Professor Christie.

[248] UBC points out Ms. McCue’s testimony that the original CV was a:

… critical piece of information. It’s supposed to go to the external referees for them to

make recommendations. The reason why it is so short and doesn’t reflect all of my

work, because in a communication to me Gordon Christie recommended that I put my

current 2009 research contributions in my CV.

[249] UBC reminds the Tribunal that when the Tribunal asked Ms. McCue if she was

testifying that Professor Christie told her to only include her 2009 publications, she

responded:

That’s what I heard and followed.… No one mentored me to say you had to have your

whole tenure cycle information in [the CV].

[250] UBC points out that professors Bobinski, Young and Elliot all testified that the

allegation was absurd and noted its inconsistency with the fact that the CV Ms. McCue

produced, which went to the external referees, included work from various years prior to

2009. They say that Ms. McCue relied on this alleged direction from Professor Christie

[originally attributed to Professor Elliot] to ground her argument that she was not "properly

mentored" by UBC. They say that, if she believed this to be true, Professor Christie should

have been called as a witness to corroborate her evidence. That did not happen.

[251] UBC submits that Ms. McCue’s failure to call these individuals as witnesses should

lead to the 11adverse inference that their evidence would not have supported her position.

[252] UBC submits that Ms. McCue’s decision not to call Professor Blom, QC was because

he would not support her evidence that he had promised her a perpetual teaching release,

regardless of whether she remained in her Director’s role. They say that it is reasonable to

infer that Professor Blom, QC would not have provided evidence to support her allegations.

3.

Has Ms. McCue proven her case?

[253] UBC acknowledges that Ms. McCue meets the first and second of the factors required

to prove discrimination. They acknowledge that she is an Indigenous female and that she was

adversely affected when President Toope denied her promotion and tenure candidacy and she

was denied PSA and merit awards for the years 2009–2011.

[254] They say, however, that she has failed to establish a connection between her

protected characteristics and the adverse treatment she encountered.

[255]

UBC submits that Ms. McCue was unable to articulate any connection between her

gender, and the denial of promotion, tenure, PSA or merit awards.

[256] UBC submits that Ms. McCue has failed to establish that her Indigeneity was a factor

in her adverse treatment. They say instead that the evidence has established that Ms. McCue

received exceptionally generous and favourable treatment due, in part, to her Indigeneity.

[257] UBC points out that Ms. McCue "never even hinted to the University that her

Indigeneity was a barrier to her work performance until after she received the University’s

letter of concern dated April 19, 2010". They say that the clear documentary record and the

uncontested evidence of Professor Bobinski, Professor Young and Professor Elliot establishes

that Ms. McCue was repeatedly told what was required of her to succeed in her application for

promotion and tenure, particularly her need to publish. They point out that Ms. McCue

consistently affirmed and assured UBC that she was working towards traditional publication.

They point out that Ms. McCue told Dean Bobinski she "felt able to move forward with [her]

work because of the recognition that [her] engagement in scholarship would be personally

fulfilling and that it would provide the foundation for [her] to remain in academia".

[258] UBC points out that as late as May 4, 2010, in response to the Faculty Committee’s

letter of concern, Ms. McCue raised a variety of technical and procedural concerns with the

tenure and promotion process but made no suggestion that her Indigeneity was a barrier to

her candidacy. They say it was only when she made her oral submissions to the Faculty

Committee on June 9, 2010, that Ms. McCue articulated for the first time that UBC should

consider evaluating her application for promotion and tenure in anything other than a

standard way due to her Indigeneity.

[259] UBC submits that, prior to Ms. McCue first raising this issue, UBC cannot have

breached the Code, and cannot be faulted. They say the appropriate timeframe for the

Tribunal’s review of denial of promotion, tenure and PSA and merit pay is from June 9, 2010,

when Ms. McCue first raised the issue of her Indigeneity, until June 29, 2011, when President

Toope denied her candidacy.

[260] UBC says that, although Ms. McCue alleges that each of the four levels of the

University’s academic review process discriminated against her, the decision that she needs to

prove discriminatory is that of President Toope. UBC suggests that only President Toope’s

decision resulted in adverse treatment for which she alleges her Indigeneity was a factor.

[261] UBC submits that Ms. McCue’s allegations that UBC interpreted the standard in such

a narrow way that reached an incorrect and discriminatory decision is not supported by the

evidence. They say that President Toope’s June 29, 2011, letter of denial, in combination with

his oral evidence, make it abundantly clear that he gave thoughtful and independent

consideration to all of the information and argument that Ms. McCue advanced in support of

her application for promotion and tenure.

[262] They submit it is also clear that, even accepting the entire context proposed by Ms.

McCue, President Toope decided that she had provided "insufficient evidence that [her] work

meets the high standard of quality and significance required for tenure as an assistant

professor (and it follows that it does not meet the standard required for promotion to

Associate Professor)".

[263] UBC says that the evidence is that they did consider her non-peer-reviewed oral

dissemination of knowledge, in their consideration of her application. They say they made

extraordinary efforts to help her succeed in her application for promotion and tenure

including relief from administrative tasks, maximum extensions to her tenure clock permitted

under the collective agreement, extraordinary teaching 11releases, formal mentoring,

significant extensions to deadlines during the promotion and tenure process, consideration of

letters of support from members of the Aboriginal community, efforts to compile and review

copious binders of material submitted the night before the Faculty Committee meeting, and

broad application of the standard.

[264] UBC rejects Ms. McCue’s contention that it failed to consider her unique

circumstances and used the wrong measures to assess her performance. They say that at every

level of review they considered her circumstances and that her valuation was "manifestly

individualized". They reject Ms. McCue’s contention that they applied strictly the expectation

of five to six peer-reviewed or equivalent publications and weighted her scholarly activity,

teaching and service 40:40:20. They say that the evidence conclusively establishes that neither

of these metrics was strictly applied to her. They say that each level of review accepted that

there could be good reasons why a professor may not have developed the expected publication

record. They say it is evident that each level assessed her entire record in a holistic manner,

and within the context that she urged on them, without regard to any formula.

[265] UBC submits that Ms. McCue has failed to prove that her Indigeneity was a negative

factor in how the University assessed her or how it applied its criteria to her. They say that to

the extent that her Indigeneity was a factor, it resulted in more favourable treatment. UBC

points to what they perceive is an argument by Ms. McCue that unknown, non-expert,

Indigenous members of her community are her peers and that their general statements of

support and endorsement should be granted an equivalency to publication in peer-reviewed

journals. They point to evidence from their witnesses that such statements lacked the

objectivity, independence and academic rigor of a peer-review process. They say that such

support rarely provides meaningful evidence of scholarly impact, and cannot be a rational and

fair assessment tool. They say that it is not open for the Tribunal to conclude that the meaning

of "peer review", as commonly understood worldwide, includes, or could include, solicited

statements of support. They say that Ms. McCue’s assertion that the University should treat

her people as her peers is an impermissible challenge to the standard. They also point out that,

as President Toope testified, there is nothing "Western" about the peer-review process. They

say it is not culturally specific but is practiced worldwide by every research University that has

regard to its reputation.

[266] UBC also points out that the evidence of all of the witnesses in this proceeding,

including the three Indigenous scholars providing evidence on Ms. McCue’s behalf, stress the

importance and necessity for peer-reviewed publication as that term is invariably understood

within academia.

[267] UBC submits that Ms. McCue has failed to prove that her Indigeneity was a factor in

their refusal to treat her solicited letters of support as equivalent to peer-reviewed

publications because they are not equivalent. They say that, on the evidence, solicited letters of

general support do not assist in the fair judgment of academic performance or promise.

[268] UBC submits that community-based work with Indigenous communities does not

prevent publication. They say that Ms. McCue has given no evidence that she has encountered

any barrier arising out of sacred knowledge received working with Indigenous communities.

While she implied that the Memorandum of Understanding ("MOU") created in relation to her

CIILS work could restrict her ability to publish, President Toope testified that nothing in the

MOU precluded her from disseminating her knowledge. Further, he said that any MOU that

purported to restrict the candidate’s ability to publish could not constitute research under the

CA and would not be approved.

[269] Further, Dean Bobinski, President Toope, and Ms. McCue’s witnesses testified that

while community-based research created complexities that might slow down the pace of

publication, they could be dealt with to allow for a solid publication record and success in

academia.

[270] UBC submits that Ms. McCue failed to provide any evidence that she performs

community-based research that impeded her ability to publish, and she has shown no external

barriers to her ability to meet the standard, based on her Indigeneity or otherwise. They say,

therefore, that she has failed to prove that her Indigeneity was a factor in relation to the denial

of her candidacy.

[271] UBC submits that Ms. McCue’s assertion that her oral dissemination of Indigenous

knowledge should be treated as publication within the meaning of the standard is "untenable".

They say that such an assertion is an impermissible collateral attack on the standard. Further,

they say that her characterization of herself as someone who should not be required to use

written language, due to her current identification with the oral tradition or culture is

"implausible, self-serving, and at odds with the documentary and 11other evidence presented

in this case". They say Ms. McCue is fully capable of written language, has utilized written

language throughout her educational process, and used written language without complaint or

objection from her date of hire until 2010, when she started developing arguments to excuse

her failure to meet the standard.

[272] UBC submits that strict adherence to "oral scholarship" need not prevent a professor

from also "publishing". They point out, however, that in order for UBC to have something they

could evaluate, any oral dissemination of knowledge would need to be recorded in some way,

so that it could be subjected to peer-review. UBC submits that the word "publication" in art.

4.03 of the CA, and elsewhere in the standard, cannot be interpreted by the Tribunal to

include unrecorded oral dissemination of unknown content, to an unknown audience, with

unknown significance. They say to do so is impermissible collateral attack on the standard.

[273] UBC submits that Ms. McCue made no effort to create any record of her oral

dissemination’s contents despite the standard placing responsibility to develop her record of

scholarship on the scholar (art. 5.02(a) and 5.03(a) of the CA).

[274] UBC points out that Ms. McCue’s CV does not provide sufficient information about

what was said, to whom, and with what impact in her oral presentations, to serve as any useful

measure of her scholarly activity.

[275] UBC points out that Ms. McCue took no action to alert UBC to the fact that she

required accommodation for her oral tradition, nor did she do anything to create any

reviewable record. As a result, UBC submits that Ms. McCue has failed to prove that her

Indigeneity was a factor in the denial of her candidacy. They say that the evidence shows that

UBC did not accept this work as equivalent publication because the record presented by Ms.

McCue failed to demonstrate that it was anything other than the type of service activity

common among academics, and it was not recorded in a way that allowed UBC to assess its

quality, significance, or distinguished nature in relation to the standard.

[276] In response to Ms. McCue’s position that UBC should have restarted its review, UBC

relies on President Toope’s evidence where he explained that it is the candidate’s

responsibility to ensure that all relevant evidence of scholarly activities is included in the

record. They say it would have been pointless to send out further material to the external

referees given there was no new evidence of scholarly activity for the referees to consider and

comment on, and that the standard does not allow for candidates to "creep into tenure" by

holding a series of term appointments that extend beyond the time limits in the CA (arts 2.0

3(h) and (i)).

[277] UBC submits that Ms. McCue has failed to prove that her Indigeneity was a factor in

their decision not to let her restart the review process. They say the evidence establishes that

such a step would be inconsistent with the standard, would be pointless and would

unreasonably extend an inherently long and complex process.

[278] UBC further takes issue with the Tribunal’s statement at para. 137 of McCue (No. 3)

that the duty to enquire on an employer might be extended beyond circumstances suggesting

physical or mental disability, to circumstances suggesting a need for accommodation related

to race or place of origin issues. They say that the duty to inquire was designed to require

employers who know, or ought to know, that disability may be a factor in an employee’s

unsatisfactory behaviour, to find out if that is the case before they decide how best to respond

to the behaviour. They say that enquiry seeks to determine whether the employee actually has

a disability and, if so, whether there is a nexus between the disability and the unsatisfactory

workplace behaviour. They further say that these purposes do not apply in cases of alleged

racial discrimination.

[279] In response to Ms. McCue’s suggestion that the University had a duty to

accommodate her "cultural obligations" as an Indigenous female law scholar, UBC submits

that cultural obligations are not currently a prohibited ground of discrimination falling within

the protected grounds of race, ancestry and colour. Accordingly, UBC opposes drawing an

analogy between Indigenous obligations and "family obligations" under the Code-protected

ground "family status". UBC points out that this argument was not raised until Ms. McCue’s

closing argument. They say that, in the alternative, if the Tribunal decides it is appropriate for

it to consider and comment on newer areas of law without the benefit of evidence and a

rigorous legal analysis, then it is evident from the case law that the reasons for protecting

family obligations do not apply to cultural obligations.

[280] UBC says that the Court in Health Sciences Assn. of British Columbia v. Campbell

River and North Island Transition Society, 2004 BCCA 260 [ 50 C.H.R.R. D/140] ("Campbell

River") held the test for discrimination 11based on family obligations is whether the employer

has seriously interfered with a substantial parental or other family duty: paras. 12 and 35.

They point out that the court, in Campbell River, recognized that parents have statutory and

fiduciary duties to care for their children: paras. 16 and 17.

[281] They point out, further, that Ms. McCue is urging the Tribunal to adopt the family

status test enunciated by the Federal Court of Appeal in Canada (Attorney General) v.

Johnstone, 2014 FCA 110 [ 79 C.H.R.R. D/324], para. 93 ("Johnstone"), in which the Court

enunciated that the childcare obligation at issue engages the individual’s legal responsibility

for that child as opposed to personal choice. They say that no such legal responsibility exists in

this case and that both the Johnstone and Campbell River tests state that the complainant’s

personal choice, without a corresponding legal obligation, will not meet the test for family

status discrimination.

[282] Further, they say that not only has Ms. McCue failed to provide any evidence of these

"cultural obligations" apart from her own assertions, but she has provided no evidence of a

fiduciary or statutory duty requiring her to perform them. They also say there is no evidence

that UBC at any time interfered with Ms. McCue’s choice to disseminate Indigenous

knowledge to her community, or to her Indigenous peers, or to her family, or to anyone at all.

[283] UBC says there is no evidence that Ms. McCue was prevented from disseminating

Indigenous knowledge or that the University interpreted the standard in a rigid way. They

therefore distinguish Hutchinson v. British Columbia (Ministry of Health) (No. 4), 2004

BCHRT 58 [ 49 C.H.R.R. D/348], which Ms. McCue relied upon to assert that UBC has

seriously interfered with her substantial cultural obligations. They say what the evidence in

this case shows is that Ms. McCue made a personal choice to be "willfully blind to the

requirements of the standard". They point out that she admitted that she did not read the

provisions of the CA until after she received the letter of concern. She also ignored the

repeated warnings that she was not meeting the standard and the repeated direction to focus

on her scholarship. UBC submits, therefore, that even if some sort of cultural obligations test

was in place, Ms. McCue could not make out a preliminary case of discrimination on that

basis.

[284] UBC takes issue with Ms. McCue’s reliance on the evidence of Dr. Henry to suggest

that, because other Indigenous faculty may have felt unsupported or that their work was not

equally valued, her own race, colour, ancestry, and/or gender was a factor in UBC’s decision to

deny her candidacy or a PSA or merit pay award. They rely upon Québec (Comm. des droit de

la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39 [ 82 C.H.R.R.

D/274] ("Bombardier") in arguing that the evidence of Dr. Henry is not specific to Ms.

McCue’s circumstances and therefore not sufficiently related to the facts of the case to

establish a connection between the decisions of UBC and Ms. McCue’s ethnicity. They say,

rather, that the evidence demonstrates that UBC, having due regard to Ms. McCue’s

circumstances and assertions, fairly concluded, on the record placed before it and assessed

with reference to the unchallenged standard, that Ms. McCue fundamentally failed to

demonstrate scholarly activity at the level required for promotion or tenure or for PSA and

merit pay awards.

[285] I will not set out UBC’s arguments with respect to bona fide occupational

requirement because they are not necessary to the conclusions that I reach.

C.

Ms. McCue’s Reply Submissions

[286] Ms. McCue takes issue with UBC’s contention that the scope of the proceeding is

limited to UBC’s application of the standard. She says that the Tribunal in both McCue (No. 2)

and McCue (No. 3) states the scope of the complaint includes the interpretation UBC placed

on the language of the CA and Guidelines. On the same issue, Ms. McCue disputes UBC’s

contention that she asked the Faculty Association to grieve her denial of promotion and tenure

but it chose not to proceed with that grievance because "it thought the process was fair". She

says that evidence related to the merit pay/PSA award issue and not promotion and tenure.

She says that she is unsure what the Faculty Association’s position on the issue is because UBC

did not call the Faculty Association member as a witness.

[287] Ms. McCue takes issue with the University’s submission that is not open to the

Tribunal to find that its interpretation of the standard is discriminatory because that would

constitute an impermissible collateral attack by Ms. McCue on the standard itself.

[288] Ms. McCue challenges UBC’s contention that her candidacy could not be restarted

because the terms of the CA required a decision by July 1, 2010. She suggested that in the

ordinary course the Faculty Committee decision respecting promotion and tenure would be

made in May of 2010, the SAC recommendations would be made in May 2010 and the

11President’s decision would be made by the end of June 2010. She submits that because the

Faculty Committee was unable to make their decision until subsequent to June 9, 2010,

President Toope could not make his decision prior to the end of June 2010. She says,

therefore, that the President’s decision is outside of the timeframe contemplated by the CA

and as a result, there was ample time to restart the process.

[289] Ms. McCue submits that the CA allows UBC to extend the tenure and promotion

process. She suggests that 2009/10 is her sixth year on tenure track and that her seventh and

ultimate year is 2010/11. She suggests, therefore, that the end of June 2011 is the final point

under the CA when the decision with respect to her candidacy must be made. She says,

therefore, UBC could have sent her expanded dossier to the external referees for review.

[290] Ms. McCue made argument with respect to the absence of a bona fide occupational

requirement. I am not setting out those arguments for the same reasons that I did not set out

arguments on bona fide occupational requirement made by UBC. I do not need to engage in

arguments with respect to bona fide occupational requirement in order to decide the issues in

this case.

[291] Ms. McCue submits that her complaint makes it clear that she is alleging that it is

discriminatory for UBC to interpret the CA narrowly and therefore exclude evidence which

falls outside of the parameters of traditional scholarship. She says that the complaint alleges

that her scholarship was not assessed properly, but it was assessed narrowly looking only at

peer-reviewed publication. She says that her service work was valued less than teaching and

scholarly activities, and that that was discriminatory.

[292] Ms. McCue further says, relying on Eldridge v. British Columbia (Attorney General),

1997 327 (SCC), [1997] 3 S.C.R. 624, at p. 630, that discrimination can accrue from a

failure to take positive steps to ensure that disadvantaged groups benefit equally from services

offered to the general public. She says that is what occurred in her case.

[293] Ms. McCue rejects the suggestion by UBC that June 9, 2010, was the first time she

raised her Indigeneity. She says that the first draft of the Shepherds’ Report, dated March 31,

2010, contains information about her Indigeneity going back to 2004 and that, in April of

2009, she asked that her oral presentations be considered as publications for purposes of

reappointment.

[294] Ms. McCue, relying upon the Tribunal’s observations respecting the duty to inquire in

McCue (No. 3), states that the duty to inquire rests with UBC. She says that, since UBC did not

judicially review McCue (No. 3), UBC cannot now challenge the inclusion of it for evidentiary

purposes and argument. She seems to equate the duty to inquire with a need by the decision-

makers at UBC to bring in appropriate Indigenous law expertise to resolve issues that UBC

might have respecting her CV. She indicates that by doing so UBC might have avoided treating

her oral presentations as conference work that all of her colleagues do, rather than

publication. She suggests as well that enrolling an Indigenous law expert would have assisted

the decision-makers in understanding Indigenous obligations. She suggests that UBC did not

inquire into her Indigenous status and sex, her Indigeneity obligations, her approaches to

scholarship and how to accommodate her protected grounds with a non-discriminatory

assessment of her Indigenous scholarship.

[295] Ms. McCue submits that UBC had a duty to accommodate her Indigenous obligations.

She suggests that such obligations, including Indigenous legal traditions and protocols,

amount to legal responsibility similar to Western forms of law. I note, however, that there is

no evidence to that effect in this proceeding. On several occasions, Ms. McCue attempted to

provide evidence through her submissions that she had not elicited during the course of the

hearing. The Tribunal is unable to give credence to those attempts, given that UBC has had no

opportunity to cross-examine on those issues.

[296] Ms. McCue responds to UBC’s submission that Dr. Henry’s evidence cannot be used

to prove, by way of presumption, that UBC discriminated against Ms. McCue by stating that

Dr. Henry’s evidence was provided to give social context to the evidence in the complaint. Ms.

McCue states that the 2006–2009 CA provisions did not make a candidate responsible for

compiling their file respecting the candidacy. I note, however, that the Guidelines for 2008/09

do put the onus to supply the necessary documentation on the candidate just as do the

Guidelines for 2009/10, section 2.2.3.

[297] In response to UBC’s submissions respecting adverse inference, Ms. McCue submits

that if she had called professors Christie or Mickelson or Blom, QC, it would have put them in

an awkward position with respect to their employer. She suggests that UBC did not call those

individuals to contradict her evidence. In particular she suggests that UBC did not call

Professor 11Christie to contradict her evidence that in 2009 he told her that only her 2009

work should be included in her CV.

VI.

A.

1.

ANALYSIS AND DECISION

Ms. McCue’s Case

Legal Principles

[298] As set out above, Ms. McCue must prove that she has the protected characteristics of

race, colour, ancestry, place of origin and sex; that she experienced an adverse impact with

respect to her employment; and that it is reasonable to infer from the evidence that her

protected characteristics were a factor in that adverse impact.

[299] The determination of these questions requires a contextual and purposive analysis:

Hutchinson v. British Columbia (Ministry of Health) (No. 4), 2004 BCHRT 58 [ 49 C.H.R.R.

D/348], upheld in judicial review in British Columbia v. Hutchinson (No. 2), 2005 BCSC 1421

[ 54 C.H.R.R. D/468]. It must also be viewed in light of the broad, liberal and purposive

approach which must be taken to an interpretation [of] the Code: University of British

Columbia v. Berg, 1993 89 (SCC), [1993] 2 S.C.R. 353, p. 370 [ 18 C.H.R.R. D/310 at

para. 26].

[300] In Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302 [ 52

C.H.R.R. D/430], the applicable principles for a racial discrimination and analysis were set

out as (para. 482):

a.

The prohibited ground or grounds of discrimination need not be the sole or the major

factor leading to the discriminatory conduct; It is sufficient if they are a factor;

b. There is no need to establish an intention or motivation to discriminate; the focus of

the inquiry is on the effect of the respondent’s actions on the complainant;

c.

The prohibited ground or grounds need not be the cause of the respondent’s

discriminatory conduct; it is sufficient if they are a factor or operative element;

d. There need be no direct evidence of discrimination; discrimination will more often be

proven by circumstantial evidence and inference; and

e.

Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and

prejudices.

[301] In R. v. Parks, 1993 3383, the Ontario Court of Appeal has addressed how

racism operates in society, stating:

… There are those who expressly espouse racist views as part of a personal credo.

There are others who subconsciously hold negative attitudes towards black persons

based on stereotypical assumptions concerning persons of colour. Finally, and

perhaps most pervasively, racism exists within the interstices of our institutions. This

systemic racism is a product of individual attitudes and beliefs concerning blacks and

it fosters and legitimizes those assumptions and stereotypes.

[302] In C.S.W.U., Local 1611 v. SELI Canada Inc. (No. 8), 2008 BCHRT 436 [ 65 C.H.R.R.

D/277], paras. 237–38, the Tribunal addressed how the grounds of race, colour, ancestry and

place of origin may intersect in relation to a person or group’s identity or how they are

perceived:

The grounds of race, colour, ancestry and place of origin may be combined to define, in a

comprehensive way, ethnic identity as a basis of discrimination. As stated by the Board in

Espinoza, these four grounds "are often combined as a kind of wide net to get at certain

complex discriminatory conduct". A similar point is made by Tarnopolsky and Pentney

[Tarnopolsky, Walter S., Discrimination and the Law, rev. ed. by William F. Pentney

(Toronto: Carswell, 1990—)], when they state that attempts to define "race" or "colour" are

somewhat irrelevant in human rights law, "as the real concern is not with the ‘race’ or ‘colour’,

or other hereditary origin of the individual who has been discriminated against, but rather

with what the respondent perceives the complainant to be: p. 5-19, and later, that while

concepts such as "ancestry" and "place of origin" may be elusive of definition, "the drafters of

Canadian human rights legislation have attempted to ‘get at’ many, if not all, of these types of

pejorative references by prohibiting discrimination based on them: p. 5-25.

In other words, these grounds intersect in a complex way to describe a set of characteristics

which may result in discrimination. The concept of "intersectionality" has been discussed in a

number of human rights decisions, including Radek v. Henderson 11Development (Canada)

and Securiguard Services (No. 3), 2005 BCHRT 302 [ 52 C.H.R.R. D/430]. The concept

recognizes the reality that a person may be subject to compound discrimination, as a result of

the combined disadvantaging effect of a number of prohibited grounds: paras. 463–465.

2.

Ms. McCue’s Protected Characteristics

[303] Ms. McCue is a hereditary chief of the Ned‘u’ten. She clearly is encapsulated within

the grounds of race, colour, ancestry, place of origin, and sex. In any event, that is not

disputed by UBC.

3.

Adverse Impact

[304] Ms. McCue has been denied a promotion to the rank of Associate Professor and has

been denied tenure as an assistant professor or an Associate Professor. She has also been

denied merit pay and PSA for the years 2009 through 2011. There can be no doubt but that

she has experienced adverse treatment for the purpose of s. 13 of the Code.

[305] In considering what constituted adverse treatment by UBC respecting the promotion

and tenure process, I find that it consisted solely of President Toope’s recommendation to the

Board against Ms. McCue’s candidacy. The recommendations of the Faculty Committee and

the SAC were merely preliminary steps in the process; they did not result in decisions but

merely in recommendations. The fact that those recommendations might be detrimental to a

candidacy is contemplated by the CA. The process is designed with safeguards to ensure a fair

process for a candidate. It is the President’s recommendation which goes to the Board to be

acted upon by Board decision. It is that decision which has the potential to be adverse.

[306] This does not mean that UBC’s conduct preceding the President’s recommendation is

irrelevant to the ultimate question of whether that recommendation was discriminatory. I

accept that the entire relationship between UBC and Ms. McCue is relevant to the questions I

must decide.

[307] I also note here that the Tribunal has no jurisdiction to entertain an appeal of UBC’s

promotion and tenure appointment process. My task is not to determine whether UBC

complied with the procedural requirements of the CA. My review of the process is to

determine whether it resulted in discrimination against Ms. McCue contrary to the provisions

of the Code.

4.

Connection between Personal Characteristics and the Adverse Impact

[308] The central question in this case is whether Ms. McCue’s Indigeneity and/or sex was

a factor in those denials.

[309] Ms. McCue’s submissions focus to a significant extent on her contention that UBC did

not accommodate her Indigeneity by considering her candidacy in a sufficiently broad context

to allow her work to be fairly evaluated. However, as discussed below, the evidence of UBC’s

witnesses is very much to the contrary. Their evidence is that they did approach Ms. McCue’s

work from the perspective she requested but that the material she assembled for UBC to

consider was largely incapable of the evaluation required by the candidacy.

5.

Ms. McCue’s Work as a Female Indigenous Legal Scholar

[310] In McCue (No. 3), I accepted that, for purposes of the no-evidence motion, where a

complainant makes a choice which is driven by a ground under the Code, that choice may be

viewed by the Tribunal as a factor in adverse treatment experienced by the complainant. Ms.

McCue called evidence from Dr. Henry, an expert in the experience of Indigenous Faculty at

universities, and Dr. Archibald, an expert in the field of Indigenous knowledge, Indigenous

oral traditions and Indigenous community-based research. They testified respecting issues

that Indigenous scholars in the academic community experience arising from the impact of

Indigenous culture and some incompatibilities between that culture and the requirements for

a scholar achieving promotion and tenure.

[311] Both Dr. Henry and Dr. Archibald acknowledged the importance of peer-reviewed

publication in the dissemination of academic work. Both have published extensively. Dr.

Henry expressed, however, that some Indigenous scholars fear that if they do not adhere to

Indigenous tradition in carrying out their scholarship, they will lose their own cultural

experience. Ms. McCue never adopted that statement as it related to her own experience,

though it may well be a significant component of her resistance to producing any peer-

reviewed work.

[312] Ms. McCue has testified at some length respecting the nature of Indigeneity, how

dissemination of knowledge takes place, and the difficulties she perceives to exist for

Indigenous scholars seeking to conduct research and spread knowledge through oral

presentation. She gave little evidence connecting these 11concepts with her own work and

their impact on her work at UBC.

[313] However, I’m satisfied that, in Ms. McCue’s case, her resistance to traditional peer-

reviewed publication and need to research and disseminate through oral presentation is

deeply rooted in her Indigeneity. In such circumstances, I find that Ms. McCue’s behaviour, in

carrying out the majority of the content of her CV as oral presentation, is driven in large part,

if not exclusively, by her Indigeneity. Given that conclusion, I am satisfied that her choice to

disseminate her knowledge through oral presentation can be captured under the grounds of

race, colour, ancestry and place of origin.

[314] The connection between Ms. McCue’s sex and her work is less clear. Ms. McCue

testified to her obligations as a female Aboriginal scholar; however, there was nothing in her

evidence which served to distinguish those obligations from those of a male Indigenous

person of similar status in the Ned‘u’ten community.

[315]

There is a clear connection between Ms. McCue’s race, colour, ancestry and place of

origin and her work at UBC. However, the evidence is also clear and it is not disputed that

Indigenous culture and the requirement to publish are not mutually exclusive. For example

the CVs of both Dr. Henry and Dr. Archibald demonstrate clearly that they have each achieved

promotion and tenure and published in peer-reviewed written form extensively. The question

then is whether there is a connection between Ms. McCue’s protected characteristics and the

denial of promotion and tenure and of PSA and merit pay. I first address the denial of

promotion and tenure, since this is where the parties focused their attention.

6.

The Record of Ms. McCue’s work

[316] The promotion and tenure process requires a record of material capable of review for

the purpose of assessing a candidate against the criteria in the CA. With respect to

scholarship, for example, the CA requires evidence of the quality and significance of an

individual’s contribution. The evidence must be capable of assessment. This is reflected in the

Guidelines: For traditional scholarship, published work is, where appropriate, the primary

evidence (3.1.5). For scholarship of teaching, evidence of assessment of the significance and

impact is essential (3.1.10). For professional contributions, the Guidelines recognize that it is

not always easy to assess the quality of this work, and offer notes to assist in assembling the

evidence and evaluating professional contributions (3.1.14).

[317] Ms. McCue testified that the onus was on the Faculty to provide the material for her

dossier. Ms. McCue argued that it is UBC’s responsibility to ensure that everything is in the file

before the Faculty Committee, ignoring the fact that the 2010–2012 CA clearly placed such

responsibility on the candidate. Article 5.03(a) requires the dossier to be provided by no later

than September 15, unless otherwise agreed to by the head (in this case the Dean). This is also

set out in s. 2.2.3 of the Guidelines

[318] The evidence is clear that Ms. McCue engaged annually in the preparation of a

document akin to her CV for purposes of supporting her position in the merit pay and PSA

process. It is difficult to understand why, in those circumstances, she required months to

provide her CV to Professor Elliot. It is still more difficult to understand why, when it was

provided, it was so deficient in terms of the required information. I find that these deficiencies

are purely attributable to Ms. McCue’s own lack of interest in, and attention to, her promotion

and tenure candidacy.

[319] Between January 2010 and June 2010 when the Faculty Committee reviewed her

application, and between June 2010 and June 2011 when the President reviewed her

application, Ms. McCue continued to add to her dossier. At several points in her submissions

Ms. McCue submitted that her work was capable of being assessed and evaluated either by the

Faculty Committee unassisted or by qualified Indigenous law experts in her field.

Unfortunately, that contention cannot be accepted. Professor Toope clearly stated, as did

Professor Bobinski, that the material set out in Ms. McCue’s CV was largely incapable of

evaluation.

[320] President Toope’s evidence was that evidence of scholastic activity, while not

necessarily needing to be published in the traditional sense, must be out in the world in some

way. He said that means it must be capable of evaluation by people having knowledge of the

field, in this case Indigenous studies. Otherwise there would be no way of comparing academic

work across institutions. He stated:

It’s extremely important that there be a means by which an assessment can be made of

the contribution, its significance and its quality. I could imagine someone who, for

example, is an essayist who has recorded an essay for the CBC. So whether or not

something is oral or — or written down to me is not the key, it’s that there has to be a

means of evaluating the existence of the work and its significance and impact

11because otherwise one is left with no evaluative process whatsoever. And in my view

that would be a fundamental breach of the collective agreement. And it would also be a

— frankly, almost a repudiation of centuries of detailed knowledge developed within

the University sector and processes developed within the University sector, in Canada

and worldwide.

[321] Professor Toope explained that he experienced that he had very little upon which he

could evaluate Ms. McCue’s work. He explained that, while there was much information on

her CV that she had made certain oral presentations, there was seriously insufficient material

respecting the nature of those presentations, the nature of the audience receiving them, their

volume and other information essential to evaluating their quality and significance. He

testified that significance and quality was the criteria the CA called upon UBC to consider

respecting scholarly activity. He stated that it could not suffice for a candidate to endorse his

or her own work. Nor could it suffice for a supporter to do so without proper evaluation. That

is why UBC and the University community at large universally utilizes peer review in their

promotion and tenure process.

[322] I find that President Toope’s conclusions against Ms. McCue’s candidacy were based

on an inability, even given his willingness to consider oral presentations, professional

contributions and scholarship of teaching as indicators of scholarly activity, to evaluate that

work. I find that ultimately Ms. McCue’s dossier was insufficient to allow evaluation as

required by the CA due to Ms. McCue’s failure to pay proper attention to the requirements of

the CA respecting the promotion and tenure process, such that her file, considered on the

broad basis she requested, was insufficient to support her application.

th

[323] A review of the CV reveals that, whether in the May 28 version or subsequent

versions, the majority of the content of the CV with respect to scholarly activity is comprised of

a listing of invited presentations, conferences participated in, and a limited selection of non-

refereed publications. The listing of invited presentations contains information about the

presentation of a brief nature, such as:

a. Invited panel presenter, "on practical applications of Kapp" — Fisheries Assembly,

First Nations Fisheries Council;

b. Invited speaker, Continuing Legal Education, "Aboriginal Law: International Human

Rights Developments"; and

c. Panelist — "Political Exclusion through the non-implementation of Indigenous Laws,

Celebrating Indigenous Legal Traditions", First Nations Law Students Association

Conference, UBC First Nations House of Learning (Vancouver).

[324] It is clear that the information provided gives no clue as to the depth, significance or

quality of the presentations in question — let alone the quantity of work involved or duration

of the presentation. There is literally nothing to evaluate.

[325] That is equally true with respect to the conferences listed where the nature of the

presentation is suggested by the title, but information which can be evaluated for quality,

quantity and significance is virtually nonexistent. On at least one occasion during the course of

the hearing, the Tribunal pointed out to Ms. McCue that the evidence suggested that the

material she had identified to that point in the hearing could not be properly evaluated and

requested that she provide evidence of material properly falling within the parameters of

scholarly activity, within the broad parameters she presented it, which was capable of

evaluation. Ms. McCue did not provide responsive evidence.

7.

Interpretation and Application of the CA and Guidelines

[326] Ms. McCue submits that she had proposed UBC include Indigenous peer review

metrics to assess and measure her Indigenous scholarly contributions in an appropriate

fashion. Ms. McCue submits that UBC took a narrow interpretation of the CA and Guidelines

respecting scholarly activity and argues that it excluded her oral presentations from

assessment and evaluation. She painted it as placing Western consideration and peer review of

written work expectations as superior to her oral forms of communicating Indigenous

knowledge and disseminating knowledge generally. This submission, however, ignores the

evidence of professors Bobinski, Elliot, and Young that the Faculty Committee, SAC, the

Dean’s recommendation, and the President’s recommendation all incorporated a full

consideration of scholarly activity within the parameters allowed by the CA and Guidelines.

There is no support, other than the speculation of Ms. McCue, for the proposition that any of

these bodies rejected the approach advocated by Ms. McCue.

[327] On the evidence, UBC attempted to consider oral presentations, professional

contribution and scholarship of teaching in weighing scholarly activity as requested. Professor

Toope picked up on the words in the Dean’s recommendation that, "The 11candidate’s record

should be considered in the most liberal and expansive manner possible given her Aboriginal

status and the importance of ensuring the continued presence of Aboriginal scholars at UBC".

He testified that he agreed with that and that that was part of his thinking in relation to the

file. He also agreed with the statement at p. 15 of his recommendation that, "The committee

should consider the broadest possible range of contributions under the provisions of the CA".

He testified that the file "was treated with great flexibility and with an assumption that both

the Aboriginal or Indigenous status of the scholar and the kind of work that the scholar was

undertaking couldn’t be measured in these really narrow and quantitative — purely

quantitative methods".

[328] The evidence in that regard, as presented by Professor Bobinski and Professor Toope,

was not undermined in cross-examination. Rather, they testified that they had insufficient

material to evaluate given the lack of information which could shed light upon the quality and

significance of Ms. McCue’s material presented to support scholarly activity.

[329] Ms. McCue testified that she has published both oral and written documents which

were mis-characterized as non-peer-reviewed. I note, however, that the characterization of

these documents arises from her own CV. The space for peer-reviewed publication is empty in

all versions of the CV. Ms. McCue also argued that UBC’s approach made her oral

presentations invisible as publications, but to the extent that they were not visible, that

resulted from the lack of a record. The problem here was not UBC’s approach.

[330] Ms. McCue also submitted that UBC did not appreciate or allow for the significant

additional time required for her to engage in community-based research. This submission

ignores the evidence of President Toope which expressly recognized the additional time

involved in such research and considered it in his approach to her application.

[331] Ms. McCue points to the division of opinion between the majority of the Faculty

Committee, which rejected Ms. McCue’s candidacy and the minority who found that Ms.

McCue had provided sufficient evidence to demonstrate the level of scholarly activity and

future promise required under the CA. But the Faculty Committee report dated November 3,

2010, does not suggest that the majority decision did not consider that same range of

evidence. On the contrary, the Faculty Committee decision reveals that committee considered:

a. Ms. McCue’s record of publication and her unpublished professional contribution on

the issue of scholarly activity;

b. Ms. McCue’s curricular contributions and her leadership of the Aboriginal teaching

module project;

c.

Ms. McCue’s participation in conferences and her activities with Indigenous

communities; and

d. whether Ms. McCue had demonstrated the level of scholarly activity and future

promise required, considering the broadest range of evidence available under the

collective agreement.

[332] The fact that the majority of the Faculty Committee, considering the same issues,

reached different decisions than the minority on Ms. McCue’s success in demonstrating

quality and significance of her work does not equate, in the absence of any evidence to the

contrary, to evidence of discrimination. It certainly is not supportive of Ms. McCue’s argument

that the Faculty Committee failed to follow the approach for which she advocated in reaching

its recommendation. What matters for the purpose of the human rights analysis is that the

assessors took a broad approach that accounted for Ms. McCue’s work as an Indigenous

female scholar, not whether the assessors ultimately recommended Ms. McCue for promotion

and tenure.

[333] Similarly, when Ms. McCue submits that the majority of the external referees

supported her candidacy and suggested that supported her position that UBC had not applied

the broad approach to the requirements in the CA she was requesting, Professor Toope

responded by pointing out that generally the external referees were casual in their approach to

their task such that the reviews were not persuasive in their conclusions. He pointed to the

clear view of one of Ms. McCue’s supporting referees that the material being reviewed lacked

analysis by Ms. McCue. He pointed to a sentence in another indicating that the external

reviewer considered Ms. McCue’s publication record insufficient to support her candidacy

unless the Faculty was confident she would publish "in a timely manner" material depicted in

the CV as "in process". He criticized another external review on the basis that it did not engage

with the materials sent for review and as such was "almost entirely unhelpful". There was also

a reviewer who was unable to recommend Ms. McCue for promotion until her level of

scholarly activity "reaches that which would be expected today of an Associate Professor of

Law in your Faculty".

[334] I find that UBC’s approach in rejecting the supporting external referees’

recommendations, in all of the circumstances, does not support Ms. McCue’s contention that

UBC did not engage in the broad consideration of her candidacy required.

[335] Ms. McCue submits that she was forced to do traditional scholarship only. She

suggests that she never agreed to the metrics of her candidacy. That submission ignores the

seven years that she responded to the Dean’s concerns by stating that she was in the process of

publication and would be doing so shortly. She first suggested that she sought accommodation

by taking a broad view of her oral work and scholarship of teaching as equivalent to peer-

reviewed publication in May 2010, well after the Faculty Committee recommendation process

should have been concluded. On the evidence, Ms. McCue did not hint that she wanted an

accommodated candidacy assessment until less than a month before her presentation — which

in turn was months late due to her difficulties in providing the dossier required for sending to

her external referees. I accept that the strict requirements of art. 5.02 of the CA were not met

but find no evidence that that failure was a factor in the adverse treatment of UBC towards

Ms. McCue given the extreme lateness of the accommodation request and the evidence of the

attention UBC paid to her request for a broad approach to the CA requirements. The Tribunal

is not an appeal body reviewing the promotion and tenure proceeding for procedural errors.

[336] I find that Ms. McCue’s conduct over the course of her time at UBC justified the

Dean’s understanding that Ms. McCue was pursuing the traditional scholarship track in her

application.

8.

Accommodation Request

[337] Ms. McCue criticizes UBC for not working with her to set up an accommodation

process. This ignores the fact that the accommodation requested by Ms. McCue at the point of

the June 9, 2010, oral presentation was a broad consideration of her work as a whole, as

aspects of scholarly activity, and that such consideration was given. The problem, on the

evidence, was not that her oral presentations, professional contributions and scholarship of

teaching were not considered but that the bulk of her material was incapable of assessment

and evaluation.

[338] It ill behooves Ms. McCue to suggest, as she has, that if a proper process had been

followed she would have had months to prepare for her Faculty Committee interview. I find

that the issues arising are purely attributable to Ms. McCue’s own, unexplained failures to

identify, in a reasonable timeframe, her requirement for accommodation in the promotion and

tenure process. Had she done that, there would have been time to explore approaches to

Indigenous scholarship that would have allowed Ms. McCue to engage as an Indigenous

scholar in a manner which would have allowed UBC to evaluate her work for quality and

significance, as was required.

[339] Ms. McCue also proposed that her work as reflected in her May 28, 2010, and

subsequent CVs should be re-sent to the external referees for evaluation. I find, based on the

evidence before me, that this would not have affected the outcome of her application. There is

no reason to believe that the additional material referred to by Ms. McCue would be materially

different in character from that previously included in the dossier. That is to say there would

be insufficient material before the reviewers to evaluate if they were to engage in an

appropriate evaluation process.

[340] To the extent that Ms. McCue asked for equal weight to be placed on service, and as

set out below, this was not permitted under the CA. To the extent that she asked that her

service be considered broadly under the rubric of scholarly activities, I find, as set out above,

that UBC took a broad approach that searched for evidence of scholarly activity in all of the

work put forward by Ms. McCue.

[341] Similarly, Ms. McCue’s request for a restart could not be granted within the terms of

the CA. The approach that Ms. McCue ultimately took to scholarship while she was at UBC

may have required a novel approach to creating a record for the purpose of promotion and

tenure. I accept that UBC would have been obliged to work with Ms. McCue to identify such an

approach had she approached it to say that she was pursuing an oral tradition in scholarship

and needed to identify a method for assessing that scholarship. The difficulty is that, for years,

Ms. McCue led UBC to believe that she was pursuing traditional scholarship. She may have

personally resisted the traditional approach to producing peer-reviewed publications, but she

did not suggest otherwise until there was no reasonable chance, within the framework of the

CA, to step back and find an alternate route to the assessment of her work.

[342] Ms. McCue argues that UBC should have inquired into her cultural traits to explore

why her behaviour was at odds with their expectations. I cannot accept this argument in the

face of the evidence that 11Ms. McCue repeatedly said she would publish and thereby

reinforced UBC’s expectations. I do not accept that the lack of publications in this context

would reasonably give rise to a duty to inquire into cultural traits. For the same reason, I do

not accept that the advocacy for Ms. McCue’s oral presentations to be treated as scholarship in

the 2009 reappointment process was sufficient to impose a duty on UBC to inquire into Ms.

McCue’s cultural traits.

9.

Mentorship

[343] Ms. McCue argues that she did not receive the proper mentorship for her type of work

to be properly expressed to the Faculty. I do not accept that UBC’s conduct in relation to

mentors adversely affected Ms. McCue in relation to her protected characteristics or

contributed to any such adverse effect. Early in the 2003/04 year, Dean Bobinski asked

professors Young and Pue to work with Ms. McCue on scholarship. The Dean’s January 31,

2006 letter indicated that McCue had advised she did not feel as comfortable with formal

mentoring by professors Pue and Young as she felt with more informal arrangements. Early in

2007, Professor Bobinski arranged for a highly respected Indigenous scholar, Professor John

Borrows, to provide mentoring to Ms. McCue. Ms. McCue did not follow up with Professor

Borrows. To the extent that Ms. McCue did not receive sufficient mentoring, I find that

responsibility lies entirely on her.

10.

Assessment of Ms. McCue’s Teaching

[344] Respecting teaching, the evidence was that UBC eliminated the 2005/06 student

evaluations of the first-year Property course from consideration, given concerns that the

evaluations may have been impacted by discriminatory considerations. Further, Professor

Toope testified, unchallenged, that he attached minimal weight to student evaluations in first-

year Property in other years. What he did attach weight to was Ms. McCue’s other student

teaching evaluations, including the upper-level courses she taught, and her record of graduate

student supervision in concluding that her teaching met the standard for teaching as an

assistant professor but not as an Associate Professor. He determined this on the standard set

out in the CA, being demonstration of successful teaching beyond that expected of an assistant

professor. Ms. McCue challenged that conclusion; however, I found the explanations

presented by President Toope to be persuasive and accept that his decision was honestly

derived from the information before him, including evidence of teaching evaluations, and

reflected his application of the standard. Ms. McCue’s cross-examination on this issue did not

undermine this conclusion.

[345] Further, Ms. McCue challenged Professor Bobinski respecting the conclusions that

could reasonably be drawn from the term reports and teaching evaluations, arguing that they

supported that her teaching was effective. While some categories of those evaluations

supported that argument, the main thrust of the information therein, even if the Property

course is not considered, supports that Ms. McCue’s teaching was rated substantially lower

than other Faculty teaching the same courses, with the exception of Law 358 where she clearly

received a superior rating consistently.

11.

No Evidence of Discriminatory Bias

[346] On the evidence, UBC considered the additional material Ms. McCue asked them to

consider when addressing her candidacy. Neither the complaint nor the evidence led by Ms.

McCue suggested that the Faculty Committee, SAC or President Toope actively, consciously or

subconsciously, discriminated against Ms. McCue’s candidacy by failing to adequately

consider all of the material she presented in her dossier as evidence of scholarly activity under

the CA or unfairly assessing her teaching performance. There was no evidence presented

which could reasonably support an allegation of racial bias — advertent or inadvertent —

impacting the process.

[347] Accordingly, while I accept that racism can operate systemically within an institution,

and that Ms. McCue argued that UBC’s approach was based on inaccurate ideas about her as

an Indigenous female law scholar and that her work was stereotyped, the evidence did not

reveal the operation of systemic discrimination in UBC’s approach to assessing the work of the

members of the law faculty.

12.

Interference with Cultural Obligations

[348] Ms. McCue advanced an argument that the test for family status should be applied by

analogy by the Tribunal to find that UBC interfered with her cultural obligations to her peers.

Apart from challenging UBC’s denial of promotion and tenure, however, Ms. McCue has not

specified how UBC interfered with her work as a female Indigenous legal scholar or otherwise

interfered in any specific cultural obligation. On the evidence, Ms. McCue researched and

disseminated the results of her research as she saw fit throughout her appointments at UBC.

13.

PSA and Merit Pay

[349] Ms. McCue testified that, under the CA, a Faculty member can apply to receive PSA

and merit pay if they remain employed in the year following the year for which the awards are

applied for. Merit awards take into account scholarly activity, teaching, and service in the

previous year. PSA takes into account performance over a period of time that is worthy of

recognition, the relationship of the person’s salary to that of other Faculty members

considering total years of service, and market considerations. The process involves submitting

an activity report and CV.

[350] Ms. McCue argued that the denials of PSA and merit pay in 2009–2011 were on the

same basis used to assess her work in the promotion and tenure application. She presented

her annual activity report for each of those years.

[351] The evidence is clear that the same shortcomings that interfered with and defeated

Ms. McCue’s candidacy were also the reasons she did not receive PSA or merit pay in 2009,

2010, or 2011. For example, in her May 9, 2011, activity report there were no published items

and nothing in the report would have reasonably triggered UBC to understand that

accommodation was required. Professor Bobinski testified that she considered the requests

put in Ms. McCue’s annual report and CV and that Ms. McCue’s oral presentations were

accepted as scholarly activity as part of the evaluation of her eligibility for those awards along

with the matters she raised in her annual reports.

[352] Ms. McCue has not established that her race, colour, ancestry, place of origin and/or

sex were factors in the denial of PSA and merit pay.

14.

Conclusion on Ms. McCue’s Case

[353] While I earlier found that Ms. McCue’s race, colour, ancestry and place of origin were

a factor in Ms. McCue’s choice to disseminate her knowledge through oral presentation, I find

that UBC’s decision not to promote Ms. McCue or grant her tenure was ultimately not based

on those considerations. The decision, respecting scholarly activity, was based on a significant

paucity of information respecting the details of her oral publications which prevented them

from being evaluated sufficiently for quality and significance.

[354] The lack of information to allow evaluation of Ms. McCue’s candidacy did not derive

from her choice to publish orally. It derived from Ms. McCue’s lack of interest, for whatever

reason, in the process to achieve promotion and tenure. She was warned that a certain level of

peer-reviewed publication was expected of her over the period of her candidacy from 2004

through 2009. She did not articulate any objection to those criteria but, rather, informed the

Dean she was complying. Had she requested accommodation she could have had discussions

with the Faculty respecting the need to be able to evaluate her material and how that might be

accomplished, such as simply recording her oral presentations.

[355] There is no evidence that Ms. McCue’s failure to request accommodation in a timely

manner related in any way to her gender or Indigeneity. Nor is there any evidence that her

failure to ascertain the requirements for a successful candidacy, accept offered mentoring by

culturally appropriate mentors, or even read the CA requirements for her candidacy until

spring 2010, related in any way to her gender or Indigeneity.

[356] There is no evidence that Ms. McCue’s failure to provide UBC with thorough

explanations of her work, or on any other basis providing the information required to permit

appropriate evaluation of that work, related in any way to her Indigeneity or gender.

[357] The publications Ms. McCue referred to in her CV which were capable of evaluation

were not sufficient in quantity or quality, taken alone, to make up for the lack of other

measureable work in her dossier.

[358] I find that there is no connection between Ms. McCue’s Indigeneity or gender and the

denial of her candidacy by the Board of Governors. Rather, the denial is influenced by Ms.

McCue’s failure to ensure that her work was properly explained and preserved in order that it

could be evaluated as required by the CA. It is not necessary that oral submissions be written

or presented other than orally. I accept, however, that the work must be capable of evaluation

if it is to ground a candidacy for a promotion to Associate Professor or the award of tenure. I

find that Ms. McCue has failed to establish a nexus between her Indigeneity or gender and the

rejection of her candidacy. I find therefore that the complaint is not justified.

[359] I find that Ms. McCue’s race, colour, ancestry, place of origin and sex were not factors

in UBC’s decision to deny Ms. McCue’s candidacy for promotion and/or tenure.

[360] The evidence is clear that the same shortcomings that interfered with and defeated

Ms. McCue’s candidacy were also the reasons she did not receive PSA or merit pay in 2009,

2010, or 2011.

[361] Dr. Henry and Dr. Archibald gave evidence of important considerations respecting

issues faced by Indigenous academics in the University system. However, I have found that

the issues raised therein were not factors in the adverse treatment experienced by Ms. McCue.

B.

Accommodation

[362] The question of whether UBC discharged its duty to reasonably accommodate Ms.

McCue does not arise given my conclusions above. Ms. McCue has made submissions on the

subject, however, and this is an important decision to her. I will consider her submissions on

accommodation accordingly by way of obiter.

[363] The CA sets out the standards for promotion and tenure and for PSA and merit pay.

There is no issue that the standards were adopted for a purpose rationally connected to the

performance of a member of the Faculty of Law. There is no issue that the standards were

adopted in an honest and good faith belief that they were necessary for assessing when a

candidate qualifies for promotion, tenure, PSA and merit pay. Ms. McCue argues, however,

that there was no good faith attempt to set proper standard for measuring her work. I

disagree. I find on the evidence that UBC worked in good faith with Ms. McCue to support her

applications and to ensure it brought an appropriate lens to assessing her work.

[364] The question is whether UBC reasonably accommodated Ms. McCue in respect of the

assessment of her work as an Indigenous female legal scholar.

1.

Delay of Process

[365] Ms. McCue submits that delaying the process to allow the parties to work out an

appropriate accommodation, commencing with providing her entire dossier as it developed by

June 29, 2011, would not have been an undue hardship for UBC. This submission ignores Ms.

McCue’s agreement that she would not be challenging UBC’s standard in this proceeding. The

CA provides that a recommendation must be made in the seventh year of service in the case of

an assistant professor, respecting whether to grant a tenured appointment or not to renew an

appointment. If the decision is not to grant a tenured appointment then the CA requires that,

normally a one-year terminal appointment will be granted (art. 2.03(f)(ii) and (g)). The

maximum period of a term appointment with review for an assistant professor is eight years

(art. 2.03(h)(i)).

[366] Nor is it possible for UBC to simply extend a series of term appointments that extend

beyond the time limits in the CA in order to bypass the time limits for a tenure candidacy (art.

2.03(i)). An individual can only be reviewed once for tenure in the professor stream

(Guidelines, s. 2.3.1).

[367] The mandatory tenure year for an assistant professor is year seven, measured from

July 1 of the year of hire (Guidelines, s. 2.3.1). I find that Ms. McCue’s tenure clock was

extended by three years so that tenure candidacy must be considered by June 30, 2010, rather

than June 30, 2007.

[368] Ms. McCue submits that, due to the delays in the progress of her promotion and

tenure process, President Toope was incapable of making his recommendation to the Board

prior to June 30, 2010. She therefore relies on s. 2.2.1 of the Guidelines to argue that, since the

effective date for all promotion and tenure decisions is July 1, and President Toope could not

make his recommendation to the Board prior to July 1, 2010, the timetable defaulted to July 1,

2011, and there was no timetable impediment to restarting the process. I draw the inescapable

conclusion, on the evidence, that the delay was primarily, if not exclusively, attributable to Ms.

McCue’s own delays in completing her dossier and providing it to Professor Elliot for

circulation to the external referees, and her ongoing pattern of constant, significant

supplementation of her incomplete dossier. I recognise that Ms. McCue is entitled to

supplement her file right up to the President’s recommendation; however, Ms. McCue cannot,

by her own mismanagement of her obligations in the process, create an argument that the

timetable for the promotion and tenure process has been breached. I find that restarting the

process would be a substantial hardship for UBC, effectively undermining the standard for

promotion and tenure.

[369] Additionally, UBC calls the Tribunal’s attention to Professor Toope’s evidence that

such a restart would be of no assistance because Ms. McCue’s failure to create any kind of

record of the majority of her scholarly activity would result in no further material in her

dossier to evaluate in any event. They further state that it is the candidate’s responsibility to

place all relevant evidence in the dossier and Ms. McCue’s failure to do so cannot justify such a

step. I find that the CA does not contemplate a restart to the process.

2.

Equal Weighting of Scholarship, Teaching and Service

[370] At her oral presentation of June 9, 2010, Ms. McCue said that she wanted equal

weighting of 11scholarly activity, teaching and service and a restart of the process. The CA

clearly prohibited equal weighting of these three criteria. Performance in scholarly activity and

teaching are the prime considerations UBC is to consider in the promotion and tenure process.

Service will be considered but cannot compensate for deficiencies in scholarly activity and

teaching (art. 4.01(a)). The request before UBC was inconsistent with the CA and therefore

cannot be advanced in this proceeding due to Ms. McCue’s own representation.

3.

Statements of Support

[371] Ms. McCue brought the attention of the Tribunal to letters from Canadian Lawyers

Abroad, a Ned’u’ten hereditary chief, the Indigenous Network on Economies and Trade, two

lawyers from the law firm of Callison & Hanna and the Indigenous Bar Association in Canada,

all written in support of her candidacy. It is clear that all of the authors have high regard and

great respect for Ms. McCue. She describes the letters as the equivalent of peer review by the

Aboriginal community. She testified that peer review is defined by UBC as "a third party

reviewing your work that can provide an objective assessment". She testified that her field of

expertise, Indigenous law, is broader than other areas of the law and that some Indigenous

communities may have an Indigenous approach to how they make law. She testified that the

Indigenous lawyers, peers and Bar Association have all witnessed her work.

[372] Ms. McCue has submitted that members of her Indigenous community outside of the

academic community are her peers and therefore their general statements of support and

endorsement should have been given weight equivalent to publication in peer-reviewed

journals. This argument ignores evidence from UBC’s witnesses that such statements lacked

the objectivity, independence, and, in particular, academic rigour of a peer-review process . I

accept the evidence of professors Bobinski and Toope about the importance of peer review as

the basis for judging promotion and tenure, whether it is in respect of published works or

other scholarly work. The evidence of Professor Toope and Professor Bobinski was consistent

in asserting that peer review is important to any university that wants to protect its academic

reputation. Peer review is essential to attracting Faculty who have the ability to research and

publish at the requisite high level. As Professor Bobinski stated, "It’s important to have the

highest quality possible of work and the broadest possible dissemination to ensure the sort of

reasons for the University’s existence are actually carried out in society".

[373] Further Ms. McCue is bound by her agreement not to challenge the CA. That

argument directly does so in my opinion. I reject the argument.

4.

Community-Based Research

[374]

No evidence has been led in this proceeding which supports that Ms. McCue’s

community-based research prevented her from publishing. Professor Toope testified that any

community-based research project which purported to restrict the ability to publish would not

constitute research under the CA and therefore would not be approved by UBC. Nor is there

any specific evidence that Ms. McCue was prevented from publishing due to the terms of any

community-based research project if she chose to do so.

[375] There is evidence that community-based research, particularly in the context of

Indigenous communities, required time to build trust and produce output. While Professor

Toope gave evidence that such issues are not unique to work with Indigenous communities

and that UBC has historically been quite sensitive in assessing community-based scholarship,

I accept that the assessment of a candidate’s record must fairly take into account the nature of

a candidate’s work as an Indigenous scholar. In the circumstances of this case, I find that UBC

took all reasonable and practical steps, within the parameters of the CA, to assess Ms. McCue’s

applications in a culturally-appropriate framework.

VII.

CONCLUSION

[376] I find that the complaint is not justified. It is dismissed under s. 37(1) of the Code.

APPENDIX "A" — THE EVIDENCE

I.

EVIDENCE OF LORNA JUNE MCCUE

[A1] Ms. McCue was hired on tenure track as an assistant professor in the Faculty of Law

and Director of First Nations Legal Studies ("FNLS") effective July 1, 2000. She was eligible to

be considered for promotion to Associate Professor and for tenure in her seventh year. Prior to

that, she had served as Acting Director of FNLS in the years 1998 through July 1, 2000.

[A2] Ms. McCue is Dene, a First Nations language group extending geographically from the

Northwest Territories to the Navajo region of the United States. Both of her grandparents

were hereditary chiefs and she holds her grandfather’s name in her leadership role in her

Indigenous community.

[A3] Ms. McCue is 45 years old, has been married for 20 years and has a daughter in

second-year university and a son in Grade 8.

[A4] Ms. McCue’s name as hereditary chief is Nekhlh, a name bestowed on her through

inheritance when she reached the age of 25.

[A5] As a Director of FLNS, she was charged with developing the law faculty program

beyond the then-existing curriculum in the Indigenous law field.

[A6] Ms. McCue secured a significant British Columbia Law Foundation ("Law

Foundation") seed grant to develop a conceptual project for the Centre for International

Indigenous Legal Studies ("CIILS"). It was part of her role to develop a conceptual idea of

what such a centre would look like. The Law Foundation agreed to match funding.

[A7] Ms. McCue hired students and staff to facilitate the goal of creating the CIILS concept.

She also created a CIILS Committee that acted as a voluntary board. Members of the law

faculty served on that committee.

[A8] Ms. McCue conducted a community legal needs assessment ("CLNA") in the province.

She worked closely with First Nations Council of Learning at UBC and connected as well to the

FLNS Program.

[A9] Ms. McCue, while working on her master’s degree in 1998, became aware that the

FNLS required an assistant. She set that up and now that role is titled Associate Director

FNLS. She says the position is important because the needs of First Nations students in legal

studies are significant.

[A10] After a couple of years, Ms. McCue located people to fill roles in FNLS which would

allow her to devote time to development of academic research, including course development.

The CIILS project was the research arm of the program she, along with others, envisaged

developing.

[A11] Ms. McCue served many roles as described and was called upon to advise many

students and perform the administrative duties associated both with her assistant professor

role and her directorship, resulting in her workload as a first-year tenure-track professor.

[A12] The CIILS Project Needs Assessment was a two-year project in which Ms. McCue

visited First Nations communities in eight locations in British Columbia, looking at the needs

of First Nations when coming into relationship with the law. This involved interviewing

Indigenous people and looking at whether there was a need for international law education

and for research respecting Indigenous rights in British Columbia. She testified that extensive

time was required at the front end setting up all of this.

[A13] Ms. McCue envisaged a wing at the law school housing a research centre where

Indigenous communities could find legal resources to fulfill their needs. She developed a

model with estimates of the cost to build it and what it would house.

[A14] The CIILS project engaged her interest in international law. She envisaged

Indigenous students taking courses that would allow them to return to their communities

trained to carry out targeted legal needs.

[A15] In April 2002, Ms. McCue promoted the CIILS project at the inaugural Forum on

Indigenous Issues. In the same time period she applied for maternity leave for her second

child.

[A16] Between 2002 and 2004, Ms. McCue was exposed to a snapshot of significant legal

needs of Indigenous peoples in British Columbia.

[A17] Ms. McCue found, however, that after 2004, Faculty support for her endeavours

evaporated and funding from the Law Foundation was no longer available.

[A18] When she had commenced her term with the Faculty, Professor Blom, QC was the

Dean of the law faculty. He hired her initially on a three-year appointment with subsequent

three-year and two-year renewals contemplated.

[A19] In July of 2003, Ms. McCue sought, and was granted, a request for a "pre-tenure

period extension" for one year, in respect of maternity leave for her second child. The effect of

this was that the period from July 2003 to the end of June 2004 did not count towards the

seven years she was given to achieve tenure.

[A20] By April of 2004, Professor Mary Anne Bobinski had succeeded Dean Blom, QC as

Dean of the Faculty of Law. She wrote advising Ms. McCue that she was prepared to

recommend her for a reappointment to a second three-year term as an assistant professor of

the Faculty of Law on April 26, 2004. The letter identified certain issues which Ms. McCue

would need to address if she was going to successfully meet the expectations of the tenure and

promotion review process. The letter identified that the three components considered during

the reappointment process and which would be the focal point of the tenure process 11were

scholarly activity, teaching and service. It stated the judgment of scholarly activity is based

mainly on the quality and significance of an individual’s contributions. However, it pointed

out that Ms. McCue had not yet begun to publish "original, peer-reviewed contributions to the

legal scholarship at the expected rate. Although contributions to scholarship necessarily

involve a combination of quality and quantity, generally we would expect to see five to six

peer-reviewed, significant publications by the time you seek tenure". Ms. McCue’s master’s

thesis and her "Afterward" book chapter were acknowledged by the Dean to indicate the

potential for scholarly contributions.

[A21] Ms. McCue says, with respect to the "Afterward" chapter, that it conveyed the

principles of decolonization which in 2003 received little attention from Indigenous legal

scholars. She says the book in which the chapter was published was important because it

brought together the legal voices of Indigenous people in Canada. She says that she developed

courses that taught the theory of decolonization so students could develop a legal mindset

respecting the common law and constitutional law.

[A22] The Dean in her letter of April 26, 2004 removed all of Ms. McCue’s administrative

responsibilities for the FNLS Program effective immediately and provided her with a

significantly reduced teaching load for the 2004/05 academic year. This consisted of a fall

semester free from any teaching responsibilities and the requirement to teach only one course

in the spring of 2005 rather than the normal two. These reductions in workload were to assist

her efforts to address the lack of scholarly activity to that point in time.

[A23] After her reappointment in 2004, Ms. McCue began teaching first-year Property Law.

The curriculum contained no First Nations content except respecting Aboriginal land rights.

She increased the First Nations content in the curriculum and encouraged others teaching the

subject to do so as well. She had never taught the subject before.

[A24] Ms. McCue testified that recommendations came down from the Law Society to the

University of Victoria and the University of British Columbia Law Faculties to address certain

discriminatory barriers Indigenous scholars were facing in their studies. She embarked upon

implementing one of those recommendations. The law school received grant monies to

develop Aboriginal content modules. It was a one-time grant funding opportunity. Ms. McCue

hired students and worked with the FNLS Program to help develop a program intended to

develop such Aboriginal content modules. They targeted the first-year curriculum. Professors

in the law faculty voluntarily considered whether they wanted to use the modules or not. She

was encouraging the professors to use them particularly in Property Law and evidence. The

modules were disseminated to both the University of Victoria and the University of British

Columbia law schools once they were completed.

[A25] Ms. McCue testified that, in April of 2004, she was burning out and testified that the

reduction of administrative responsibility and a reduced teaching load for 2004 and 2005

were a recognition that she was burning out. She testified that she was removed from her

directorship for one year to be replaced by an acting director (this is contrary to the content of

the letter which expressly permanently removed her from the directorship). She testified that

she was never allowed to get back to the directorship.

[A26] Ms. McCue did get Faculty support for pilot projects in Indigenous communities. She

targeted which communities would benefit and worked on developing community engagement

models for those pilot projects. She still had support from Indigenous alumni for the CIILS

concept.

[A27] Ms. McCue testified that Dean Bobinski’s April 26, 2004 letter first raised the

expectation of five to six peer-reviewed, significant publications as the evidence of quality and

quantity of scholarly contribution required by the Faculty of Law. She testified that she

understood that the collective agreement could be interpreted more broadly than that. She

testified she knew Indigenous scholars in other faculties were being recognized for their work

in publications whether they were peer reviewed or not. She gave no evidence, however,

respecting who those professors were, nor did she call any of them as witnesses.

[A28] Ms. McCue testified that in the fall of 2005 she had a significant family tragedy

relating to a family member’s fatal stabbing and her father’s hospitalization for three weeks

due to a work-related injury.

[A29] In the academic year of 2005/06 she was asked to teach a first-year Property course

again. She developed a Property moot problem on Aboriginal issues which were topical at the

time. Towards the end of the course certain students were obstructing her class. They created

a social media site, and according to her, made deals with class members not to answer

questions in class since otherwise they would be chastised on the social media site. She

testified that caricatures of her were posted on that site and that 11those students deliberately

worked to give her poor ratings. She testified that the issue was the Aboriginal content of her

Property Law course. She found the events very traumatizing. Ms. McCue testified that she

received from Dean Bobinski a letter dated January 31, 2006 focused on an April 26, 2005

meeting with Associate Dean Claire Young and a meeting of December 13, 2005 with Associate

Dean Wes Pue. The letter indicated that the meetings were part of ongoing discussions

regarding expectations for continued reappointment and consideration for tenure. The letter

indicates that in the meeting of April 26, 2005 Ms. McCue advised the Dean and Professor

Young that she was close to completing a major scholarly project and that she would forward a

current draft to Professor Young by May 3, 2005 and complete her draft after a consultation

process scheduled for July.

[A30] The letter further emphasized that Ms. McCue was informed of the need to focus her

efforts on publishing the scholarly work necessary for continued reappointment and

consideration for tenure and promotion. Ms. McCue was told that she would need to submit

three substantial pieces for publication by the end of the 2005/06 academic year in order to

establish a proper basis for the reappointment’s review process in 2006/07 and to ensure that

the pieces were published well in advance of the tenure review process. The letter confirmed a

discussion requiring her to:

1.

focus on significant, substantial peer-reviewed or equivalent law review/journal

articles rather than book chapters

2.

keep other activity, such as conferences, to a minimum, unless there is a direct

connection between the conference and the opportunity for an immediate peer-

reviewed or equivalent publication;

3.

4.

continue to work closely with your colleagues and mentors on drafts for publication;

and

start to identify to work with specific potential publishers due to the long timelines

associated with the peer-review process.

[A31] The letter indicated that the meeting of December 13, 2005, involving Associate Dean

Pue, addressed the fact that Ms. McCue had not completed her scholarly projects on the

timeline discussed at the April meeting. It further indicated that Ms. McCue might be in a

position to submit an article for possible publication in December of 2005 or January of 2006.

There was a recognition of issues Ms. McCue felt had impeded her productivity including the

family tragedy and the ongoing sense of loss and anger because of the reduction in her

administrative duties. The letter indicated that Ms. McCue had advised she did not feel as

comfortable with formal mentoring by professors Pue and Young as she felt with more

informal arrangements. It noted that Ms. McCue advised that she felt able to move forward

with her work because of the recognition that her engagement in scholarship would be

personally fulfilling and that it would provide the foundation for her to remain in academia. It

concluded by stating:

I hope that you have enjoyed a productive period for your research and scholarship

since our last meeting. Please let me know about your progress with submitting draft

articles for publication as well as about any acceptances for publication. As you know,

I am very concerned about whether or not you will be able to produce scholarly

publications at the rate necessary to provide a basis for the reappointment process in

2006–2007. The reappointment process is a very significant pre-condition to any

possible consideration for tenure in 2007–2008.

My colleagues and I remain ready to work with you to help you to achieve your

scholarly promise and potential. At this point, my understanding is that you would

prefer to pursue informal mentoring for your research and scholarship. You have not

identified any other specific support you might need to accomplish your scholarly

objectives. I want to encourage you to let me know about any barriers to your

scholarly work and to request support for your research and scholarship.

[A32] Ms. McCue testified that she cannot recall if she raised concerns about the portion of

the letter asking her to cut back on conferences in favour of focusing on significant, substantial

peer-reviewed scholarship.

[A33] On July 31, 2006, Ms. McCue sought a further extension for one year of her

reappointment review, scheduled for 2006. The request was supported by Dean Bobinski and

granted by the University.

[A34] Ms. McCue next gave evidence that on January 14, 2008 she received another letter

from the Dean regarding her review for reappointment. The letter speaks for itself. It purports

to follow up on discussions and email correspondence in the summer and fall of 2007

regarding Ms. McCue’s review for reappointment. It states that Dean Bobinski remains

11concerned that, as set out in previous correspondence and noted in their discussions, Ms.

McCue had "not yet begun to publish original, peer-reviewed contributions to the legal

scholarship at the expected rate". It repeats the expectation of five to six peer-reviewed,

significant publications prior to seeking tenure in 2008/09. It states that Dean Bobinski had,

during their meetings, expressed concern that Ms. McCue had not been successful in meeting

her expressed goals with respect to the publication of original peer-reviewed contributions to

legal scholarship and states that Ms. McCue had expressed the view that she would be able to

publish a number of pieces in the near future.

[A35] The letter, importantly, confirms that the Faculty’s review of teaching would not

include her teaching evaluations from the Property class of 2005/06. In the circumstances, it

also importantly states, "I would like to take this opportunity to remind you that you have the

right, up to the President’s decision, to supplement your reappointment file by the addition of

new, unsolicited information, such as new publications, receipt of a grant or a published

review of your work".

[A36] Ms. McCue testified that the letter provided a line for her signature and that she

refused to sign the letter because she disagreed with its contents. She said that she still did not

believe that she had to do peer-reviewed publication. She expressed the opinion that the

collective agreement provided for other forms of publication. She also testified that she did not

say this to Dean Bobinski or any other member of the administration.

[A37] Ms. McCue testified that on January 29, 2008 she replied to Dean Bobinski’s January

14, 2008 letter respecting re-appointment. The purpose of the letter was to address concerns

she had with respect to Dean Bobinski’s letter. In the letter, she raised concerns that her

ongoing health issues during the then current term of reappointment were not addressed. She

sought clarification on whether the Faculty Committee could review non-peer-reviewed

contributions as well as peer-reviewed publications during the reappointment process. She

expressed concerns that her teaching, which was not a problem prior to the January 14, 2008

letter, was raised as a concern for the reappointment process and, while acknowledging her

2005/06 teaching evaluations will not be considered, she ponders whether all of her teaching

evaluations for the Property course should be excluded due to concerns that she is teaching in

an environment "that can be hostile/become hostile because of my ancestry/gender, and not

my teaching style".

[A38] Ms. McCue testified that she requested a further one-year extension due to stress

arising from the investigation into student conduct in her Property class during 2005/06. Her

application was supported by Dean Bobinski and granted on April 18, 2008. The one-year

extension of the tenure clock meant that, rather than her current appointment terminating on

June 30, 2008 it was extended to June 30, 2009, and her review for tenure would take place

in 2009/10.

[A39] Ms. McCue then introduced into evidence a letter dated November 16, 2008 from

Dean Bobinski similar in nature to those previously referred to. In this letter Dean Bobinski

acknowledges the extension of Ms. McCue’s tenure clock for an additional year resulting in

consideration for reappointment to the 2008/09 academic year. It points out that if the

request for reappointment is successful Ms. McCue would face a mandatory tenure review in

the 2009–2010 academic year. Dean Bobinski emphasizes that she has expressed a concern

that Ms. McCue has not been successful in meeting her previous goals with respect to

publication of peer-reviewed contributions to legal scholarship. She says, "You have

consistently expressed the view that you would be able to publish a number of pieces in the

new future. However, as we have discussed, scholarly productivity is established in part by

sustained scholarly work rather than solely by the number of publications in process at the

time of your review of reappointment or tenure". Dean Bobinski also confirms that the

investigation report respecting the Property class evaluations from 2005/06, in redacted form,

would be made available to the Faculty Committee dealing with reappointment. She confirms

her understanding that Ms. McCue would be working with professors Christie and Mickelson

to develop the materials that would be used for the reappointment review. The letter re-

confirms that Ms. McCue has the right, up to the President’s decision, to supplement her

reappointment file by the addition of new, unsolicited information such as new publications,

receipt of a grant or a published review of her work.

[A40] Ms. McCue gave evidence that, on December 15, 2008, Dean Bobinski wrote to her

further with respect to her review for reappointment. Importantly, that letter sets out that the

reappointment decision will be based in part on a consideration of Ms. McCue’s progress in

meeting the Faculty’s and University’s standards with respect to scholarly 11productivity. The

concern with respect to Ms. McCue not yet having begun to publish original peer-reviewed

contributions to the legal scholarship at the expected rate is repeated. Once again, the

expectation of five to six peer-reviewed, significant publications is set out. She is also advised

with respect to the impact of publishing a book or monograph that such a publication would

be relevant to a tenure review but, if it is to demonstrate scholarly productivity and

progression, that work would have to represent significant changes or advances from the work

that formed the basis of Ms. McCue’s initial appointment (i.e. her thesis). Once again Dean

Bobinski points out that "you have consistently expressed the view that you would be able to

publish a number of pieces in the near future. However, as we have discussed, scholarly

productivity is established in part by sustained scholarly work rather than solely by the

number of publications in process at the time of your review for reappointment or tenure".

Once again it is confirmed that her teaching evaluations from the 2005/06 Property class

would not be considered.

[A41] Ms. McCue responded to the December 15, 2008 letter on January 22, 2009. She

confirms that she had signed the December letter to indicate that the matters contained

therein are ones that were discussed. In her letter she raises the fact that she has received the

Maiyoo Keyoh Society project research grant from the Law Foundation. She reports on the

status of that and indicates that she has completed an article regarding the KAPP case (a

significant decision regarding Aboriginal commercial fishing rights) for the Canadian Race

Relations Foundation and has provided a joint Faculty talk on the case with other members of

Faculty. She says she is expanding the article to submit to a law journal. She indicates that she

is working on a chapter in a book regarding the United Nations Declaration on the Rights of

Indigenous Peoples. She also indicates she hopes to complete a co-authored case comment on

a decision respecting Indigenous women’s status. She further updates her service for the

Dean’s benefit and comments on how the investigation report of the 2005/06 Property Law

evaluations will be handled.

[A42] Ms. McCue drew my attention to Dean Bobinski’s letter of April 22, 2009, confirming

that she is recommended for reappointment for 2009/10. The letter repeats the concerns with

respect to the lack of evidence of scholarship and the reassurances that Ms. McCue has

provided to Dean Bobinski about being able to publish. It also points out that student

evaluations (excluding 2005/06) are a concern. Ms. McCue testified that whenever she taught

Aboriginal title or Aboriginal land rights in Property courses there was a backlash. She

testified that all of the students knew about the investigation which had been ongoing while

she continued to teach Property. She ventured the opinion that she should have been taken

out of Property courses until that matter was resolved. She testified that she last taught

Property in 2009/10. I note that, in other correspondence, Ms. McCue told UBC she wanted to

continue to teach the first-year Property course.

[A43] Ms. McCue’s reappointment was confirmed for the 2009/10 calendar year.

[A44] Ms. McCue testified that, in her view, Dean Bobinski’s letter of July 30, 2009, did not

serve the purpose required by art. 5.02 of the collective agreement (which in part is to discuss

how teaching, scholarly activity and service will be assessed). In her view, an additional

meeting was required which never occurred. She testified that, in her view, at that point the

Faculty Committee "understands the nature of my work. I am a multi-track scholar, a non-

traditional scholar".

[A45] She testified that in the CA between 2004 and 2006, scholarship of teaching was

created. She testified that under the CA from 2006 to 2010, it was open to the Faculty to

consider multi-tracks in assessing a candidate’s suitability for promotion and tenure including

traditional scholarship, scholarship of teaching and professional contributions.

[A46] Ms. McCue testified that, under the CA, art. 5.02, meetings between the Faculty

member seeking promotion and tenure and the head of the Faculty were to take place. She

considered herself a multi-track scholar and points out that the article requires the Dean and

the Faculty member seeking promotion and tenure to come to agreement on the criteria the

Faculty member’s candidacy file will be assessed on. She testified that she did not agree to be

assessed on a traditional scholar basis only.

[A47] Ms. McCue testified that in June of 2009 she had a conversation with the Dean. She

testified that she asked whether the Dean was sure that her file would not be considered on a

traditional scholarship-only basis and that Dean Bobinski had responded, "Yes June — your

file is being treated as a professional case". She testified that to her that means that she is not

on a traditional scholar track, that the Faculty would also be looking at her non-traditional

contributions. She said that she did not understand and was never mentored on what that

meant. She 11testified she had learned about scholarship of teaching later. She testified that in

meetings with Professor Robin Elliot she presented what she believed were examples of

scholarship of teaching and was told that they were not what scholarship of teaching was

comprised of. As a result, she says those documents were not put into her file.

[A48] In the fall of 2009, the process was underway, according to Ms. McCue, to prepare a

dossier of documents for review by external referees. Initially, Associate Dean Claire Young

was working with Ms. McCue on assembling that file, but Professor Young stepped down from

her position as chair of the Promotion and Tenure Faculty Committee and was replaced by

Professor Elliot. In that capacity, Professor Elliot assisted Ms. McCue in assembling her CV

and her dossier to go to external referees. The original CV of Ms. McCue consisted of 10 pages

and did not reflect all of her work. She said that professors Shepherd and Christie had

recommended putting her 2009 research contributions into the CV and that she had

interpreted that as only her 2009 contributions. She said that Dr. Young also looked at her CV

and that nobody mentored her that she needed to have her whole tenure cycle in her CV

dating back to 2000. She entered into evidence six documents which she testified were the

publications included in the dossier assembled for the external referees. She testified she had

many other examples of professional contribution but they were not included in her dossier

because she understood she was only to put in 2009 content. I note here that of the six

documents which were included in her dossier, one consisted of 39 pages ("Towards

Recognition of our Inherent Rights as Indigenous Peoples"), one consisted of 11 pages

("Gratitude and Inspiration: An Honour Song for the Haundenosaunee"), one consisted of

seven pages ("Kapp’s Distinctions: Race-Based Fisheries, the Limits of Affirmative Action for

Aboriginal Peoples and Skirting Aboriginal Peoples’ Unique Constitutional Status Once

Again"), one consisted of two pages ("Calls to Reclaim Our Circles, Treaty-Making from an

Indigenous Perspective: Ned’u’ten-Canadian Treaty Model"), one consisted of 13 pages, and

was published in 2003 ("After-Word: Reflections/Possibilities, Box of Treasures or Empty

Box?"), and one consisted of 10 pages and was published in 2007 ("New Modalities of

Sovereignty: An Indigenous Perspective"). The dossier therefore was not restricted to 2009

contributions.

[A49] Ms. McCue also testified that the external referees were not instructed to look for

scholarship of teaching criteria.

[A50] Despite these handicaps, Ms. McCue drew my attention to the letters from the

external referees. The first was dated March 8, 2010; it was redacted but Ms. McCue testified

that it was written by an external referee outside the University of British Columbia who was a

specialist in her field. It was one and one-third pages in length and describes Ms. McCue as

"one of the leading authorities on Canadian First Nations law and policy and Indigenous

peoples’ human rights in North America", a "rising star" with great potential as a teacher and

scholar in the field of Indigenous human rights and policy and Canadian First Nations law, "a

respected authority on Canadian First Nations law and particularly treaty rights and

government negotiating mandates in B.C." The six publications that she presented led this

external reviewer to say: