Date Issued: February 22, 2018  
File: 10120  
Indexed as: McCue v. The University of British Columbia (No. 4), 2018 BCHRT 45  
IN THE MATTER OF THE HUMAN RIGHTS CODE,  
RSBC 1996, c. 210 (as amended)  
AND IN THE MATTER of a complaint before  
the British Columbia Human Rights Tribunal  
BETWEEN:  
AND:  
Lorna June McCue  
COMPLAINANT  
RESPONDENT  
The University of British Columbia  
REASONS FOR DECISION  
Tribunal Member:  
On her own behalf:  
Norman Trerise  
Lorna June McCue  
Counsel for the Respondent:  
Dates of Hearing:  
Michael Wagner and Julie Menten  
June 15, 16, 17, 18, 19, 22, 23, 24,  
and September 15 and 16, 2015,  
November 14, 15, 16, 17, 18, 21, 22, 23, 24, 29  
and December 20, 2016,  
January 10 and 17, 2017  
Location of Hearing:  
Vancouver  
TABLE OF CONTENTS  
TABLE OF CONTENTS........................................................................................................................ i  
I
INTRODUCTION...................................................................................................................... 1  
A. The History of the Proceedings........................................................................................... 1  
B. The Parties’ Agreements..................................................................................................... 3  
C. The Evidence....................................................................................................................... 3  
THE COLLECTIVE AGREEMENT AND GUIDELINES TO PROMOTION AND TENURE AT UBC.... 4  
A. Promotion to Associate Professor ...................................................................................... 6  
B. The Criteria for Appointment, Reappointment, Tenure and Promotion ........................... 7  
1. Teaching........................................................................................................................... 7  
2. Scholarly Activity.............................................................................................................. 9  
3. Service to the University and the Community............................................................... 11  
C. Procedures for Appointments, Reappointments, Tenure and Promotion....................... 12  
1. Meeting with the Head (Dean) ...................................................................................... 12  
2. The Candidate’s File....................................................................................................... 13  
3. Consultation and Referees............................................................................................. 14  
4. Departmental Standing Committee (Faculty Committee)............................................. 14  
5. Dean’s Recommendation to the President.................................................................... 15  
6. Review by the SAC ......................................................................................................... 16  
7. The President’s Decision................................................................................................ 17  
8. Arbitration...................................................................................................................... 17  
MS. McCUE’S TENURE AND PROMOTION PROCESS............................................................ 18  
A. 2004 Reappointment to a Second Three‐Year Term........................................................ 19  
1. April 26, 2004 Letter from Dean Bobinski ..................................................................... 19  
2. 2004/05 and 2005/06 Property Law Course ................................................................. 20  
3. January 31, 2006 Letter from Dean Bobinski................................................................. 21  
4. July 31, 2006 Extension of Reappointment Review....................................................... 22  
5. January 2008 Letter from Dean Bobinski and Reply from Ms. McCue.......................... 23  
II  
III  
i
6. April 2008 Extension ...................................................................................................... 24  
7. November 2008 Letter from Dean Bobinski.................................................................. 24  
8. December 2008/January 2009 Letter from Dean Bobinski and Reply from Ms. McCue ..  
........................................................................................................................................ 24  
B. 2009 Reappointment to a One‐Year Term ....................................................................... 26  
C. 2009/10 Ms. McCue’s Promotion and Tenure Application.............................................. 26  
1. Requirement of the Collective Agreement.................................................................... 26  
2. July 30, 2009 Letter from Dean Bobinski....................................................................... 27  
3. The Parties’ Understanding of Ms. McCue’s Application at this Stage ......................... 27  
4. Preparation of Ms. McCue’s File.................................................................................... 29  
5. Letters from the External Referees................................................................................ 32  
6. March 30, 2010 Shepherds’ Report............................................................................... 36  
7. April 19, 2010 Letter from Dean Bobinski ..................................................................... 37  
8. May 4, 2010 Response from Ms. McCue....................................................................... 38  
9. May 2010 Communications with the Dean ................................................................... 39  
10. May/June 2010 Ms. McCue’s Response and CV............................................................ 40  
11. June 9, 2010 Presentation to the Faculty Committee................................................... 42  
D. November 3, 2010 Faculty Committee Recommendation............................................... 46  
E. December 2010 to May 2011: Submissions ..................................................................... 49  
1. December 2010 Request for a Restart .......................................................................... 49  
2. January 18, 2011 Ms. McCue’s Response to the Faculty Committee’s Decision .......... 49  
3. April 26, 2011 Dean Bobinski’s Letter to President Toope............................................ 49  
4. May 25, 2011 Ms. McCue’s Response ........................................................................... 50  
F. Review by the SAC ............................................................................................................ 51  
G. June 17, 2011 Ms. McCue’s Final CV ................................................................................ 51  
H. June 29, 2011 Decision of President Toope...................................................................... 52  
IV THE ISSUES ........................................................................................................................... 55  
V
SUBMISSIONS....................................................................................................................... 56  
A. Ms. McCue’s Submissions................................................................................................. 56  
B. UBC’s Submissions ............................................................................................................ 68  
ii  
1. No Challenge to the Standard........................................................................................ 69  
2. Adverse Inference.......................................................................................................... 70  
3. Has Ms. McCue proven her Case? ................................................................................. 71  
C. Ms. McCue’s Reply Submissions....................................................................................... 79  
VI ANALYSIS AND DECISION ..................................................................................................... 82  
A. Ms. McCue’s Case ............................................................................................................. 82  
1. Legal Principles............................................................................................................... 82  
2. Ms. McCue’s Protected Characteristics......................................................................... 84  
3. Adverse Impact .............................................................................................................. 84  
4. Connection between Personal Characteristics and the Adverse Impact ...................... 85  
5. Ms. McCue’s work as a female Indigenous Legal Scholar ............................................. 85  
6. The record of Ms. McCue’s work................................................................................... 87  
7. Interpretation and Application of the CA and Guidelines............................................. 90  
8. Accommodation Request............................................................................................... 94  
9. Mentorship .................................................................................................................... 95  
10. Assessment of Ms. McCue’s Teaching........................................................................... 96  
11. No evidence of discriminatory bias ............................................................................... 97  
12. Interference with Cultural Obligations .......................................................................... 97  
13. PSA and Merit Pay.......................................................................................................... 97  
14. Conclusion on Ms. McCue’s Case .................................................................................. 98  
B. Accommodation.............................................................................................................. 100  
1. Delay of Process........................................................................................................... 101  
2. Equal Weighting of Scholarship, Teaching and Service ............................................... 102  
3. Statements of Support................................................................................................. 102  
4. Community‐Based Research........................................................................................ 103  
VII CONCLUSION...................................................................................................................... 104  
iii  
APPENDIX “A” – THE EVIDENCE................................................................................................. 105  
I
Evidence of Lorna June McCue.......................................................................................... 105  
Evidence of Dr. Frances Henry........................................................................................... 193  
II  
III Evidence of Dr. Marie Battiste........................................................................................... 198  
IV Evidence of Dr. Jo‐Ann Archibald....................................................................................... 199  
V
Evidence of Professor Stephen John Toope ...................................................................... 204  
VI Evidence of Professor Mary Anne Bobinski....................................................................... 231  
VII Evidence of Professor Robin Elliot..................................................................................... 287  
VIII Evidence of Professor Claire Young ................................................................................... 305  
IX Evidence of Professor Susan Barbara Boyd ....................................................................... 316  
iv  
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 [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, 2010 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, 2012 BCHRT 354 [McCue], 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  
1
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 [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. The Tribunal determined that McCue 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 accepted for filing the  
allegations of discrimination on the basis of sex, race, color, 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:  
2
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. the Complaint does not allege that the CA or Guidelines are discriminatory;  
b. the Complaint challenges UBC’s application of the CA and Guidelines;  
c. 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. Francis Henry, Dr. Jo‐  
ann Archibald and Dr. Marie Battiste directly from McCue v. UBC (No. 3), 2016  
BCHRT 9 [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  
3
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 nineteen 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  
4
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  
5
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 article  
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 (article 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 (articles 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 article 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 article 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 (article 3.07(a)).  
6
[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 (article 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  
article 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. (article 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.  
7
[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 (article 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 (article 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 (article 4.02; see  
also Guideline 3.2.4)  
[35] Formal procedures shall be used to seek the opinions of students or of colleagues  
(article 4.02; Guideline 3.2.5).  
8
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 (article 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 article 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.  
9
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.  
10  
[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,  
11  
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 (article 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 article 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  
(article 5.02(b)).  
12  
[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 (article 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 (article 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) (article 5.03(a)). Until the President’s decision, the candidate or  
university has the right to supplement the filed with new, unsolicited information or a response  
to particular concerns that emerge in the documentation (article 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).  
13  
[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 (article  
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 (article 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 (article 5.06(g)). In this case, the  
Departmental Standing Committee is the Faculty Committee. The Head chairs this committee  
14  
but does not vote (article 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 rebut or explain the contents (article 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 (article 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 (article 5.11(a)). At the same time, the Dean  
informs the candidate in writing of his or her recommendation (article 5.12(a); Guideline 4.7.1).  
In some circumstances the Dean must provide reasons to the candidate:  
15  
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. (article 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 (article 5.12(c); Guideline 4.7.3).  
[62] The candidate is asked to make a timely written response, which is added to the file  
(article 5.12(d); Guideline 4.7.3).  
6. Review by the SAC  
[63] The SAC reviews the recommendations to the President (article 5.14(a)). The President  
may request a further review of a case by the Dean (article 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,  
16  
research, and service to the University, to the disciple, 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 (article 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 (article 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 (article 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 (article 5.16(b); Guideline 10.5).  
17  
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, [1952] 2 D.L.R.  
354 (B.C.C.A.) at p. 357, as fleshed out more recently by Van Hartevelt v. Grewal, 2012 BCSC  
658, paras. 30‐35, and Bradshaw v. Stenner, 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. powers of recollection;  
b. whether the testimony harmonizes with independent evidence;  
c. how the evidence fits into the general picture revealed on a consideration of the  
whole of the case; and  
d. 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.  
18  
[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, 204, 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 5 to 6 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.  
19  
[78] The letter identified that Article 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 Masters 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  
20  
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 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  
21  
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 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 2008‐09.  
22  
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.”  
23  
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  
24  
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] 2 SCR 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.  
25  
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.  
26  
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 publishing 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  
27  
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.  
28  
[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  
29  
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 ten 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 ten 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  
30  
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 pages,  
published in 2009),  
b. Gratitude and Inspiration: An Honour Song for the Haundenosaunee (11 pages,  
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 pages, published in 2008),  
d. Calls to Reclaim Our Circles, Treaty‐Making from an Indigenous Perspective:  
Ned’u’ten‐Canadian Treaty Model (2 pages, published in 2005),  
e. After‐Word: Reflections/Possibilities, Box of Treasures or Empty Box? (13 pages,  
published in 2003),  
f. New Modalities of Sovereignty: An Indigenous Perspective (10 pages, published in  
2007).  
31  
[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.”  
32  
[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 importance 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. ...  
33  
[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.  
34  
[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 Chief. ...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  
35  
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.”  
36  
[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  
37  
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 article 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 Article 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  
38  
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. The 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  
39  
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.  
40  
[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 ten 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 Canada‐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  
41  
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,  
42  
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, I 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.  
43  
[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  
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  
44  
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  
45  
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  
46  
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 meeting 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  
47  
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  
48  
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 2011/2012 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.  
49  
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  
50  
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 recognised 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 contributions 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  
51  
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  
52  
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)”.  
53  
[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.  
54  
IV THE ISSUES  
[183] The Complaint was made pursuant to s. 13 of the Code which reads:  
A person must not  
... discriminate against a person regarding employment or any term or  
condition of employment because of the race, color, 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, color, 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, 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 Commission) v.  
BCGSEU, [1999] 3 SCR 3, para. 54, 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. 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?  
55  
b. Has Ms. McCue has established that her race, colour, ancestry, place of origin,  
and/or sex were factors in UBC’s decisions regarding PSA or Merit Pay?  
c. 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 Reports 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  
56  
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  
57  
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 taken 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  
58  
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.  
59  
[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 got 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 2008‐2009 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  
60  
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  
61  
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 saw 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  
62  
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 et al. v. Attorney General of  
Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 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) and Securigard Services (No. 8), 2005 BCHRT 302 for the well‐known proposition that  
63  
racial discrimination is often derived from subtle, unconscious beliefs, biases and prejudices  
(paras. 132‐141).  
[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 HMTQ v. Hutchison et al, 2005 BCSC 1421, 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  
biased. 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.  
64  
[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 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.  
65  
[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 throughout 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  
66  
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.  
67  
[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:  
68  
a. did UBC discriminate against Ms. McCue, contrary to the Code, when President  
Toope denied her promotion and tenure?; and  
b. 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.  
69  
[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:  
70  
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 adverse 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.  
71  
[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  
72  
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, extra‐ordinary teaching releases, 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  
73  
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  
74  
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 other 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  
75  
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 Article  
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. (Article 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  
76  
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 (Articles 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 paragraph 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.  
77  
[280] UBC says that the court in Health Sciences Assn. of British Columbia v. Campbell River  
and North Island Transition Society, 2004 BCCA 260 [Campbell River] held the test for  
discrimination based 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, recognised 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 Appeals in AG of Canada v. Fiona Ann Johnstone and  
Canadian Human Rights Commission and Women’s Legal Education and Action Fund Inc., 2014  
FCA 110, [Johnstone], para. 93, 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, 2004 BCHRT 58, 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  
78  
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 (Commission des droit de la  
personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training  
Center, 2015 SCC 39 [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.  
79  
[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  
President’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 2010/2011. 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‐  
80  
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] 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  
81  
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  
Christie to contradict her evidence that in 2009 he told her that only her 2009 work should be  
included in her CV.  
VI ANALYSIS AND DECISION  
A. Ms. McCue’s Case  
1. 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), 2004 BCHRT 58, upheld in judicial review in  
HMTQ v. Hutchinson et al, 2005 BCSC 1421. It must also be viewed in light of the broad, liberal  
82  
and purposive approach which must be taken to an interpretation the Code: University of  
British Columbia v. Berg, [1993] 2 SCR 353, p. 370.  
[300] In Radek v. Henderson Development (Canada), 2005 BCHRT 302, the applicable  
principles for a racial discrimination and analysis were set out as:  
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. (para. 482)  
[301] In R. v. Parks, 1993 3383 (ON CA), 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 and others (No. 8), 2008 BCHRT 436, paras. 237‐  
238, 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:  
83  
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 , 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 Development (Canada) and  
Securiguard Services (No. 3), 2005 BCHRT 302. 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  
84  
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.  
85  
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 concepts 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  
86  
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 2010‐12 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  
87  
[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  
because 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.  
88  
[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 utilises 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.  
[323] A review of the CV reveals that, whether in the May 28th 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, Continuingly Legal Education, Aboriginal Law: International Human  
Rights Developments; and  
89  
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.  
90  
[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 candidate’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 page 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 recognised the additional time  
involved in such research and considered it in his approach to her application.  
91  
[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  
92  
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 criticised 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 Article 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  
93  
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 criticises 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.  
94  
[340] To the extent that Ms. McCue asked for equal weight to be place 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 Ms. 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  
95  
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  
96  
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  
97  
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.  
98  
[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.  
99  
[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.  
100  
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 (Article 2.03(f)(ii) and (g)). The  
maximum period of a term appointment with review for an Assistant Professor is eight years  
(Article 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  
(Article 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  
3 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  
101  
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 re‐start 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 scholarly 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 (Article 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  
102  
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.  
103  
[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.  
104  
APPENDIX “A” – THE EVIDENCE  
I EVIDENCE OF LORNA JUNE MCCUE  
[1]  
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.  
[2]  
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.  
[3]  
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.  
[4]  
Ms. McCue’s name as hereditary chief is Nekhlh, a name bestowed on her through  
inheritance when she reached the age of 25.  
[5]  
As a Director of FLNS, she was charged with developing the Law Faculty program beyond  
the then existing curriculum in the Indigenous Law field.  
[6]  
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.  
[7]  
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.  
105  
[8]  
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.  
[9]  
Ms. McCue, while working on her Masters 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.  
[10] 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.  
[11] 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.  
[12] 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.  
[13] 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.  
[14] 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.  
106  
[15] 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.  
[16] Between 2002 and 2004, Ms. McCue was exposed to a snapshot of significant legal  
needs of Indigenous peoples in British Columbia.  
[17] Ms. McCue found, however, that after 2004, Faculty support for her endeavours  
evaporated and funding from the Law Foundation was no longer available.  
[18] 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.  
[19] 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.  
[20] 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 were 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 Masters thesis and her “Afterward”  
107  
book chapter were acknowledged by the Dean to indicate the potential for scholarly  
contributions.  
[21] 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.  
[22] 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 2004/2005 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.  
[23] 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.  
[24] 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  
108  
were disseminated to both the University of Victoria and the University of British Columbia law  
schools once they were completed.  
[25] 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.  
[26] 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.  
[27] 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.  
[28] 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.  
[29] In the academic year of 2005/2006 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  
109  
testified that caricatures of her were posted on that site and that those 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.  
[30] 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 2005/2006 academic year in order to  
establish a proper basis for the reappointment’s review process in 2006/2007 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. 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.  
110  
[31] 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 2006‐07. 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.  
[32] 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.  
111  
[33] 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.  
[34] 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 concerned 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.  
[35] The letter, importantly, confirms that the Faculty’s review of teaching would not include  
her teaching evaluations from the Property class of 2005/2006. 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.”  
[36] 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.  
112  
[37] 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.”  
[38] 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 2005/2006. 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  
2009/2010.  
[39] 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‐  
10 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  
113  
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.  
[40] 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 productivity. 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.  
[41] 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  
114  
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.  
[42] 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 2005/2006) 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  
2009/2010. I note that, in other correspondence, Ms. McCue told UBC she wanted to continue  
to teach the first‐year Property course.  
[43] Ms. McCue’s reappointment was confirmed for the 2009/2010 calendar year.  
[44] Ms. McCue testified that, in her view, Dean Bobinski’s letter of July 30, 2009 did not  
serve the purpose required by Article 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.”  
115  
[45] 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.  
[46] Ms. McCue testified that, under the CA, Article 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.  
[47] 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 testified 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.  
[48] 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 ten 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  
116  
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 ten pages and  
was published in 2007 (New Modalities of Sovereignty: An Indigenous Perspective). The dossier  
therefore was not restricted to 2009 contributions.  
[49] Ms. McCue also testified that the external referees were not instructed to look for  
Scholarship of Teaching criteria.  
[50] 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:  
117  
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.  
[51] That external reviewer considered Ms. McCue to be a “very strong candidate for  
promotion to the rank of Associate Professor and tenure.”  
[52] The second external reviewer’s three‐page review comments briefly on each of the six  
pieces received and makes 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  
118  
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 importance 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. ...  
[53] That external reviewer recommended Ms. McCue be promoted to Associate Professor  
with tenure.  
[54] 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  
119  
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 had heard  
her speak on a number of occasions at scholarly conferences. [redacted]  
The first time I heard her speak was during [redacted] 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 working with Professor McCue  
[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.  
[55] That external reviewer recommended Professor McCue for promotion and tenure.  
[56] 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 Chief. ...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  
120  
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.  
[57] 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 states, “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.”  
121  
[58] Ms. McCue points out that all of the external referees are looking only at her 2009  
template and not seeing her entire contribution.  
[59] Ms. McCue then drew the Tribunal’s attention to the report by Professors Christie and  
Mickelson of March 30, 2010 with respect to the promotion of Ms. McCue to Associate  
Professor with tenure. The report deals with all aspects of the application including scholarship,  
teaching and service. Some of the report’s observations are as follows:  
Professor McCue’s publications record does meet the normal expectations for a  
Faculty member at this stage of her career. She has authored an Article, two book  
chapters, and was the principal investigator and author of a report. None of these  
are refereed publications.  
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. 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. “Perhaps the Faculty of Law might wish to  
lead the way in pressing this point around scholarly metrics.”  
In the early years of her appointment Professor McCue’s activities were primarily  
focused on the administrative/scholarly task of building up institutional research and  
scholarly capacity, culminating in the establishment of CIILS. They point out that  
Professor McCue has promoted CIILS at the UN Permanent Forum on Indigenous  
Issues and the World Conference Against Racism.  
They point out that Professor McCue has been working with the Maiyoo Keyoh  
Society helping them to recover and articulate traditional governance practises that  
might come to play in contemporary governance structures. They point out that it is  
unlikely that she will be able to independently produce what might be considered an  
122  
academic piece out of the time and energy she has put into this valuable form of  
research.  
First hand observations of Ms. McCue teaching class from three faculty members are  
included and are positive.  
While acknowledging that Ms. McCue’s student evaluations are below that of peer  
Faculty teaching the same courses, the report submits that if the first‐year Property  
law course evaluations are removed the differential is markedly reduced.  
[60] The report comments on each of the non‐refereed publications, book chapter and  
unpublished manuscripts that were presented to the external referees, basically describing  
them, and speaks to certain works in progress, summarizing those by stating:  
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.  
[61] Ms. McCue gave some evidence reinforcing the points made by the Report. She testified  
that the Report goes to the Faculty Committee.  
[62] Ms. McCue then introduced a letter dated April 19, 2010 [Letter of Concern], signed by  
Dean Bobinski, outlining concerns held by eligible members of the Faculty of Law respecting  
whether Ms. McCue met the standards for promotion and tenure. That letter again dealt with  
teaching, scholarly activity and service, but because the main issue which ultimately prevented  
Ms. McCue from achieving promotion and tenure was scholarly activity, that is the portion I will  
concentrate on. The letter outlines certain provisions in the CA respecting scholarly activity and  
points out the following concerns:  
Faculty members expressed concerns about whether and how Ms. McCue met the  
standards for tenure (Article 4.01(a)) or promotion to Associate Professor (Article  
3.06(a)) established under the CA.  
123  
Faculty members expressed concerns about the lack of refereed or equivalent  
publications as well as about the overall quality and quantity of Ms. McCue’s  
scholarly activities.  
Faculty members expressed concerns about 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 express 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.  
[63] 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.  
[64] Ms. McCue testified that, in her view, had the promotion and tenure dossier been  
complete at the beginning (referring to the dossier’s limitations to 2009 works) the Faculty  
Committee wouldn’t have needed to have her submit other evidence to support the  
application.  
[65] The Faculty Committee Letter of Concern provided Ms. McCue with the opportunity to  
respond to their concerns orally, in writing, or by both oral and written submissions.  
[66] Ms. McCue responded on May 4, 2010. She requested that the Faculty Committee  
meeting scheduled for May 5, 2010 be postponed, expressed her view 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. Ms. McCue’s concerns amount  
to technical concerns respecting the procedures followed. There is also a request that the Dean  
124  
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  
accommodation based on Ms. McCue’s Indigeneity.  
[67] Ms. McCue testified about the second bullet point at page 2 of her response letter  
which reads:  
In the summer of 2009, you and Associate Dean Claire Young met with  
me to inform me that the tenure and promotion process had begun and  
that a workshop on the process would be scheduled for tenure‐track  
professors later in the summer. At this meeting, you both generally laid  
out the process; that Claire as chair of the internal Tenure and  
Promotions Committee would be putting my information together for  
the external referees including my CV. In the fall of 2009, Claire began  
the process of gathering in the information. She, however, stepped  
down from that position in the fall of 2009. I was informed that  
someone from the department would carry on her role. In December  
2009, Professor Robin Elliot took over the function of gathering my  
information for a package to be sent out to the external referees. He  
assisted me on the revision of my CV. In January, 2010, a package was  
sent out. 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  
Article 5.02 of the Collective Agreement;  
[68] Ms. McCue testified that this meant that the administration had not identified any  
potential difficulties with her candidacy.  
[69] Ms. McCue also suggested that the first bullet at page 2 of her response letter is about  
her being assessed as a traditional scholar. The paragraph, however, reads:  
I have never agreed to nor signed an agreed memorandum in  
accordance with Article 5.2 of the Collective Agreement. The draft  
memorandum you provided to me in January 2008 regarding the  
reappointment process as well as the April 22, 2009 confirmation of  
reappointment letter did not indicate my disagreement with the  
concerns you have raised. Article 5.02(d) requires that matters discussed  
be recorded in an agreed memorandum. You have yet to ascertain my  
disagreement in relation to any concerns you have raised in my tenure  
125  
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.  
[70] The Dean responded that she was not prepared to stand down because there was no  
basis for the accusation of bias. This is expressed in a letter of May 10, 2010 in which she  
disagrees 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.  
[71] Ms. McCue expressed in her evidence that, at that point in time, she was concerned that  
more weight was not being given to external review recommendations. She expressed her own  
concerns that the serious concerns her file raised were not brought to her attention earlier. She  
said again that the agreement reached at her meeting in 2009 with Dean Bobinski was a re‐  
assurance by Dean Bobinski that her case would not be treated as a traditional scholar case but  
rather as a Professional Contribution case and that that is how it would be treated. She states,  
“At that time I didn’t understand what Scholarship of Teaching was even though I was doing  
that work.”  
[72] Ms. McCue testified that the process caused undue hardship because she had to go back  
and put together her contributions over her whole tenure cycle so that the Faculty Committee  
could review it.  
[73] Ms. McCue testified that on May 20, 2010 Dean Bobinski wrote providing a further  
extension to May 28, 2010 to respond to the letter of concerns and advising that the UBC  
Faculty Association had asked for clarification regarding the basis upon which Ms. McCue’s  
promotion and tenure file is to be reviewed. In the May 20, 2010 letter Dean Bobinski states,  
“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 says, “in particular, I understand in your meeting with  
126  
Professor Robin Elliot on January 6, 2010, this option was discussed and agreed upon”. Further,  
the letter makes it clear that the external referees were asked to review her scholarship activity  
from both a traditional and a Professional Contribution perspective.  
[74] 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.  
[75] Ms. McCue testified that she was under stress coming up to May 28 and said that she  
asked to stop the process and that the Faculty Association requested the same. She testified  
that UBC was not prepared to stop the process. 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 would also allow Professors  
Christie and Mickelson to have a full view of her contributions. She proceeded to make the  
deadline of May 28, 2010.  
[76] On May 28, 2010, Ms. McCue 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 reads in part:  
The following curriculum vitae (CV) has been structured to include most  
of the teaching, scholarly and professional activities and service  
conducted by Assistant Professor June McCue during her work history at  
the University of British Columbia’s Faculty of Law (UBC Law). She has  
elected to have her tenure and promotion file be assessed as non‐  
traditional and along multi‐tracks that are appropriate for an  
“Indigenous” scholar and teacher under UBC’s Collective Agreement.  
Based on Professor McCue’s social location within the University, she  
has structured the following information in her CV to accord with her  
wholistic (sic) Indigenous interpretation of the criteria for tenure and  
promotion. This interpretation includes assessing her file by placing  
equal weight on her teaching, scholarly and professional activities and  
service for academic purposes under the Collective Agreement.  
Professor McCue emphasizes your attention to the specific Indigenous  
approaches she takes to formulating significant, original and creative  
engagement at the University with students, Faculty, Indigenous  
127  
Peoples, and Canadian and international societies. Her work history at  
the University calls for an appropriate level of respect and recognition in  
assessment for her tenure and promotion. Her assessment must include  
how she builds, cultivates and nurtures relations with Indigenous  
Peoples and nations; mentors all students through teaching and  
knowledge dissemination; and advocates for enhancing the presence of  
Indigenous knowledge and pedagogy at the University and abroad as  
part of her pursuit of academic freedom, justice, the self‐determination  
of all peoples and respect for the biodiversity of this planet. This CV has  
been adapted to provide flexibility so that the information set out  
largely captures Professor McCue’s significant work and outstanding  
contribution to her field. Explanations are provided for each criteria to  
show how Professor McCue meets the standards for tenure and  
promotion at the University. It is Professor McCue’s position that she  
satisfies the criteria for tenure and promotion under the Collective  
Agreement and that consideration of her CV and contributions to the  
University as structured above is her election.  
The traditions of Professor McCue’s people, the Ned’u’ten, located  
along Lake Babine in Northern British Columbia, include the makings of  
songs to recount and transfer knowledge about history, experiences,  
laws, stories and relationships of kinship and connection to all life within  
her traditional territory. Professor McCue’s CV is thus an adaption of this  
tradition in that she is recounting for the reader‐listener, the history and  
current status of her sui generis work at the University. Her song is also  
about truthing and her purpose and impact at this institution. ...  
Professor McCue has disseminated knowledge and theory (written and  
oral) about inherent Indigenous rights, decolonization, critical race  
theory, constitutional reform, international human rights and  
Indigenous peoples and critical analysis of developing common‐law  
principles for Aboriginal and treaty rights in this country. Her  
Professional Contributions have contributed to international customary  
law development through garnering support for the adoption and  
implementation of the UN Declaration on the Rights of Indigenous  
Peoples; making public reports or submissions to UN human rights  
treaty bodies on behalf of Indigenous people and non‐governmental  
organizations, and participating in other international fora like the  
Permanent Forum on Indigenous Issues and the World Conference  
Against Racism proceedings. Her advocacy at this level is documented  
and available on‐line as examples of strategies of Indigenous peoples,  
students and Faculty. She is keenly interested in researching and  
advocating for the human rights protections needed to ensure the  
Peace and Security of Indigenous Peoples defending their lands and  
128  
jurisdiction. As a constitutional thinker, she continues to research and  
disseminate her knowledge about constitutional reform and the  
restructuring of federalism so that the inherent jurisdiction of  
Indigenous peoples is respected. The theoretical contribution she makes  
as an Indigenous scholar and teacher in her field are practical, ethical  
and just. ...  
By paving the way for research to be conducted through the Centre for  
International Indigenous Legal Studies during her Director years at the  
Faculty, she is now implementing goals to attract research grants for  
qualitative research projects that ethically and respectfully engage many  
Indigenous communities in British Columbia, and which provide student  
research projects on Indigenous legal and governing traditions.  
[77] The CV in the area of scholarship stated 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.  
Ms. McCue then included under the “Scholarship” heading, research or equivalent grants she  
had received, invited presentations that she engaged in, and conference participation.  
[78] Ms. McCue’s revised CV adds a page of publications and other scholarly output and  
impact containing a variety of reports, submissions, substantially increasing the content of her  
file but adding nothing in terms of peer‐reviewed publication.  
[79] In the area of Professional Contributions she states in her CV:  
As a legal scholar working within my own Indigenous traditions, I am an  
interpreter between those, and the second paradigm in which I have  
learned to work, Western legal thought (or Canadian legal thought). This  
is a difficult undertaking. I do not regard my role to be convincing my  
people to adopt Western legal thought; nor am I working to fold into  
Canadian law the legal knowledge and thought of my people. Rather, I  
work within my legal traditions, to find solutions for the legal and  
political problems which arise from dealing with the Canadian state. I  
129  
seek to affirm and strengthen our traditions, and affirm with my people  
the importance of using our knowledge and keeping its integrity. At the  
same time, I bring to that activity a mature and educated understanding  
of Canadian law and systems, enabling me to explicate the nature of the  
challenge facing our people. I do this work collaboratively, and in ways  
that will build trust; these requirements of the work derive from the  
community, and not the academy. There are few models, inside the  
academy or outside of it, for this work, and there are very few people  
who are qualified to do it. My qualifications for it include my position as  
a traditional Chief, the knowledge imparted to me by my elders (a  
process that is continuing), and my Canadian legal education. I am proud  
to be exploring, shaping, and developing this role, and consider it my  
life’s work. I believe that over the course of my life, I will make a major  
contribution to the achievement of legal pluralism with the legal  
systems affecting my people. This is work that does not fit conveniently  
into an academic time‐table, but it is vital. If this work is not done now,  
within a framework that provides access to the best of both traditions  
(and I consider a University law school which is supportive of the work  
to be such a framework), it will not be done at all, and the relationship  
between Indigenous law and Canadian law will be impoverished. Within  
a supportive framework, I will be able not only to do the work, but also  
to write reflectively about it, and to mentor and train Indigenous law  
students and scholars who wish to follow the same path. However, to be  
supportive of the work, the University needs to recognize that the  
timetable of its doing develops with the doing, and cannot in my view be  
forced. My Professional Contributions are focused on advocating for the  
inherent rights of Indigenous Peoples. As an academic, I have been  
successful in collaborating with legal professionals that work with  
Indigenous Peoples on projects that have political and legal impact. My  
research, teaching and writing is also rooted in my advocacy and  
relationships with various Indigenous Peoples that cannot afford the  
high cost of legal advocacy. My Professional Contributions are unique  
from other academics by the fact that I hold an inherent‐rights based  
political title amongst my peoples’ traditional governing system. The  
prospective I bring to academia is shaped through my action on such  
projects and by the difficult agency role that I play as an Indigenous  
woman leader in this country and abroad. Due to my political status as a  
leader and training as a lawyer and academic, I often express my  
academic freedom by taking principled positions that other academics  
that do/have not factored into their discourses...  
[80] As set out above, Ms. McCue testified that given the timeframes provided to her she  
was still not able to provide all of the evidence of her work. She indicated in her covering letter  
130  
of May 28, 2010 that she would be providing an addendum that would speak to her oral  
submissions. 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 Canada‐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.  
[81] Ms. McCue testified 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.  
[82] Ms. McCue’s evidence also identified that on July 8, the day before her tenure and  
promotion meeting with the Faculty Committee was to take place, she provided a revised CV.  
The CV is significantly revamped in terms of its presentation but makes essentially the same  
points as the earlier CV with significant expansion of the product under each of the headings  
incorporated into scholarly and professional activities. Ms. McCue’s evidence included the fact  
that she made an oral presentation in support of her application. In that oral presentation she  
takes 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 takes the position that  
her articles should count as traditional scholarship. Further, and perhaps more importantly, she  
takes 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.  
131  
[83] Ms. McCue points 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 submits that her Professional Contributions, which are  
seemingly reasonably extensive, should be considered under the rubric of Scholarship of  
Teaching.  
[84] Further, with respect to scholarship she points to what she accomplished as Director of  
the First Nations Legal Studies 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  
FLNS Program. Other examples are set out in the oral submission from June 9, 2010. She winds  
down that presentation 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, I 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.  
132  
[85] In essence, Ms. McCue is advocating for her service to be considered not only under the  
classification of service but also under the classification of scholarly activity. She is also  
requesting orally at her meeting with the Faculty Committee that the path she has taken as an  
Associate Professor is sufficiently unique and arising from her Indigenous status such that  
accommodation is required.  
[86] The oral presentation provided no overt explanation of Ms. McCue’s need for  
accommodation, although, the questions put by members of the Faculty Committee suggest  
that there was some recognition by them of that request. I refer to the words at the bottom of  
page 10 where one participant questioned:  
June, I would like to ask you about peer review. I appreciate in your file  
very much that you are asking us to understand peer review more  
broadly to include your peers as hereditary chiefs [and] as community  
members. I think that is an important aspect of your file and worthy of  
attention. It is the Scholarly Peers that I want to ask you about and the  
peer review within your scholarly community...so I guess my question is,  
how are we to understand the absence of scholarly peer‐reviewed work  
in your file?  
And the question is also put:  
June, thanks for your presentation. I am interested in your articulation  
of the framework that you hold appropriate for consideration of your  
file, the non‐traditional multi‐track framework. Have you had any  
mentoring or assistance from anyone, either informally or formally,  
from within the Faculty or the University, about how to put together a  
file, career with respect to this non‐traditional framework? Have you  
had a sense from anybody to help you articulate how the elements  
would be in balance or how they would be achieved?  
[87] Ms. McCue testified that she felt prejudiced because her external referees had not seen  
her additional material and the Faculty Promotion & Tenure Committee had not had time to  
consider it.  
[88] Ms. McCue testified that she is carrying out her work in many areas and doing it from  
her base as an Indigenous scholar so believes the work is of value. She uses methods and  
methodology based on her Indigenous traditions. She seeks ways to bring into Indigenous  
133  
knowledge part of the role of educating and feels she was a pioneer. She testified that the way  
she has carried out her work was before the Faculty Committee, the Dean, the SAC and the  
President.  
[89] Ms. McCue made the point that, in her view, the CA covers the potential for both oral  
and written publication, so the fact that oral publication was excluded from consideration on  
her tenure and promotion application discriminates against her because she uses that mode of  
communication primarily as an Indigenous person. She points out that she framed her CV as a  
song in Indigenous culture and says the CV speaks in the first person reflecting a narrative of  
relevant scholarship.  
[90] Ms. McCue testified that gender factors into her Complaint because of her (female)  
responsibility as a leader and also due to her leadership capacity as a woman in her community.  
[91] Ms. McCue introduced into evidence a memorandum of understanding which was  
utilized for one of the target research projects that she worked on. She utilized it to  
demonstrate how, as an Indigenous scholar, she is cultivating relationships. Ms. McCue pointed  
out that if she was a traditional Western scholar she would not be spending the time to develop  
agreements like that. The document appears to be a CIILS precedent respecting a project to  
create a better understanding of customary laws and legal orders of a particular Indigenous  
group. The objective of the project was to research and record those laws and legal orders as  
they relate to governance of the land. The document includes sections related to process, how  
participants participate in the process and the disposition, protection and ownership of  
research materials and cultural intangible property. It is a document which may be unique to  
Indigenous research although I have no evidence of that.  
[92] Ms. McCue also gave evidence of a concept which she labelled a medicine wheel. She  
describes the wheel as an Indigenous way of setting up relations with others. She testified that  
the wheel was disseminated to others for feedback and that she wove it into her teaching.  
[93] Ms. McCue testified that the Faculty Association started to assist her in 2008. She  
testified that the nature of her work was multi‐track scholarship and that they helped her  
134  
articulate that the boundaries between scholarly teaching and service were not so fixed that  
there could not be flexibility under the CA to recognize the interweaving of the criteria in the  
way that she carried out her work.  
[94] Ms. McCue testifies that she has published both oral and written documents  
characterized as non‐peer reviewed. She says they were mischaracterized. 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.  
[95] The recommendation of the Faculty Committee was communicated by Professor Elliot  
and Dean Bobinski on November 3, 2010. It stated as follows:  
...With respect to the candidate’s published works, a majority of the  
Faculty Committee found that the quantity and quality of those works  
did not demonstrate a “high level of performance”. The candidate had  
not published any peer‐reviewed works and there was little evidence  
that the work should be considered to be the equivalent of peer‐  
reviewed publications. The candidate conceded that she had not yet  
begun to publish her work in peer‐reviewed fora.  
The Faculty Committee considered the candidate’s submissions related  
to the Scholarship of Teaching and potential scholarly and Professional  
Contributions in the form of conference participation and the  
candidate’s involvement with Indigenous communities. To the extent  
that the activities could be considered to fall within the agreement’s  
definition of scholarly work, Professional Contributions or the  
Scholarship of Teaching, the committee found that the scholarly activity  
was insufficient on its own or in combination to support a finding that  
the candidate had achieved a high level of performance.  
The majority of the Faculty Committee, therefore, concluded that the  
candidate had failed to produce the quantity and quality of scholarship  
disseminated either through the usual peer‐reviewed or equivalent  
publications, or through Professional Contributions, or through  
Scholarship of Teaching to demonstrate that requisite high level of  
performance and scholarship.  
[96] The Faculty Committee had concerns as well that Ms. McCue failed to demonstrate the  
promise of performance as required under the CA. Those concerns arose, it states, because Ms.  
135  
McCue’s projected publications in her previous reappointment processes had not ultimately  
been produced.  
[97] As regards teaching, the Faculty Committee’s conclusions seem to have been equivocal.  
With respect to service, the Faculty Committee was satisfied that Ms. McCue’s record of service  
met the criteria for tenure. Ultimately, neither tenure nor promotion was supported by the  
Faculty Committee.  
[98] The SAC which was the first level of appeal from the Faculty Committee declined to  
interfere with the recommendation of the Faculty Committee. The reason for negative votes on  
promotion to Associate Professor was expressed by the SAC as a lack of evidence of sustained  
and productive scholarly activity, broadly defined within the context of the agreement. The  
reason for negative votes on the award of tenure was the “lack of evidence of a high standard  
of performance in relation to scholarly activity, having considered the non‐traditional  
framework presented by the candidate in having contextualized the context of the scholarly  
activity”. The SAC clearly felt that the Faculty Committee’s report and the Dean’s letter  
revealed that a broad‐based contextual inquiry was made into scholarly activity and what it  
means to be an Aboriginal legal scholar.  
[99] Ms. McCue put before the Tribunal the ultimate decision of President Toope dated June  
29, 2011. In it, President Toope states that, in his view, Ms. McCue’s record, considered in the  
context of the interplay between her work, community engagement experience, and  
perspective, as well as her personal circumstances, has not met the criteria for promotion to  
Associate Professor or for tenure. He says:  
Even when I assess your file within the particular context of your case, I  
find that your scholarly record does not demonstrate the significance of  
contribution or the dissemination of the results of your activity expected  
for promotion or for tenure. 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  
136  
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).  
[100] Professor Toope states plainly that, with respect to teaching, Ms. McCue’s body of work  
does not meet the standard required for tenure as an Assistant Professor nor for promotion to  
Associate Professor.  
[101] Ms. McCue testified that oral contributions are more than just “important work”. She  
testified that she believes that her work was peer reviewed and refereed. She testified that the  
work she did was original work that had never been done before on that broad of a scale. She  
testified that the Shepherds’ Report at pages 14 and 15 captured who she is as an Indigenous  
scholar when they stated:  
Finally, it should be noted that Professor McCue has been active as a  
scholar in reaching out to many varied communities. While it is  
noteworthy that she is often invited to speak at academic conferences  
and gatherings, more of note should be the fact that she gives  
generously of her time and expertise to Aboriginal communities (both in  
the province, nationally, and on the international scene). A notable  
example of activity that straddles this commitment to both academic  
and community audiences is her recent work (as an editor and reviewer)  
with the African‐Canadian Women’s Human Rights Project. Not only did  
she work closely with writers focused on women’s issues in parts of  
Africa, but she consistently did so from her unique place as a Canadian  
legal scholar, an Indigenous legal scholar, an Indigenous woman and as a  
hereditary chief of her community. One might suggest that this sort of  
work epitomizes the sort of scholarly activity for which Professor McCue  
is uniquely situated to deliver exceptional quality and service.  
[102] Ms. McCue testified that President Toope gave no weight to that perspective espoused  
by a peer review which emanated from the University itself and that perspective was  
undervalued.  
[103] She testified that an Indigenous scholar needs more time to build the trust of the  
community. She said “if you cannot do that no community is going to deal with you”. She said,  
137  
“I cannot conduct projects and research without respecting the protocols of the community,  
the Indigenous laws of the community, Indigenous knowledge systems that are the foundation  
of those laws. Otherwise I won’t gain the trust nor will I be able to escape acting in a  
discriminatory way with those communities.” She said, “I cannot escape discrimination while  
conducting scholarly activity – I can’t do that.” She testified that the Shepherds’ Report was  
urging the University not to evaluate her unfairly because of the time and commitment  
required to carry out properly community‐based research. She testified that an Indigenous  
scholar requires more time because such a scholar is required to build the trust of the  
community. She said if you cannot build the trust of the community no community will deal  
with the researcher. She said that researchers cannot conduct project and research work within  
an Indigenous community without respecting the protocols of the community, the Indigenous  
laws and the Indigenous knowledge systems that are the foundation of those laws. If that is not  
done the researcher will not gain the trust or be able to escape acting in a discriminatory way in  
those communities.  
[104] Ms. McCue testified that when she received the letter of concern from the Faculty  
Committee in 2010 she put evidence before the Faculty Committee to consider all of her  
scholarly activity, looking for consideration of her work from a broader interpretation of Section  
4.03 of the CA.  
[105] Interestingly, the Faculty Committee’s reasons for decision reflect that there was  
minority Faculty support for tenure for Ms. McCue when taking into account the conclusions  
respecting tenure in letters provided by external referees, assessment of Ms. McCue’s written  
work which they deemed to be of sufficient quantity and quality to meet academic standards  
and Ms. McCue’s special role as an Aboriginal academic such that her oral heritage ought to be  
recognized through greater weight being provided to oral presentation, that research  
dissemination ought to be understood to include her role as an academic available for  
consultation on key issues within Aboriginal communities, and that her presence within the  
Faculty generated very important and productive facilitation of research informed by and  
sensitive to Aboriginal issues.  
138  
[106] Ms. McCue testified with respect to the Faculty Committee’s decision rejecting her  
application for promotion and tenure. She said that she understood that her research outcome  
and product, her conference presentations, and her publications in book reviews were all work  
that would count under the CA. When tested with respect to that, she said that she was getting  
reappointed and, therefore, developed the understanding that the work she was doing was all  
right, that when she saw five to six peer reviews as an expectation being set out in the Dean’s  
letters, she was not signing those letters because she did not agree with them. She said that  
when she came up to reappointment in 2008 she started to write back and say “the only option  
you’re giving is five to six peer‐review publications” and she says she inquired about other  
forms of publication that could be acceptable with the Dean. She said she met with the Faculty  
Association who were mentoring her and wrote to the Dean about a broader interpretation of  
scholarly activity. She says that all of this happened again when she was reappointed in 2009.  
She said she was looking for adjustments that recognized the work she was doing.  
[107] Ms. McCue further testified that when she got the letter of concern from the Faculty  
Committee in 2010 she put in further evidence for the Faculty Committee to consider of all of  
her scholarly activity looking for a consideration of her work from a broader interpretation of  
Section 4.03 of the CA.  
[108] 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  
139  
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  
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  
140  
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.  
141  
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, and  
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. ...  
[109] 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.  
[110] From the above, Ms. McCue testifies that her peer reviews say that she has met the  
standards for teaching effectiveness.  
[111] Ms. McCue testified with respect to Dean Bobinski’s recommendations to President  
Toope of April 26, 2011 that she has concerns that when the Shepherds’ Report was prepared  
142  
and when the external referees prepared their letters they did not have before them all of the  
material in evidence that was put to the Faculty Committee on June 9, 2010.  
[112] Ms. McCue prepared and submitted to the SAC on May 25, 2011 a response to Dean  
Bobinski’s recommendations to President Toope, dated April 26, 2011. On the issue of  
scholarship she states that it is a good sign that there was a lot of debate over the meaning of  
standards for scholarly activity. She felt that meant that the departmental cultural standards  
were being challenged by Indigenous applied research, forms of publications and other  
activities. She states that, “In my view, such standards should evolve to reflect diversity of the  
department’s membership.” She also states:  
While the Law Dean agrees with multiple‐track to frame my scholarly  
activities, she considers limited evidence to do an analysis. While it is fine  
to accept this framework, the problem here is the discretion taken to  
consider such few examples of my record meeting the criteria.  
[113] She notes that she has other comments to make but did not have the time to fully  
respond by the timeline given.  
[114] Ms. McCue’s evidence was that she received the notice to reply to the April 26, 2011  
recommendation only on May 3, 2011 when she was departing to California to accompany her  
family and did not have all the materials with her. As a result, she could prepare only a partial  
response on May 25, 2011. She indicated that she did not hear back until June 14, 2011 and  
President Toope’s secretary had asked that she complete her response by June 17.  
[115] She testified that she wished to make the case that she was an Indigenous scholar, that  
it was inappropriate to fit her into a non‐Indigenous way of carrying out her work and that  
essentially the University was trying to fit a circle into a square hole.  
[116] Dean Bobinski’s presentation to President Toope expressed significant concern about  
both the quality and the quantity of Ms. McCue’s scholarly contributions. She clearly did not  
support Ms. McCue’s promotion and would support tenure only if Ms. McCue committed to  
143  
publish her unpublished works in a timely manner. She states at page 21 of her submission to  
President Toope that Ms. McCue:  
Has not met the standards required of candidates for promotion to  
Associate Professor within the Faculty of Law when considering all three  
tracks of activity. [Traditional scholarship, Professional Contribution,  
Scholarship of Teaching] (My addition).  
[117] In Ms. McCue’s response of May 25, 2011, she expresses the view that procedural and  
substantive errors in the process were not addressed by the Dean. Nowhere does she explicitly  
suggest a failure of accommodation. She does, however, assert that the Dean’s submission  
reveals a conventional single‐track review of the scholarship component of the standard for  
promotion and tenure, a narrow understanding and interpretation of what publication and  
dissemination means under the CA, a failure to adopt a paradigm or framework that positions  
service as evidence of scholarly activity, as well as evidence of service. She asserts that:  
The application of a non‐traditional framework, which assesses my  
service appropriately, would identify that there is no deficiency in my  
teaching and scholarship activity.  
[118] Further, in her May 25 response, Ms. McCue asserted that:  
“Indigenous academics research and produce knowledge, both oral and written,  
differently than most scholars.”  
“Indigenous scholars must be largely service oriented in their relationships with the  
academic community and society as well as the Indigenous peoples they partner  
with to achieve engagement and goals.”  
“I am advocating for the recognition of the choices I have 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.”  
[119] Ms. McCue’s position can be encapsulated in her response to Dean Bobinski’s  
recommendation of May 25, 2011 in which she says, commencing at the middle of page nine:  
144  
Some of these concerns have been raised in Faculty retreats and  
meetings about what are scholarly activities, leading to tension.  
Indigenous academics, because of their small numbers in faculties, have  
a heavy burden of transforming conventional traditional Western norms  
and standards that limit diversity of Indigenous knowledge  
dissemination through narrow understandings of what is publication  
and impact. There are diverse applications of standards to  
“appropriately” assess my record under the UBC FA‐CA. Further, it is  
relevant that appropriate considerations for standards of excellence can  
apply “across and within faculties and disciplines”. There are examples  
of Indigenous scholars at UBC that have positioned their academic  
achievement so that they meet the criteria for scholarly activities,  
teaching and service, and at the same time fulfill Indigenous ways of  
doing academic work.  
Nor can a narrow assessment of teaching really capture the enormity of  
effort and level of reception that is employed by Indigenous scholars like  
myself to translate comparatively the difference between Indigenous  
and non‐Indigenous legal traditions or the legal issues that confound  
Indigenous‐state/society relations. A rigorous analysis of the successful  
teaching contributions or stories must be told and I have provided the  
evidence in this process to see how I meet the criteria for teaching. The  
wisdom, knowledge and teachings of diverse legal traditions across  
cultures and societies, regardless of which criteria category they get  
reflected in, must be equally valued and accounted for to understand  
the level of expertise I possess and use at the University.  
It is for these reasons that I am advocating for my Indigenous scholarly  
activities, teachings and services to be assessed with a culturally  
appropriate paradigm to measure relationships and productivity that I  
have made in my career to date. A culturally appropriate paradigm is  
necessary for my promotion and tenure review because of the reality  
that my Indigeneity structures and informs my work, shapes my  
relationships, influences my legal analysis and is the foundation for how  
I as an individual connect to the academy. In my view, the UBC FA‐CA  
can accommodate this approach to assessing my record by ensuring that  
all my activities that are scholarly and teaching in nature, but which may  
have been conducted under my service can be measured as evidence for  
meeting the criteria for scholarly activities and teaching.  
The other way to achieve a culturally appropriate assessment of my  
record is to understand that the service conducted by an Indigenous  
woman law scholar such as myself must be contextually interpreted to  
include teaching and scholarly dimensions. Functionally, the evidence  
145  
demonstrates the fulfilment of criteria for promotion and tenure.  
Unfortunately, the law department and law dean have given undue  
weight and balance in assessing my record by not considering all the  
evidence submitted and by weighing my excellence in service (with  
scholarly and teaching dimensions or functionality) less than the criteria  
of scholarly activities and teaching.  
[120] Ms. McCue gave the example that when sitting on boards that relate to law and  
education it can be considered as service but it also is scholarship.  
[121] When asked if there was any reason an Indigenous scholar cannot do a peer‐reviewed  
publication, Ms. McCue responded that she can do both. She is servicing two communities and  
capable of doing both, “But it’s going to take time to do both. To do credit as an Indigenous  
scholar you should be doing both.”  
[122] Ms. McCue testified that she was concerned about being treated like a traditional  
scholar given the way that she carries out her work. She was concerned that all of her scholarly  
efforts were not being characterized appropriately and that her work was not being fully  
valued. She said that if she was working on community research the Faculty could consider it as  
service but also as scholarship. Similarly, when she was sitting on boards that relate to law and  
education that could be considered as service and scholarship.  
[123] Ms. McCue testified that she was “encouraging the President to not exclude my work  
but to look for a diverse way to recognize my work as an Indigenous scholar.”  
[124] Ms. McCue called attention to further materials that were produced including a  
Professional Contribution entitled Fight for Our Rights and prepared for the Union of British  
Columbia Indian Chiefs Annual General Assembly of September 15, 2010. Ms. McCue indicated  
that her portion of the paper is entitled Inherent Indigenous Peoples Alliance Solutions as found  
at page 5. I note that that portion occupies only a brief portion of a 27‐page work. She testified  
that the work was presented to over 200 people and accepted by the Aboriginal community.  
She points to the letter of support from the Indigenous Bar Association for that but I am unable  
to find any content within that letter which specifically addresses the paper.  
146  
[125] Ms. McCue testified respecting the SAC meeting on May 27 with Dean Bobinski to  
discuss her recommendations that Ms. McCue not be promoted to the rank of Associate  
Professor, nor awarded tenure as an Assistant Professor. One of the questions that was  
addressed was how the candidate’s record of scholarly activity compares with Faculty  
expectations for promotion and tenure. Another was what criteria the Dean considered in  
judging the candidate’s record of scholarly activity. In particular, were any of the candidate’s  
unique contributions considered as “Professional Contributions”. The notes of that meeting  
have the following comments:  
Scholarly Activity  
The Faculty report and the Dean’s letter revealed that a broad based  
contextual inquiry was made into scholarly activity and what it means to  
be an Aboriginal legal scholar. All three types of scholarship were  
considered.  
In terms of traditional publications, the file reveals significantly fewer  
published materials, not just marginally fewer papers, than are expected.  
Moreover, the papers are not published in the venues that are normally  
expected (e.g. peer reviewed). The content is somewhat different than  
might be expected as well. On these markers, the case did not meet the  
criteria. However, the Faculty has tried to understand the work and the  
different approach taken by the candidate.  
A Senior Appointment Committee member asked whether the Faculty  
had reviewed files previously that were based on Scholarship of Teaching  
and/or Professional Contributions. The Dean responded that although  
some candidates who may rely on these types of scholarly contributions  
are currently in progress within the Faculty, no candidate has yet made  
arguments based to this extent on either Scholarship of Teaching and/or  
Professional Contributions.  
Criteria  
In reviewing the material presented as scholarly activity, the Faculty took  
context into account, as this candidate takes her work in different  
directions than others. If the Faculty is to carry through on its vision of  
supporting Indigenous scholarship, it must take seriously the argument  
that consultations and oral presentations may constitute scholarly  
147  
contributions. The Dean identified that much of the work was not subject  
to third‐party evaluation.  
Even when the concepts of Professional Contributions, Scholarship of  
Teaching or traditional scholarship are interpreted in the most liberal  
manner, the quality and quantity of this candidate’s contributions (e.g.  
oral presentations, consultative work) do not meet the criteria of the  
Agreement. Most candidates for tenure and promotion within the Faculty  
of Law provide these levels of contribution in addition to their traditional  
scholarship.  
Referees  
SAC inquired whether the referees were asked to assess the work  
broadly. The Dean pointed to the letter to the referees, which refers to  
the language of Agreement, including Professional Contributions, et  
cetera.  
As the Dean explained in her letter to the President, external review  
letters are very important and taken seriously. The difficulty is that some  
of the positive letters were very conclusory; that is, they did not analyze  
or detail particular strengths of the candidate’s work. Even some positive  
letters included concerning language. [Redacted] is positive but offers  
criticisms of each piece. [Redacted] negative letter was particularly  
negative in this regard. [Redacted] did not offer a particularly detailed  
assessment of the work nor did it provide a basis on which to grapple  
with the issues in the file. [Redacted] review was based on oral  
presentations by the candidate but [redacted] description did not  
address the analysis offered.  
The Dean was asked about the idea that the candidate contributes an  
important ‘perspective’. The Dean agreed that perspective can be  
important but it needs to be carried through into analysis of particular  
fields.  
[126] The SAC unanimously voted against Ms. McCue’s candidacy.  
[127] Ms. McCue’s evidence is that the expanded material that she had provided is what  
should have been sent to the external referees. She said the whole process should have started  
again with the Dean and herself agreeing on the criteria by which she would be measured.  
148  
[128] Ms. McCue then addressed the decision of President Toope. That decision was dated  
June 29, 2011. President Toope concluded that Ms. McCue had not met the appropriate  
standards for promotion to the rank of Associate Professor or for tenure. With respect to  
scholarly activity, he said:  
Judgment of scholarly activity, under the Agreement, is based mainly on  
the quality and significance of your contribution, and the dissemination  
of the results of your scholarly activity. Published work is, in many cases,  
the primary evidence for the assessment for scholarly activity. In  
appropriate cases, consideration should also be given to the Scholarship  
of Teaching and learning, as well as professional scholarly activity. 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.  
Even when I assess your file within the particular context of your case, I  
find that your scholarly record does not demonstrate the significance of  
contribution or the dissemination of the results of your activity expected  
for promotion or for tenure. 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 if follows that it does not meet the standard  
required for promotion to Associate Professor).  
149  
[129] 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.  
[130] In Ms. McCue’s May 25, 2011 letter to President Toope, she raises the issue of systemic  
racism at the law school. President Toope responds:  
It is unfortunate that you have these perceptions about your continuing  
experience within the Faculty of Law. I do not see evidence of direct or  
indirect racism that would support a prima facie case of discrimination in  
your tenure and promotion review. I hope your perceptions of  
inappropriate conduct are not accurate. However, there are appropriate  
venues within the university to raise such concerns (Equity Office, Policy  
#3, the Respectful Environment Statement) and I would encourage you to  
do so if you wish to pursue these allegations.  
[131] I note that those allegations do not form part of the Complaint before the Tribunal on  
this occasion.  
[132] Ms. McCue testified that under the CA, Article 2.03 and 2.04 of the Agreement on  
Salaries and Economic Benefits, a Faculty member can apply to receive these awards if they  
remain employed in the year following the year for which the awards are applied for.  
[133] Merit awards under Article 2.03 of the CA are awarded taking into consideration the  
criteria set out in Article 4 of the CA on conditions of appointment for Faculty (i.e. teaching,  
scholarly activity, and service to the University and to the community), as they apply to Ms.  
McCue.  
[134] With respect to performance salary adjustments (PSA) the factors to be applied  
pursuant to Article 2.04 of the CA are:  
i
performance over a period of time which is worthy of recognition;  
ii the relationship of a member’s salary to that of other members taking into  
consideration total years of service at UBC; and  
150  
iii market considerations.  
[135] Ms. McCue testified that the denials were taking place on the same matrix that were  
being used to assess her work on the promotion and tenure application. She testified that she  
did not know that she could submit her teaching evaluations.  
[136] Ms. McCue testified that she felt that she had submitted appropriate information for  
the application for the 2009 through 2011 awards. She presented her annual activity report for  
each of those years. The only published Article for 2009 was the Kapp’s distinctions Article of  
ten pages. She listed as well a Law Foundation of British Columbia grant application from the  
legal research fund and two scholarly presentations. That was in addition to indications of  
supervision of two research students and listing of her teaching load.  
[137] In 2010, Ms. McCue listed her teaching load of three courses, an involvement in directed  
research for three students as well as graduate supervision of one PhD candidate. She also  
listed organization of an Aboriginal title session for all sections of the First Nations House of  
Learning, mentoring of Indigenous and non‐Indigenous law students and attending three UBC  
TAG workshops. Her scholarly activity consisted of one book chapter, one commissioned non‐  
published scholarly work, and three scholarly works in progress as well as another $20,000 Law  
Foundation grant, and a UBC equity enhancement fund grant. She listed three invited scholarly  
presentations and two other scholarly presentations given in the reporting period as well as  
straightforward itemization of service to the Faculty, the University and other law‐related  
community service.  
[138] For the 2011 Merit and PSA Award activity report, Ms. McCue listed once again three  
courses. She supervised respecting one publication and served as a committee member  
respecting a committee (Nigerian Women and Land Reform). She supervised the same PhD  
candidate and oversaw directed research of two graduate students. She published no scholarly  
works and listed one co‐written and co‐edited unpublished work. She listed her Kapp case  
research as scholarly work in progress as well as a short list of scholarly work in progress. She  
listed one invited scholarly presentation and three other scholarly presentations given in the  
151  
reporting period. She also listed as service to the Faculty supervising a research student, serving  
as facilitator and chair for the Aboriginal Kawaskimhon Moot and other relatively modest  
contributions.  
[139] Ms. McCue testified that she asked the Dean why she did not receive Merit Pay and PSA  
pay for 2009 and 2010. She testified that she did not receive a response from the Dean.  
[140] Ms. McCue testified that the 2009 and 2010 results were very close together in time and  
both were received in 2011. She asked the Faculty Association to grieve the lack of Merit or PSA  
pay. She testified that the Faculty Association did a preliminary investigation and chose not to  
pursue the grievance on her behalf. The grounds she says that she grieved on were procedural  
errors and unreasonable decision‐making. She testified that the Faculty Association looked at  
the process and found no reason to believe that the proper criteria were not applied. She said  
in 2011 much the same occurred and she did not receive either Merit or PSA pay. She says she  
does not know why she did not receive it.  
Cross‐Examination of Ms. McCue  
[141] Ms. McCue was asked about her educational history and described a full high school  
curriculum graduating in 1987, attending Carleton University in Ottawa and receiving an  
honours degree in political science and economics, attending and receiving an LLB from the  
University of Ottawa and a Master’s of Law from the University of British Columbia. She also  
was an Aboriginal divisional leader and case worker for the Canadian Legal Clinic at the  
University of Ottawa. She described the clinic as “like a First Nations law clinic”. She described  
her role as setting up Aboriginal cells resulting in three locations in Ottawa for Aboriginal  
people to access clinical services.  
[142] Ms. McCue served as a law clerk to the British Columbia Court of Appeal for her Articles  
and then was called to the bar in September of 1996.  
[143] Ms. McCue acknowledged that in these roles she read legal materials, conducted  
research and analysis, wrote exams, wrote a master’s thesis, wrote lots of legal memoranda,  
152  
wrote legal briefs and created legal arguments. She acknowledged that she was successful at all  
of these endeavours. She acknowledged that in each of these programs or jobs she knew there  
were expectations. She acknowledged that that was also true of her undergraduate courses,  
her master’s work and her work as a lawyer.  
[144] She was asked if she knew it was important to pay attention to the criteria for success  
and she acknowledged that it was. She acknowledged that she was successful at all of these  
things.  
[145] Ms. McCue was asked and acknowledged that she was a capable reader, researcher,  
analyst and writer.  
[146] Ms. McCue was asked whether Indigeneity precluded her from meeting requirements  
regarding reading, research analysis or writing and responded that Indigenous people can do  
both oral traditions or written. She stated that Indigeneity does not mean she is not capable  
and that she can do the western form of literacy. She described it as “a hat I can wear”. She  
testified “I’ve been able to wear both hats all of my life”.  
[147] She was also asked if gender made her incapable of accomplishing any of these things  
and acknowledged that it did not.  
[148] It was put to Ms. McCue that between 2000 and 2011 she did not prioritize publication  
while serving as an Assistant Professor. It was also suggested that that was a matter of choice.  
She responded, “I published when I had time. I was heavily involved with committee work.”  
[149] It was put to Ms. McCue and she agreed that Indigenous scholarship was not mutually  
exclusive from peer‐reviewed publication.  
[150] It was put to Ms. McCue that she did not recognize peer‐reviewed publication as a  
priority and she responded, “I refute that. I am disagreeing publication was not a priority. I  
published and disseminated knowledge every year.”  
153  
[151] Ms. McCue was asked how she ranked the importance of western style publication. She  
responded, “I prioritized all of it. I worked on it constantly.”  
[152] When asked if publication was not an afterthought she responded, “I published in  
different formats. When I got it out, I got it out. I balanced my responsibilities as best I could  
given the obligations and all of the duties.  
[153] Ms. McCue was asked if she agreed that from 2003 onwards her employer was telling  
her that she must publish more. She responded:  
I felt I had evidence of publishing. I was writing papers. In 2003 I  
published a chapter, wrote a Bar Association paper the following year  
and a paper for another conference.  
[154] She was asked if the employer had told her repeatedly that she was not publishing  
enough and she responded affirmatively.  
[155] It was put to Ms. McCue that UBC told her that her lack of publication put her  
promotion and tenure in jeopardy. She responded affirmatively.  
[156] Ms. McCue acknowledged that she had reviewed and approved the transcript of her  
June 9, 2010 presentation to the Promotion and Tenure Faculty Committee. At page 12 of that  
transcript one of the members of the committee asked where Ms. McCue was in terms of her  
work in progress and whether they would be submitted at some point. Ms. McCue responded  
that when she gets invited to participate in journals generally she says yes then tries to see if  
she can fit it within her teaching and service. She says, “If I can get to research during the year,  
then that is great.” She was asked what she meant by that and she responded:  
In an average academic year I’m heavily fulfilling academic roles. If I get  
to work on research time that’s great. In the summer is when I do  
research.  
[157] Ms. McCue acknowledged that she has had reduced loads to allow her to focus on  
publications. She also acknowledged that she was required to teach less than the CA requires.  
154  
[158] In 2000, Ms. McCue moved from Assistant Professor without review to Assistant  
Professor tenure track. She testified that she understood the tenure clock and that there would  
be a mandatory tenure review in the seventh year. She also acknowledged that the tenure clock  
was extended to ten years because of leaves taken.  
[159] Ms. McCue did not recall that she was invited to an orientation for new tenure‐track  
Faculty once going onto that track. She testified:  
I pretty well followed what I was doing since 1998. I put a lot of effort  
into setting up my committee. I understood there was a research  
component. I was interested to know what my responsibilities were,  
what my employer’s expectations were and how to be successful on  
that path.  
[160] She testified that in 2000 she had many discussions with the Dean and that she now  
knows that the CA and Guidelines set out in detail the steps required to move from one step to  
another in the promotion and tenure process. She testified, however, that she was unaware of  
the full meaning of the CA and Guidelines until 2010. She testified that, until 2010, she did not  
really know the CA contents. She said she got her understanding of the CA prior to April 2010  
from Aboriginal colleagues working on campus. She was aware that there were CA provisions  
that applied but made no inquiry as to what they might mean. She testified that she did not  
agree with the conclusions Dean Bobinski was reaching with respect to the meaning of the CA.  
She also testified that she did go over the provisions in the CA with her union representative  
before her second reappointment process in 2008. She testified that she first looked at the  
promotion and tenure Guidelines in preparing for the Faculty Committee meeting in May of  
2010. She testified the Guidelines had existed since 2000 but she was simply unaware of them  
and that while the CA is online, she never went to it online.  
[161] Ms. McCue testified that she was unaware of the five to six peer‐review publication  
expectations before receiving Dean Bobinski’s 2004 letter. She testified that she cannot recall if  
she looked at the CA at the time. She also did not recall consulting with the Faculty Association  
representative except with respect to pregnancy leave.  
155  
[162] Ms. McCue was asked if she was aware that in 2004 a new track for scholarship was  
introduced labelled Scholarship of Teaching. She responded that she knows now but that she  
did not know then. She testified further that she first looked at the Guidelines when preparing  
for the Faculty Committee meeting in May of 2010.  
[163] Ms. McCue testified that she made no contact with the Faculty Association after  
receiving Dean Bobinski’s letter of April 26, 2004.  
[164] Ms. McCue was asked when she first knew there were three categories comprising  
Scholarly activity. She said she attended a meeting around August of 2009 held for Faculty  
members who were promotion and tenure candidates. She said that is when she learned that  
there were three criteria to be considered.  
[165] It was then put to Ms. McCue that the three criteria had repeatedly been referred to  
and spoken about to her; she was asked if she was saying that she first learned about it in 2009.  
She responded that this was the first time that she was fully “embodied” with this information.  
[166] Ms. McCue testified that she understood from the beginning the three concepts of  
scholarly activity, teaching and service. She said she knew that those were requirements she  
would have to meet. She said she knew that each had its own criteria. She just went about  
submitting her work annually.  
[167] Ms. McCue was challenged at that point respecting having little regard to what she  
knew to be necessary for success. She responded that she felt that she was doing what she was  
required to do. She did not look at the CA. She did not look at the Guidelines.  
[168] It was pointed out to Ms. McCue that the Dean’s view was the one that mattered. She  
was asked, “What were you thinking?” She responded that she thought she was publishing.  
[169] Ms. McCue testified she did not know about the fact that service had less weight in the  
consideration for promotion and tenure when she was hired. She said she did not know that  
until the Merit/PSA processes. She said she did not think she knew that until she met with Dean  
Bobinski and Professor Young in 2009.  
156  
[170] Ms. McCue testified that she understood the correspondence from Dean Bobinski  
where the Dean said that she was not publishing five to six peer‐reviewed articles. She said she  
felt that the CA provision was wider than that. She further said that she thought that by not  
signing the Dean’s letters she was challenging their contents.  
[171] Ms. McCue testified, “I remember being told I wasn’t doing the five to six peer reviews.”  
It was put to her that she was told if she was not producing her job would be in jeopardy both  
orally in 2003 and through the 2004 letter, but she did not grieve. She responded, “I didn’t  
know about the grievance process.”  
[172] Ms. McCue was asked a series of questions:  
a. Do you recall the Dean raising concerns about your performance in a conversation in  
September of 2003? She responded she was not sure, it could have happened.  
b. Do you recall your teaching load being reduced? She responded that she did not  
recall that until 2004.  
c. Do you recall being offered teaching assistance? She responded that she did not  
recall.  
d. Do you recall being offered mentoring? She said she did not recall.  
[173] It was put to her that the focus of her discussions with the Dean was the lack of  
scholarship record. She testified that she is not disagreeing, she just does not recall.  
[174] Ms. McCue agreed that she had received and read Dean Bobinski’s letter of April 26,  
2004. It was put to Ms. McCue that the April 26, 2004 letter made it clear that the issues  
needed to be addressed and that she would be in trouble respecting promotion and tenure  
unless she shaped up. She responded, “That’s what it means.”  
[175] She was then asked what she did in response to the warning. She said she read the  
letter, and that she followed through respecting the work reduction and the reduction in  
157  
administrative responsibilities. Ms. McCue acknowledged that, at the April 8, 2004 meeting  
documented in that letter, she knew that the Dean was telling her that she was in trouble with  
respect to her promotion and tenure unless she shaped up. She testified she just thought that  
the Dean’s reference to a reduced teaching load for 2004 through 2005 was about her standard  
contractual one term off from teaching. She said she read the letter and just said to herself,  
“Okay, these are her concerns, I am just going to do my work...I had no time to do the  
publications. I was doing teaching with my community – they should value the teaching I am  
doing with my community.” Ms. McCue testified that the Maiyoo Keyoh project constituted her  
teaching to the community. She testified that when she does a workshop for the hereditary  
leaders she considers that as her teaching to the community. She testified in response to the  
question, “Is that work that UBC should credit?” “Sure, because I am receiving back Indigenous  
knowledge from my people.”  
[176] Ms. McCue further said in response to the letter, “I was doing teaching with my  
community. They should value the teaching I’m doing with the community.” She testified, “The  
Maiyoo Keyoh project asked me to do a presentation. There is my teaching to the community.”  
She said that when she does a workshop for the hereditary leaders, that is teaching.  
[177] It was put to her that when Dean Bobinski said, “you have not yet begun to publish  
original, peer‐reviewed contributions to the legal scholarship at the expected rate”, it meant  
that in the Dean’s view she had not yet begun to publish at the expected rate. Ms. McCue  
acknowledged that that is what the Dean was saying. She acknowledged that she was told with  
absolute clarity that the Dean expected five to six peer‐reviewed publications by the time she  
sought tenure. She says, “I recognize the changes implemented on April 26, 2004 are to assist  
me with publication, in [Dean Bobinski’s] view. I refute that but I accept that is what the letter  
says.”  
[178] It was then put to Ms. McCue whether it was evident to her that the mentor provided  
was to allow her to meet serious concerns about scholarship. Her answer was “yes”. Ms. McCue  
then testified that she agreed that the last paragraph of the letter was Dean Bobinski’s view.  
That paragraph reads:  
158  
In conclusion, I want to reiterate that the Faculty of Law is taking these  
steps 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’s standards for  
the granting of tenure and promotion.  
[179] It was put to her that Dean Bobinski’s view was not as compelling to her as the view of  
her colleagues in other departments. She responded:  
They were accommodating me to give me time because I was doing all  
these other things. I understood I would step down as Director for one  
year to see how I’d do.  
What I did that fall term is prepare for a conference, wrote a paper and  
it was published online. In my mind I was producing and publishing. I  
understood I would return to the directorship the next year. The  
Property law issue happened and I never recovered.  
[180] Ms. McCue testified that she understood that she completed the Community Needs  
Assessment. It was a huge report. She published the Afterword for a book chapter, wrote a  
paper on a World Conference Against Racism, disseminated that knowledge, and checked to  
see what had to be done in relation to teaching. She felt everything related to her directorship.  
She was invited to a conference – she felt she was doing her job. She then acknowledged, in  
response to a question, that none of these activities were peer‐reviewed.  
[181] It was put to her that Dean Bobinski’s letter of January 31, 2006 made it clear that she  
did not agree that Ms. McCue was doing her job. Ms. McCue acknowledged that.  
[182] Ms. McCue agreed that typically professors teach two courses per semester and four  
courses per year. She acknowledged that in the school year 2004/05 she taught one course and  
that in 2005/2006 she taught two courses – only one in the fall. She acknowledged that  
between April 2004 and January 2006 she taught two courses plus the first half of the Property  
course. She acknowledged that her work on a briefing note prepared in November of 2004 of  
18 pages was originally intended to become a publishable paper. She said she continued her  
research on it but it was never published due to a number of intervening events. She said it was  
not published because it was not ready for publication because she had sensitive data that she  
159  
still needed to work her way through. She said her research was around trying to understand if  
the standards in the UN Declaration could counteract the way that Indigenous people were  
treated in that time frame respecting domestic land struggles. She said it was a novel area of  
research and that when the UN Declaration came down in 2007 she carried on that research,  
analysed it and presented it in conferences and to Faculty. When she was asked why she was  
not publishing she said she needed to find Indigenous people’s own legal traditions on Peace  
and Security. She continued to research. She did not look at turning it into shorter papers. She  
was trying to figure out how to import Indigenous research into the paper. She was asked if she  
sought input formally or informally from mentors about how to turn it into a publishable paper  
and responded that she could not recall. She acknowledged that seven years later it had not  
been turned into a publishable piece.  
[183] Ms. McCue acknowledged that, in the period that she had been provided to publish by  
being given teaching relief, she produced one briefing note and one introduction to somebody  
else’s book.  
[184] Ms. McCue acknowledged that, when she met with Professor Claire Young and Dean  
Bobinski on April 26, 2005 and with Professor Pue on December 13, 2005, there was a re‐  
emphasis in both meetings of Dean Bobinski’s concerns about the need for progress in research  
and the need for five to six peer‐reviewed publications. She was asked whether she said to  
Professor Young and Dean Bobinski that she did not have to publish papers and she said she did  
not, that she told them she was going to get the projects published soon. She acknowledged  
that she was told in those meetings to keep other activities such as conferences to a minimum  
unless they would lead to publication. She acknowledged that the failure to publish was her  
employer’s concern.  
[185] Ms. McCue acknowledged that at the meeting with Dean Bobinski and Professor Pue on  
December 13, 2005 she did not say that she could not publish or that she did not need to  
publish. Rather, she told them that she was working on it. She acknowledged that the Dean  
expressed great concern about her lack of scholarship presentation and that she did  
understand that the Dean was expressing a clear, stark warning.  
160  
[186] Ms. McCue acknowledged that Dean Bobinski wrote a similar letter on January 31, 2006  
repeating the theme that Ms. McCue was not doing what was required for tenure and  
promotion.  
[187] When asked who her informal mentors were she testified that “I can’t recall right now”.  
She did testify that any informal mentor would have been someone in the Faculty of Law.  
[188] Ms. McCue acknowledged that nothing that was published by her in 2006 or 2007 fit the  
definition of a peer‐reviewed publication. She said that the Faculty Association and the First  
Nations Law Committee consisting of Professors Wexler and Jackson were mentoring her at  
that point.  
[189] Ms. McCue acknowledged that at no time until she began to request that her tenure  
and promotion application be halted in April 2010 did she request accommodation in the  
tenure and promotion process on the basis of Indigeneity. She said that, “I didn’t understand I  
had a positive obligation to express my disagreement at this time.” She said, “I cannot recall  
telling Dean Bobinski that five to six peer‐reviewed publications is not required under the  
Collective Agreement.”  
[190] Ms. McCue acknowledged that she received teaching relief so that she did not have to  
teach in the summer or fall of 2008. However, the only publication that she published was an  
eight‐page article. It was published as a chapter in a non‐peer‐reviewed book.  
[191] Ms. McCue testified, “I did not understand I was jeopardizing my whole academic future  
by not responding to what the Dean was telling me.” She said, “I thought I was doing my work.”  
[192] Ms. McCue acknowledged that ultimately she had a tenure clock which included a one‐  
year maternity leave. She acknowledged that she had nine years to develop a body of work to  
satisfy the promotion and tenure requirements and that during that time she was granted a  
reduced teaching load.  
[193] On January 14, 2008, Dean Bobinski wrote a letter to document her discussions with Ms.  
McCue during the summer/fall of 2007 regarding Ms. McCue’s review for reappointment. It  
161  
repeats the expectation of five to six peer‐reviewed, significant publications. It repeats that  
Dean Bobinski had expressed concern that Ms. McCue had not been successful in meeting the  
goals with respect to the publication of original, peer‐reviewed contributions to legal  
scholarship. It repeats that Ms. McCue had expressed the view that she would be able to  
publish a number of pieces in the near future. It confirms that the Faculty Committee’s review  
of teaching would not include Ms. McCue’s teaching evaluations from the Property class she  
taught in 2005/2006.  
[194] Ms. McCue testified that she did not understand at that time that her directorship and  
other similar work fell under the heading of service. She said that if she had known she would  
not have agreed that service was less important than scholarship and teaching. She said she  
spoke to the Faculty Association after she got the letter but the Faculty Association never  
grieved. Ms. McCue acknowledged that she did not challenge the requirement of peer‐  
reviewed publications or tell Dean Bobinski that she had no intention to publish.  
[195] On December 15, 2008, Dean Bobinski provided a letter to Ms. McCue documenting  
discussions between them and email correspondence during the summer/fall of 2008 regarding  
Ms. McCue’s review for reappointment. Again, the expectation for five to six peer‐reviewed,  
significant publications by the time Ms. McCue sought tenure in 2009‐10 is set out.  
[196] Ms. McCue sent Dean Bobinski a response on January 22, 2009. Nothing in that  
response took issue with those expectations. She testified that she did not challenge the  
standard because it was her assumption that she could say that when she was being reviewed.  
[197] The Tribunal asked Ms. McCue to show the Tribunal where Dean Bobinski was alerted to  
Ms. McCue’s concerns about the standards Dean Bobinski is holding her to. Ms. McCue took the  
Tribunal to the portion of the letter titled Reappointment Process for 2009. She suggested that  
was notice. She said, “In this letter I am challenging the broad conclusion of the Dean in the first  
paragraph with the words:  
I am in receipt of your letter of 15 December 2008. Thank you for the  
review of our discussions. I have signed two copies to indicate that the  
162  
matters contained therein are matters that we have discussed. At times  
I believe your letter to be drawing conclusions in advance of the  
reappointment process. I understand from our discussions that your  
intent is not to assess my reappointment at this stage. I am writing to  
provide my thoughts on a few of the items in your letter, to clarify and  
expand upon my understanding of the discussions. It is my wish that this  
letter be appended to and accompany your letter of 15 December 2008,  
although I understand that neither your letter nor my letter will be sent  
to the committee reviewing my reappointment this year.  
[198] She then stated that paragraph challenges Dean Bobinski’s “opinion” respecting  
standards for reappointment, promotion and tenure.  
[199] While Ms. McCue signed the December 15, 2008 letter, she called Dean Bobinski’s  
attention to her response.  
[200] Ms. McCue testified that she had received support from her Indigenous colleagues such  
that she believed her works were published and met the criteria. She testified that she could  
not recall telling Dean Bobinski that five to six peer‐reviewed publications was not required  
under the CA.  
[201] Ms. McCue testified that her January 22, 2009 letter was the vehicle she used to reflect  
the advice she got from the Faculty Association. With respect to the reappointment process for  
2009 she states:  
I appreciate you including the Collective Agreement discussion of  
standards for reappointment, promotion and tenure. Thank you also for  
outlining your opinion regarding the number and type of publications  
typically expected for promotion and tenure. I do wish to note that at  
this time I am entering into the reappointment process and this year’s  
process does not involve a tenure decision.  
[202] Ms. McCue acknowledged that she did not have any teaching load in the summer or fall  
of 2008.  
[203] Ms. McCue in her CV of May 28, 2010 listed her 2008 book chapter, Kapp’s Distinctions:  
Race‐Based Fisheries, the Limits of Affirmative Action for Aboriginal Peoples and Skirting  
Aboriginal Peoples’ Unique Constitutional Status Once Again [Kapp]. When asked if she  
163  
remembered being told by Dean Bobinski not to focus on book chapters she responded  
affirmatively. When challenged that it was not peer‐reviewed she responded, “I challenged  
that”. She acknowledged it was not listed by her as peer‐reviewed in her CV. She acknowledged  
that the individuals who read her paper knew that she was the author. It was then put to her  
again that it was not peer‐reviewed and she did not respond.  
[204] With respect to Dean Bobinski’s December 15, 2008 letter Ms. McCue testified that she  
understood that the Dean was saying to her that if she does not publish she will not be  
successful with her candidacy.  
[205] Ms. McCue was asked why she did not seek projects that would fulfill the publication  
criteria. She responded that from the summer of 2008 through December of 2008 she was  
engaged in a “huge research project on the Charter” on which she was engaged for more than a  
year. She disseminated her findings in December of 2008 to the organization which requested  
the research. From that research she created the Kapp’s distinctions chapter. She presented on  
it to the Faculty in the fall of 2008 and worked throughout November of 2008 on the Kapp’s  
distinctions chapter. It got published.  
[206] She was working then on the McIvor Article. She testified she just needed the time to  
work on it and publish it but given what she was going through at home that did not happen.  
She was referring to issues with respect to her father’s estate and her mother’s illness. She was  
also preparing for her First Nations course for the coming spring.  
[207] It was pointed out to Ms. McCue that, in her response to Dean Bobinski of January 22,  
2009, she indicated that she would be expanding her article on the Kapp decision to submit to a  
law journal in the spring of 2009. She acknowledged that she never submitted the article at any  
point.  
[208] She also acknowledged that she never submitted her Peace and Security article for  
publication.  
164  
[209] Dean Bobinski wrote to Ms. McCue on April 22, 2009 pointing out to her that she must  
be considered for tenure and promotion during the 2009/10 academic year. Ms. McCue  
acknowledged that the letter indicates that Dean Bobinski had recommended her  
reappointment but had concerns respecting her progress towards achieving the standards for  
tenure and promotion. She agreed that Dean Bobinski expressed concern that she has not yet  
begun to publish original, peer‐reviewed contributions to the legal scholarship at the expected  
rate. She also agreed that she was warned that a number of late publications would not be  
helpful to her because it will not demonstrate sustained scholarly work. She stated, ”I didn’t  
understand I was not going to make it. I did understand that this was her view.” Further, she  
stated, “I just got reappointed so my work must have been counted.” She stated further, “I  
didn’t understand the tenure process and what it involved.” She was challenged on that and  
taken back to her January 22, 2009 letter and her paragraph under the heading Reappointment  
Process for 2009. She responded, “I thought I was being responsible here by relying on union  
advice. I relied on their advice to put that in. I felt all of my cycle would be considered and all of  
my work. I based my decision to go ahead on that.”  
[210] Ms. McCue acknowledged that between December 15, 2008 and April 22, 2009, the  
dates of two of Dean Bobinski’s letters, she produced no publications. About that she stated, “I  
didn’t understand Dean Bobinski’s letter to suggest that I was not likely to be successful. It was  
just the Dean’s opinion. I didn’t disregard the Dean’s opinion. I registered her concerns. At that  
point I didn’t do anything to address her concerns.”  
[211] Ms. McCue acknowledged that every time she was reappointed Dean Bobinski had  
expressed grave concerns. It was put to her, “Don’t you understand you have to change the  
way you’re doing things?” Her response was, “Yes, I take that as the Dean’s view.”  
[212] Ms. McCue acknowledged that she was told not to focus on book chapters and not to  
attend conferences in order that she could concentrate on scholarship. Ms. McCue testified  
that between April 22, 2009 and July 30, 2009 she published nothing.  
165  
[213] Ms. McCue acknowledged that, by July 30, 2009 when Dean Bobinski wrote to  
document discussions and email correspondence during the summer of 2009 regarding her  
review for tenure and promotion, she was at that time focused on tenure and yet Dean  
Bobinski’s concerns were still being expressed.  
[214] It was put to Ms. McCue that receiving a letter on July 30, 2009 that expressed UBC’s  
perspective that the requirements for scholarship had not yet begun must have been alarming.  
Ms. McCue responded that she was not alarmed. She said she accepted at face value what it  
was. She testified that at that time she had the determination that she would not be treated as  
a traditional scholar but would be treated as an exceptional case. She acknowledged there had  
been no discussion of scholarship and teaching. She attended a workshop in August for tenure‐  
track applicants at which she learned about Scholarship of Teaching and went to Professor Elliot  
with that concept.  
[215] Ms. McCue acknowledged that when she made her oral submission on June 9, 2010 she  
had presented hundreds of pages to the Faculty Committee the day before. When asked if she  
took responsibility for presenting “mountains of new material” she responded that she asked to  
start over. She said that she was treated as a traditional scholar but had not agreed to that. The  
additional material had not gone to the external reviewers. As a result, the external referees did  
not look at her complete contribution.  
[216] Ms. McCue was asked if she was aware of any materials that were not considered in the  
decision. She responded when she got President Toope’s letter she did not know what was  
considered.  
[217] Ms. McCue testified that she went to Professor Elliot respecting Scholarship of Teaching.  
In her view, she had evidence of Scholarship of Teaching. She testified that Professors Christie  
and Mickelson in their report were advocating for it to be considered. She testified that the  
cross‐examination was the first time that she was told that the Faculty Committee considered  
her June 8 submissions.  
166  
[218] In April of 2009, Ms. McCue was invited to speak at a CLE on international human rights  
remedies for Indigenous peoples. She testified that Dean Bobinski expressed concern with the  
time the project would take away from the peer‐reviewed or equivalent publications that  
would be the focus of the tenure process in 2010. She testified that she was encouraged to  
discuss the matter with Professor Young. She was asked if she had discussed publication with  
Professor Young or with an Associate Dean. Her response was, “I didn’t understand it to mean I  
had to talk to them about publication.”  
[219] She was asked as a member of the Faculty of Law for ten years whether she accepted  
the significance of peer‐reviewed publications as a means to disseminate knowledge broadly.  
She responded that she accepted it as one means but that in her mind oral publication to a  
small group was equivalent to wide dissemination in a journal. She expressed the position that  
her oral publication to a small group has just as much merit as written publication.  
[220] Ms. McCue opined that dissemination of knowledge is what she is doing when  
presenting orally in her career.  
[221] Ms. McCue was asked if she accepted that it was her responsibility to manage her own  
career. She responded that it was her responsibility to ensure that she succeeded in taking the  
steps to succeed in all of the jobs she is in. She testified that she listened to advice of the  
Faculty Committee and that they should have told her that all of her work should go into her  
CV. She said she followed the advice she was given. She questioned, “Why did they tell me only  
2009 work should go into the CV?”  
[222] In response to the question of what responsibility she took for the denial of promotion  
and tenure, she responded, “If I was doing it again I would make sure I had proper mentorship  
for non‐traditional scholarship. I would make sure all the tracks were in the proper place, that  
appropriate metrics were in place so everyone on the ladder is in agreement with the  
information required. I would make sure everything gets to the external referees. ... There  
would have to be agreement on the metrics before the process began. There are different  
167  
criteria – we’d have to figure out how to categorize the file properly, what is teaching, what is  
service, what is Scholarship of Teaching.”  
[223] Ms. McCue expressed her view that oral dissemination can be peer‐reviewed in a  
different fashion than western traditional peer reviews. Peers could be from the larger body  
including the United Nations Aboriginal body, the international human rights experts sitting on  
treaty bodies, et cetera.  
[224] Ms. McCue testified that in her view there was no difference between knowing the  
presenter and a blind, peer‐review process in terms of value.  
[225] In response to a request by the Tribunal that Ms. McCue take the Tribunal to a  
document illustrating that she informed the Faculty Committee, the Dean, the SAC or President  
Toope of the problem in applying the peer‐review process to an Indigenous scholar, her  
response was, “I can’t point to a document. The first time I raised it was the Native Law  
Committee. I thought they would make the point. I don’t know if others on the committee were  
advocating that – I’m not sure. Perhaps I did so in my oral submission.”  
[226] Ms. McCue testified, “I never told Dean Bobinski that an oral presentation should be  
treated as a peer‐reviewed publication.” She said, however, “I told the Faculty Committee the  
boundaries between Scholarship of Teaching and service should be fluid and flexible.” She said,  
“scholarship/teaching/service should be treated equally.” She conceded that neither the  
University nor the Faculty Association agreed with her interpretation.  
[227] Ms. McCue testified that she did not tell Dean Bobinski or anybody else that scholarship,  
teaching and service should be equally weighted until she responded to the letter of concern of  
April 19, 2010.  
[228] Ms. McCue testified that the whole Indigenous governing system is oral. She said  
Indigenous people tell stories, use songs to keep the record alive. She said, “That is our  
Indigenous way.”  
168  
[229] On July 30, 2009 Dean Bobinski documented her discussions and email correspondence  
during the summer of 2009 regarding Ms. McCue’s review for tenure and promotion. It was put  
to Ms. McCue that nothing was recorded in that letter about being in a multi‐track assessment.  
Ms. McCue responded that she had raised it in the summer of 2009 with Dean Bobinski and the  
Dean had indicated that she would get back to her. When she did get back she told Ms. McCue  
that her case was not going to be assessed as a traditional scholar – that she was multi‐track.  
[230] It was put to Ms. McCue that the July 30, 2009 letter said nothing about multi‐track and  
neither had Ms. McCue provided any written response to that letter. Ms. McCue responded, “I  
trusted the Dean. I accepted that the file would be treated as multi‐track.” She went on to say  
that she did not recall the timing correctly but that it definitely happened about that time in the  
summer.  
[231] Notes of Professor Elliot revealed a meeting of January 5, 2010 between he and the  
Dean wherein they attempted to figure out what to do with Ms. McCue’s CV as it was put  
before them. Ms. McCue testified that she had had discussions with the Dean in the summer,  
but when Professor Elliot became chair of the Promotion and Tenure Committee, the issue  
came up. She said that she had provided examples of Scholarship of Teaching and that she got  
her documents to him with respect to that by January 15, 2010.  
[232] With respect to mentoring, Ms. McCue named Professor Buchanan, Professor Pue, and  
Professor Young, as mentoring her on the Kapp’s distinctions piece.  
[233] Ms. McCue testified that she believed she would have benefited from mentorship in  
both oral and written publication as opposed to merely written publication. She testified that  
Professor Pue worked on her Peace and Security paper in the fall of 2004. She testified she  
received no advice from him with respect to what Faculty considers peer review. She did  
acknowledge that she was told that she would have to be selective and that the Indigenous Law  
Journal would be considered a peer‐review journal. She testified that she understood peer  
review was important to the University and that she should be mindful of where she published  
because of the importance of peer review. She never did publish in the Indigenous Law Review.  
169  
Then Ms. McCue had put to her an email chain in which she expressed to Professor Pue on  
September 1, 2004 that her publication deadline for her consultation paper was September 20  
and that she had decided not to go to an event in Geneva in order to get that paper out.  
Thereafter she was to move on to a paper on racism. Ms. McCue testified that she was  
uncertain what the consultation paper was and that the racism paper was never published.  
[234] In addition, Ms. McCue had put to her an email memorandum to her from Professor Pue  
dated March 1, 2005 in which he pointed out to her that the SAC “looks askance at a record in  
which publications start to come out only in the years immediately before the necessary tenure  
stage.”  
[235] Also put to Ms. McCue is an email from Professor Pue dated July 2, 2005 in which he  
expressed concern that time was passing on the narrow window available to publish in relation  
to the tenure clock. Ms. McCue denied recollection of any of these emails. She said, “I may have  
read it at the time it was sent to me.” She further stated, “I would have thought ‘that’s his  
opinion’.”  
[236] Ms. McCue was asked whether she recalled Professor Pue being critical of her grammar  
and style particularly in the first four pages of her paper on Indigenous Peoples Self‐  
Determination and the Right to Security. She acknowledged that he sent back the first four  
pages with lots of notes. She also indicated that that paper was not published.  
[237] Ms. McCue acknowledged that Professor Pue indicated to her that he believed that the  
SAC required six or seven published pieces which was more than Dean Bobinski had indicated  
to her and she acknowledged that that was so. She acknowledged that she had zero published  
peer‐reviewed pages in 2005. She also testified that she could not remember telling Professor  
Pue either that she had already published or suggesting to him that she did not have to publish.  
[238] She then testified that in 2007 she was hoping to publish her Master’s thesis. She  
submitted it but it was not accepted. The journal she submitted it to advised her she needed  
substantial revisions. She received a conditional acceptance, conditional upon sending it to the  
next level of the journal process for final approval which never was received. At that point Ms.  
170  
McCue testified she thought “okay, that’s it”. She did not pursue the thesis further. She  
testified that she could not recall why she did not perform the revision updating that was  
required. She testified, “At that time I probably went on to another writing project.” She  
testified she did work on a sovereignty piece entitled New Modalities which came out in 2007.  
It was not in a peer‐reviewed publication.  
[239] On September 7, 2007, in communication with Professor Pue, she advised she sent her  
Master’s thesis off to a publisher saying:  
It needs to be updated but I can still stand behind my words and  
positions ten years later....I want my thesis to be ready by within one  
year to 18 months....I don’t know why I didn’t send it off sooner. I will  
hear back next week on whether or not it gets accepted. Will keep you  
posted....  
[240] She acknowledged that she knew that UBC did not consider an Article titled The Fourth  
World to be a peer‐reviewed work. She said that she did not understand that it was not a peer‐  
reviewed work. She did not include it in her CV, however, as peer reviewed. She acknowledged  
that the Shepherds; Professors Christie and Mickelson, did not consider it to be peer reviewed.  
[241] Ms. McCue was taken to her oral presentation transcript where she was asked about  
the mentorship she had with respect to scholarship during her time at UBC. She responded:  
I take my approach to writing and oral dissemination of knowledge  
based on my Indigenous knowledge first and at the same time, what I  
believe needs to be understood is the balance, that I’m trying to reach  
with all the criteria. So if I put a lot of emphasis into my teaching  
throughout the fall and spring term, really my timing for writing and  
research is the summer and December, and that is when I seem to be  
able to get out more of the written form of scholarship.  
[242] She also indicated that she would benefit from more mentorship in terms of writing that  
would continue to respect the different levels of communities that she needs to reach both  
orally and in written form.  
[243] In addition, Ms. McCue testified that the Dean offered her mentorship in early 2007 by  
Professor Borrows. Professor Borrows was at the University of Victoria and the Dean proposed  
171  
that she arrange to go over and combine mentorship from Professor Borrows with a  
presentation or a talk, Professor Borrows being one of Canada’s leading Aboriginal scholars. Ms.  
McCue acknowledged that Professor Borrows has an impressive record of publication, that he  
disseminates Indigenous knowledge successfully, and he is successful in melding the oral  
tradition with traditional publication. Ms. McCue testified that she could not recall why she did  
not meet with him. She said, “I thought it would just be open to meet,” however, she never did.  
[244] Ms. McCue acknowledged that by July 30, 2009 when the tenure process was beginning  
she knew that scholarly activity going back to 2000 counted. She said the first meeting took  
place on June 17, 2009 and that she recalled going back to Dean Bobinski’s office with her and  
that Dean Bobinski clarified that she would not be treated as a traditional scholar. She testified  
that transition to a professional case meant that the case would be treated in a very different  
way. She said Dean Bobinski communicated this to her orally, that she trusted her and never  
confirmed it in writing.  
[245] Ms. McCue was asked when she formed the view that she wanted to be treated as a  
non‐traditional scholar. She responded that in the summer of 2009 she talked to the Faculty  
Association and was told that she was a multi‐track scholar. She said the Faculty Association  
just said “you’re a multi‐track scholar”. She said she took the advice and their mentorship.  
[246] She was asked whether it occurred to her to tell Dean Bobinski that the entire tenor of  
her letter of July 30, 2009 was inappropriate. Ms. McCue responded that Dean Bobinski got  
back to her and told her that she was being treated as a professional case rather than a  
traditional scholar.  
[247] She testified that she did not ask Dean Bobinski what metrics would be used in her  
assessment as a professional case. She said, however, the candidate has to agree with the Dean  
how assessment is to be done.  
[248] In that respect she referred to Article 5.02(b)(ii) of the CA. She said that is what she  
believed was confirmed by the Dean, a Professional Contributions approach.  
172  
[249] She said that her letter of May 4, 2010 to the Dean stated that she has never signed a  
memorandum in accordance with Article 5.02 of the CA. She said what she meant to convey  
was that they did not talk about Scholarship of Teaching at all and should have. She said, “If  
fully informed I would have argued for a full multi‐track not just two tracks.” She said that she  
was trying to communicate that her file was a multi‐track file and that she relied on Professor  
Elliot telling her she did not have evidence of Scholarship of Teaching. She said that she found  
out there is a discretion as to whether a candidate can fit between those tracks.  
[250] Ms. McCue was challenged to point to where in her letter of May 4, 2010 she told the  
Dean that they had discussed it and that the Dean had agreed to handle the case on a  
professional track. It was further put to her that she asserted at the first bullet point at page 2  
of the May 4, 2010 letter that she had never agreed to any form of scholarly activity nor had  
she and the Dean had a discussion about which track of scholarly activity her file is to be  
assessed under. She responded, “I wrote it wrong. I had an oral agreement.”  
[251] Ms. McCue acknowledged that it was her responsibility under the CA to prepare  
materials to go to the file for external review. She says she took mentorship. She acknowledged  
there were no refereed publications listed in her CV. She acknowledged that her January 15,  
2010 CV lists a total of four book chapters and one article under publications. In addition, there  
was one commissioned paper under Professional Contributions. The book chapters were  
published in 2003, 2005, 2008 and 2009 respectively. The book chapters were 11 pages, 2  
pages, 8 pages and 11 pages respectively.  
[252] Ms. McCue testified that, after receiving the letter of concern from Dean Bobinski  
respecting Faculty Committee concerns, she had marking requirements, a Law Foundation  
report to complete and was beginning a grievance respecting a study leave denial. She testified,  
however, that she knew that the promotion and tenure process was of paramount importance  
and that the Dean had said that it should be her number one priority and that she should not  
worry about marking. She acknowledged that the process was more of a priority than marking  
and more of a priority than the Law Foundation report.  
173  
[253] She testified that on May 4, 2010 she requested an extension because of the procedural  
concerns through her letter of that date. She testified that by May 4 she was reflecting on the  
letter of concern from the Faculty Committee and had grave concerns. She testified that at no  
point had the administration identified any potential difficulties with her application, that the  
Faculty Committee concerns had not come to her from the Faculty Committee before. She was  
pushed on this and acknowledged that the administration had raised serious concerns every  
year. She was asked how she could say the administration raised no concerns. She agreed that  
the Dean had expressed concern and that both the Dean and the Faculty Committee had raised  
profound concerns prior to May 4, 2010.  
[254] Ms. McCue then raised from her letter of May 4, 2010 a concern that the Dean had not  
raised systemic racism and subsequent investigation with respect to her teaching Property law  
as evidence that the Faculty Committee did not consider all relevant information during their  
initial meeting. She was cross‐examined on this and agreed that she and the Dean had agreed  
previously on language to be put to the Faculty Committee around the 2005 Property law issue.  
She said, however, that having seen the letter of concern, she wanted to include more of the  
history of that dispute. She agreed that the additional information that she put forward was  
placed before the Faculty Committee on her review.  
[255] Ms. McCue testified that Dean Bobinski agreed to her requested extension. She testified  
as well that Dean Bobinski did not agree to remove herself from the file as requested.  
[256] On May 17 she requested another extension until May 28, 2010. In that timeframe  
further materials were provided and those materials were made available to the Faculty  
Committee. Ms. McCue sought and was granted a further extension until June 9, 2010.  
[257] Ms. McCue acknowledged that, after the process started on April 19, 2010, she received  
three extensions at her request. She acknowledged that she was not teaching during this period  
and was told not to do any other work besides preparing for her presentation. She testified that  
in the period between April 19 and June 9 she was working to put her file together as well as  
working on her grievance with the Faculty Association with regard to a study leave. She testified  
174  
that she felt she had to meet these deadlines. When it was put to her that she just was not  
focusing on the promotion and tenure track she disagreed.  
[258] She testified it took time to pull the data she required together that she still had to put  
in her whole tenure cycle of work. On June 8, Ms. McCue dropped off two binders of materials.  
She confirmed that those materials had been provided to the Faculty Committee by Dean  
Bobinski.  
[259] The June 8 additional materials included an updated CV which still included no refereed  
publications but included one additional journal article, one conference proceeding from  
November 2004, three chapters for books and a significantly enhanced Professional  
Contribution section as well as the aforementioned paper. It also included several public and  
policy reports on which she had assisted.  
[260] Ms. McCue testified she had been advised that the May 28 CV was the one that was  
submitted to the Faculty Committee.  
[261] Ms. McCue acknowledged that in all of the CVs there has never been a change in the  
publications portion with the exception of the additions to Professional Contribution. The  
refereed contributions remained zero.  
[262] Ms. McCue acknowledged that the CV she produced on June 17, 2011 is essentially the  
same as that of June 8, 2010 and May 28, 2010. She acknowledged as well that the conference  
proceeding in her CV is a briefing note which was never turned into a publishable paper and  
that it was not a publication from the University’s perspective. She defends its inclusion in  
publications by saying that it is her understanding that a publication includes knowledge  
dissemination.  
[263] She was asked why she did not turn her briefing note into a publication that meets the  
UBC standard and responded that it was not ready for publication at that time. She testified  
that in 2007 she took the language on Peace and Security and her work to date and presented it  
in 2008 to the Provincial Aboriginal Organization at a meeting in Vancouver. She viewed that as  
175  
orally disseminating knowledge and seeking feedback from her peers. She testified that her  
area was Peace and Security, that it was a new area of research and incorporated ideas but that  
she had not completed her research and writing on that topic. It was put to her that she had  
not completed any work that would be accepted by a peer‐reviewed journal and agreed.  
[264] It was put to her that, after nine years as an Assistant Professor at UBC, the sum total of  
her publications she can claim credit for were one journal of 10 pages, 1 briefing note of 18  
pages, 4 book chapters of 11 pages, 8 pages, 2 pages and 11 pages and a Professional  
Contribution. She agreed.  
[265] Ms. McCue testified that she asked on her oral presentation of June 9 for a restart of the  
application process at each stage of the review.  
[266] She described herself as of low social location and testified that what she meant was in  
terms of her work, how she was treated and her salary compared to her peers and also to the  
overall status of Indigenous women in the country.  
[267] Ms. McCue testified that, at the time it was prepared (October 15, 2010), she  
considered the recorded transcript of her June 9, 2017 oral presentation to be accurate.  
[268] At her oral presentation, Ms. McCue emphasized that she saw her scholarly activity,  
service and teaching as balanced, equal and all reinforcing. She indicated she was asking that  
the CA Standard be modified to weigh them all equally. She testified that she was urging that  
her oral presentations should count as publications under the CA, that they should count as  
traditional scholarship and they met her interpretation of dissemination of knowledge.  
[269] Ms. McCue was challenged that Drs. Archibald, Henry and Battiste all give oral  
presentations and all published. She responded that, “Oral tradition is to our people the way  
we communicate and develop knowledge ... oral traditions are part of who I am.” She testified  
that for her publishing orally is honouring her people. She says that “I am trying to find a bridge  
between the two worlds”.  
176  
[270] It was put to her that she was asking UBC to give her credit for her oral dissemination  
when nobody knows what has been said. She responded, for Indigenous scholars choosing that  
method of publication, that is how they are choosing to disseminate their knowledge. She  
expressed that her oral dissemination of knowledge should be considered as dissemination of  
knowledge under the CA. She stated:  
I wanted to have my works considered as appropriate under the  
Collective Agreement as dissemination of knowledge in all of the works  
that I provided. That’s consistent with who I am and my Indigeneity. To  
just require me to do peer reviews is a very traditional way of doing  
academic work. It’s Eurocentric to expect me to just publish in a peer‐  
review way.  
[271] She made the point respecting wide dissemination at the places that she published  
orally are more accessible to Indigenous peoples than the Law Review and law journals. She  
stated:  
If you look at the people asking me to publish in their books they are all  
people of my generation that are leading and disseminating Indigenous  
knowledge. So, for example, if you look at these bodies of work they are  
mostly in story form narration and capture the experiences of the  
[environment].  
[272] Ms. McCue argued that peer‐reviewed publications should not be preferred to oral  
traditions of publication. I am not setting out those arguments. She does say, however, that  
because of who she is as an Indigenous woman she wants to express herself by oral  
presentation. She says she wears two hats and was educated and raised in both cultures. She  
says when she came of age between ages 20 and 25 she recognized that. She says she is  
evolving as a person.  
[273] It was suggested to her that, as a stage in the evolution, she chose to throw off the  
western hat and put on her Indigenous hat. Her response was “I am wearing both hats”.  
[274] It was put to her that her trajectory of scholarship commenced with elementary school  
and proceeded through to a master’s law degree and that in all of those stages she was writing.  
177  
She agreed that that was true. She testified that she never said that she found the peer review  
requirement offensive, that she will not write papers.  
[275] She testified that she sent material to a law review in the United States and that she had  
researched and published in written form.  
[276] She was asked whether peer review was a concept existing in the Indigenous language.  
She suggested that people working in her field have commented on the information she has  
disseminated orally in letters. She stated that she would argue that there is an equivalency of  
peer review in the Indigenous language. She suggested that she would have to go and discuss  
with Indigenous leaders her research and would have to meet their criteria. She suggested that  
knowledge keepers under either tradition have to go through those processes, constantly being  
kept in check by their people. She suggested when presenting a case an Indigenous scholar has  
to be credible to meet their own idea of what is acceptable.  
[277] The Tribunal asked Ms. McCue whether peer review was not intended to remove that  
subjectivity in the western tradition. She responded:  
I accept that but in the Indigenous world we are peer reviewed in the  
sense of whether we are following our own traditions. We are told if we  
are not compliant with those traditions which can be tough for an  
Indigenous academic. Face‐to‐face interaction respecting one’s work is  
going to be subjective. You are told to your face if what you are saying is  
going to be acceptable or not. Open, honest face‐to‐face reflection back  
to you. A witnessing is very much a part of the potlatch system. If I  
didn’t do a good job or missed a step they will tell you – that’s called  
witnessing.  
[278] It was put to Ms. McCue that an employer cannot test the content of oral tradition  
publication independently. Ms. McCue responded that the employer can send somebody to  
witness – that arrangement can be made. She also conceded that she has never invited  
anybody to come to her community when making such presentations.  
178  
[279] Ms. McCue testified she was successful in the western system but chose to not follow  
the western system. She was asked when she cast off the western system and responded, “I  
don’t,” but said that at some times she cannot bridge the gap between the two systems.  
[280] Ms. McCue acknowledged that she never told UBC that they could come and monitor  
her presentations.  
[281] Ms. McCue was challenged on her oral presentation where she included her 2003  
summary of the World Conference against Racism proceedings that she had attended in the  
previous two years for the Indigenous Bar Association conference. She stated that she was  
presenting on what took place at the World Conference against Racism in relation to the  
standard setting in customary international law. She described how what took place  
represented a significant application of fundamental theory stating that it is:  
… my job to bring international expressions of standards to combat  
racism that Indigenous people made at the conference and transmitting  
the knowledge from that international event to the Indigenous Bar  
Association attended by Indigenous lawyers, Canadian government  
representatives and Indigenous law students. I am at a world  
conference helping to forge standards in relation to racism. It’s  
Indigenous focused work. In my view this constitutes Professional  
Contribution because it is research or creation respecting fundamental  
theory.  
[282] Ms. McCue testified she disseminated the Indigenous law course wheel as an example  
of Scholarship of Teaching. She testified that the content modules were created for the  
University of Victoria and Simon Fraser University and not just UBC. She testified that the  
Aboriginal content modules had never been created before and were not of a routine nature  
“pitch” to the Faculty Committee.  
[283] She was challenged in her oral presentation respecting how the Faculty Committee was  
to understand the absence of scholarly, peer‐reviewed work in her file. In her response she  
said, essentially, that she had not been able to get to where she wished with respect to projects  
she wanted to submit to peer review but that she was “waiting for that part of my career,  
academic career development, to get my work out into the peer‐reviewed journals.” She was  
179  
asked why she did not say to the Faculty Committee that she was not required to do peer  
review. She responded that she was working toward peer review in the western sense and was  
waiting for that part of her career to begin. She said her Professional Contributions were being  
peer reviewed by her peers.  
[284] Ms. McCue referred to the November 3, 2010 decision of the Faculty Committee  
rejecting her application for promotion and tenure. She took issue with the fact that the last‐  
minute materials she provided on June 8 and 9 were reviewed only in part and only by some of  
the committee members. She stated, “In my mind if the proper process had been followed I  
would have had months to do this.”  
[285] The decision of the Faculty Committee against Ms. McCue’s application for promotion  
was based primarily on a finding that her record of scholarship was insufficient to meet the  
requirements established in the CA for promotion. The decision makes it clear that the  
committee considered Ms. McCue’s published work but also considered her record of  
unpublished reports and presentations and a work on curricular matters including her  
leadership of the Aboriginal course modules project in arriving at their decision. The following  
conclusions were arrived at:  
1. The record, when considered as a whole and informed by the principles set out in  
the Collective Agreement did not include evidence of scholarly activity beyond that  
expected of an Assistant Professor and that Ms. McCue had not demonstrated  
sustained and productive scholarly activity under Scholarship of Teaching and  
Professional Contribution;  
2. Some members of the committee are of the view that the external referees who  
recommended promotion with tenure may not have fully appreciated the standards  
applicable at the Faculty of Law related to making such a recommendation;  
3. The quantity and quality of Ms. McCue’s traditional published scholarship was  
determined to be clearly insufficient to meet the Faculty standards for promotion;  
4. Committee members expressed concern about whether Ms. McCue’s activities  
related to the curriculum and Aboriginal course modules could be considered  
Scholarship of Teaching because of the lack of evidence regarding “originality or  
180  
innovation, demonstrable impact in a particular field or discipline, peer reviews,  
dissemination on the public domain, substantial and sustained use by others.” The  
committee found the scholarly activity insufficient on its own or in combination with  
published work to meet the standards for promotion and tenure;  
5. The committee concluded that most, if not all, of the Faculty’s candidates for tenure  
and promotion have a record of participation in scholarly conferences and activities.  
To the extent that these activities could constitute evidence of scholarly activity  
under the Collective Agreement, they found that the activities did not constitute  
sufficient evidence of additional scholarly activity of the quality and quantity  
necessary to bring the candidate’s overall level of scholarly activity up to the level  
expected for promotion and tenure.  
[286] The Faculty Committee vote on the motion to recommend tenure was split with seven  
favouring tenure, nine opposed and three abstaining. On the issue of scholarly activity the  
Faculty Committee indicated that they considered Ms. McCue’s record of publication and her  
unpublished Professional Contribution. They also considered whether and how to weigh Ms.  
McCue’s curricular contributions and her leadership of the Aboriginal teaching module project  
as well as how to consider her participation in conferences and her activities with Indigenous  
communities. They determined that:  
1. Ms. McCue had failed to demonstrate the level of scholarly activity and future  
promise required for tenure considering the broadest range of evidence available  
under the agreement.  
2. With respect to Ms. McCue’s published works a majority of the Faculty Committee  
found that the quantity and quality of those works did not demonstrate a high level  
of performance. There were no published peer‐review works and there was little  
evidence that the works should be considered to be the equivalent of peer‐reviewed  
publications.  
3. A consideration of Ms. McCue’s submissions related to Scholarship of Teaching and  
potential scholarly and Professional Contributions in the form of conference  
participation and involvement with Indigenous communities resulted in the  
181  
committee finding that the scholarly activity was insufficient on its own or in  
combination to support a finding that Ms. McCue had achieved a high level of  
performance.  
4. The record did not support a finding that the candidate would likely achieve a high  
level of scholarly productivity in the foreseeable future.  
[287] A significant minority of the Faculty Committee found that Ms. McCue had provided  
sufficient evidence to demonstrate the level of scholarly activity and future promise required  
for tenure based on:  
1. The conclusions regarding tenure contained in the letters provided by external  
referees;  
2. Their assessment of the candidate’s written work, which they deemed to be of a  
sufficient quantity and quality to meet the standard; and/or  
3. Ms. McCue’s special role as an Aboriginal academic in that:  
a. Aboriginal communities have an oral heritage thought to be recognized through  
greater weight being provided to her oral presentations as a form of research  
dissemination;  
b. research dissemination within the agreement ought to be understood in this  
case to include the candidate’s role as someone available for consultation on key  
issues within the Aboriginal communities; and  
c. Ms. McCue’s presence within the Faculty generated very important and  
productive facilitation of research informed by and sensitive to Aboriginal issues.  
[288] 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 2011/2012 academic  
year. Ms. McCue also raised procedural issues that are irrelevant to the issue of discrimination.  
182  
[289] On December 17, 2010, Dean Bobinski responded to Ms. McCue’s December 6, 2010  
letter stating:  
The procedures set out in my letter of November 4, 2010 are consistent  
with the historical practice within the Faculty of Law and with the  
provisions of the Collective Agreement between University of British  
Columbia and the Faculty Association of the University of British  
Columbia. In particular, they are consistent with the provisions of Article  
5.09(c). As such, contrary to your request, I confirm that the university  
will not restart the review of your promotion and tenure file....  
[290] On January 18, 2011, Ms. McCue responded to the Faculty Committee’s decision  
denying promotion and tenure. The position set out was that the Faculty Committee’s reasons  
for decision reflect a mis‐interpretation, mis‐characterization and/or lack of understanding of  
Ms. McCue’s record. She suggested that a proper analysis of her record along a multi‐track  
assessment providing equal weight of her multi‐tracked scholarly activities, teaching and  
service would yield sufficient evidence demonstrating that her work met a standard of  
excellence beyond that expected of an Assistant law professor.  
[291] Ms. McCue suggested that the impact and quality of her academic work at UBC was  
exemplified in her record in the areas of her scholarly activities, teaching and service but  
particular attention must be paid to the equal balance she attributes to each of those  
categories. She stated:  
As an Indigenous law scholar, it is appropriate to apply the criteria for  
promotion and tenure equally across my record. In other words, the  
traditional approach to applying criteria with more weight attributed to  
scholarly activities and less to service would not provide you with a  
proper interpretation, characterization and understanding of my work  
as a distinguished scholar in my field.  
[292] Ms. McCue urged that an appropriate analysis of her record should be sensitive to her  
status as an Indigenous woman law scholar by factoring in the expectations that Indigenous  
peoples have a role within the academy as fostering reciprocal exchange of knowledge,  
teaching and service. She pointed out that Indigenous scholars have obligations and  
responsibilities inherent in their unique status which inform their approaches, methods,  
183  
advocacy and contributions to diverse audiences. She said that she makes face‐to‐face  
presentations that are culturally and professionally congruent. She took issue with how the  
University considered the impact of her service and said that “what may be considered under  
the rubric of service by the Faculty Committee does not include the breadth of evidence I have  
submitted, nor does it give credit to my full workload over the tenure cycle. ... An appropriate  
evaluation of my service will recognize the elements of scholarly activity and teaching therein.”  
[293] With the response of January 18, 2011, Ms. McCue provided a revised CV dated January  
15, 2011.  
[294] 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 the  
granting of tenure and a letter to Ms. McCue informing her that she is not recommending her  
for promotion to Associate Professor or for tenure. Ms. McCue responded on May 25, 2011  
with a submission that went to the SAC. Ms. McCue challenged the decision of the Faculty  
Committee stating:  
a. it is her opinion that her department did not treat her application as atypical and  
non‐traditional;  
b. that the department’s use of conventional standards, norms, departmental culture  
and policies to review her application has dominated the nature of the assessment  
for her application and is therefore inappropriate;  
c. the limited review of her candidacy undertaken at all stages below has led to  
adverse impacts for her including “a challengeable social construction of my identity  
and assessment of my evidence regarding my status as a scholar at UBC.”  
[295] Ms. McCue set out certain procedural arguments which are not relevant to the issue of  
discrimination, including a repetition of her position that the Dean and she had not agreed on  
how her application should be assessed for promotion and tenure.  
184  
[296] She urged a recognition of the choices she has 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 pointed out the additional time that is  
required to approach her Indigenous scholarship. She criticised the one‐dimensional standard  
involved when the wisdom and experience that flows from the approach she has taken is  
measured solely, from a scholarly perspective, by what is recorded in writing in a peer‐review  
law journal which is assessed or accessed largely by western law experts. She advocated that  
there must be a culturally appropriate paradigm to measure her scholarly activities, teachings  
and services. She advocated that the Faculty Committee could accommodate this approach to  
assessing a record by “ensuring that all my activities that are scholarly and teaching in nature,  
but which may have been conducted under my service hat, be measured as evidence for  
meeting the criteria for scholarly activities and teaching.” In other words, she advocated an  
approach which allows a bleeding between the classifications of scholarship, teaching and  
service to allow, where appropriate, the same activities to be considered in more than one  
category. She advocates for fluid boundaries.  
[297] In the same communication, she submitted that her external referees did not have  
Scholarship of Teaching materials before them because of the communication from Professor  
Elliot that her work did not contain Scholarship of Teaching. She set out where the SAC could  
find evidence of the impact of her Professional Contributions (in the UN submissions) she  
worked on from 2006‐2010. She pointed out that while the Dean “agrees with multiple‐track to  
frame my scholarly activities, she considers limited evidence to do an analysis....The problem  
here is the discretion taken to consider such few examples of my record meeting the criteria.”  
She addressed a concern as to whether there has been a consideration of the research and  
knowledge dissemination activities listed in her updated CV, and pointed out that the external  
referees’ recommendations are positive for her candidacy and some other concerns she had  
with respect to the “limited” approach that she attributes to the Faculty Committee.  
[298] On May 27, 2011 the SAC met and unanimously voted against Ms. McCue’s promotion  
to the rank of Associate Professor and the award of tenure as an Assistant Professor. The  
185  
reasons stated for the negative votes on promotion to Associate Professor were the lack of  
evidence of sustained and productive scholarly activity, broadly defined within the context of  
the CA. The reasons for the negative votes on the award of tenure were the lack of evidence of  
a high standard of performance in relation to scholarly activity, having considered the non‐  
traditional framework presented by Ms. McCue and having contextualized the context of the  
scholarly activity. In addition, the SAC found a lack of evidence of a high standard of  
performance in relation to teaching effectiveness.  
[299] On June 21, 2011, Ms. McCue provided to Professor Toope an updated CV and a revision  
of her May 25, 2011 response. Although the response was more detailed, the content and  
emphasis was essentially the same as what was put before the SAC, particularly in the areas of  
Scholarship of Teaching, scholarship and the advocacy for a more fluid consideration of her  
works within the three categories of scholarship, teaching and service.  
[300] After receiving President Toope’s decision of June 29, 2011, Ms. McCue testified she  
began meeting with the Faculty Association and requesting them to file a grievance respecting  
both the promotion and tenure decisions. She testified that the Faculty Association filed a  
notice of grievance but that in January of 2012 they advised her they were dropping the  
grievance. She testified she also wanted them to grieve respecting the denial of the Merit and  
PSA awards to her.  
[301] Ms. McCue advised that having heard from the Faculty Association that they would not  
be proceeding with the grievance she appealed that decision. She testified the appeal went  
through three levels. The first level was the Membership Service Committee comprised of a  
three‐member panel. She took the position that the procedural errors made were  
unreasonable but the Membership Service Committee did not agree. She then appealed to the  
Table Officers Committee making both written and oral presentations to them but they too did  
not agree. Finally, she appealed to the Executive Committee before which she made a  
presentation. They too disagreed. She cannot recall whether she appealed the denial of her  
Merit Pay in October of 2012.  
186  
[302] Ms. McCue testified that the Faculty Association had all of the material that she had  
presented to the University on her promotion and tenure application right up to her submission  
to President Toope, including President Toope’s decision.  
[303] The cross‐examination of Ms. McCue ventured into the area of teaching competence  
and some concerns expressed by the Faculty. Ultimately, teaching was not considered a bar to  
her tenure and only minimally respecting her promotion therefore I will deal with that subject  
separately later.  
[304] Ms. McCue testified that she applied for Merit Pay and PSA in 2009 through 2011  
inclusive. She was required to provide to the Faculty an annual activity report and CV for a  
reporting period from April 1 through March 31, 2009, April 1 through March 31, 2010, April 1,  
2010 to June 30, 2010 and July 1, 2010 to June 30, 2011. She did so.  
[305] Ms. McCue acknowledged that recognition of Merit Pay and PSA is done according to  
what was accomplished in the previous academic year. She testified that sometimes there were  
delays in making decisions. For instance, in 2010 she had to make two submissions relating to  
two different years. The process is to submit an activity report and CV setting out her  
accomplishments in the previous academic year according to which she either receives Merit  
Pay and PSA pay or she does not. One of the criteria is the published work in the preceding  
year. She acknowledged that works in progress do not count for purposes of Merit Pay. Credit is  
given only when the works are published.  
[306] She testified that she understood that UBC’s definition of published was published in a  
peer‐reviewed journal.  
[307] In the April 21, 2009 annual activity report for the period April 1, 2008 to March 31,  
2009 the only published work was the Kapp’s Distinctions Article which was not published in a  
peer‐reviewed journal and was eight pages long. In the July 5, 2010 the only published item was  
entitled Gratitude and Inspiration: An Honour Song about Kanehsata:ke again not peer  
reviewed and of uncertain length. In the May 9, 2011 Faculty activity report there were no  
published items at all.  
187  
[308] Ms. McCue was asked if she understood that nothing was done that met the definition  
of publishing for the University’s purposes. She responded that in her CV she had set out her  
oral publications. They are recorded in her May 9, 2011 activity report at the 17th page  
(unnumbered) under the heading Invited Presentations. She says with respect to them:  
My theoretical approaches and bottom‐up applied scholarship regarding  
the law are conveyed at such events and thus contribute to the  
knowledge‐dissemination of my research for all ages. The valuable peer  
feedback I receive at such events informs my understanding of the law,  
how I write and teach law, and the effectiveness of my service as an  
Indigenous law scholar engaged with both Indigenous and non‐  
Indigenous peoples....Thus, my overall scholarly activity involves a  
lengthy process that begins with the oral transmission of my research  
and knowledge that is disseminated to an audience sensitive to  
Indigenous peoples. The feedback I receive about my ideas is then  
incorporated into how I structure my law courses and how I teach  
(pedagogy)....For me, scholarly activity (including publications that are  
written or oral), teaching and service are inter‐twined, indivisible and  
co‐existing elements of my contribution to the academy. As an  
“Indigenous” scholar and teacher, these structured processes can take  
considerable time and resources. The presentations listed below can  
also be categorized under publications where my knowledge and theory  
are disseminated into public domains through oral advocacy.  
[309] It was put to Ms. McCue that her language does not say that UBC must consider her oral  
presentations as publications. Her response went back to her assertion that scholarly activities  
need to be analysed broadly and include service and teaching where appropriate.  
[310] It was put to her that asserting that oral presentations can be categorized under  
publications is different than saying they should be or they must be. She agreed. She  
acknowledges, although disagreeing, that UBC’s perspective is that considering oral  
presentations as publications would be a big change for UBC. She concedes that that is how the  
University views it and that it would be a radical departure.  
[311] It is her view that the paragraph from which I have just excerpted triggers a reasonable  
reader that accommodation is required.  
188  
[312] It was put to Ms. McCue that there were email exchanges in July of 2011 with respect to  
the Merit Pay issue. One such email, a redacted email dated July 28, 2011 to Dean Bobinski  
headed Re: Merit Pay 2010‐2011‐Feedback, and clearly from a Faculty member who could not  
attend the Merit meeting in August of 2011, sets out an expectation that Faculty members are  
to spend roughly 40 percent of their time teaching, 40 percent on research and scholarship and  
20 percent on administration and that that is how the current Merit Pay system allocated the  
weighting to each individual evaluation.  
[313] In a December 5, 2011 email between the University and the Faculty Association it is  
clearly expressed that Ms. McCue’s work was examined for its contributions in respect of  
Merit/PSA in professional scholarship, Scholarship of Teaching and traditional scholarly activity.  
On the basis of her performance in those areas she was considered not eligible for Merit  
Pay/PSA.  
[314] As well, an email exchange between Dean Bobinski and an individual communicating on  
behalf of the Faculty Association respecting Ms. McCue’s concerns about Merit and PSA  
confirms on June 13, 2012 that the ad hoc advisory committee considered Ms. McCue’s oral  
presentations as summarized in her CV and annual Faculty activity reports when assessing her  
scholarly activity for Merit and PSA.  
[315] Ms. McCue acknowledged that as a result of the Faculty Association’s investigation into  
Ms. McCue’s Merit and PSA complaint they concluded there was no breach of the CA.  
[316] Ms. McCue was taken to the transcript of her oral submission of June 9, 2010 and her  
comments with respect to teaching at page 3 of that transcript. She said:  
When I look at the criticisms or the concerns that students have  
regarding those courses, where I seem to lose points is that the  
workload is too heavy, that it is too difficult, or unreasonable in  
comparison to other courses…. For me that is a concern that I would  
need to address with respect to overall management of the course....  
The area though that is a consistent area that I have to work on is my  
presentation and effectiveness, and so I took a couple of TAG workshops  
last summer, looking at different ways to bring out different forms of  
189  
presentation for effectiveness and acknowledged that that is an area  
that I need to work on.  
[317] Ms. McCue testified that she predominately delivered the content orally respecting the  
level I Property course. The TAG workshops referred to in the previous paragraph are  
workshops available to faculty to assist them in improving classroom effectiveness.  
[318] Ms. McCue testified that she submitted the Black/Mohammed Investigation Report  
respecting her 2005/06 student ratings to the Faculty Committee, despite the administration  
agreeing that the 2005/06 student ratings would not be considered in her evaluation, in order  
to give context respecting the course she was teaching.  
[319] It was put to Ms. McCue that as of 2004 her teaching required continued attention,  
particularly with respect to teaching effectiveness. She responded that overall there would not  
have been concerns in 2004, with respect to her teaching. Dean Bobinski’s letter of April 26,  
2004 was then put to Ms. McCue and the comments of Dean Bobinski at page two pointed out  
to her. They read, “your teaching record is satisfactory, although student responses to this  
year’s Property class suggested the need for continuing attention to teaching effectiveness.”  
[320] Ms. McCue testified that she had an interest in continuing to teach the first‐year  
Property course after 2005/06.  
[321] Ms. McCue acknowledged that the majority of the courses she taught received lower  
than average student evaluations, but defended herself by saying some of those courses were  
new courses and that over the years the evaluations improved. She testified that she was  
having issues with the environment in some of the courses she was teaching and raised it with  
the Dean. She recalled that Dean Bobinski suggesting that she take a TAG course. The evidence  
was that the TAG course was intended to improve teaching effectiveness.  
[322] In responding to Dean Bobinski’s January 14, 2008 comments, which included  
observations respecting teaching similar to those referred to above, Ms. McCue stated:  
I am surprised that now teaching has been raised as a concern for the  
reappointment process. My concern stems from my experiences in  
190  
teaching the first‐year Property course and the events that have  
transpired in the 2005/2006 academic year. My teaching in the First  
Nations concentration has been strong and is a marked difference from  
the Property course. While the 2005/2006 teaching evaluations are not  
going to be considered, as you proposed, I have considered whether all  
my teaching evaluations for teaching Property since 2003 should be  
excluded because in this particular course, I teach in an environment  
that can be hostile/become hostile because of my ancestry/gender, and  
not my teaching style. Aboriginal law professors and people of colour  
that have taught property across Canada have had similar experiences  
and the solution has been to take them out of Property and allocate  
teaching responsibilities in another area within their particular field  
concentration. In good faith, I have continued to teach Property and to  
meet the Faculty need in this area at the expense of my dignity and  
health, recovery from unconscious discrimination, and work in the  
Aboriginal law field. I have found that when students are not conducting  
themselves in ways to obstruct my instruction or compromise the  
learning environment for other persons of average original ancestry,  
that I do not have to worry about confidence or maintaining authority in  
the classroom. As I have not had any problems arise to date in my  
current Property class, in my view my teaching evaluations for this  
academic year should be more reflective and consistent with my First  
Nations concentration.  
In regards to the 2005/2006 report, I have spoke (sic) with Professor  
Black and he is willing to provide a one‐three paragraph summary of the  
investigative report for the purposes of explaining what he and Ana  
Mohammed have concluded....  
I also agree to take the TAG course offered last year at your request for  
the purposes of updating my teaching techniques after 10 years of being  
at UBC Law and not because of any determination that you may have  
made with respect to the investigation of the 2005/2006 Property class,  
which was not conducted to evaluate my teaching or validate  
questionable reasons for what in my view was student justification for  
the discriminatory conduct towards me. I’m willing to take the TAG  
course for my own assessment of what I need for professional  
development.  
[323] Ms. McCue testified that she rejected that her problems were her teaching style, stating  
that in her view it was Aboriginal course content and racism. She expressed that her view is,  
there is nothing wrong with her teaching, the problems relate to discrimination in a hostile  
environment.  
191  
[324] Ms. McCue testified that she told Professor Young, Academic Dean at that time, about  
her concerns but she was forced to teach Property.  
[325] She testified that she was not below average in teaching in 2000 through 2004. She  
testified that in the majority of courses she taught, she was at average.  
[326] Her student evaluations for the years 2000/2001 through 2009/2010 were put to Ms.  
McCue and she agreed that, from the student perspective, she performed below the Faculty  
mean with respect to her teaching. She agreed that she was below the mean in each of the  
areas related to instructional technique, which included student learning outcomes,  
instructional technique and style, use of a structural materials and evaluation, and course  
planning and organization. A review of the report encompassing this information confirms that  
that is the case.  
[327] Cross‐examination revealed that several of her courses had enrollment of under 10  
students and one course, law 358, Colonialism and the Law, was canceled due to lack of  
enrollment. It also establishes that the courses she was teaching were not mandatory courses  
other than first level Property.  
[328] Cross‐examination established that an Aboriginal Law survey course, Law 352 for Winter  
term 2000/01 had 30 students enrolled and that her rating by the students was 5.37 versus the  
5.69 mean score by the other Faculty teaching that course and that by 2003/2004 the  
enrollment had dropped to 21, and the discrepancy between the class mean and the Faculty  
mean remained.  
[329] Similar patterns were pointed out with respect to other courses.  
[330] Ms. McCue’s attention was drawn to the teaching evaluations chart covering the period  
from 2000/2001 through 2010/2011. She acknowledged that in that time the normal number of  
classes taught is 36 and that she taught 20 courses. She also acknowledged that 14 of the 19  
courses that she taught were rated as below average in relation to other professors teaching  
the same courses.  
192  
II EVIDENCE OF DR. FRANCES HENRY  
[331] The evidence of Professor Henry, Professor Battiste and Professor Archbald is directly  
imported from McCue v. UBC (No. 3), 2016 BCHRT 9, after first receiving confirmation from Ms.  
McCue that their evidence was adequately captured as it was recorded in McCue (No. 3).  
[332] Dr. Henry was accepted as an expert in the experience of Indigenous Faculty at  
universities.  
[333] Dr. Henry is a professor emeritus in the Department of Anthropology at York University.  
She specializes in race and racialization.  
[334] Dr. Henry authored a work titled Indigenous Faculty at Canadian Universities: Their  
Stories [Indigenous Faculty]. She testified that the article resulted from research on Indigeneity  
and racialization at universities in Canada.  
[335] Dr. Henry testified that the narrative style is very common in Indigenous societies, being  
one of the main tools by which members of those societies communicate.  
[336] Dr. Henry testified that racial diversity is under‐represented in Canadian universities and  
that Indigenous scholars in particular are very unrepresented. Most of the existing faculty from  
these communities are in the “helping” professions such as law and social work. She testified  
there are almost no Indigenous scholars in other disciplines in Canadian universities.  
[337] Dr. Henry testified that universities are doing their best to recruit and retain Indigenous  
faculty but there are not a sufficient number of PhD students in the pipeline. As a result, many  
programs treat Indigenous studies as a module within a larger program. She says there are very  
few independent Indigenous studies programs in Canadian universities. She testified that such  
programs can vanish completely and that they are often loosely defined. She testified that very  
often the faculty of such programs are non‐tenured so faculty can be let go if their expertise is  
no longer required.  
193  
[338] In the same vein, Dr. Henry testified that it is easier to control programs at the  
university if they are taught by instructors who are not tenured.  
[339] Dr. Henry testified that a common phenomenon in Canadian universities is that there  
are only a few instructors in a department involved in Indigenous scholarship. Not much  
attention is paid by the department to that person’s expertise and Indigenous scholars can,  
therefore, feel marginalized because their views are not considered. As the only member in a  
department, an Indigenous scholar can frequently be overloaded with students. She described  
it as “underpaid, under‐contracted and overworked”. She testified that overwork arises from  
the obligation to sit on every community within their purview. In addition, she describes that  
students within their ethnicity often turn to that scholar and that it is difficult for that scholar to  
turn away a student in need of educational help.  
[340] In the same vein, Dr. Henry testified that some Indigenous scholars view the academy as  
a Western construct which has only recently added Indigenous knowledge to its programs. She  
says the responses by Indigenous instructors vary. Generally, their objective is to decolonize the  
university by bringing more diverse population and imparting more diverse knowledge. She  
says that some fear losing their own cultural experience and, therefore, look for ways to  
participate on their own terms by teaching in their own manner rather than Western traditional  
manner. She states that some question the role that Indigenous knowledge can play in a  
university run by other than First Nations by stating:  
Because a lot of Indigenous knowledge doesn’t belong in a classroom,  
that is where there is some confusion and we start thinking with real  
grandiose ideology about having complete control because we’re  
Indigenized. It will never be under our control because it is beyond our  
control. You have to meet halfway and meet that balance. It’s a balance  
of maintaining First Nation citizenship and still learning about the  
profession you want to belong to.  
[341] Dr. Henry said that, even if traditional knowledge is accepted by the Indigenous scholar,  
the sharing of this is seen as a lack of commitment to their own traditions – they do not  
perceive the university as a safe place for them.  
194  
[342] Dr. Henry testified that one of the effects of working in a tradition‐based Western  
university is fear of having to conform. Research is traditional published research rather than  
oral research. As a result, there is a fear that their own identity and the strength of their history  
will be weakened and damaged. They want to be part of the mainstream but recognized as  
themselves, able to talk to the mainstream.  
[343] Respecting who should teach Indigenous studies, Dr. Henry said, the point is that not all  
Indigenous Faculty identify that strongly with the Indigenous philosophy. Some commit to  
Indigenous philosophy who are not Indigenous, while some Indigenous Faculty are not so  
committed.  
[344] When asked if that meant that the issue is not racial but rather one of outlook or  
perspective, Dr. Henry responded, “I think it would suggest the issue is not so much ancestry as  
outlook. Race or ethnicity and ancestral background are not the only criteria to evaluate people  
by.”  
[345] Dr. Henry testified that diversification should be accomplished by support from the  
senior administrative officials down. She said that, unless this happens, diversification just does  
not occur. She testified, further, that diversification can also be accomplished by changing the  
design of the curriculum to include Indigenous content and gave as an example Property law.  
She said, however, that often this is not accepted by Western universities as a valid curriculum  
and that there needs to be a recognition that this is a stream that should be taught.  
[346] Dr. Henry identified a major problem being the feeling that Indigenous content is  
needed but is not wanted either by the student body or the university community generally.  
[347] Dr. Henry testified that the most important work Indigenous scholars do is research on  
their own or similar communities. An important concern for them is research that aids their  
community. They do not generally conduct research in areas that do not immediately affect  
their community. Further, for Indigenous scholars, that research is oral. Unfortunately, it is not  
valued by the university because it is not part of the traditional topic of research.  
195  
[348] Often, such research has been requested by the community and that community often  
will not support an article. Often it is published by way of a report which is not considered a  
publication by academia. She testified that, in some instances, such work can be converted to  
publishable form, but not in many. Another barrier is confidentiality. The community  
understands that the product will not be shown to the public at large, only to the government  
agency commissioning the research and to the community itself.  
[349] Dr. Henry pointed to a frequent complaint that the workload of Indigenous scholars is  
too heavy, comprised as it is of their university responsibilities, their Indigenous research for  
the community and the responsibility that Indigenous scholars feel to be spokespersons for the  
community.  
[350] The following can be found at page 124 of Indigenous Faculty:  
Respondents observed that despite their academic training and  
employment, their research interests and concerns were primarily to be  
useful to members of their communities. As a result, some of the  
reports and articles are not deemed eligible for publication in  
mainstream or major journals. Publication geared for use in Indigenous  
communities is, by and large, not valued for purposes of tenure and  
promotion. Sometimes it even acts as a barrier to recruitment and  
selection for employment at a university. One very articulate Faculty on  
this subject makes the argument:  
A lot of us do work that is applied…it doesn’t always sit well with the  
ivory tower…even if you are in a field where applied work is considered  
a good thing. It seems like it is a little too close to home, then it can be  
seen as suspect. Indigenous scholars don’t have as many venues to  
publish as others do.  
[351] Dr. Henry expresses in her article and her evidence the tenure and promotion concerns  
of Indigenous scholars. These include:  
a. They are overworked;  
b. They don’t do the kinds of research that are positively evaluated for tenure and  
promotion;  
196  
c. They don’t do the kind of mentoring required;  
d. Their area of publication is a major concern. There are not that many journals in  
their field of Indigenous studies and as a result they often have to publish in trade  
journals;  
e. Relatively few Indigenous scholars have a substantial publication record;  
f. The extreme reliance of traditional universities on published materials is a major  
drawback for Indigenous Faculty at the university;  
g. A few Indigenous scholars are well published. Indigenous study research is more  
theoretical or philosophical in its perspective so it lends itself to publication more  
readily; and  
h. There can be a backlash from “white” students asking why they have to “learn this  
stuff”.  
[352] Dr. Henry acknowledged that it was important to her to have her articles published in a  
refereed journal. She testified that was because there is a great deal of need because the topic  
of her article was not an area that had received much attention. As a result, the need for the  
research was great and it was important that it be disseminated widely.  
[353] Dr. Henry expressed the view that it is important that research findings are  
disseminated so they have the same benefit for people everywhere. She pointed out that it is  
important for communities who may share issues or struggles but would not know that unless  
the interviews were published.  
[354] Dr. Henry further testified that issues of mentorship in Western universities can be  
ameliorated by offering strong mentorship from both Indigenous and non‐Indigenous Faculty.  
She also agreed that the issue of high workload can be addressed by reducing teaching loads so  
the Indigenous scholar can focus on university priorities, depending on the circumstances.  
197  
III EVIDENCE OF DR. MARIE BATTISTE  
[355] Dr. Battiste is a full professor at the College of Education, University of Saskatchewan  
and a senior Indigenous academic researcher in Canada. She is a Mi‐kmaq educator.  
[356] Ms. Battiste’s evidence was called to establish whether an article authored by Ms.  
McCue and published in a journal titled Directions: Research and Policy on Eliminating Racism  
[Directions] was peer reviewed. Dr. Battiste was a former guest editor with that journal in  
2008. Dr. Battiste testified that the journal was a peer‐reviewed journal based on comments by  
the managing editor but that she was unable to say whether, at the time that Directions was  
published in that journal, the peer‐review process utilized included a blind review. She  
acknowledged, therefore, that this was not a strict peer review as undertaken by academic  
journals.  
[357] Dr. Battiste was asked if there was a difference between a peer‐reviewed journal article  
and a paper submitted to a conference by an invited lecturer. She testified that the peer‐  
reviewed journal goes to outside readers for comments on the research process, whether the  
research question was clear, and whether the conclusions were reasonable in the field of  
research. She said, in the alternative, a paper submitted to a conference does not need to be  
supported in the same way; it can be as provocative and outlandish as the author wishes. The  
author has much more licence. She said she is cautious with respect to a peer‐reviewed article,  
knowing that statements will be read particularly carefully by the referees.  
[358] Dr. Battiste was asked why peer review was important to her. She said that it provided  
an opportunity to contribute to the growth of Indigenous empowerment and that she has been  
publishing such papers since the 1980s. She also testified that she encouraged others to do so.  
She stated, however, “Yes, but in so doing there are different processes Indigenous scholars  
have to follow. They are unable to write without having access to the Indigenous community  
and they need to have a sensibility about that.”  
[359] Dr. Battiste was asked how her community could relate to her work when she  
implemented those sensibilities. She responded, “They continue to want to work with you, to  
198  
support you by joining you in seeking research grants. You remain connected to those  
communities and working with those communities in terms of publications.”  
IV EVIDENCE OF DR. JO‐ANN ARCHIBALD  
[360] Dr. Archibald is currently employed at UBC in the Faculty of Education as the Associate  
Dean for Indigenous Education. She is the Director of the Native Indian Teacher Education  
Program (NITEP). She is a full professor.  
[361] Dr. Archibald is a member of the Sto:lo and Xaxli’p Nations.  
[362] Professor Archibald is the editor of a peer‐reviewed journal, the Canadian Journal of  
Native Education.  
[363] Professor Archibald was qualified as an expert in the fields of Indigenous knowledge,  
Indigenous oral traditions, and Indigenous community‐based research.  
[364] Professor Archibald was asked to speak to Indigenous knowledge including traditional  
and contemporary holistic ways of knowing. She used the teaching of math to demonstrate the  
holistic approach encompassed by Indigenous knowledge. She spoke of asking elders to talk  
about how they used math in their lives, thereby presenting a contextual context. She spoke of  
school children learning about math within the cultural community environment, of how math  
relates to ceremony, how stories can be used as a holistic way of learning and carrying on the  
culture.  
[365] Dr. Archibald spoke to the difference between traditional and cultural ways of learning.  
She said traditional ways of learning have historic context. The traditional approach was how  
we learned about Indigenous knowledge in the past and is still prevalent in the current context.  
She said the difference relates to the practice of how we might apply the knowledge. She  
testified that the holistic approach is a common Indigenous approach to the knowledge  
framework in the education setting. That framework includes relationship and responsibilities  
to family, community and nation. She spoke of a circle with four quadrants within, signifying the  
199  
interactions of relationship and responsibilities to community or nation. She testified that, in  
the area of Indigenous knowledge, the collective is very important – she said one is in  
relationship to the collective and Indigenous values guide one’s actions within the holistic  
framework. Common values could relate to care and cooperation which relate to the collective  
good of the community or the nation.  
[366] Dr. Archibald spoke to the fact that elders are respected for their knowledge set, such as  
the history of a certain family or community, thereby, bestowing a sense of oral history.  
Respecting the care for and relationship with the environment, she testified that scholarship  
now talks about place‐based knowing – this is about traditional lands of Indigenous peoples.  
She testified that people will attribute the stories to traditional places and traditional territory  
which provides traditional kinship in stories that connect the people to the land.  
[367] Dr. Archibald spoke of inter‐generational learning through an elder to a younger person.  
She testified it is not just about age, more about the knowledge a person has and the wisdom  
gained through their life. She says an elder’s title is based on the knowledge base and respect  
people attribute to a person because of the way they have carried themselves in family and  
community interactions. She describes it as experiential learning.  
[368] Dr. Archibald spoke to the different ways of learning for men and women. She said that  
it is different for different Indigenous cultures. Men’s knowledge and women’s knowledge may  
be different. The vehicle could be life‐experience stories providing experiential learning through  
one‐on‐one conversations or one to a small group.  
[369] Dr. Archibald expressed that the values are simply stated but complex to carry out. For a  
particular event, a researcher needs to have knowledge of their Indigenous ways of learning,  
knowing, and being, and establish a trusting relationship with members of that group or  
community. She said, “They must understand why I want to do the work I am doing”. She  
testified that, “I need to enter that setting in a caring, ethical way. When I go into someone’s  
community I acknowledge I am on their land and I am an invited guest.” She testified, “People  
have to feel comfortable talking to me respecting their particular way.”  
200  
[370] Dr. Archibald spoke of Indigenous knowledge being revitalized. She said Indigenous  
language is the way the knowledge is communicated, and she pointed to a fair amount of  
revitalization approaches which are being carried out by various communities. She said learning  
Indigenous language is part of that process. She spoke of environmental or medical knowledge,  
meaning that plants have particular medicinal purposes. She spoke of content knowledge, such  
as the process of making a canoe.  
[371] Dr. Archibald was asked how Indigenous knowledge is transmitted, and testified that it  
is transmitted in various ways. She spoke of urban Aboriginal youth utilizing hip‐hop music,  
spoken words which relate to the identity of Indigenous people and socioeconomic conditions.  
[372] She was asked how this is different than Caucasian or South Asian youth. She testified a  
Musqueam woman incorporates Musqueam language in her music, that this relates to her  
identity as a Musqueam individual and communicates to a particular culture.  
[373] She testified that Indigenous people are returning to Indigenous knowledge of the  
values and ways of being of an Indigenous person.  
[374] With respect to the Indigenous oral tradition and the fact that it arises in a different  
framework to Western‐oriented stories, Dr. Archibald testified that, in the Indigenous model,  
the listener is expected to think about why a trickster gets in trouble and how to get out of it.  
The listener shares those ideas but they are not presented as conclusions in the story. She  
contrasts that to Western story‐telling where the moral of the story is often specifically spelled  
out.  
[375] Dr. Archibald testified with respect to Indigenous community‐based research. She said it  
is a way of carrying out research with an Indigenous community. Indigenous community  
members may be involved in determining the research question or approach to the question.  
The community could be a band or an urban community or an Aboriginal research centre. She  
said there is a legacy of researchers who are not respectful or ethical in the sense of Indigenous  
ethics, so the research took place “on people” rather than “with people”. She said Indigenous  
communities bring an issue of the approach to academics. The researcher must be more  
201  
involved with the community. They need to be more explicit with respect to research  
agreements or protocols. She testified that Indigenous ethics will involve the way research is  
conducted from the beginning of the process to the end. She testified that Indigenous ethics  
include protocols respecting who is involved from the community to work with the researchers.  
Reciprocity comes up often in many of the projects, meaning how would the project be  
beneficial to the people and to the community itself. She testified that the development of  
ethical research guidelines arises from working with humans.  
[376] She emphasized that the process for conducting research with Aboriginal people is more  
time‐consuming because of the need to try to develop a respectful relationship, the need to  
understand who has decision‐making powers in the community, the need for community  
members to be approving of the question in how research will be carried out.  
[377] It takes time to learn about different Indigenous communities. For example, if you are  
not from Haida you have to learn Haida ways. You need to build the capacity in the community  
to assist in the research by developing research assistants within the community.  
[378] Dr. Archibald testified that one of her scholarly publication efforts, the Canadian Journal  
of Native Education, was a vehicle for increasing Canadian Indigenous scholarship. The journal  
is the only journal in Canada focused solely on Indigenous education. Its intent was to  
encourage and facilitate Indigenous‐oriented scholarship from both Indigenous and non‐  
Indigenous scholars in order to increase peer‐reviewed scholarship and its quality.  
[379] Dr. Archibald says the value of peer‐reviewed and especially blind peer‐reviewed  
scholarship is that it brings some form of objectivity to the research. While in the past there  
was a shortage of expertise for peer review, that is no longer the case. Dr. Archibald testified  
that peer review assists the submitter to refine their work. She said that, if an article is not  
ready for acceptance, the referees give feedback so that the author can improve and resubmit  
their work.  
[380] Dr. Archibald agreed that Indigenous knowledge is an academic field of study. She said  
there is no new Indigenous knowledge – it’s the way it’s been described in the literature which  
202  
is new. She agreed that the intellectual, spiritual and emotional elements of Indigenous  
knowledge are not merely an Aboriginal experience but are universal human experience. She  
said it is who the researcher is as an Indigenous person that makes the experience Indigenous.  
While conceding that concepts of family care and cooperation are not exclusively Indigenous,  
she pointed out that Indigenous people are the ones leading the way in the area of  
environmentalism.  
[381] While Dr. Archibald agreed that all cultures share stories orally, she pointed out that  
Western stories in many cases are a parable with a message imported into the story; the  
Indigenous approach of drawing meaning from but not advocating for a particular meaning is  
different. While she agreed that the way to approach Indigenous people is the same as the way  
to approach other subsets of the human population, she said the history of the First Nations is  
not the same as the history of other groups and that history may create sensitivities which must  
be understood to relate properly to the Indigenous community.  
[382] Dr. Archibald acknowledged that, if an Indigenous scholar was working within their own  
community as opposed to a different community, it would be easier to make the transition to  
obtain the confidence of the community. However, that must be applied cautiously; she is a  
Sto:lo and the time for her to gain the confidence of a Sto:lo community is not much less  
because, even though she is an insider, she is still educated in the Western academic setting  
and has to be careful with respect to the use of Sto:lo language. She does get over the hurdle of  
being an outsider but there are still contextual factors that she needs to deal with which take  
time.  
[383] It was put to her that UBC’s research protocols take time to negotiate and complete as  
well, and that they are tools to encourage and support quality research. She agreed with that.  
She also agreed that such protocols are not bars to research. She acknowledged that she and  
others have managed to publish academic research but inserted the caveat that to do so is  
challenging and difficult and sacrifices are made in order to do that. She stated that those  
challenges may result in an Indigenous scholar not having a lengthy publication record. She  
stated that it might take a year or longer to clear the way to commence research in an  
203  
Indigenous community. She acknowledged that invited presentations such as keynote speaker  
invitations or panelist invitations to conferences are not reflected in her CV as part of her  
publication record. She did say, however, that if such invited presentation works were  
published, they might also show up in a CV under the “Publication” heading. She acknowledged  
that a good portion of her presentations do not have a publication aspect to them.  
[384] Dr. Archibald was asked whether scholarly activity would include community service.  
She responded that it could, in that helping to get funding or helping to get a funding proposal  
involves sometimes taking what she knows as scholarship to the community outside the  
University. She cautions, however, that unless it turns into a written report it is not also a  
publication. She testified that a scholar cannot create their own form of CV and expect it to be  
understood by the university community.  
[385] Dr. Archibald was asked why it was important for her to publish. She responded that  
one reason is that she is giving back to her community and the academic community. By that,  
she means that she is fortunate enough to be in a position to learn and put her learning into  
publishable form and that is a way of having others know what she knows. The second is that  
she is in academia and there is that need as a tenured professor to have a publication record.  
V EVIDENCE OF PROFESSOR STEPHEN JOHN TOOPE  
[386] Professor Toope served as president of UBC for eight years between 2006 and 2014.  
Professor Toope is currently serving as the director of the Munk School of Global Affairs at the  
University of Toronto. He has served in that position for approximately two and a half years. He  
describes the position as being the equivalent to being the dean of a Faculty. He has charge of  
tenure files in the same way that a dean would within a faculty of the University and has moved  
forward two tenure files since arriving at the University of Toronto.  
[387] In October of 2017, President Toope will become the vice‐chancellor of the University of  
Cambridge in the United Kingdom.  
204  
[388] Prior to being president of UBC, Professor Toope was the president of the Pierre Elliot  
Trudeau Foundation, and created the programming for that foundation. He was in that role for  
three years. He describes it as an entirely non‐partisan foundation funded initially by the  
Canadian government with an endowment of $125 million to honour the memory of the former  
prime minister. The goal of the foundation is to encourage the exchange of social science and  
humanities scholarship and bring it into the wider community. Prior to that he served as the co‐  
director of the Institute of European Affairs for one to one and a half years, the Dean of the  
Faculty of Law at McGill University for five years, and Associate Dean at the Faculty of Law and  
an Associate Professor of Law at McGill University.  
[389] 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:  
In the nature of things 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.  
[390] 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.  
205  
[391] Professor Toope testified that the protections attached to tenure are essentially that  
there is very limited scope for review or assessment of actual work undertaken by a tenured  
professor. 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.  
[392] At UBC the Guidelines for the granting of tenure are established in the framework of the  
CA between UBC and the Faculty Association. It is the CA that serves as the basis for all of the  
tenure processes and ultimately for the decision of the president respecting the  
recommendation to be made to the Board of Governors with respect to a candidate.  
[393] The CA in place at the time Professor Toope was reviewing Ms. McCue’s application for  
promotion and tenure was the July 1, 2010 to June 30, 2012 CA.  
[394] Professor Toope made the point that under the CA, Article 3.07(a), Promotion to the  
Rank of Associate Professor, is not automatic or based on years of service and it is expected  
that some persons who may be granted tenured appointments will not attain the rank.  
Therefore, there are two elements, the first being tenure and the second being promotion.  
[395] Professor Toope testified that Article 4 sets out specific criteria for consideration for  
appointment, reappointment, tenure and promotion. He pointed out that pursuant to Article  
4.01(a) candidates for appointment, reappointment, tenure or promotion are judged principally  
on performance in both teaching and in scholarly activity. Service will be taken into account  
but, while service to the University and the community is important, it cannot compensate for  
deficiencies in teaching and in scholarly activity.  
[396] Professor Toope testified that the language in relation to tenure and promotion to  
Associate Professor remained relatively consistent through all of the CA governing the  
relationship of Ms. McCue to UBC. He further testified that excellence is defined through the  
process of peer‐review that exists both for scholarship and for teaching.  
206  
[397] Professor Toope testified that, in Article 4.03 of the CA, there is a very strong emphasis  
on quality and significance of an individual’s contribution. He says that it is measured through  
peer review and is designed to try and get at the question “does this work have any impact?”  
The impact can be variously measured but there has to be evidence of impact. He further says  
that Article 4.03 goes on to emphasize that there is variety across disciplines. There is not one  
template for measuring scholarly significance and quality but it does say published work is,  
where appropriate, the primary evidence.  
[398] He pointed out that there are other forms of dissemination looked at for measuring  
scholarly significance and quality which are specifically set out in the CA. The first is in the area  
of artistic or creative work such as a professor of piano performance where you are measured  
on the basis of performance as well as on your published work. The second category is  
professional fields which would include law. He gave the example that “if you decide to work on  
a major proposal for reform of the Canadian Senate commissioned by the Canadian  
government that would be relevant in a tenure and promotion case in the same way as  
published work. Also, if you produced extraordinary work, working with local communities on  
governance issues or perhaps a review of access to legal services in the South Asian community  
in Surrey, that could also be considered as part of a tenure file. Professor Toope pointed to  
Article 4.03(b) and pointed out, “You will see a specific description of professional studies. ...  
They have to be evidenced by research on or creation of ‘significant applications of  
fundamental theory; or...significant forms of applications of professional or clinical practice’.”  
He pointed out that there would have to be evidence of a candidate’s contribution in the file.  
[399] In respect of Scholarship of Teaching, Professor Toope testified that, “If you’re trying to  
make a case that you should be appointed in a teaching stream and that you, therefore, have  
Scholarship of Teaching and learning, you have to show that you’re actually advancing the field  
of teaching. ... It has to be evidenced by originality, innovation, demonstrable impact. ... It has  
to change our understanding of a field or the way the discipline is taught. ... It’s a pretty high  
bar.”  
207  
[400] Professor Toope testified that peer review of Scholarship of Teaching “would mean  
having material assessed by other experts in the field as to its quality and significance.”  
[401] Professor Toope testified:  
A peer review is important for the whole university .... Every university  
in the world that purports to want to protect its reputation will adjudge  
promotion and tenure on the basis of peer review. And that’s because  
it’s ... the only reliable way that there can be external assessment of the  
quality and significance of an individual’s contribution. ... the individual  
candidate is allowed to suggest names for possible peer referees and  
the university also suggests names. And the peer referees are meant to  
be people who have knowledge of the areas of work of the person who  
is up for tenure and promotion and/or able to comment in an informed  
way on the quality and significance of the work. It’s a fundamental  
element of how universities operate all around the world. I have served,  
for example, as a peer reviewer on files coming from Australia or from  
France or from Eastern Europe, South Africa. ... it’s an absolutely  
standard approach to try to get this independent assessment of quality.  
[402] Professor Toope testified that, while peer review of published materials will be the  
primary assessment, an applicant might also ask for a peer review of other Professional  
Contributions.  
[403] Professor Toope testified that while not every form of Professional Contribution need  
be published by an academic publisher or by a law journal, it needs to be in the world in some  
way. It must be available to people to be reviewed and to have an impact so that other people  
can comment and other people can challenge and other people can build on the work.  
Otherwise it is in a void and it cannot have impact if no one else knows about it.  
[404] When asked what problems universities might face if they had to make decisions about  
promotion and tenure without a process of peer review, he responded that there would be a  
number of potential problems. He testified the first problem is that peer review provides for  
some way of comparing across institutions. He said without peer review it is very difficult for  
any outside assessments to give you a sense of what your institution’s reputation really is. He  
testified further to internal problems such as favouritism – because a candidate is well regarded  
208  
they might end up getting tenure on the basis of their personality and general contributions to  
a Faculty and not in relation to what the CA requires simply because it is difficult for colleagues  
to turn down a good person. He also pointed out that internal dissention could arise if an  
undeserving person received tenure and promotion and somebody who had worked incredibly  
hard to obtain the standard did not. He also suggested that peer review protects against  
unpopular views within a department such as personal animosity towards a candidate who has  
fulfilled the requirements for tenure and promotion but does not receive it due to  
unpopularity. He testified that it would be very hard without peer review to know whether or  
not a candidate’s work mattered. He pointed out that the president making a recommendation  
to a Board of Governors cannot be an issue expert in every field across the university and that,  
as a result, there needs to be a process in place that allows expertise to form a major part of  
the judgement of quality and significance.  
[405] The president looks at all promotions and tenure decisions within the university  
regardless of faculty. As a result, over the course of a few years a president would have dealt  
with hundreds of files.  
[406] Professor Toope testified:  
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  
because 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.  
[407] Professor Toope testified that Article 4.01(a) provides two elements in relation to  
criteria for tenure. The first element is showing a high standard of performance over time. The  
second element is assessing whether there is evidence of promise still to be fulfilled. He said  
209  
one of the ways that that assessment takes place is by seeing whether or not there is a track  
record that gives you confidence that the person will continue to be productive and that the  
quality and significance of their contributions will be maintained and perhaps even expanded.  
[408] Professor Toope testified that it is the candidate who is ultimately responsible for  
meeting the tenure criteria.  
[409] Applying that criteria to the application of Ms. McCue, Professor Toope testified that he  
looked at the reports from each of the levels, Faculty Committee, the SAC and the Dean’s  
recommendations, as well as Ms. McCue’s submissions to the Faculty Committee, the SAC and  
to him. He went briefly through the materials that make up the file. He testified that he read  
the reports assiduously and the subsequent submission of Ms. McCue closely but the  
background materials he read less closely. He also read each of the external referees’ reports  
closely. He testified that the Dean’s recommendation was considerably more comprehensive  
than a typical recommendation from a faculty dean. He testified that the Dean’s  
recommendation had a great deal more detail and a very high and clear explanation of process.  
[410] Professor Toope was asked what stood out for him in the Dean’s report. He responded  
firstly that he was reassured by the procedures undertaken, the extreme attention to detail, the  
clarity of the conclusions on teaching and scholarship and the opportunity given to Ms. McCue  
to speak before the Faculty Committee which to the best of his recollection was unique.  
[411] Professor Toope picked up on the words in the Dean’s recommendation that, “The  
candidate’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 recommendation at page 15 that, “The  
committee should consider the broadest possible range of contributions under the provisions  
of the Collective Agreement.” 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  
210  
work that the scholar was undertaking couldn’t be measured in these really narrow and  
quantitative – purely quantitative methods.”  
[412] With respect to the reports of the external referees, he expressed that, both from  
reading Dean Bobinski’s report and from his own review, the reports were positive but the  
positive reports tended to be very unspecific. They did not conduct a detailed analysis of the  
contributions made by Ms. McCue. They tended to speak in rather general terms. He said that  
one of the letters spoke of her promise but pointed out that was only part of what was being  
assessed in a tenure file which also assessed performance to date. He stated that the letter that  
contained a detailed assessment of Ms. McCue’s scholarship did not recommend tenure and in  
his view was quite strongly negative. He stated, “I will say that in my experience it’s relatively  
unusual to have such a detailed negative review. Very often referees will be cautious, if I may  
put it that way, about expressing such negative views, and this, of course, gave me cause for  
concern.”  
[413] Professor Toope testified that the SAC would have had the complete dossier including  
the recommendation from the Faculty Committee, all of the original submitted materials from  
Ms. McCue and any subsequent additions to those materials provided by Ms. McCue. They  
would have had Dean Bobinski’s report. He testified the role of the SAC is to ensure that from a  
university‐wide perspective there is some coherence and consistency from one faculty to  
another. He testified that it is within the ability of the SAC to recommend against tenure when  
the previous recommendations were favourable and vice versa. He testified that it is not  
unusual for the SAC to meet with the Dean who made a recommendation in advance of  
producing their own notes. He testified that the detail of the SAC report was highly unusual and  
that typically such a report would comprise half a page or a page, very rarely two pages. He  
attributed the extra length of the SAC report respecting Ms. McCue to the SAC desiring to make  
sure that they understood fully the details of the file which was voluminous. He did not take  
from any of the comments in the SAC report that there were doubts about the process leading  
up to the SAC review.  
211  
[414] Professor Toope testified the outcome of the SAC review was that all 16 members  
present voted against the granting of promotion or tenure expressly stating that there was a  
lack of evidence of sustained and productive scholarly activity defined broadly within the  
context of the agreement.  
[415] Professor Toope testified that Ms. McCue provided him with material before his review  
of the material. It included the letter from Ms. McCue which “emphasised the importance of a  
contextual assessment in relation to a scholarship relating to Indigenous peoples”. He recalled  
that Ms. McCue included a different way of trying to think about tenure and promotion  
entirely, which was not the same system contained in the CA. He said he read that carefully. He  
took from it a number of distinct elements. One related to the type of scholarship undertaken  
with Indigenous communities, being community‐based scholarship, which had to be  
understood as having a different frame of reference than what might be called standard  
scholarship. He recalled Ms. McCue emphasised the importance of the oral tradition in  
Indigenous life and suggested it would be appropriate to consider oral statements made within  
the community as part of scholarship. He also considered that she wanted him to think  
differently about the relationship between service and scholarship and to really think of service  
within the community as a form of scholarship.  
[416] Professor Toope testified that in the University’s decision‐making process, scholarly  
activity, teaching and service are weighted roughly 40 percent to scholarship, 40 percent to  
teaching and 20 percent to service. He testified that they were not fixed ratios so there is  
flexibility, but that the CA provides explicitly that service alone cannot compensate for failures  
in teaching and research or scholarship.  
[417] Professor Toope testified respecting Ms. McCue’s urging that community‐based  
scholarship be given a different frame of reference. He said that the argument was not unique  
and that there were many scholars in the University who engaged in community‐based  
research. He testified that there was a reason to be sensitive in tenure processes relating to  
community‐based research because it takes longer in many cases to conduct research where  
you have to work with the community due to the need to develop trust, to negotiate protocols  
212  
for how your research will be undertaken, to negotiate how the candidate will be reporting  
back to the community on the results of the research. He did not consider that unusual. He  
concluded that it is an area where he believed the University does have to be particularly  
sensitive and where he believed the University has historically been quite sensitive.  
[418] Professor Toope testified that there was no scope to extend the period for tenure track.  
He said that the CA does not allow restarting the tenure clock.  
[419] Professor Toope testified with respect to Ms. McCue’s application:  
...there was almost nothing on the file that I could rely on to give the  
benefit of the doubt. In the case of that other professor, there were a  
number of important publications. There were reports that had been  
made to Indigenous communities which were in the file. There were  
actually attestations of the importance of the work that he had done  
from members of Indigenous communities in Canada and outside. In this  
case there was not a single peer‐reviewed publication. None. That’s –  
that’s the only case in eight years that I saw where that was true or even  
close to – to being true. And none of the other evidence actually gave  
me anything to go on as to the impact of any work within the  
community. There was simply no evidence. So, again, with great respect,  
I have to say that despite the fact that there was a lot of process in this  
file, it was actually a quite straightforward case....it was clear to me that  
this was a case where tenure could not be awarded, that the criteria  
were fundamentally not met. It was not a close case.  
[420] Professor Toope was asked about his thinking around Ms. McCue’s position that her oral  
traditions made within the community should be considered part of scholarship. He responded:  
Well, the difficulty, as I suggested earlier, is that one has to have some  
record, some evidence to go on in making an evaluation of a scholarly  
contribution. So, simply a self‐assertion by a particular candidate that he  
or she has done something can’t, in my view, form the basis for a fair‐  
minded assessment. I – I tried to suggested earlier one could imagine  
oral contributions that were somehow placed on the record, so to  
speak, not necessarily word for word but in the other case that I  
mentioned I said there had been attestations from community members  
of work that had been undertaken in the community, there were reports  
that summarized oral engagements within the community, there was  
some evidence of not just having done something but that there was  
213  
some impact,...some value, some effect. And in this case, sadly, there  
was no such evidence whatsoever.  
[421] On the issue of starting the process again, Professor Toope testified that in the case of a  
term appointment with review, such as held by Ms. McCue, the CA provides that by the end of  
an appointee’s fifth year of continuous service in a term appointment with review, a  
recommendation must be made to the president either to grant a tenured appointment or not  
to renew the appointment. In the case of an Assistant Professor, the CA provides at Article 2.03  
that, either before or in the seventh year of service, an Assistant Professor can be promoted to  
the rank of Associate Professor with Tenure. If the Assistant Professor is not granted a tenured  
appointment then in the seventh year of service a recommendation either to grant a tenured  
appointment at the rank of Assistant Professor or not to renew the appointment must be  
made. For the purpose of calculating years of service, all appointments are deemed to have  
commenced on July 1 of the calendar year in which the appointment began. Extensions  
contemplated by the CA can extend the seven‐year period.  
[422] Professor Toope was asked respecting his thoughts around Ms. McCue’s request that  
service to the community be considered in the form of scholarship. His response was:  
Well, first off, I believe that as the president of the university I am  
bound by the terms of the Collective Agreement because it’s freely  
negotiated as between the university and the Faculty Association. And  
there is a lot of detailed negotiation that goes into those collective  
agreements, as you can imagine. And the Collective Agreement tells me  
that I am not allowed to treat community service as a form of anything  
other than community service. It can’t be teaching and it can’t be  
scholarship. So, it seemed to me that this was a – an assertion that just  
didn’t really have meaning in the context of the Collective Agreement.  
More substantively, I would say, back to my earlier points about the  
importance of peer review and the importance of external assessment,  
that to treat service as scholarship denies the possibility for any of those  
external evaluations to take place. And that goes again, to the heart of  
the peer‐reviewed process and the reputation of the university, et  
cetera. So, both substantively and as a matter of technical law, if I may  
put it that way, given the collective agreement, it seemed to me not a  
correct approach.  
214  
[423] Professor Toope testified that Ms. McCue had not met the criteria for scholarly activity  
and that he had made that conclusion comfortably. He testified there was really almost no  
evidence to support scholarly achievement and that he had never seen a file where there was  
no peer reviewed publishing record. He further testified that he had reviewed files of many  
Indigenous scholars. He further testified he had rarely seen any conclusion of the SAC which  
was unanimous in refusing tenure. He said, “The fact that this was 16 to zero at SAC was quite  
striking.”  
[424] Professor Toope testified that while Ms. McCue put forward written material it was not  
peer reviewed in any sense. He stated:  
...I won’t repeat all of the discussion around peer review, but that is the  
standard by which scholarship is typically measured not only at UBC but  
in universities all around the world. I also, of course, had on the record  
the detailed evaluation of the external reviewer who did look at the  
written materials with care and concluded quite negatively around  
those materials. One of the pieces I remember was a statement that  
some of the material was essentially an autobiographical statement  
without legal analysis, for example. So I had all of that frame in mind  
when I considered the written materials, which in and of themselves  
were quite limited, even the non‐peer‐reviewed materials.  
[425] Professor Toope then had the external referees’ reports put to him. He commented on  
one that contained a sentence reading, “In my opinion her publication record is not sufficient to  
support her application unless there is confidence in your Faculty that she will – she will  
successfully bring to completion and publication in a timely manner the works identified in her  
CV as in process.” He was asked for his view of Ms. McCue’s ability to complete and publish in a  
timely manner and responded that he could only go on the record which showed that there had  
been not a single publication brought to peer review. He testified he considered the letter weak  
– even though it concludes with a recommendation for tenure it is not a positive assessment  
overall of Ms. McCue’s trajectory.  
[426] Professor Toope considered another letter from an external referee, “almost entirely  
unhelpful.” He said it did not engage with the actual materials that were provided; therefore, it  
215  
was not the kind of analysis he looked for when asking for a letter of peer review and external  
assessment. He said, “It is just operating at such a high level of abstraction that it doesn’t really  
deliver any useful information.” He noted that the external reviewer had not read Ms. McCue’s  
work prior to the assessment. He stated that where there was a series of letters stating that  
external referees had not read the person’s work it tells him that the person’s work has not  
actually had very much circulation in the community. He stated, “This kind of letter tells me the  
person had never read anything and is relying entirely on the conferences where Ms. McCue  
spoke where he or she, the writer, was obviously happy about the conference presentations.  
He noted that the external reviewer had commented that Ms. McCue “believes in justice”, “is  
not afraid to hold others to account”, and “facilitates a broad movement of decolonization” but  
says it does not relate to actual scholarship nor the contribution that the scholarship makes to  
any of those areas. As a result, he found it very unhelpful.  
[427] Professor Toope was asked and confirmed that there is a standard letter that goes out  
which goes into quite significant detail as to what is expected in a letter of appraisal or  
evaluation. He stated that the two letters that he had just commented on were not responsive  
to those criteria. He stated that many of the letters that a president receives for a tenure  
evaluation will go through in detail the published record of the scholar, engage with arguments,  
challenge them and support them.  
[428] Professor Toope then was taken to a letter which contained a more detailed description  
of the materials that were presented to the reviewer and comments with respect to the book  
chapters, an article and a commissioned paper. He stated he felt it did not engage deeply with  
the arguments in the materials that were presented for evaluation missing a strong intellectual  
argument with which one could engage. He said three of the pieces are described essentially as  
first‐person narratives with which there is nothing to engage analytically. The fourth piece  
referred to by the external reviewer contains some analysis but he noted the external  
reviewer’s comment that, “None is particularly analytical, which makes comparison with other  
scholars difficult.” Professor Toope said, “This goes to the important point about impact. So, it’s  
216  
very difficult even for this positive reviewer to say how the pieces relate to other scholarship,  
what influence do they have, what kind of engagement could they have.”  
[429] Professor Toope then testified with respect to that external reviewer’s comment about  
the piece entitled Kapp’s distinctions. He considered it to be a positive assessment of the piece  
but pointed to the author’s criticism that:  
The characterization of legislation affecting Indigenous peoples as race  
or status based has been much discussed in U.S. legal literature in case  
law and I suppose if I had one criticism it would be that Ms. McCue did  
not avail herself of this literature in formulating her argument.  
[430] Professor Toope expresses that while the letter is positive overall it contains the kernels  
of concern about the lack of analytical rigor in the pieces that were being reviewed even when  
they were being reviewed by a positive reviewer.  
[431] Professor Toope then commented with respect to the fourth and final external  
reviewer’s report that it was a mere one and a quarter pages in length, and “has almost nothing  
to say that really engages specifically with the writing”. He considered it not to be a serious  
engagement.  
[432] Professor Toope commented with respect to the strength of Ms. McCue’s scholarly  
activity as follows:  
Well, unfortunately when I read [the external referees’ reports] in  
connection to the reports that I had received from the earlier processes  
at SAC, the Dean, and the Faculty Committee and when I looked at the  
materials, as I say, perused it myself, I just have to say that the work is  
not either extensive or particularly strong. So I unfortunately concluded  
that this was a case in which there was almost nothing on the record  
that could give rise to a conclusion of sustained quality scholarship,  
either in the past or as promise for the future.  
[433] Professor Toope expressed his conclusions with respect to Ms. McCue’s applications as:  
So, my overall conclusion was that I would recommend to the Board of  
Governors that tenure not be granted on the basis that the scholarly  
record was wholly inadequate, not close to what is required to give a  
217  
positive recommendation, both on past performance and, therefore, on  
future promise. I also declared that on teaching, for me she had just  
crossed the bar for reasons that I have just cited, and that on service she  
was just fine for – from the perspective of promotion and tenure. But  
the key for me was the complete failure to satisfy the requirements of  
scholarship as required under the Collective Agreement.  
[434] Professor Toope issued his own letter to Ms. McCue denying tenure and promotion to  
her. He stated that the criteria for scholarly activity had not been met and that relates to  
quality and significance of the contribution and dissemination of results. He testified:  
I try to emphasize that I have considered those materials in relation, as  
she asks, to a culturally appropriate paradigm in relation to her status as  
an Indigenous woman legal scholar, as she has asked, and that I consider  
Indigenous approaches as we go about making the evaluation. But of  
course I remind her that I have to do that within the framework of the  
Collective Agreement, which I am required to apply as president of the  
university. And then I go on to say that even with that contextual  
analysis I find that the scholarly record does not demonstrate  
significance of contribution or dissemination of results expected for  
promotion or for tenure. So, I repeat that it has not shown the  
requirement of sustained and productive scholarly activity, nor have you  
maintained the high standard of performance required for tenure. I  
don’t dispute that oral contributions can be important, but there is  
simply insufficient evidence that the work meets the standard of quality  
and significance required for tenure.  
[435] Professor Toope testified further:  
On balance of the evidence before me and considered in its broadest  
perspective, I do find that the teaching meets the standard required for  
tenure as an Assistant Professor. …  
So if it were just on the basis of teaching, I could have agreed to the  
granting of tenure, but it’s in relation to scholarship that the file fails  
completely.  
[436] After issuing his letter, Professor Toope had no further involvement in the case of Ms.  
McCue.  
218  
Cross‐Examination by Ms. McCue  
[437] The president of UBC is the person who makes the final recommendation to the Board  
of Governors. Every appointment to UBC that requires tenure is made by the Board of  
Governors.  
[438] Professor Toope testified that peer review would be the most commonly accepted  
measure of quality across the different faculties at UBC. He noted, however, that sometimes  
the peer review operates at different levels. He referred to the example of computer science  
where participation in certain conferences which have very high standards of participation can  
be treated as peer review, whereas in the Law Faculty the peer review is typically at the level of  
publication in a journal or with a publisher for a book.  
[439] Professor Toope testified that the Faculty of Law is one of the faculties at UBC where  
different forms of non‐traditional scholarship are quite common in applications for promotion  
and tenure. Because it is a professional Faculty, it is quite common to see files that blend  
publication in leading law journals with other kinds of professional work such as preparation of  
reports, advice to parliamentary committees, including a whole range of what might be  
described as non‐traditional scholarship.  
[440] Professor Toope testified that it is possible under the CA to look at other streams  
besides peer‐reviewed publications. He put it that the CA has a modest degree of flexibility but  
not complete flexibility. He prefaced that by saying that the CA provides that the principal  
measure that the president is meant to look to is peer‐reviewed publication.  
[441] Professor Toope was asked if he ever had the chance to review Indigenous forms of  
peer review. He responded that he has judged many files for Indigenous scholars who would  
bring into play work with Indigenous communities as part of their tenure application.  
[442] Professor Toope was asked how the president would take into account research activity  
taking place within the Indigenous community by a scholar, where a report comes out of the  
research engagement, and the Indigenous scholar has had to meet both ethical Guidelines from  
219  
UBC and from the Indigenous community. He responded that that would be relevant. The  
question would be the evidence on the file of the engagement with Indigenous practices.  
Evidence existed on the file from Indigenous members of the community, leadership of the  
community giving testimony effectively to the work that had been done in the community,  
speaking of the protocols that had been put in place to ensure both ethics and community  
responsiveness, having that kind of material would be very helpful in understanding the nature  
of the work that someone had undertaken in preparing a report, for example.  
[443] Professor Toope testified that such information would get to the president or to the  
dean of the faculty through the candidate.  
[444] Professor Toope testified that an Indigenous scholar could dictate into a recording  
device the information that has been provided to the Indigenous community. He stated that it  
is not even necessary for there to be an oral recording if there is some other form of statement  
from the community about the report having been given in a certain context, why it was given,  
where it was written, but there needs to be some record that the community had received the  
report and that there was some effect in the community from the report.  
[445] Professor Toope was asked whether he would presume that the candidate has been  
mentored to gather that sort of information when they are carrying out their research. He  
responded that he would hope that there would be some discussion about how best to present  
a file based on community‐based research. He acknowledged that such information with  
respect to community research could be brought into play in an application for promotion and  
tenure at any stage, such as at the SAC level or at the point that the file is presented to the  
president.  
[446] President Toope testified that it is the responsibility of the candidate to present the  
material that he or she thinks is most relevant to the application. He stated further that, in the  
case of letters of support, such as Ms. McCue provided in her file, general statements that  
simply say the candidate is doing research valuable to the community is not the same as  
something that you could equate to a form of peer review, because it does not assess the  
220  
actual potential impact of the work or the quality of the work that is being done. He stressed  
that everything is essentially about an attempt to perceive the impact of the work either in the  
community or in the scholarly community or with publications. So in his view the candidate  
would want to have detailed information about impact, not just a statement of work being  
carried out.  
[447] President Toope made it clear that UBC does not have the ability to adduce more  
evidence on behalf of a candidate. The role of the decision maker he says is to consider “all of  
the material that has been presented”.  
[448] Ms. McCue asked Professor Toope what happens in a situation where there is an  
emerging field of knowledge, like Indigenous law, and he did not have the degree of specificity  
required to get at the evaluation of impact. He responded:  
So, what I would say is that there are many fields in which there are  
significant changes that take place. A lot of so‐called interdisciplinary or  
multi‐disciplinary scholarship is taking place today in fields where there  
are mixes of the traditional assessment. So I simply want to say it’s not  
that unusual for there to be degrees of flexibility that have to go around  
how an evaluation of impact is made. So, I wouldn’t say that Indigenous  
scholarship is unique in that respect at all. I would say that it’s actually in  
some senses almost emblematic of a lot of changes that are taking place  
in the academy. So I think the key then is to be sure, in the process of  
assessment, that one is indeed being flexible and not putting all of the  
scholarship in a predetermined box that is unresponsive to community,  
unresponsive to social change. And I think we’re having to do that in a  
number of different fields....  
[449] Ms. McCue asked Professor Toope how it is handled if there is a delay of a number of  
years between something written and its impact, such as in the case of the Truth and  
Reconciliation Commission. He responded that it can certainly happen that an article or product  
might sit for awhile and then all of a sudden be rediscovered and found a new train of thinking.  
But he pointed out that, at the moment of deciding promotion and tenure, UBC must go on the  
record that’s in front of them. He said that that in part was why peer review matters so much  
because a peer reviewer might recognize that there may be interesting ideas which may have  
221  
future impact and call that to the attention of the decision‐maker. He pointed out, however,  
that at the end of the day as a decision‐maker the president has to go on the record that is in  
front of him.  
[450] It was put to Professor Toope that the peer‐review metric to measure Ms. McCue’s  
work may not be appropriate. He responded that it did not occur to him because the peer‐  
review mechanism has stood the test of time across all disciplines within the university context  
in many different cultures, across the spectrum of the globe. He articulated that the peer‐  
review mechanism seems to be the best mechanism the universities have had that gives an  
external assessment of potential and existing impact.  
[451] It was put to Professor Toope by the Tribunal that he appeared to be saying that the  
peer‐review mechanism is not necessarily restricted to peer‐reviewed publication, that there  
may be other ways, but at the end of the day the president has to be able to make that kind of  
an evaluation of the importance and quality of the work. Professor Toope responded:  
Yes. I mean, otherwise let’s imagine that it isn’t there. Then all you have  
to go on is the assertion of the candidate him or herself about the  
importance of his or her own work or your own assessment, which, in  
my view, would be even worse, which is just, well, you know, that looks  
like it’s good to me or it doesn’t look like it’s good to me. So, you either  
have complete deference to the candidate or the substitution of  
judgement with no external objective measures.  
[452] Professor Toope testified that in respect of Ms. McCue’s CV he would have looked to  
assess whether or not there was material in the CV that fundamentally changed the analysis  
that had been offered up by the Faculty Committee, the Dean and the SAC. He said that when  
he looked at Ms. McCue’s file there was nothing in the file that caused him to fundamentally re‐  
think the recommendations that had been made to him. He testified that he had received the  
entire package of material that was considered by the Faculty and then by the Dean and then  
by the SAC.  
[453] Professor Toope was asked about a department head’s ability to choose what track or  
how the file is going to be assessed. He responded that usually the candidate and the dean or  
222  
the department chair actually agree on how the file will be presented. He said that in  
professional faculties like law or business or engineering most of the cases are actually blended  
cases where candidates are bringing to bear not just traditional scholarship in journals and in  
books but also other forms of engagement. He gave the example that in law it is very common  
for there to be blended cases of professional and standard scholarship.  
[454] Professor Toope testified that peer review, in his view, is not entirely limited to Western  
approaches. He says that almost all universities in all countries around the world rely on peer  
review to make judgements as to quality and significance.  
[455] Ms. McCue asked Professor Toope how a candidate can differentiate between what she  
means by peer review and how it may appear in the communities that the candidate works in.  
He responded that a candidate would have to read the descriptions of what is expected when  
they’re appointed such as the Faculty handbook. The candidate would also have access to  
mentoring within the Faculty and have access to descriptions provided by the Dean in  
conversations, especially when there is a sense in which the candidate might not be meeting  
the requirements. He indicated that he believed all of those opportunities existed in Ms.  
McCue’s case.  
[456] Professor Toope testified that he heard what Ms. McCue was arguing with respect to  
how her application should be measured and that he did his best to take the approach that she  
suggested he should take. He said, however, that even with that approach he came to the  
conclusion that Ms. McCue had not met the standards for tenure.  
[457] Ms. McCue took Professor Toope through a document entitled Equitable Paradigm/Non‐  
Traditional Framework [Equitable Paradigm]. She asked about his conclusion in his decision of  
June 29, 2011 that he accepted that oral contributions and community engagement were  
important work, but held the view that there was insufficient evidence that Ms. McCue’s works  
met the high standard of quality and significance required for tenure as an Assistant Professor  
and, therefore, as an Associate Professor. Professor Toope responded that he did not believe  
the file showed that her oral contributions and community engagement actually had impact.  
223  
[458] Ms. McCue then took him to her CVs and asked him if the listing of oral contributions  
and looking for the Faculty to accommodate that form of publication was evidence in his mind.  
He responded that it was evidence but that it was not very compelling because it was simply  
her assertion of quality and impact. He said, “There is no external way of assessing whether or  
not the communities in question gained, how they gained. It’s not clear what the impact of the  
work was. That’s the challenge.”  
[459] The Tribunal then inquired of Professor Toope whether his decision‐making could have  
been affected if there had been evidence on the file from the community that Ms. McCue was  
working with advising of the specific terms and nature of the work that was done and the  
benefit that the community received in sufficient specificity. He responded as follows:  
It would have had an impact on the decision‐making, yes, because there  
would have been more I’ll call it data to rely upon for the claim that  
there were impacts in the community. Of course it would still be  
weighed against the complete absence of any peer‐reviewed publication  
and that would also have been still, in my view, problematic because it’s  
very hard to rely only on community‐based assessments partly because  
of the desire for there to be dissemination of results from research the  
professors undertake. And the collective agreement says that the  
principal mode of evaluation should be publication. And here we have  
an almost complete absence of that. But it would have made the case  
more difficult to decide if there had been this information.  
[460] Professor Toope was asked by the Tribunal whether, if that information had been on the  
file, it could have resulted in a decision to provide Ms. McCue with time to publish in order to  
get that component in place. Professor Toope responded:  
I don’t think so especially because this is a tenure review that had  
already been very significantly delayed. But I think even if it were a  
standard tenure review, I don’t think I would have decided to try and  
allow for the file to be bolstered, if I may put it that way, because that  
gives rise, in my view, to very significant potential for unfairness vis‐à‐vis  
other people applying for tenure. Because I can assure you that there  
are many people who make cases about why they have published less  
than they might be expected to or why they have done less than one  
might have hoped. And if you start opening up the opportunity for  
people to go back and supplement their files, you could have a process  
224  
where you never reach a conclusion of where, as I say, there is  
unfairness vis‐à‐vis other people.  
[461] Ms. McCue put to Professor Toope a June 9, 2010 letter from the President and past  
President of the Indigenous Bar Association which was very complimentary and spoke to  
teaching, scholarly activity and service with respect to Ms. McCue. He was asked if the letter,  
which was three and a half pages in total, in his view, could be considered as evidence of a peer  
review of her dissemination of knowledge. He responded in the negative saying that he read  
the letter as mostly a series of assertions rather than a detailed analysis of the work that she  
had undertaken and why it has impact.  
[462] Ms. McCue then took Professor Toope to her work, Equitable Paradigm, and the level  
relating to “scholarly activity as evidence of distinguished and original Professional  
Contributions that have impacted the Indigenous law field at local to global levels”. He  
responded that the role of the scholar in professional organizations and doing work in the  
communities is relevant. However, he expressed concern that there was very little evidence on  
Ms. McCue’s file of the impact of her work. Professor Toope expressed that he had seen many  
files of people doing community‐based research, including Indigenous scholars where there was  
simply more evidence on the file of the actual work that was done and the impact of the work  
as opposed to simply a statement that something happened, a presentation was made, et  
cetera.  
[463] Professor Toope testified that the work that Ms. McCue had done as Director of FLNS  
Program from 2000 to 2004 was evaluated as part of the overall process, as evidence of  
teaching. He said that the equitable paradigm does not suggest that it would be considered as  
part of scholarly activity and that he believes there needs to be a distinction drawn between  
teaching and scholarly activity unless there is a very specific statement about the Scholarship of  
Teaching and learning. He stated:  
I would say that her work as director of the First Nations Legal Studies  
Program might fit within either teaching or Scholarship of Teaching and  
learning, but that has to be clearly argued.  
225  
[464] He testified that work that Ms. McCue was doing in the community is clearly to be  
evaluated as research. He confirmed that that is how it was evaluated.  
[465] Professor Toope conceded that a consultative piece where Ms. McCue, in conjunction  
with a number of other Indigenous scholars, discussed Peace and Security from Indigenous  
perspectives, would be an example of impact or significance. He conceded that it would be  
something that could be evaluated. He said, however, that there was not enough of that sort of  
material on the file.  
[466] Ms. McCue suggested to Professor Toope, based on Equitable Paradigm, that “face‐to‐  
face presentations that are culturally and professionally congruent” can constitute Indigenous  
peer review. He responded:  
So, I’m starting to understand more what you mean by “Indigenous peer  
review”, and I would say that I do accept that actually engaging with a  
community and the community providing deep feedback to community‐  
based research as a form of peer review, yes. Now I am understanding  
what you are trying to get at there. I think that that could be true. The  
difficulty was there was no evidence in the file of what the result of the  
peer review was. So, I had nothing to go on to evaluate quality or impact  
or – beyond – and you’ve shown me a couple of letters, which operate  
at a very high level, that simply say presentation was made and it was  
interesting or it was good, but that would be – you know, if I were  
asking for a peer review, that would be inadequate for my assessment.  
[467] On the issue of teaching, Professor Toope testified that he had determined that Ms.  
McCue had not met the expectations of excellence beyond what was required of an Assistant  
Professor but that she had met the expectations in relation to work of an Assistant Professor  
and, therefore, that was not a barrier to the granting of tenure in and of itself. He testified that  
his assessment of teaching in relation to promotion, as opposed to tenure, was really affected  
by the limited success she seemed to be having in teaching the upper‐year elective courses  
where students self‐selected and where they could presume to be engaged with the subject  
matter. He testified that he felt there was enough concern about her performance in the upper‐  
year courses that it did not meet the standard of excellence for promotion but that it was not  
negative enough to preclude tenure.  
226  
[468] Professor Toope acknowledged that with respect to service Ms. McCue had performed  
to the level required easily. He said that Ms. McCue had made the argument that he should  
consider what might sometimes be described as service of scholarly activity and that he did try  
to do that but that he was also clear that he counted the scholarly activity as service. He said  
that Ms. McCue wanted to ensure that in relation to her community‐based research that that  
not be treated only as service and he agreed with that but he also wanted Ms. McCue to know  
that it is also service and he recognized it under that classification as well. He said it was given  
weight in both classifications. He said, however, that he did not believe that there was  
sufficient evidence in relation to the community‐based research to give Ms. McCue full credit in  
research and scholarship.  
[469] Ms. McCue put it to Professor Toope that Kapp’s distinctions was peer reviewed. He  
disagreed, saying that the editor of Canadian Race Relations Foundation Directions utilizes a  
committee of five people to review the article, but the article is not going outside the  
framework of the people who are actually creating the volume itself. It is not considered peer‐  
reviewed because:  
you’re operating within a group, all of whom are trying to produce a  
result together that’s not being assessed outside of the frame of the  
actual edited volume or edited journal in this case. ... just because  
someone comments on the paper doesn’t turn it into peer review  
because it’s an internal operation rather than being an objective  
external operation. If it were peer‐reviewed, they would send it to  
people who are not participating in the project and ask for their  
assessments of the impact or likely impact and quality. That is the  
distinction.  
[470] He further suggested with respect to Kapp’s distinctions that peer review goes to  
whether the case is being made or the argument is being made forcefully enough, whether it is  
considering alternative views and whether it is engaging deeply. He said, “That’s the kind of  
question you’d want peer review to be answering.”  
[471] Ms. McCue suggested that the article had been disseminated online widely and asked  
Professor Toope if that goes to significance and impact and he acknowledged that it could. He  
227  
said, however, with respect to the article in question that he has no idea how many people  
have read it, how many people have downloaded it, how many people have actually used it in  
any way. He contrasted that with a Harvard Law Review article, especially for online materials,  
he would often know how many times something had been cited. He said there are things  
called impact measures such as Google Scholar which tracks implications. He would have a lot  
more information about whether people had actually viewed the piece, whether they had  
downloaded the piece, whether they had cited the piece, all of that information is now  
available.  
[472] He stated that in some faculties such as economics or political science the candidate  
would provide information with respect to the extent of distribution, how it has been published  
and so forth. He said that in a publication such as the Harvard Law Review there is knowledge  
that is widely distributed. He acknowledges that Canadian Race Relations Foundation is a  
credible foundation but that he was not provided with the information with respect to impact  
that he might have in other contexts.  
[473] Ms. McCue then put two articles written by Siegfried Wiessner and Jamie Battiste in  
which Ms. McCue’s Article entitled New Modalities of Sovereignty: An Indigenous Perspective  
are cited and asked if that was not evidence of impact. Professor Toope’s response was that it is  
good that it was cited but it is a limited sample that he would be able to see in the case of many  
applying for tenure that their articles had been cited extensively.  
[474] Ms. McCue put to Professor Toope a memorandum of understanding developed to  
regulate a particular community‐based research project. Professor Toope acknowledged again  
that community‐based research takes longer than traditional research because it is necessary  
to negotiate the protocols reflected in such a memorandum of understanding. He  
acknowledged that, in Indigenous communities in particular, that often requires the leadership  
of the community to negotiate with the community itself and he stated that agreements of that  
sort usually require reporting back to the community at various stages of the research before  
anything is disseminated or published. He was asked by the Tribunal whether there was any  
restriction in such agreements respecting dissemination. He responded:  
228  
We wouldn’t allow that from an ethical standpoint in the university in  
the same way that we wouldn’t allow it for a corporation or for working  
with government because that would be an intrusion on academic  
freedom. So, no, there’s nothing that prevents dissemination. It  
wouldn’t be approved by the university if there were.  
[475] It was put to Professor Toope by the Tribunal that it is possible, therefore, for an  
Indigenous scholar to prepare a written report and present it orally to the community. He  
responded in the affirmative. He also said that the Indigenous scholar could ultimately publish  
materials from the research.  
[476] It was then put to him by Ms. McCue that there are occasions where there is some  
knowledge within an Indigenous community that is held to be sacred and not shareable. He  
acknowledged that that is the case but stated:  
And that is recognized in these protocols if we’re doing research, but  
that can’t apply to the sum total of all of the work that’s done in the  
research. If it did, then the research would not be seen as academic  
research and would not be held to be ethically appropriate from the  
university’s perspective because it would completely constrain the  
ability of the scholar to produce any scholarly product, if I may put it  
that way ... because it would constrain the scholar from producing  
anything that could be disseminated. So just to be clear, there is a  
recognition that some things may not be sharable, but there has to be  
something that comes out the research that is sharable.  
[477] Ms. McCue then put comments from page 11 and 12 of the Shepherds’ Report to  
Professor Toope. The paragraphs related to the difficulties of university‐community research  
initiatives, particular in respect of Aboriginal communities. They point out the challenges and  
the measurement of scholarly activity: because they tend not to lead to the same amount or  
kind of research product; because Aboriginal communities tend not to see the objective of  
publication and peer‐reviewed, referee journals as pressing; and because of the time  
constraints in achieving cooperation from Indigenous communities for community‐based  
research. All of that was acknowledged by Professor Toope.  
[478] Out of that line of questioning, the Tribunal enquired of Professor Toope, by way of a  
hypothetical, whether the University might have found it sufficient to have received, say, three  
229  
peer‐reviewed articles rather than five to seven peer‐reviewed articles given the issues with  
respect to community‐based research in Indigenous communities. Professor Toope responded:  
...Let me preface my remarks by saying that of course we’re always  
trying to measure not just quantity but quality. So, there has always got  
to be that peer‐reviewed assessment. And I always resist in tenure files  
just doing numerical counts. I always think that’s a mistake. But having  
said that, just by way of preface, I would say, yes, exactly, this – the  
point is if one can show that this is a particular type of research that  
required much greater time commitment than regular research, much  
more complicated patterns of interaction, protocols that have to be  
negotiated, ethical agreements that have to be reached with the  
community, then absolutely one would be open to having a reduced  
number in relation to the standard expectation. And, frankly, there have  
been many files that I have reviewed over the course of eight years as  
president where that was the case, where there were fewer articles,  
fewer ‐‐ you know, there was no book or whatever, but the case had  
really been made about the type of research, the impact of the research,  
and I certainly didn’t hold to a fixed number as a test for whether one  
got tenure or not.  
[479] Ms. McCue asked Professor Toope whether he would agree with her that the  
approaches taken by UBC led to a narrow interpretation of how the CA applied to her.  
Professor Toope disagreed stating:  
No, I wouldn’t, I’m afraid. If I may just add one point, which is I think it’s  
important to understand, that this is not a unique case. I have seen  
many cases involving community‐based research and many cases  
involving research with Indigenous communities. So when I looked at  
this case, it did not present shockingly new approaches or things that  
had not been actively considered in other such cases.  
[480] Ms. McCue put to Professor Toope that there was no search for any alternative that  
might have called for a broader interpretation of the CA. He responded:  
Quite the opposite, I think I have suggested that your call for a broader  
interpretation was in fact the standard that was applied. Perhaps not as  
– not exactly as you would phrase it, but within the frame of the  
collective agreement in allowing for flexibility, as I tried to suggest in my  
decision letter, we – I did everything possible to try to take an expansive  
and flexible view. ... I didn’t think there was anything in the collective  
230  
agreement that precluded  
a
broad‐based perspective that  
acknowledged, as I’ve said in the letter, the kind of work that was being  
undertaken with Indigenous communities and your own status as an  
Indigenous woman legal scholar.  
VI EVIDENCE OF PROFESSOR MARY ANNE BOBINSKI  
[481] Professor Bobinski testified that she is a professor with the Allard School of Law at UBC.  
She served as the dean of that Faculty from July 1, 2003 through June 30, 2015.  
[482] Since June 30, 2015, Professor Bobinski has been on administrative leave serving as a  
visiting scholar at the Petrie‐Flom Health Law Program at Harvard Law School, at the University  
of Sydney, University of Melbourne, and at the University of Oxford’s Faculty of Law where she  
also held a Plumer visiting fellowship at St. Anne’s College.  
[483] Professor Bobinski is currently back in residence at UBC.  
[484] When Professor Bobinski joined UBC, she joined as dean and professor. Before  
becoming dean and professor at UBC her appointments were at the University of Houston Law  
Centre in Houston, Texas from 1989 to 2003. Prior to that, she was a Masters student at  
Harvard Law School where she obtained a Masters of Law. The Dean of Law at UBC carries out  
administrative and managerial tasks similar to what other deans and heads of department do at  
UBC. UBC Law does not have department heads so various functions carried out by other  
department heads at the University are carried out by the Dean. Examples of the  
responsibilities of the deans include Faculty recruitment, promotion, tenure, assessment for  
salary, various types of salary increases, particularly Merit and PSA as well as academic  
functions such as curriculum reform, student services such as admissions and career services,  
external engagements including fundraising and strategic planning, and budget management.  
[485] Having come from academia before arriving at UBC, Professor Bobinski testified that the  
UBC system was not radically different than what she had known in other institutions.  
231  
[486] Professor Bobinski was asked to comment on tenure and its importance to the law  
school and to the University at large. She responded:  
...Tenure is a unique and important feature of a Faculty member’s  
relationship with his or her employer at the University. That is quite  
important. It has a long history ... within universities and the purpose is  
generally understood to be to promote exploration and creation of new  
knowledge and dissemination of that knowledge into academic debate  
and into an environment where, through debate, criticism and further  
research, the overall level of knowledge and understanding in society  
can improve. So ... tenure shelters the creation of, you know,  
exploration and creation of new knowledge, which is valuable for  
society. ... It creates an environment where faculty members will feel  
able to pursue areas of research that may contravene accepted wisdom  
or beliefs or prior scientific knowledge and discoveries and to constantly  
be questioning and challenging those in order to create an environment  
where knowledge can evolve. And the scientist or researcher can do  
that without fearing that he or she will not have security of employment  
if they are challenging accepted wisdom.  
[487] Professor Bobinski testified that the system is set up in a way that makes it very difficult  
to discipline or dismiss tenured faculty members. She testified it is important for the University  
to tenure professors because:  
It’s designed to ensure the creation and dissemination of new  
knowledge. And so the standards put in place for the tenure process are  
designed to collect evidence to ensure that the person who is being  
considered for tenure is in fact producing and disseminating knowledge  
at the level necessary to provide the expected benefits to the society  
and University and to make a prediction about whether or not that  
current level of high performance will be sustained throughout that  
person’s career. ...there’s a very strong connection between the quality  
of faculty and the reputation of the university and its ability to attract  
students, research funding, other faculty members. And beyond that of  
course there’s the responsibility that universities have for being  
stewards of provincial investments of funding and the investments of  
student tuition dollars.  
[488] Professor Bobinski testified that UBC Law is one of three Canadian law schools ranked in  
the top 50 law schools in the world and it is part of a major research university, also recognized  
internationally and nationally for the quality of its research. She says as the dean, therefore, she  
232  
has a strong interest in recruiting and retaining faculty members who have the potential to, and  
then grow to become leaders in their academic disciplines, measured on a national and  
international scale depending upon the nature the discipline. She testified that she is looking  
for qualities in a candidate that would support and continue to support that result.  
[489] Dean Bobinski testified that UBC Law has a limited number of faculty positions with  
which to carry out research and teaching. She testified that the financial investment in those  
positions from public and tuition support is very significant. She further testified that an  
individual faculty member’s salary over the course of their career can easily total millions of  
dollars not including the research support and other types of support provided to the faculty  
member but just looking at salary alone.  
[490] Dean Bobinski testified respecting documents that speak to the process by which a  
candidate becomes or applies to become tenured. She spoke of the different versions of the CA  
negotiated between UBC and the Faculty Association, the Guidelines that have been created  
and made available to faculty via the website, and workshops and activities that are carried out  
to ensure that faculty members are aware of the process. She spoke of the individual mentoring  
of faculty members, either through formal or informal mentors or through regular meetings  
with the Dean or Heads of Department. She testified the UBC website has a detailed section on  
promotion and tenure, collecting different types of information that would be relevant to  
Candidates and that the Guidelines are made available on that website. She described it as an  
“annotated Guidelines”. She said it either restates the provisions of the CA or adds more  
background and depth to provide a clearer understanding.  
[491] Professor Bobinski was taken to page seven of the Guidelines dealing with tenure clocks.  
She testified that a Faculty member who is recruited into a tenure‐track position has a certain  
number of years within which they move through the process.  
[492] Professor Bobinski commented on Article 3.1.3 of the CA related to scholarly activity.  
She pointed out that this provides that scholarly activity can take three different forms under  
the CA being traditional scholarship, Scholarship of Teaching and Professional Contributions.  
233  
She pointed out that it is important for a candidate to be clear about which category the  
candidate wishes to pursue and for the candidate to think carefully about what category of  
scholarly activity are they engaged in under the CA and that are they communicating with their  
head or dean and other relevant individuals about the types of scholarship they are pursuing.  
She pointed out, because different forms of scholarship required different types of activity and  
measurement, it is important for the candidate to communicate clearly about his or her  
scholarly activities and work to ensure that the evidence is available and that it is made  
available to external referees who will be evaluating the candidate’s performance. She pointed  
out that the candidate has the burden of demonstrating that they have a record of  
accomplishment warranting the granting of tenure and promotion so it is the candidate’s  
responsibility to become familiar with the rules, to consider their scholarship, teaching and  
service activities in light of those rules and to bring any questions or issues or concerns forward  
to mentors or their head or dean.  
[493] Professor Bobinski testified that under the CA published work is the primary evidence  
for traditional scholarship. She testified that traditional scholarship within the Faculty of Law  
has typically meant publication of peer‐reviewed or equivalent articles, book chapters and  
books. She testified that that is made known to candidates in the Faculty of Law.  
[494] Professor Bobinski was asked what is special about published as opposed to non‐  
published work. She responded:  
The idea of scholarly activity fundamentally has within it not just  
exploration and creation of new knowledge but also the dissemination  
of that knowledge, and published work has the capacity to reach the  
broadest audience and to be tested by public criticism and debate and  
improve through a process of peer review and other ways in which that  
research is taken up, criticised, and potentially elaborated on by other  
researchers. So that’s how you get the highest quality knowledge and  
the broadest impact of faculty research.  
[495] Professor Bobinski testifies that in the Faculty of Law peer review is important and plays  
a major purpose in ensuring the quality of publications and ultimately the impact of  
publications. She says, however, that within law there is a recognition that there can be  
234  
alternatives to peer‐reviewed journals that could be appropriate for candidates in some  
circumstances.  
[496] Professor Bobinski testified that there are a number of ways in which faculty members  
gain knowledge about the expectations on them for their scholarship including discussions with  
their mentors, attending workshops on promotion and tenure offered within the Faculty and  
around UBC, and regular meetings with the Dean where the Dean has an opportunity to talk  
with pre‐tenured Faculty members about their scholarly activity, the candidate’s plans around  
their scholarship and where there can be discussion of how those plans and activities relate to  
the expectations for scholarship within the Faculty.  
[497] She testified that she would typically provide Faculty with the information that five to  
six peer‐reviewed or equivalent significant publications are expected as a minimum in the  
tenure candidacy process. She expressed that a typical Faculty member’s appointment is  
considered in terms of an allocation of workload: 40 percent teaching, 40 percent scholarship  
and 20 percent service. The 40/40/20 ratio is understood to be an allocation over the course of  
a calendar year. Teaching normally takes place between September through December and  
January through April. She testified that typically the period May through the end of August is a  
very important time for carrying out research activities.  
[498] Professor Bobinski testified that the fact that a publication has been through a peer‐  
reviewed process means that an expert in the field has read the work and believes it to be a  
sufficiently important contribution to new knowledge to have it be published. Secondly, she  
testified that the peer‐reviewed process often improves the final quality of the published work  
because the peer review may result in suggestions with a request to revise and resubmit.  
Further, she testified that peer‐reviewed journals can end up having a broader impact and  
readership because those journals are viewed as strong journals.  
[499] Professor Bobinski testified that impact is important to UBC because it attracts  
researchers who have the ability to have this national and international impact. She said, “It’s  
235  
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.”  
[500] On the subject of equivalent publications to peer‐reviewed publications, Professor  
Bobinski testified that in the United States the major law reviews are student edited and there  
is not the same formal process of identifying anonymous peer referees to provide  
commentaries on work that there is in Canada. She said that, within the United States, law  
schools have worked with their universities to have the universities recognize this different  
process as being the equivalent of peer‐reviewed, however, for a Canadian faculty member  
seeking promotion and tenure, there is a necessity to explain that U.S. journals work in a  
different way with substitute indicators of quality and impact. It is important that the arbiters  
of promotion and tenure understand why a U.S. journal may not be a peer‐reviewed journal but  
nonetheless was an appropriate place for a person to publish their work and to have the  
appropriate impact. She gave an example of the Harvard Law Review which will not be  
considered to be peer‐reviewed but nonetheless is a publication that would have high quality  
and impact. She testified that there are different ranking schemes for law journals which give  
an opportunity for Faculty members to think about how a particular journal is viewed, think  
about impact of the likely publication of their work in that journal and know that when their  
work is reviewed for tenure and promotion that the information about the strength of that  
journal can be used to help strengthen their case. She said pre‐tenured faculty do typically talk  
about journal placement with their mentors, with the Chair of the Internal Promotion and  
Tenure Committee (in this case, the Faculty Committee), with the Faculty member of the SAC,  
and with the Dean.  
[501] On the subject of Scholarship of Teaching, Professor Bobinski testified that Scholarship  
of Teaching is not the teaching itself. Rather, it is contributing to new knowledge or the  
development of new knowledge about the topic of teaching. It differs from traditional  
scholarship because it is not growing and developing the field of law but rather it is growing and  
developing teaching about law. The Tribunal put it to Professor Bobinski that Scholarship of  
Teaching is about education in a discipline rather than about the substantive issues that are  
236  
raised by that discipline. She agreed. She testified that Scholarship of Teaching is developing a  
new approach to pedagogy and then actually researching whether that approach works. She  
testified that Item 3.1.8 of the Guidelines 2010/11 gives examples of the kinds of activities  
which would constitute Scholarship of Teaching. That provision reads:  
For Scholarship of Teaching, scholarly activity may be evidenced by  
factors such as originality of innovation, demonstrable impact in a  
particular field or discipline, peer reviews of scholarly contributions to  
teaching, dissemination in the public domain or substantial and  
sustained use by others. 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...  
[502] Professor Bobinski pointed to paragraphs 3.1.10 and 3.1.11 of the Guidelines to show  
that there needs to be evidence of the significance and impact of a candidate’s Scholarship of  
Teaching and that external peer evaluation is particularly important to that. Paragraph 3.1.11  
says that work that is not published in a refereed system that makes a significant contribution  
should be specifically evaluated by the external referees.  
[503] Professor Bobinski testified that external referees play a very significant role. She says  
that it is the touchstone to measure quality. She stated:  
It’s – so if a person says, “I have transformed the way in which health  
law is taught and I have changed the field through my Scholarship of  
Teaching,” there has to be a way to evaluate that, to have some  
assessment by experts in the field about whether or not – what the  
nature of my contributions were and the originality, innovation,  
demonstrable impact of my work in the field. So that – and you do that  
through the external peer‐review process.  
[504] Professor Bobinski testified that external peer‐review process is a method by which you  
can evaluate whether the candidate’s view of the importance of their work is shared in the  
larger community.  
237  
[505] On the topic of Professional Contribution, Professor Bobinski testified that it is an  
approach often thought of as being most relevant in specific disciplines such as architecture,  
the arts where traditional scholarship may have less importance. She expressed it as an  
alternative to that traditional scholarship approach. She said that Professional Contribution  
allows for a level of distinguished performance to be taken into consideration in the promotion  
and tenure process. She said the CA establishes how you get to the same concept of peer  
review and measures of quality impact innovation and the like, as you have in other scholarship  
tracks but do it within the framework of a Professional Contribution. In law she said:  
It’s a particularly important question because there’s the role of a law  
school faculty member who has this protected tenured position, where  
the idea is research and creation of new knowledge and dissemination,  
but there are also thousands of lawyers carrying out specific types of  
work. And this standard establishes that to be a Professional  
Contribution has to be different from what, say, a lawyer might regularly  
be doing and also has to be distinguished. And so you asked what is an  
example of a Professional Contribution, and the Guidelines itself gives  
some possibilities, like drafting new legislation, as an example. Another  
example that’s often used in law is working on a case in a novel area of  
law, creating new law through doing representation and arguing a case  
in front of the Supreme Court of Canada where there’s a written  
component through the briefs and then also the high level of activity of  
addressing the matter of importance within the law that’s debated  
across the country....I agree with the idea that you’re getting at, which is  
there’s this idea of something new, a novel contribution, innovative,  
distinguished, and distinct from the ordinary activities of people working  
outside the ... university.  
[506] Professor Bobinski pointed out that the Guidelines at paragraph 3.1.20 state that work  
that is not published in a refereed system but that makes a significant contribution to the field  
should be referred to in letters that go out to the external referees. The external referees then  
have the opportunity to refer to the quality of that material in their letters summarizing the  
candidate’s scholarship so that there is some kind of external review and assessment to that  
work.  
[507] In addition, Professor Bobinski testified that where there is written work that is not  
published in a peer‐reviewed journal some written product must be available for peer  
238  
assessment if it is to form the case. The product must be available for peer assessment. She  
made the point that if a candidate is relying upon work it must be assessable. Reports that are  
strictly confidential, for instance, should not be listed as publications in a candidate’s CV.  
[508] With respect to Ms. McCue, Professor Bobinski testified she had regular meetings with  
Ms. McCue to discuss her scholarship and in which Ms. McCue reported on her progress in  
research, writing and Professor Bobinki’s expectation that Ms. McCue publish her scholarly  
work in the near future. She testified that the type of research and publication that Ms. McCue  
consistently described were those that would fit within the traditional scholarship track. She  
said that she and Ms. McCue had discussion time in which Ms. McCue would discuss work she  
had under way and indicate what her expectation was in terms of when she would be  
submitting that work for possible publication and scholarly journals. She said the discussions all  
fit within the framework of a traditional scholarship track.  
[509] Professor Bobinski testified that, at paragraph 2.3.1 of the Guidelines, the tenure clock is  
established as seven years for an Assistant Professor. The provision reads:  
The tenure clock for instructors and professors always begins on July 1  
of the calendar year in which s/he was hired, regardless of when s/he  
actually starts. Under the Leave of Absence section of the CA, extensions  
to the tenure clock are automatically granted for maternity and parental  
leaves (unless the extension is declined by the candidate as per “Leave  
of Absence”, Article 1) and medical leaves (on a case‐by‐case basis).  
Extensions must be confirmed in writing. An individual may only be  
reviewed one time for tenure in the instructor or professor stream.  
Please note that a tenure track Assistant Professor cannot be reviewed  
early for tenure; however, if s/he is promoted to Associate Professor  
prior to year seven, tenure will be granted.  
Professor Bobinski confirmed that Ms. McCue received three extensions over and above her  
seven‐year tenure clock. The first was a parental leave extension and the next two were given  
for medical/exceptional circumstances. Each of the extensions was for a year. Each was an  
approved extension.  
[510] On the third extension, in addition to supporting the extension, Professor Bobinski  
offered Ms. McCue a reduced teaching load. She was required to teach only one course in  
239  
2008/2009 to be scheduled during the spring term. The purpose of the extension was to permit  
her to focus on her scholarship. The effect of the extension is that she would be considered for  
tenure no later than 2009/10.  
[511] Professor Bobinski testified that no more extensions were available to Ms. McCue after  
that provided April 18, 2008 and that there were no provisions in the CA allowing for a restart  
of the tenure clock.  
[512] Professor Bobinski testified that Ms. McCue had been given an unusual level of support  
by receiving a course release recognizing her extra administrative load as Director FLNS  
Program. She testified that a staff position was created to support Ms. McCue in that role and  
another staff person was available to deal with the day‐to‐day matters involving working with  
students in that program.  
[513] Professor Bobinski testified that she connected with Professor Wes Pue and Professor  
Claire Young and asked them to take up a formal mentoring relationship with Ms. McCue.  
Professor Pue was an Associate Dean who held a Chair in Legal History at UBC Law. Professor  
Young was also an Associate Dean experienced with promotion and tenure matters. That  
relationship was established in September of 2003 shortly after Professor Bobinski became  
Dean of the Faculty of Law. Professor Bobinski considered it important that Ms. McCue have a  
formal mentorship in light of where she was in her scholarly activities. Ms. McCue had not at  
that point discussed any forthcoming publications with Dean Bobinski and she wanted  
Professors Pue and Young to be aware of the situation and discuss moving forward with Ms.  
McCue. The publication record was a matter of concern because she was moving into her third  
year on the promotion and tenure track and the expectation was that she would have  
published at least two articles that were peer‐reviewed or equivalent by that point. In the  
discussions that she had with Ms. McCue at that time, there was no expression that she had no  
intention of publishing nor did Ms. McCue advise Professor Bobinski that it was inappropriate  
for her to expect peer‐reviewed publication from her. Professor Bobinski understood that Ms.  
McCue’s intention was to produce peer‐reviewed or equivalent articles.  
240  
[514] The year that Professor Bobinski arrived was the year of Ms. McCue’s scheduled  
reappointment review period. On April 26, 2004, Professor Bobinski provided Ms. McCue with a  
letter summarizing their discussion of April 8, 2004. In the letter, Professor Bobinski identified  
scholarly activity as a major area of concern. She indicated that Ms. McCue’s Masters thesis and  
her “Afterward” book chapter show the potential for scholarly contributions but that she had  
not yet begun to publish original, peer‐reviewed contributions to the legal scholarship at the  
expected rate. She indicated that the University would expect to see five to six peer‐reviewed,  
significant publications by the time she has sought tenure. At the time, Professor Bobinski  
relieved Ms. McCue from all remaining administrative responsibilities for the FLNS Program  
effective immediately and offered a significantly reduced teaching load for 2004/05 involving  
teaching only one course in the spring of 2005 and none in the fall semester. These initiatives  
were specifically to assist Ms. McCue’s efforts to address her scholarship issues.  
[515] Professor Bobinski testified that there was no response from Ms. McCue suggesting that  
it was inappropriate to require her to publish in a peer‐review publication, no suggestion that  
she was incapable of producing published work. She testified that Ms. McCue now had 70‐  
percent availability to carry out research. She testified that the amount of course relief  
provided was not typical and that she could not think of an occasion where anybody had  
received more than a single course relief.  
[516] In summary, Professor Bobinski testified that there was no suggestion from Ms. McCue  
that she was either unwilling or unable to do what was required to obtain promotion and  
tenure. In Professor Bobinski’s mind, Ms. McCue understood why she was removed from the  
directorship, and although she was not happy with that decision, she filed no grievance and  
accepted it.  
[517] On January 31, 2006, Professor Bobinski sent a letter to Ms. McCue following up on her  
meeting with Ms. McCue and Associate Dean Young on April 26, 2005 and with Ms. McCue and  
Associate Dean Pue on December 13, 2005. In that letter, she first addressed the meeting with  
Professor Young:  
241  
I re‐emphasized the need to focus your efforts on publishing the  
scholarly work necessary for continued reappointment and  
consideration for tenure and promotion. According to the timeline we  
discussed, you 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 reappointments review process in 2006‐  
07 and to ensure that the pieces were published well in advance of the  
tenure review process. You would be expected to research, write and  
submit an additional two to three pieces for publication early enough in  
the 2006‐07 academic year so that the work could be published (or at  
least in press or accepted for publication) by the date of the tenure and  
promotion review process, which can be scheduled no later than 2007‐  
08. We discussed the need for you 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 intermediate peer‐reviewed or equivalent  
publication;  
(3) Continue to work closely with your colleagues and mentors on  
drafts for publication; and  
(4) Start to identify and to work with specific potential publishers due  
to the long timelines associated with the peer‐reviewed process.  
I met with you and Associate Dean Wes Pue on December 13, 2005 to  
discuss your progress in these matters. We discussed the fact that you  
had not completed your scholarly projects on the timeline we had  
discussed at our April meeting. You indicated that you might be in a  
position to submit an article for possible publication December of 2005  
or January of 2006. I appreciated our candid discussion of some of the  
other issues you felt had impeded your productivity, including the family  
tragedy which occurred early in the fall of 2005 and your ongoing sense  
of loss and anger because of the reduction in your administrative duties.  
You indicated that you did not feel as comfortable with formal  
mentoring by Wes Pue and Claire Young as you felt with more informal  
arrangements. You concluded by noting you felt able to move forward  
with your work because of the recognition that your engagement in  
scholarship would be personally fulfilling and that it would provide the  
foundation for you to remain in academia.  
242  
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 precondition  
to any possible consideration for tenure in 2007‐08.  
My colleagues and I remain ready to work with you to help you to  
achieve your scholarship 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.  
[518] Professor Bobinski testified that she understood at the time that Ms. McCue’s major  
scholarly project would be publishable. She understood that Ms. McCue was pursuing her  
promotion and tenure under the category of traditional scholarship. She believed Ms. McCue  
understood what was required of her. She expressed that there was no indication from Ms.  
McCue that she saw herself as being on a different track.  
[519] In July of 2006, Ms. McCue requested a second extension of her reappointment review  
on the basis of a number of personal injuries encountered in the period 2005/2006. That was  
supported by Professor Bobinski and resulted in a one‐year extension for both her  
reappointment review and her mandatory tenure review which would now take place during  
2008/2009.  
[520] In early 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.  
[521] In the summer/fall of 2007, Professor Bobinski had discussions with Ms. McCue  
regarding her review for reappointment which was summarized in a letter dated January 14,  
2008. That letter contains the same concerns that Ms. McCue had not yet begun to publish  
original peer‐reviewed contributions to legal scholarship at the expected rate which was five to  
243  
six peer‐reviewed, significant publications by the time she seeks tenure review in 2008/09. It  
also states that Ms. McCue had expressed the view in their discussions that she would be able  
to publish a number of pieces in the near future.  
[522] Professor Bobinski testified that Ms. McCue expressed no resistance to the points made.  
Nothing in Ms. McCue’s response of January 29, 2008 suggested that she required  
accommodation or that she was seeking to be measured by other than traditional scholarship.  
[523] In March of 2008, Ms. McCue requested yet another extension of her tenure clock.  
Professor Bobinski advised Ms. McCue by email dated March 1, 2008 that she was prepared to  
recommend that Ms. McCue’s tenure clock be extended one more year with the result that she  
would be considered for tenure “no later than 2009/10”. In addition she offered significant  
course relief to permit Ms. McCue to focus on her scholarship. That course relief is as set out  
earlier.  
[524] The further extension was granted on April 18, 2008.  
[525] The CA provides that no later than June 30 of the academic year preceding the year in  
which a Faculty member may be considered for promotion, reappointment or tenure, the head  
of the department shall meet with the faculty member to identify potential difficulties with the  
candidature, to assist the candidate with any concerns, to discuss the timing and the criteria  
and expectations of the next review including how teaching, scholarly activity and service  
would be assessed, to discuss the faculty member’s record and any potential difficulties with  
that record including how concerns may be addressed and the information and documents  
required for the review to proceed. Professor Bobinski testified that such meetings took place  
during the summer/fall of 2008 and are summarized in a letter dated December 15, 2008 from  
her to Ms. McCue. The letter was intended to serve as the memorandum recording their  
agreement as to the subjects discussed. The letter repeats Professor Bobinski’s concerns that  
Ms. McCue has not yet begun to publish original peer‐reviewed contributions to legal  
scholarship at the expected rate and reiterates the expectation. Ms. McCue was considering  
publishing her Masters thesis and was advised in the letter that the publication of a peer‐  
244  
reviewed book would be relevant to tenure review, but such a published work must represent  
significant changes or advances from the work that formed the basis of her initial appointment.  
Her initial appointment was based on the Masters thesis. The letter said to:  
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.  
[526] Ms. McCue signed the letter but provided an accompanying response. There is no  
indication in that response that Ms. McCue considers it inappropriate to expect her to meet the  
scholarship standards set out in Professor Bobinski’s letter or that Ms. McCue is incapable or  
unwilling to meet those standards.  
[527] Ms. McCue’s January 22, 2009 letter thanks Professor Bobinski for outlining her opinion  
regarding the number and type of publications typically expected for promotion and tenure.  
Professor Bobinski testified that she did not perceive that comment as a challenge to the  
standard by which Ms. McCue would be assessed.  
[528] Professor Bobinski on April 22, 2009 advised Ms. McCue that she had decided to  
recommend her reappointment for the 2009/10 academic year. She is advised that she must be  
considered for tenure during that academic year and had the option of being considered for  
promotion to Associate Professor as well.  
[529] Once again, attention is called to Ms. McCue’s failure to begin to publish original peer‐  
reviewed contributions to legal scholarship at the expected rate. The letter also states:  
Although you previously have expressed confidence to me regarding  
your expectations regarding publication, I must note that you have not  
been successful in meeting your previous goals with respect to the  
publication of original, peer‐reviewed contributions to legal scholarship.  
You have consistently expressed the view that you would be able to  
publish a number of pieces in the near future. This has not occurred.  
Moreover, as we have discussed, scholarly productivity is established in  
245  
part by sustained scholarly work rather than solely by the number of  
publications in process at the time of the tenure review.  
[530] On July 30, 2009, another Article 5.02 letter was sent by Professor Bobinski 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. At this point, Professor Bobinski  
testified that Ms. McCue worked with the chair of the Promotion and Tenure Committee to  
prepare her materials to be sent out to external referees. Those materials were to be ready in  
September of 2009. The materials would include her CV and the materials set out therein for  
the external referees to consider. The materials were not ready as they were not provided to  
Professor Young who was at that point the Chair of the Faculty Committee. In approximately  
September 2009, Professor Robin Elliot succeeded Professor Young as Chair of the Faculty  
Committee.  
[531] The process is that the candidate sends her CV to the Chair and the Chair reviews it,  
they discuss it and finalize it. The final CV is provided to the Chair for use in the dossier along  
with all materials that the candidate intends to be reviewed by the external referees. Professor  
Elliot was concerned that none of these materials had been received when he took over as  
chair. When he did receive the materials from Ms. McCue, other concerns arose. He expressed  
concern to Professor Bobinski that the materials were not at the level expected for a candidate  
seeking promotion and tenure. Professor Bobinski said she 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. For the Professional Contribution track they were looking at a co‐authored report  
which was unpublished but involved a consultation process and contributions to that report.  
Professor Elliot was to explore that with Ms. McCue. After discussions with Ms. McCue, they  
were looking at a combination of traditional track, and the co‐authored report under a  
Professional Contributions track when dossiers for the external reviewers were assembled.  
[532] Professor Bobinski testified that it is important for the candidate to identify for the  
benefit of the external referees her contribution to these works. The material is sent out to the  
246  
external referees along with a cover letter providing information respecting UBC’s process and  
information about material that they should be considering, specifically requirements of the CA,  
and explicitly stating that promotion and tenure recommendations are to be separated. That  
letter is authored by the Dean. The process is not unique to UBC.  
[533] Professor Bobinski testified that Ms. McCue’s shepherds at the promotion and tenure  
review were Professor Gordon Christie and Professor Karin Mickelson. They were chosen by  
Ms. McCue. Professor Christie is a legal scholar serving as the Director of the FNLS Program. He  
is a scholar of Indigenous jurisprudence and Indigenous law with a successful publication  
record.  
[534] Professor Mickelson is an Associate Professor specializing in colonialism, international  
environment law and third‐world perspectives and development. The shepherds make  
themselves available to work on preparation of the candidate’s file. They are in charge of  
summarizing a candidate’s scholarship, reviewing their materials and writing a report  
respecting their candidacy. They can assist the candidate in finding suitable material for  
external review and assist in finalizing the file for the Faculty Committee. The shepherds’ report  
goes to the Faculty Committee outlining the candidate’s record.  
[535] The CV of Ms. McCue dated January 15, 2010 is the CV originally provided to the Faculty  
Committee along with the shepherds’ report. The Faculty Committee had the external referees’  
letters and a package of material. Ms. McCue’s Shepherds’ Report seemed to be taking more of  
a positive advocacy approach than usual. It called for changes to how the Faculty conducts its  
processes including a suggestion that Ms. McCue’s record be reviewed in a way different than  
other files have been reviewed and different than set out in the CA. The Report acknowledged  
that Ms. McCue’s publication record did not meet the normal expectations for a Faculty  
member at this stage of her career. The extent of her publication was an article, two book  
chapters and a report of which she was the principal investigator and author. None of them  
were refereed publications.  
247  
[536] Professor Bobinski testified that, presented with this information, the Faculty  
Committee did not see sufficient evidence of scholarship within the terms required by the CA to  
support Ms. McCue’s application. They had concerns that she had not produced sufficient  
evidence to support her application. They determined to halt the meeting, identify the  
concerns and communicate those concerns to Ms. McCue and seek her input. The result was a  
letter of concern dated April 19, 2010 signed by Professor Bobinski as Dean on behalf of the  
Faculty Committee. Such a letter was required to meet the expectations of Section 5.06 of the  
CA which provides that when serious concerns about the candidacy are raised in the  
Departmental Standing Committee, the candidate shall be informed of that fact and the  
reasons for the concerns with sufficient particularity to give the candidate an opportunity to  
meaningfully respond. Concerns were expressed with respect to teaching and scholarly activity.  
Because ultimately teaching did not impact the tenure decision and was not the main impactor  
on the promotions decision, I set out only the concerns expressed with respect to scholarly  
activity. The Faculty Committee expressed concerns about the lack of refereed or equivalent  
publications as well as about the overall quality and quantity of Ms. McCue’s scholarly  
activities, Ms. McCue’s apparent lack of progress in completing and publishing projects listed in  
her previous reappointment reviews, and about the possible gap between the  
recommendations in the external review letters, the underlying analysis of her scholarly work  
revealed by those letters, and the normal and expected levels of scholarly productivity within  
the law faculty.  
[537] Ms. McCue was given the choice of whether to respond orally, in writing or both by oral  
and written submissions to these concerns.  
[538] Ms. McCue elected to respond both in writing and orally.  
[539] Professor Bobinski stated that the material provided to the Faculty Committee is the  
responsibility of the candidate.  
[540] On May 4, 2010, Ms. McCue sent a letter to then Dean Bobinski responding to the letter  
of concern. In it, she requested that the Faculty Committee meeting scheduled for May 5, 2010  
248  
be postponed on the basis that she wanted to ensure she had presented to the Faculty  
Committee all of the evidence and relevant information required to address their concerns. She  
expresses her view that there are “serious procedural fairness and substantive issues”  
regarding her file to date. She requested that her tenure and promotion process be reviewed  
independently to ensure that the CA was being complied with by the Faculty of Law. She  
challenged the compliance of the process with the CA as follows:  
a. she had not agreed to or signed an agreed memorandum in accordance with Article  
5.02 of the CA;  
b. from the summer of 2009, first Associate Dean Young and then Professor Elliot  
served as chair of the internal Tenure and Promotion Faculty Committee, and at no  
point during the assembling of her material to be sent out to external referees did  
the administration identify any potential difficulties with her candidacy or offer to  
assist with any concerns that she had. She considered that non‐compliance with  
Article 5.02 of the CA;  
c. the Faculty Committee did not place any weight on the letters of appraisal from  
external referees as described in Article 5.05 of the CA;  
d. she had not been provided sufficient particular information for her to meaningfully  
respond to the letter of concern from the Faculty Committee;  
e. she had not received disclosure of agreed upon procedures and the eligibility of  
members of the Faculty Committee as provided by Article 5.06;  
f. she did not know the position of Faculty members who were unable to participate in  
the Faculty Committee meeting on April 6, 2010 and thus could not differentiate  
between any concerns they had and the concerns raised with the letter of concern;  
g. it was not clear that an independent eligible member of the Faculty Committee  
chaired the meeting; and  
249  
h. the time set for response to the letter of concern was too arbitrary, unreasonable  
and short.  
[541] Ms. McCue ended the letter by asking the Dean to remove herself from the promotion  
and tenure process as it applied to Ms. McCue based on bias created by her roles as the Dean  
and committee referee. She raised issues regarding systemic racism in the Faculty of Law but  
did not articulate what those were.  
[542] Professor Bobinski responded that she disagreed that there had been any procedural  
irregularity. She expressed surprise at that issue being raised and said that she felt that she had  
discussions and agreement on the traditional scholarship track approach over the previous  
seven years.  
[543] With respect to the second item, Professor Bobinski testified that she felt she had  
identified potential difficulties with Ms. McCue’s candidacy and assisted her with the concerns  
she had.  
[544] With respect to the timelines for a response, which gave Ms. McCue until May 17, 2010,  
she pointed out that there was no issue taken with the manner in which Ms. McCue’s scholastic  
work was assessed in the May 4, 2010 letter.  
[545] Professor Bobinski did not accede to Ms. McCue’s request that she stand down from her  
role as Dean with respect to her candidacy. She denied any basis for accusations of bias. She  
pointed out the original timeline set in her May 10, 2010 letter was consistent with regular  
practice, that the Faculty Committee does not provide individual Committee member’s  
opinions because the rules governing promotion and tenure specify that it is a confidential  
process. The Dean does not vote on the candidacy.  
[546] On May 20, 2010, Professor Bobinski wrote to Ms. McCue agreeing to an additional  
extension for her to respond to the letter of concern by May 28, 2010, confirming her  
understanding that Ms. McCue had agreed that her promotion and tenure file would be  
250  
considered both in terms of traditional scholarship activity and professional scholarly activity.  
She said with respect to that:  
In particular, I understand in your meeting with Professor Robin Elliot on  
January 6, 2010, this option was discussed and agreed upon. Based on  
that understanding, my letters to the referees ... asked them to review  
your scholarship activity from both a traditional and a professional  
perspective.  
[547] On May 31, 2010, Ms. McCue was invited to bring a tenured Faculty member from UBC  
to support her in her oral submission to the Faculty Committee. She was informed that her oral  
presentation including question and answer period should not exceed 30 minutes along with up  
to 15 additional minutes for questions from the Committee and her responses to those  
questions. She was advised that the oral submission should take place on June 9 or June 10.  
[548] Ms. McCue submitted additional material to the Faculty Committee by June 3, 2010 and  
committed to make them available to the Faculty Committee.  
[549] Amongst those materials was a revised CV dated May 28, 2010. It contained a revised  
introduction which read:  
The following curriculum vitae (CV) has been structured to include most  
of the teaching, scholarly and professional activities and service  
conducted by Assistant Professor June McCue during her work history at  
the University of British Columbia’s Faculty of Law (UBC Law). She has  
elected to have her tenure and promotion file be assessed as non‐  
traditional and along multi‐tracks that are appropriate for an  
“Indigenous” scholar and teacher under UBC’s CA. Based on Professor  
McCue’s social location within the University, she has structured the  
following information in her CV to accord with her wholistic (sic)  
Indigenous interpretation of the criteria for tenure and promotion. This  
interpretation includes assessing her file by placing equal weight on her  
teaching, scholarly and professional activities and service for academic  
purposes under the CA. Professor McCue emphasises your attention to  
the specific Indigenous approaches she takes to formulating significant,  
original and creative engagement at the University with students,  
Faculty, Indigenous Peoples and Canadian and international societies.  
Her work history at the University calls for an appropriate level of  
respect and recognition and assessment for her tenure and promotion.  
251  
Her assessment must include how she builds, cultivates and nurtures  
relations with Indigenous peoples and nations; mentors all students  
through teaching dissemination; and advocates for enhancing the  
presence of Indigenous knowledge and pedagogy at the University and  
abroad as part of her pursuit of academic freedom, justice, the self‐  
determination of all peoples and respect for the biodiversity of this  
planet. This CV has been adapted to provide flexibility so that the  
information set out largely captures Professor McCue’s significant work  
and outstanding contribution to her field. Specific explanations are  
provided for each criteria to show how Professor McCue meets the  
standards for tenure and promotion at the University. It is Professor  
McCue’s position that she satisfies the criteria for tenure and promotion  
under the CA and that consideration of her CV and contributions to the  
University as structured above is her election.  
[550] The revised CV included various streams and the binders that accompanied it provided  
information relevant to those streams.  
[551] Despite the fact that Ms. McCue was to provide her additional materials by May 28,  
2010, she indicated in a June 3 letter that she would be providing further materials on Monday  
June 7, 2010. Professor Bobinski then provided an update to Faculty Committee members  
advising that the May 28 materials could be accessed as an electronic file and letting them  
know that more materials would be provided on June 7. She pointed out that the Faculty  
Committee would need to decide what to do with these additional materials submitted after  
the deadline. Professor Bobinski testified that on June 4, 2010, she responded to a query from  
the Faculty Association, advising that Ms. McCue’s scholarship would be considered both in  
terms of traditional and professional scholarly activity. The response further confirmed that the  
letter to the external referees instructed them to consider her work both from a traditional and  
a professional perspective. The Faculty Association did not pursue the matter further.  
[552] In fact, Ms. McCue did not drop off additional materials on June 7 but rather on June 8,  
2010 in the late afternoon, and members of the Faculty Committee were informed by an email  
at 4:55 pm in respect of a meeting which was to commence at 9:00 am on June 9.  
[553] With respect to the oral presentation of June 9, 2010, Professor Bobinski testified that  
she was concerned about some of the messages in the oral presentation. She said she had the  
252  
sense that Ms. McCue had worked hard to prepare herself for the submission and was facing  
difficulties finding evidence to support the argument she was making. Professor Bobinski  
understood her to be calling for a restart of the promotion and tenure process in 2011 which  
would have the effect of granting yet another extension. She testified that the Faculty  
Committee had the revised CV before it and reviewed it. She testified that UBC has a standard  
form of CV. She testified that generally a CV is reflective of the professionalism and academic  
ability of the candidate so typically there is a great effort made to follow the format and the  
general structure of that format. Ms. McCue’s CV was unusual in format and included  
narratives in places where it did not seem to be called for. It was unusual in containing different  
types of annotations from the usual format. She did understand it, however, to contain all of  
the information that Ms. McCue believed fit within the requirements of the CA she was  
attempting to meet. She said the information within the CV did not necessarily fit within those  
requirements. She testified that despite the unusual format of the CV she and the Faculty  
Committee read it closely and engaged with it.  
[554] Professor Bobinski commented on the CV as it related to teaching, stating that the area  
of focus in the Faculty Committee discussion tended to be around organizational ability to  
convey complex legal knowledge and the effectiveness of her presentation. With respect to  
teaching Professor Bobinski understood Ms. McCue to be referring to CA issues including level  
of preparedness and conveying the topic to the students. She agreed that was an area of  
concern and a very important consideration and believed that Ms. McCue correctly perceived  
her issue in the area of teaching.  
[555] She further testified that the use of oral tradition was a complicated area in respect of  
teaching. She says that Faculty are encouraged to address different student learning styles and  
that it is their role to be attentive to different student learning styles in ways that are true to  
their goals as a professor. She said that Ms. McCue made no statement respecting how oral  
tradition relates to student learning or its impact on student learning styles. She felt that Ms.  
McCue was commenting on the fact that she tried the oral style because it was more effective  
253  
than styles that she had previously used and also brought Indigenous traditions into the  
classroom.  
[556] Professor Bobinski stated further that, even though the 2005/06 evaluations were not  
considered, Ms. McCue’s Property evaluations were lower generally than her upper‐year  
courses but some of her upper‐year courses had lower evaluations as well.  
[557] Professor Bobinski testified that the Faculty Committee and she considered all of the  
information Ms. McCue brought forward under all three scholarship tracks – traditional,  
Professional Contribution and Scholarship of Teaching. She commented, however, 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 equal and all reinforcing. She testified that if the Faculty  
Committee had applied such a standard it would not be consistent with the language of the CA.  
[558] 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 a Law Review which was a massage of an oral presentation she had made. She said  
there was no other evidence provided of the content of the oral presentations made.  
Accordingly, the Faculty Committee was not aware of the precise content of those oral  
presentations set out in the CV.  
[559] 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 for peer review; 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, if  
a 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  
254  
that subsequent scholars or 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 so  
they could not be evaluated. She conceded that there were some materials in the file complied  
by Ms. McCue that showed the impact on others, referring specifically to a reviewer who had  
seen Ms. McCue’s presentation and found it helpful.  
[560] About the invited presentations and conferences listed in Ms. McCue’s CV, she was  
asked about the difference between those contributions and traditional peer‐reviewed  
contributions. She responded that what Ms. McCue was addressing was 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.  
[561] 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 to all elements listed as Professional Contribution  
in Ms. McCue’s oral submission and binder of materials.  
[562] Professor Bobinski took issue with the description of Scholarship of Teaching at page  
seven of the transcript of Ms. McCue’s June 9, 2010 presentation. She testified that merely  
disseminating knowledge beyond the implementation of her courses and what is done in her  
courses is not sufficient for Scholarship of Teaching. Nevertheless, she testified that she and the  
Faculty Committee gave serious regard to all evidence put forward by Ms. McCue as evidence  
of Scholarship of Teaching.  
[563] When asked about her understanding of what Ms. McCue did with the time freed up by  
her teaching releases, Professor Bobinski responded that in meetings with Ms. McCue, Ms.  
McCue continued to report on publication and research for publication to take place in the near  
future. Professor Bobinski regarded the teaching releases as the biggest possible investment  
255  
that she could make in Ms. McCue’s efforts to meet the standards required for promotion and  
tenure. At the time, they had reason to believe that Ms. McCue was pursuing a scholarly track  
so offered the course releases with the goal of enabling her to publish the material she wanted  
to publish and Ms. McCue accepted those releases. Professor Bobinski believed that they were  
all moving toward the same goal, creating a peer‐review publication record sufficient to  
support Ms. McCue’s promotion and tenure application.  
[564] Professor Bobinski testified that Ms. McCue did not avail herself of the formal  
mentoring offered.  
[565] Professor Bobinski was asked about Ms. McCue’s response at page 11 of the transcript  
of her oral presentation to questions about peer review, that she had intervening factors in her  
tenure cycle that have prevented her from submitting scholarly peer work. Professor Bobinski  
said that she was uncertain what factors could be referred to by Ms. McCue given the efforts to  
address her situation through support. She also took issue with Ms. McCue’s assessment that  
because she challenges Canadian sovereignty the writings she produces may be too  
controversial for publication. Professor Bobinski testified that often the fact that a work  
challenges the status quo would have additional value for publication. She said the purpose of  
peer review is to test the underpinnings on which arguments are based.  
[566] With respect to Ms. McCue’s statement that she was waiting for that part of her  
academic career development to get her work out into the peer‐review journals, Professor  
Bobinski said she would agree that it appeared that Ms. McCue saw peer review as something  
in the future and agreed that that part of her work had not yet evolved. She took it to mean  
that Ms. McCue was saying the standards in the CA should be defined in a broader way in her  
case and that UBC should be looking at different forms of publication for her, outside of peer‐  
reviewed journals.  
[567] Professor Bobinski felt that, when Ms. McCue was asked about the status of her works  
in progress, her answer gave the impression that Ms. McCue did not have a strong voice as a  
scholar thinking about publication dissemination strategy that would help her achieve the  
256  
highest dissemination of her work. She testified that it would be usual to ask whether a  
particular opportunity was one that she should accept or should she focus on her strategy. Ms.  
McCue’s answers during her oral presentation did not reflect the advantages she had received  
over other Faculty members in terms of time available for research. The projects that Ms.  
McCue identified as works in progress were projects that were familiar to Dean Bobinski who  
had heard projections for publications of these projects in the past.  
[568] Further, Professor Bobinski testified that Ms. McCue’s response to questions about the  
modules that she had initiated and whether they were being used in the law school or in any  
other law schools suggested that she was unaware of the impact the modules had had, and  
that, given the passage of time they would need to be updated.  
[569] Commenting on Ms. McCue’s concluding remark that, in terms of research and  
publications, she felt that she was right where she was supposed to be at that point in her  
career, Dean Bobinski stated that this represented a difficult moment for her. She said Ms.  
McCue was at the end of a seven‐year process, had the opportunity to build a record to meet  
the requirements and that that statement did not reflect the place in time she was in at the  
University. In essence, Ms. McCue was saying that the process should begin again when in fact  
Ms. McCue should have had all of the elements in place.  
[570] Professor Bobinski testified that both she and the Faculty Committee recognized the  
importance of Indigenous scholarship, considered the entirety of the evidence that Ms. McCue  
brought to bear concerning her application, and that the Faculty Committee wanted to be  
sensitive to the contextual factors. She said there was discussion that Ms. McCue’s file should  
be reviewed using the broadest possible scope permissible under the CA with special sensitivity  
to her application as that of an Indigenous woman scholar and ensuring that UBC supported the  
work of Indigenous scholars. The result was that the Faculty Committee vote was unanimous,  
with some abstentions, against promotion, and a simple majority voted against granting of  
tenure as a separate matter.  
257  
[571] Professor Bobinski testified that 30 Faculty members were eligible to vote on the  
application and roughly 19 were in attendance. In respect of the SAC review, in the region of 22  
faculty attended.  
[572] Professor Bobinski testified that on September 22, 2010, an email went out to the  
members of the Faculty Committee providing a draft letter communicating the Faculty  
Committee’s decision for comment. That was followed on November 3, 2010 with the finalized  
reasons for decision which set out how Ms. McCue’s materials were treated in the process, and  
the foundational information which informed the committee’s discussion which included that:  
1. The candidate’s records 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.  
2. With respect to scholarship, the Faculty Committee should consider the broadest  
possible range of contributions under the provisions of the CA, including published  
works, and, in appropriate circumstances given the language of the CA, Professional  
Contributions, Scholarship of Teaching (e.g. teaching materials, the Aboriginal course  
modules), and oral presentations to conferences and to Indigenous communities.  
3. With respect to teaching, the Faculty Committee should consider the student  
teaching evaluations in the context of the difficulties that some members of some  
minority groups may have due to the stereotypes and other negative attitudes that  
some students may hold in relation to those groups.  
[573] Professor Bobinski testified that she had never before seen a unanimous vote against  
promotion. She testified it was also unusual to have five of 19 Faculty Committee members  
abstain from the vote.  
[574] Professor Bobinski was asked what it meant to consider unpublished works. She  
testified that the Faculty Committee considered such works as a way of providing evidence of  
whether or not Ms. McCue met the standards required under the CA.  
258  
[575] The decision reflected that the majority of the Faculty Committee concluded that Ms.  
McCue had failed to produce the quantity and quality of scholarship disseminated either  
through the usual peer‐reviewed or equivalent publications, or through Professional  
Contributions, or through a Scholarship of Teaching to demonstrate the requisite high level of  
performance and scholarship. However, a minority of the Committee reached a different  
conclusion and found that the candidate had provided sufficient evidence to demonstrate the  
level of scholarly activity and future promise required for tenure considering the broadest  
range of evidence available under the agreement. They reached their determination based on  
consideration of factors such as:  
(1) The conclusions regarding tenure contained in the written letters provided by the  
external referees;  
(2) The Faculty members’ assessment of the candidate’s written work, which they  
deemed to be of sufficient quantity and quality to meet the standard; and/or  
(3) The candidate’s special role as an Aboriginal academic in one or more of three  
senses:  
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 Aboriginal communities; and  
c. that the candidate’s presence within the Faculty generated very important and  
productive facilitation of research informed by and sensitive to Aboriginal issues.  
[576] Professor Bobinski also pointed out that, in addition to a high standard of performance,  
a candidate was required to demonstrate the promise of continued high performance. She said,  
259  
however, in Ms. McCue’s case where no high performance was demonstrated the Faculty  
Committee does not even get to the question of promise.  
[577] On the issue of teaching, the decision reflected a division within the Faculty Committee  
with several members finding that Ms. McCue had failed to demonstrate the high level of  
performance and promise of future high levels of performance required for tenure under the  
agreement. They focused on a pattern of low teaching evaluations in the first‐year Property  
course and Ms. McCue’s variable teaching evaluations in her upper‐level courses. Also her  
involvement in Aboriginal teaching initiatives within the Faculty and her leadership of an  
Aboriginal law course modules project were not considered to provide sufficient evidence of  
high performance under the terms of the CA.  
[578] Other members of the Faculty Committee considered that Ms. McCue had met the  
standards for teaching, mentioning factors such as the positive peer evaluations, the possibility  
the first‐year teaching evaluations and Property had been negatively affected by Ms. McCue’s  
focus on Indigenous issues and the course materials, the fact that Ms. McCue had received  
positive valuations in some upper‐year classes and Ms. McCue’s demonstration of her interest  
in and commitment to teaching through her participation in a teaching workshop and her work  
on the Aboriginal course modules.  
[579] On December 6, 2010, Ms. McCue sent a letter to Dean Bobinski renewing her request  
to have the review of her promotion and tenure restarted in the 2011/2012 academic year. She  
also sought a delay in making a response to the Faculty Committee’s decision to March 1, 2011.  
Professor Bobinski responded rejecting a response date of March 1, 2011, pointing out that the  
CA required that the candidate be invited to make a “timely response”, that normal response  
time is at most two weeks, that she had had the committee’s reasons since November 8, 2010  
and, therefore, set a response date of January 18, 2011.  
[580] Dean Bobinski testified that her role on the Faculty Committee was a procedural one.  
She convened the meeting, coordinated the materials going to the Faculty members, opened  
260  
up the meeting for discussion, oversaw the meeting, concluded the meeting and then  
implemented the wishes of the Committee.  
[581] On April 26, 2011, Professor Bobinski sent a letter, addressed to President Toope, to the  
SAC. It contained her recommendations with respect to Ms. McCue’s application for promotion  
and tenure. She recommended against promotion and against the granting of tenure. In that  
letter she specifically opposed professor McCue’s submission that the appropriate weighting for  
her application is to apply the criteria for promotion and tenure equally across her record,  
meaning that scholarly activities, teaching and service would be equally weighted. Professor  
Bobinski stated that her recommendation is bound by the specific provisions of the CA which  
require that scholarship and teaching are the primary criteria and that excellence in service  
cannot compensate for deficiencies in teaching and scholarly activity. She did, however, agree  
that the CA allows for a broad definition of scholarship that includes consideration of traditional  
track, Scholarship of Teaching and Professional Contribution. She said that she read and  
weighed Ms. McCue’s unusual materials in the context of those standards. She included, on the  
issue of teaching, the teaching evaluations of Ms. McCue, testifying that Ms. McCue was below  
the Faculty mean in 13 of 19 courses that she taught between 2010/2011 on a 32‐question  
average and that on the overall rating of the instructor she was below the Faculty mean in 14 of  
the 19 courses. She concluded that Ms. McCue had not met the standard for teaching  
effectiveness.  
[582] With respect to scholarship, she agreed with the concept of taking a liberal and  
expansive view of Ms. McCue’s record given her Aboriginal status and the importance of  
ensuring the continued presence of Aboriginal scholars at UBC.  
[583] Professor Bobinski expresses an openness to a fluid view of the CA but, while being  
open to making every effort to look broadly at Ms. McCue’s contributions, she was clear that  
the Guidelines and the CA serve and must be considered within the framework of UBC’s specific  
role in society as a university as distinct from other types of organizations such as law firms,  
advocacy groups, et cetera. She believed it was important to look for what the analogs are  
going to be as you consider this broad approach to considering different forms of activity under  
261  
the terms of the CA. In her view, it would otherwise be possible to lose track of the roots of the  
purposes being carried out by the University and the requirements of the CA. As a result, she  
looks at whether the activity is part of the University’s core mission and where it is captured in  
that mission. She said by way of illustration that within the framework of the CA there are  
different types of activity comprising scholarship, teaching and service. She said that there is a  
connection between scholarship, research, knowledge and outside communities and that  
connection might be important but that does not necessarily mean it would either be part of  
the employment contract between a Faculty member and the University (i.e. the CA), or, if it is,  
where it would be captured within that agreement.  
[584] Professor Bobinski described that the issue being looked at is how does the notion of  
production of new knowledge and dissemination of that knowledge in the academic context get  
defined and applied where the general approach is publication of peer‐reviewed articles or  
equivalent as the core activity of faculty members in the University. She said that requires  
thinking about research and that scholarly tracks differently and distinctly from service.  
[585] She stated that the Faculty Committee expressed openness to considering a broad range  
of evidence beyond peer‐reviewed articles or equivalent, including service, within the context  
of scholarly activity. She said, however that, while that evidence was being considered within  
the classification of scholarship rather than other tracks, there was still a need to look at what  
purposes and signposts of quantity, quality, and high level of performance would look like in  
the context of these other forms of activity.  
[586] Professor Bobinski questioned how the grading of oral presentations, in terms of  
quantity and quality, would compare with the rest of the law faculty. She testified that the  
quantity, quality and nature of Ms. McCue’s oral contributions did not appear to be significantly  
different or greater than the level often seen in the files of other Faculty members on  
promotion and tenure applications. There was a conclusion that Ms. McCue had not  
demonstrated that she had met the standard of accomplishment required for promotion and  
tenure. She pointed out that Ms. McCue had acknowledged that her written work was not  
ready for peer review.  
262  
[587] On May 24, 2011, the SAC sent a series of questions to Professor Bobinski. Professor  
Bobinski responded orally to each of those questions from the SAC.  
[588] Professor Bobinski testified that after providing her recommendations to the President  
in the letter of April 26, 2011, she provided no adjudicative function. She played no role in the  
decision of the SAC other than to answer their questions. Similarly, she played no role in the  
decision by President Toope.  
[589] On May 23, 2011, Ms. McCue provided an extensive submission with supporting  
documentation to President Toope. Professor Bobinski had no recollection of ever receiving  
that document.  
[590] Professor Bobinski said that, if an applicant’s application for promotion and tenure is  
denied, the applicant is provided with a terminal year appointment at the end of which their  
appointment with the University ceases.  
[591] Professor Bobinski was asked about other applications for tenure and promotion to  
Associate Professor that she adjudicated while serving as the Dean of the Faculty of Law. She  
testified that there were five to six including Ms. McCue’s. The other applications were all  
successful. She testified that there were various differences between Ms. McCue’s application  
and others. One was the volume of peer‐reviewed or non‐peer‐reviewed published work.  
Another was that none of the other candidates chose to have Professional Contribution or  
Scholarship of Teaching considered.  
[592] Professor Bobinski testified that Ms. McCue’s application had 44 pages of written  
published material in total. She testified that a typical law review article is 30 to 40 pages in  
Canada and longer in the United States. She testified that Ms. McCue’s output was significantly  
different than what other candidates produced.  
[593] Professor Bobinski testified that the rules respecting PSA and Merit Pay are informed by  
the CA. Merit Pay is based on an evaluation of a Faculty member’s performance over the  
preceding academic year, whereas, PSA recognizes meritorious employment over the years. It  
263  
can recognize salary discrepancy provided the salary differences were not the result of previous  
awards of Merit Pay. The Dean has a role with respect to these awards. She engages in  
consultation about the process, provides information, reviews performance information from  
colleagues and makes recommendations with respect to Merit Pay and PSA within UBC. There  
is a Merit Pay/PSA Committee made up of volunteers to assist the Dean. There are roughly five  
members on that Committee and the Faculty seeks diversity on the Committee by selecting  
individuals with different ranks within the Faculty. Traditionally, the Committee meets in the  
May/June period to determine salary recommendations effective July 1 of each year. An email  
is sent out to Faculty members seeking completion of annual reports which are used during the  
Merit Pay/PSA cycle. The Committee receives materials to ensure they know what duties each  
eligible Faculty member was performing during the year and then evaluates the Faculty  
member’s performance against those expectations. The annual activity report is accompanied  
by an updated CV which is similar in format to the UBC CV.  
[594] Ms. McCue submitted activity reports for the 2008/9, 2009/10 and 2010/11 reporting  
periods. The Merit Pay/PSA Committee reviewed each activity report for Ms. McCue. The  
recommendation was that Ms. McCue not receive Merit or PSA awards in each of those years.  
She was not the only professor not receiving Merit Pay or a PSA award. Between 25 and 33  
percent of the Faculty would not receive Merit Pay. In years where a larger Merit was awarded  
to a particular Faculty member, 33 to 50 percent of Faculty might not receive Merit Pay.  
[595] Professor Bobinski testified that if a Faculty member is unhappy with the denial of Merit  
Pay or PSA awards, they can file a grievance. She testified that the Faculty Association filed a  
grievance on behalf of Ms. McCue but that the Faculty Association subsequently dropped the  
grievance.  
[596] Professor Bobinski testified that the law school had a long‐standing commitment to  
teaching Indigenous law. She testified that it was one of the first law schools to teach about  
Indigenous law topics with a long‐standing commitment to supporting research, teaching and  
involvement in Indigenous law when she came in 2003. She testified that Indigenous law was  
an important law school priority and that it was her personal priority to focus on Indigenous  
264  
activities and engagement around Indigenous legal matters. She testified that took many  
different forms, transcending student and Faculty recruitment, curriculum, and looking at  
specific First Nations programs such as the FNLS Program. It included things like an Indigenous  
community legal clinic, a required course in Aboriginal law, supporting the development of a  
certification program in Aboriginal issues, and efforts to be a part of the University’s connection  
with the Indigenous communities, in particular the Musqueam community. Professor Bobinski  
emphasised the importance to UBC and to the Faculty of enhancing a connection with the  
Indigenous community, including the importance of having a supportive environment for  
Indigenous law students, designing the new law school building to connect with the Indigenous  
community, to ensure that the new building honoured the long‐standing involvement of the  
law school and its graduates in the development of Aboriginal law in Canada and the  
connection of the law school and University to the Musqueam Band, and to include design  
features which would welcome Indigenous people entering the law school.  
[597] Professor Bobinski testified that she received the courage and leadership award from  
the Indigenous Law Student Association in 2015 for activities supporting the Indigenous Law  
Student Program. She testified as well to the Faculty of Law posting recruiting adds, setting out  
the Faculty’s interest in a diverse community and interests in different areas, including  
applicants who could bring Indigenous interests into various fields of study and prioritizing the  
specific hiring of Aboriginal Faculty members. She called the Tribunal’s attention to specific  
recruitment advertisements focused on the field of Aboriginal law in 2009 and seeking to  
recruit an outstanding Indigenous Faculty member in 2013. She testified that three Indigenous  
tenure‐track Faculty members were recruited during her tenure as well as two Indigenous  
recruits to lead an Indigenous community legal clinic.  
[598] In 2008, a UBC Aboriginal strategic plan was developed reflecting UBC’s commitment to  
Aboriginal education, “respect for Aboriginal knowledge and cultures, and resolve to build upon  
the strengths of the University to more fully address the needs of Aboriginal and Indigenous  
communities in British Columbia, Canada and the world”. That plan was published on  
December 17, 2008.  
265  
[599] That was followed up with a fifth year implementation report respecting the plan  
published in July of 2014. It speaks of considerable effort into the “growth and stabilization of  
core individual programs and initiatives across campus and into bringing the variety and extent  
of work being done into focus.” A major focus of the plan was sustainability by locating  
programs and initiatives within core budgetary processes either at their outset or as soon as  
their value has been established.  
[600] Professor Bobinski testified that student evaluations were not the area of focus in  
Faculty discussions respecting teaching following the June 9 oral presentation. She testified that  
those discussions tended to be around organizational ability to convey complex legal  
knowledge and the effectiveness of Ms. McCue’s presentations. She stated, regarding  
effectiveness, that she understood Ms. McCue to be referring back to the CA issues including  
level of preparedness and conveying material to students. She agreed that was the area of  
concern and stated that it is a very important consideration in teaching.  
[601] Regarding Ms. McCue’s comments in her oral presentation, that she used solely oral  
tradition in presenting Property law, Professor Bobinski testified that she took that to be more  
of a statement that, over time, Ms. McCue tried different approaches. She testified that the  
exclusive use of oral tradition represents a complicated area. She testified that the workshops,  
such as TAG, instruct that a professor should be able to respond to different student learning  
styles and that it is a professor’s role to be attentive to different student learning styles in a way  
that is true to their goals as a professor. She said Ms. McCue made no statement respecting  
how the oral tradition relates to student learning, no statement of its impact on student  
learning styles. She felt that Ms. McCue viewed that style as more effective than styles she had  
previously used and also brought Indigenous traditions to the classroom.  
[602] Professor Bobinski testified that Ms. McCue’s Property course evaluations were lower  
generally than the higher‐level courses that she taught but that some upper level courses had  
lower evaluations as well.  
266  
Cross‐Examination of Professor Bobinski  
[603] Ms. McCue thoroughly explored Professor Bobinski’s specific experience respecting  
Indigenous law prior to her arrival at UBC. She established that Professor Bobinski, as Associate  
Dean in academic affairs at the University of Houston, was involved in the efforts of the law  
school to ensure diversity in the student bodies resulting in a number of programs to encourage  
diversity, and was involved in the initiatives between that law school and Indigenous  
communities. She established that Professor Bobinski had no courses in Indigenous law or oral  
traditions but significant experience with many different forms of community‐based research,  
although most of her research was not community‐based.  
[604] Professor Bobinski acknowledged that her scholarly activity in the health law field was  
largely along the lines of traditional scholarship.  
[605] Professor Bobinski testified that her understanding of the FNLS Program when she  
arrived was that it was a very important area for the law faculty and the University. She said  
that the role of the First Nations Studies Director had evolved such that the Director served as  
the academic director and a staff position had been created to provide administrative support  
so that the Director had fewer administrative and student‐related duties. She testified that she  
was aware of the significant effort by the program to develop the CIILS initiative but that the  
effort was not successful. She testified that it was funded by the Law Foundation of British  
Columbia who provided a significant grant. She understood that Ms. McCue’s role as Director  
involved research at a pragmatic level.  
[606] Ms. McCue put a number of questions in more detail to Professor Bobinski with respect  
to the CIILS project. Certain documents were put to Professor Bobinski including documents  
respecting the FNLS Program which are undated, a document containing an image provided by  
the Musqueam respecting CIILS, adjoining a declaration from the Musqueam speaking to the  
relationship between CIILS and the Musqueam. While Professor Bobinski was familiar with the  
image, she was not familiar with and had no specific recollection of the documents put to her.  
267  
[607] Ms. McCue put to Professor Bobinski her letter dated January 31, 2006 which was a  
follow up to meetings on April 26, 2005 and December 13, 2005 with Associate Dean Young and  
Associate Dean Pue respectively. She asked about a meeting on April 8, 2004 and specifically  
whether Professor Bobinski recalled telling her at the meeting that she was interested in  
freeing up Ms. McCue’s time for scholarly activities so she would be having Ms. McCue step  
down as Director of the FLNS Program for one year only. Professor Bobinski responded, “No.”  
Specifically, Professor Bobinski stated to Ms. McCue:  
I don’t recall having any reason to believe you didn’t understand the  
terms of the letter.  
The letter says:  
In that letter, I outlined the steps that the Faculty would implement to  
assist your efforts to meet these standards. Your administrative  
responsibilities as director of the First Nations Legal Studies Program  
were removed. We established a reduced teaching load of one course  
(rather than four) for the 2004‐05 academic year. Finally, we established  
a formalized program of mentoring with Associate Dean Wes Pue as a  
supplement to the informal mentoring relationships you have enjoyed  
with your colleagues.  
In addition, it contained the contents set out earlier respecting providing a major scholarly  
project for which a draft would be provided to Associate Dean Young by May 3, 2005.  
[608] In taking Professor Bobinski through the January 29, 2008 letter from Ms. McCue  
expressing her concerns about the January 14, 2008 letter which had discussed meetings during  
the summer and fall of 2007, Ms. McCue asked about a meeting in which Professors Christie  
and Jackson were present. Professor Bobinski recalled that meeting, the focus of which was  
whether, in the absence of peer‐reviewed works, Ms. McCue could establish scholastic  
achievement. She said that the discussion pointed out to Ms. McCue the need to be able to  
establish the significance, quality and quantity of her research and publication.  
[609] Ms. McCue then put to Professor Bobinski some significant adverse student evaluations  
from her first‐year Property course taught in 2005/06. Those reports had raised concerns of  
racialization which had resulted in an investigation and ultimately in the 2005/06 student  
268  
evaluations for that course not being considered in Ms. McCue’s application for promotion and  
tenure. Ms. McCue asked Professor Bobinski whether her concerns regarding racialization were  
considered going forward. Professor Bobinski acknowledged that they were.  
[610] Ms. McCue put to Professor Bobinski whether she recalled Ms. McCue making it clear to  
Professor Young that she no longer wished to teach the Property course. Professor Bobinski  
responded that she was not only not aware of being made aware of that, but was aware that  
Ms. McCue had specifically asked to remain teaching that course. Professor Bobinski testified  
that she had no recollection of any discussion respecting Ms. McCue’s continuing to teach the  
first‐year Property course at the Faculty Committee meeting.  
[611] Ms. McCue asked Professor Bobinski if she recalled a meeting on or about July 31, 2009  
between Ms. McCue and Professor Bobinski outside Professor Bobinski’s office in which she  
asked Professor Bobinski to assess her file along non‐traditional scholarship lines. Professor  
Bobinski denied any such meeting occurred. She denied any recollection of such a conversation.  
[612] Ms. McCue then asked whether Professor Bobinski recalled contacting Ms. McCue  
outside her office and saying that she had good news – that her file would be assessed along  
non‐traditional lines, that it was going to be assessed as a professional case. Professor Bobinski  
responded with a flat “no”.  
[613] Ms. McCue pursued the subject, asking Professor Bobinski if she recalled her asking  
Professor Bobinski, “Can I put evidence of Scholarship of Teaching forward?” Professor Bobinski  
responded, “I don’t believe this conversation took place.” She said, “The conversation you  
described is not consistent with any record of the conversations we had about this subject. I do  
not recall the conversation. I do not believe it took place.”  
[614] When Ms. McCue continued to push the subject, Professor Bobinski responded:  
The letters I sent are clear and consistent. You had communications with  
Robin Elliot about the difficulties obtaining your CV and your supporting  
materials. Your materials were “skinny” respecting the requirements of  
the CA.  
269  
[615] Ms. McCue then asked whether it was true that Professor Bobinski had designated  
Robin Elliot to get her agreement respecting how the file should be assessed for her promotion  
and tenure process around December 2009. Professor Bobinski responded that she could not  
agree. She said, “If you mean that my understanding was requested that Professional  
Contribution was to be part of the materials to be provided to the Faculty Committee then I can  
agree with that”. Professor Bobinski said she had conversations with Robin Elliot respecting the  
file, that he expressed concerns that the materials Ms. McCue had provided were sparse, and  
whether there were any options to consider that would create a stronger record.  
[616] Professor Bobinski testified that she had no discussions with Ms. McCue after  
September 2009 about promotion and tenure until 2010.  
[617] Professor Bobinski testified that there were no written assessments of the decision by  
the Faculty Committee assessing numerical values other than the decision of the Faculty  
Committee itself.  
[618] Professor Bobinski was asked about the Shepherds’ Report of March 30, 2010 which was  
directed to Professor Robin Elliot and the Faculty Committee. She was asked about whether the  
Shepherds’ Report at page nine constituted a proposal to adopt a different metric with respect  
to scholarly metrics. She responded that the overall tone of the report had more of a tenor of  
advocacy than normally is found in shepherds’ reports. Professor Bobinski acknowledged that  
the Shepherds expressed their concern because Ms. McCue’s focus on research meant to  
primarily benefit Aboriginal communities could result in her candidacy being assessed unfairly  
within the category of scholarly activity. She acknowledged that Aboriginal communities pose  
challenges on the measurement of scholarly activity because they tend not to lead to the same  
amount or kind of research product and that as a result the Shepherds suggested that the  
Faculty of Law might wish to lead the way in pressing the point about scholarly metrics.  
Professor Bobinski testified that there was discussion at the Faculty Committee with respect to  
scholarly activity which was reflected in their decision about concerns about the quality and  
quantity of Ms. McCue’s work. She acknowledged that the Faculty Committee took a number of  
factors into account, considering the full range of scholarly activity and an understanding that in  
270  
her case it might be possible, at the end of the day, to have the application reviewed under a  
broad metric not restricted to five to six peer‐reviewed publications but the totality of her  
work, including peer‐published works and other measurements of scholarly activity. Professor  
Bobinski testified that she was testifying about the Faculty Committee’s discussion and process.  
She said that there was an awareness of the need for a broad searching review of the record  
taking into account a broad range of scholarly activity. She said the Faculty Committee  
discussion was about the specific evidence Ms. McCue presented and what she identified as  
obstacles to scholarly work, so the Faculty Committee was looking at what Ms. McCue  
presented, including oral remarks to the Faculty Committee in which there were a number of  
different factors in play, including a track record of indicating that publication of scholarly  
works was imminent.  
[619] Professor Bobinski then was asked questions respecting the difference between  
community‐based research and other forms of research. Ms. McCue put to her a hypothetical  
in which the applicant was expected by the Faculty to produce a peer‐reviewed publication but  
was unable to do so, because the Indigenous elder community holds the knowledge. Ms.  
McCue asked, “what do you do?” Professor Bobinski responded that the hypothetical raises  
important issues around the concept of community‐based research which have been the  
subject of discussions within the University that include a focus on coming to an understanding  
and agreement before research takes place. The idea is to arrive at an approach that can help  
support performing that community‐based research while still retaining the integrity of a  
research‐based enterprise to preserve the ability of the researchers to engage in dissemination  
of the work in some form. She said that the balance between confidentiality and research is a  
recurring issue for universities, citing military research for drug companies and the obvious  
concern about trying to safeguard that balance given the importance and sensitivity of the  
needs of the communities where this research is being carried out. She expressed that the  
University is alive to these issues and is trying to work out how to support community‐based  
research while attending to these potential conflicts early in the projects and then taking into  
account at the end of the day that the research profile of the Faculty member may differ from  
the norm.  
271  
[620] Professor Bobinski testified that Ms. McCue’s record included some elements of  
community‐based research, an example being the Maiyoo Keyoh research project initiated late  
in Ms. McCue’s timeline in the tenure track, and which was explicitly stated to include a  
number of goals like capacity building to do community‐based work, and which had a potential  
future objective identifying potential areas for what would eventually become published works.  
She testified that the Faculty Committee could take it into account as scholarly activity and  
capacity building but it did not give rise to a situation where published works were  
contemplated but not available. She said that similarly, early in Ms. McCue’s tenure track  
appointment, Professor Bobinski’s understanding was that Ms. McCue played a major role in  
the community needs assessment. Her understanding was that the information was available  
for use in considering changes to the law school’s curriculum and that there was not any  
prohibition on making use of that information for publication purposes. She testified that these  
were the two major projects the Faculty Committee had before them.  
[621] Professor Bobinski testified with respect to the CIILS project and questioned whether it  
was a case which required a new metric. She said the fact there may have been research does  
not mean there is scholarly activity unless the candidate writes or publishes a piece through  
traditional scholarship or some other mechanism. She said the collection of data per se is only  
the first part. She said published work is the primary evidence of scholarly activity and the  
concept of peer review is an important guide post in the promotion and tenure review process.  
She testified that where a candidate relies upon unpublished works they must make sure that  
peer review of those unpublished works is possible.  
[622] Professor Bobinski said that the collection of data is not the standard of scholarly  
activity expected.  
[623] Professor Bobinski opined that a candidate should not identify issues with their  
candidacy to the Faculty Committee at the last stages, but should do so in early stages of their  
appointment. The University should be advised if the candidate is interested in something being  
considered as scholarship. It can be raised at the first reappointment. She said that it is the  
272  
candidate’s responsibility to present their evidence. She said that ultimately the candidate is in  
the best position to understand their own work.  
[624] It was suggested by Ms. McCue that Professor Elliot told her that her CV should only  
include her 2009 material. Professor Bobinski responded that she was unaware that Professor  
Elliot had given Ms. McCue instructions to only put in some of her record.  
[625] Professor Bobinski testified that she does not agree with the proposition put by Ms.  
McCue that there was no agreement on how her promotion and tenure file was to be assessed  
as of May 4, 2010. She said that there was an agreement that she would be submitting  
materials pursuing her application based on traditional and Professional Contributions tracks.  
Respecting Scholarship of Teaching, she testified that at that point there was no support for a  
Scholarship of Teaching track approach.  
[626] The Faculty Association sent a letter dated May 20, 2010 seeking information with  
respect to the Faculty’s approach to Ms. McCue’s application for promotion and tenure. On  
June 4, 2010, Professor Bobinski responded with a description of events relating to the steps  
taken since the conclusion of Ms. McCue’s reappointment process in April 2009, including  
reference to an Article 5.02 meeting respecting the agreement on the conditions of  
appointment for Faculty held on June 17, 2009 right up to, and including, Professor Bobinski’s  
letter to Ms. McCue of May 20, 2010, confirming that her file will be considered both in terms  
of traditional and Professional Contribution scholarly activity. The letter also confirmed that the  
external referees were provided with a letter which set out the provisions for considering Ms.  
McCue’s work both from a traditional and a Professional Contribution perspective.  
[627] Professor Bobinski also expressed in the June 4, 2010 letter that, despite the Faculty  
Association’s request that the process be set aside and recommenced, UBC would be  
proceeding with the current process because they were satisfied that Ms. McCue had been  
appropriately informed and supported throughout the promotion and tenure process.  
[628] Ms. McCue put it to Professor Bobinski that she was not properly mentored. Professor  
Bobinski disagreed “in the sense that knowledgeable mentors were made available to [her], the  
273  
Shepherds she selected, the workshops made available to all candidates and the material  
available to candidates on the University’s website”.  
[629] Professor Bobinski testified that her letter to Dr. Kwok (of the Faculty Association) on  
June 4, 2010 responded to his procedural fairness questions on the basis that the Faculty were  
proceeding along the lines that Ms. McCue had agreed to and the process was moving forward,  
and that Ms. McCue had the opportunity at any point in the process to add new material.  
[630] Ms. McCue inquired of Professor Bobinski whether she had provided a culturally  
appropriate way for Ms. McCue to respond orally to the Faculty Committee on June 9, 2010.  
Professor Bobinski responded that she communicated to Ms. McCue respecting the provisions  
of the CA and the Faculty Committee agreement to allow her to respond both orally and in  
writing.  
[631] Ms. McCue asked Professor Bobinski how the Faculty Committee categorized materials  
received June 8, 2010, the day before the Faculty Committee was to meet with Ms. McCue for  
her oral submission. Professor Bobinski responded that the material appeared on June 8 at 4:55  
pm. The members were advised of the receipt of late‐filed materials, the materials were  
scanned and made available to the Faculty Committee members. Ultimately, the June 8  
materials were reviewed by only some members of the Faculty Committee. Those materials,  
however, were there for both the SAC and President Toope in their decision‐making.  
[632] Ms. McCue referred Professor Bobinski to the November 3, 2010 Faculty Committee  
decision and inquired whether her oral presentations to conferences and to Indigenous  
communities were considered under the rubric of scholarly activity. Professor Bobinski  
responded that, looking at pages four through six dealing with scholarly activity on an  
application for promotion and tenure, and pages seven to eight dealing with scholarly activity  
on the vote against tenure, those portions of the decision set out that the Faculty Committee  
was willing to consider materials including non‐peer‐reviewed publications. The decision  
specifically indicates:  
274  
The Committee considered the candidate’s published work. In this case,  
at the candidate’s request, the Faculty Committee also considered her  
record of unpublished reports and presentations and her work on  
curricular matters, including her leadership of the Aboriginal course  
modules project....  
Members of the Faculty Committee expressed concern about the quality  
and quantity of the published works, with some members noting in  
addition referee comments regarding the lack of analytical focus in the  
candidate’s published work....  
The Faculty Committee also considered whether the candidate’s activity  
related to the curriculum and Aboriginal course modules could meet the  
Agreement’s standards for Scholarship of Teaching. Committee  
members expressed concern about whether the contributions could be  
considered the Scholarship of Teaching because of the lack of evidence  
regarding “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.” To the extent that the  
activities could be considered to fall within the Agreement’s recognition  
of the Scholarship of Teaching, the Committee found that the scholarly  
activity was insufficient on its own or in combination with the  
candidate’s published work to meet the standards for promotion and  
tenure.  
The Faculty Committee considered the candidate’s conference  
participation and her work with Indigenous communities....the Faculty  
Committee considered whether and how to accord extra weight to the  
candidate’s participation in these activities, either to recognize an oral  
tradition in Indigenous communities or to recognize the special  
demands on scholars or both. To the extent that these activities could  
constitute evidence of scholarly activity under the Agreement, the  
Committee found that they did not constitute sufficient evidence of  
additional scholarly activity of the quality and quantity necessary to  
bring the candidate’s overall level of scholarly activity up to the level  
expected for promotion and tenure.  
[633] Similar comments can be found with respect to the Faculty Committee’s analysis of Ms.  
McCue’s production when considering the issue of bestowing tenure.  
[634] Ms. McCue enquired of Professor Bobinski how the Faculty Committee had considered  
her proposal of placing equal weight on teaching, scholarship and service. Professor Bobinski  
responded that from the language in the Faculty Committee decision the response was they felt  
275  
that they needed to follow the CA but apply it in the broadest possible way. They were limited  
by the language of the CA. She pointed out that the CA simply says that scholarship and  
teaching are the primary factors for consideration, whereas, service will be taken into account  
but cannot compensate for deficiencies in teaching and in scholarly activity.  
[635] Professor Bobinski testified that the Faculty Committee considered the materials Ms.  
McCue presented under scholarly activity, such as Aboriginal course modules, that each Faculty  
Committee member had their own observations with respect to the nature of Ms. McCue’s  
contributions in those areas, that they considered how to accord extra weight to these activities  
in order to recognize the oral traditions and Indigenous communities or to recognize the special  
demands on Indigenous scholars, or both, but that ultimately concluded that there was not  
sufficient evidence of quality and quantity necessary to bring Ms. McCue’s work up to the level  
expected for promotion and tenure.  
[636] Ms. McCue challenged Professor Bobinski with respect to the determination of a  
minority of the Faculty Committee set out at page eight of the decision, asking how those  
factors resulted in a different outcome than the majority of the committee arrived at. Professor  
Bobinski responded that the decision gives a sense of the conversation within the Faculty  
Committee where the Faculty Committee had in mind these factors and issues. She testified  
that the majority, even though they took into account these types of contributions and issues,  
determined that the record was not sufficient to meet the standard for tenure, whereas, the  
minority group felt differently. The two groups came to different decisions with respect to the  
quality and significance of Ms. McCue’s work. She testified that the Faculty Committee applied  
peer review in a broad and expansive way. She said that the decision indicates that the Faculty  
Committee had in mind the evidence and arguments that Ms. McCue had presented respecting  
how her record should be evaluated. She said to the extent that Ms. McCue speaks of oral  
presentations, the decision indicates that the Faculty Committee also considered the record of  
unpublished reports and publications, including work on curriculum matters and leadership of  
the Aboriginal course modules project. They concluded that the record when considered as a  
whole did not include evidence of scholarly activity beyond that expected of an Assistant  
276  
Professor and that Ms. McCue had not demonstrated sustained and productive scholarly  
activity under any of these approaches, separately or in combination. The decision was based  
on the May 28 CV put in front of the committee.  
[637] Professor Bobinski testified that Ms. McCue’s material presented many types of  
evidence, including large volumes of material ranging from conference participation through  
oral presentations, presence at different events, and that she and the Faculty Committee  
sought to apply a broad concept of scholarly activity outside of peer‐reviewed articles or  
equivalent. They were thinking of quality and quantity of work, keeping in mind the CA ideas  
about originality, creativity and the like. They were considering the analogues of peer‐reviewed  
work, including ideas of leadership and impact but framed here in a different setting.  
[638] She testified that she recalled Ms. McCue’s response to the Faculty Committee’s  
decision dated January 18, 2011 and her proposal for a different paradigm calling for equal  
weighting of teaching, scholarship, and service. She said that she analysed that proposal and  
considered if it was consistent with the provisions of the CA to re‐weight service, and in her  
view it was not.  
[639] Professor Bobinski was asked if she factored in the expectations, obligations and  
responsibilities inherent in the work of Indigenous scholars. She referred to the following  
paragraph in Ms. McCue’s letter:  
Further, Indigenous scholars in the academy have obligations and  
responsibilities inherent in their unique status, which inform their  
approaches, methods, advocacy and contributions to diverse audiences.  
My record does evidence analytical focus, theoretical formulations of  
concepts and directions for change, processes of inquiry, policy  
development as well as iterative and reflexive samples of expression  
that are consistent with many Indigenous world views and  
interpretations of the law. I contribute to consultative fora, and I make  
face‐to‐face presentations that are culturally and professionally  
congruent with me. My knowledge mobilization initiates and fosters  
continuing dialogue in exchange for the academy. My record also sets  
the stage for processes of analytical focus such as consensus‐building  
and participation with Indigenous peoples...  
277  
[640] Professor Bobinski acknowledged that she did factor in these considerations. She stated,  
however, that the proposal raises more complex questions such as the nature of service versus  
research. She said scholarship equals the creation of new knowledge and dissemination of that  
knowledge. She says Ms. McCue’s discussion has not always provided clear evidence of which  
type of scholarly activity she is hoping to further through the activities she has put forward. She  
stated that Ms. McCue’s materials contained little evidence of community‐based research in  
the sense of creation of new knowledge, referring particularly to the CIILS and Maiyoo Keyoh  
examples. She stated that those would show potential for creation of new knowledge and that  
the CIILS project in particular demonstrated creation of new knowledge in the sense of  
community needs assessment and the possibility that it could be used in shaping law school  
curriculum, but Ms. McCue did not identify any particular or specific barriers to thinking about  
how that work could be disseminated more broadly either through Scholarship of Teaching or  
even a type of scholastic work that would look at best practices or performing community‐  
based research with Indigenous communities. She testified that this highlights the importance  
of thinking carefully about what the CA establishes as scholarly activity. She asked whether this  
is creation of new knowledge, dissemination of that knowledge, and where did the stresses and  
strains come from for the Indigenous scholar working to create new knowledge and  
disseminate knowledge. She testified that the objects that Ms. McCue provided fall more neatly  
in the area of dissemination, for example – the oral tradition of dissemination. It did not tell her  
what was being disseminated. For example, was she disseminating her own original concepts  
and research. She testified that she was trying to be careful in making sure she considered in  
her own recommendations Ms. McCue’s evidence and its implications for the distinct points of  
the scholarly activity, definitions and requirements in the CA with an awareness that scholarly  
activity provisions are not the only places capturing important work done by Faculty members.  
There are provisions on teaching where a candidate takes current knowledge and provides  
education about it, or service where Faculty members take knowledge they have and engage in  
broader communities within or without the University to be of service to those communities.  
She testified that, in this case, the debate was around scholarly activity and thinking specifically  
and clearly around what Ms. McCue’s suggestions or evidence meant within the specific  
278  
expectations of scholarship. She said this would include thinking flexibly and creatively about  
how to think about scholarship under the CA but also carefully keeping in mind the elements of  
creation and dissemination of knowledge. As she put it:  
Suggestions and evidence need to be put up against the screen of the  
CA to determine how it measures up to those requirements.  
[641] Professor Bobinski testified that it is possible to meet the goals of research and be  
respectful of the goals of the entity for whom the project is being carried out. She described the  
CIILS project as being limited in evidence respecting aspects of it and the ways that it is  
described such that it sounds more administrative rather than research related. She suggested  
that even including the idea that new knowledge can be created does not mean that that new  
knowledge goes beyond improving the service and the facility. She said that assuming it is  
intended to be research activity there is a range of ways that knowledge could be disseminated,  
but there is no specific setting out of barriers preventing that dissemination or evidence in the  
record that this was being explored or discussed. She said that the evidence in the record did  
not suggest that Ms. McCue intended to publish with respect to that project, so it was one  
piece of evidence that was considered but it was not a strong piece of evidence. She testified  
that she was seeking to apply the standard in the CA in the broadest way taking into account  
the importance of the candidate meeting the requirements of academics. There could be  
evidence of the creation of knowledge and dissemination that she would need to be looking  
for.  
[642] Ms. McCue took Professor Bobinski to her June 8, 2010 CV at page 21 to explore her  
work as a member of a subcommittee for the African and Canadian Women’s Human Rights  
Project [ACWHRP] as a scholarly activity contribution. Professor Bobinski testified that she  
looked at that statement to see if it met the standard under the CA, but while it sounds like the  
activity is within the broad domain of work scholars do as an editor or reviewer, there was no  
indication that Ms. McCue created any specific knowledge but rather provided research results  
and disseminated them. Further, the items, in Professor Bobinski’s mind, outlined under the  
discussion of the ACWHRP in the CV, appeared to her to be related to areas that Ms. McCue  
279  
previously discussed having conducted scholastic work in and she concluded that it seemed to  
represent a mixture of the dissemination of Ms. McCue’s own research and her general  
knowledge about important topics. She described the description of that work as  
demonstrating some evidence of dissemination but not a strong statement of the nature of  
original and creative new knowledge, as opposed to reviewing and understanding work created  
by others.  
[643] At that point, Ms. McCue took Professor Bobinski to a letter of reference for Ms.  
McCue’s tenure and promotion file from Ned’u’ten hereditary chief, Uh Dakh Jet of the Gil Lan  
Tin Clan (English name Mary Anne Perry). Professor Bobinski considered the letter helpful but  
she was looking for evidence of the creation of knowledge and dissemination of that  
knowledge, not just knowledge generally. She accepted that the letter provided information  
consistent with evidence of the creation of new knowledge but stated that no individual piece  
of evidence was independently evaluated. The letter goes into the overall review of the  
material supportive of candidacy. That evidence supported that part of the activity that Ms.  
McCue engaged in with the ACWHRP involved the dissemination of Ms. McCue’s own creative  
work to a broad audience. Similarly, with respect to an article entitled New Modalities of  
Sovereignty: An Indigenous Perspective published (2007) to Intercultural Human Rights Law  
Review at pages 19‐29, Professor Bobinski testified that the evidence was not particularly  
supportive of finding the journal to be a high‐impact, high‐quality journal. However, Professor  
Bobinski considered it to be evidence of Ms. McCue’s effort to put ideas out into the broad  
academic debate and it was given weight as a publication. She did not, however, know that the  
journal was inaugural because there was nothing in the material that indicated that.  
[644] In respect of yet another article entitled Indigenous Peoples’ Self‐Determination and the  
Right to Security, a Briefing Note, her comment was that this was an area of Ms. McCue’s  
scholarly work that had a long history, that it was presented at a conference in 2004 and was  
not yet ready for peer‐review publication as of 2010. She considered the work embryonic and  
commented that, in looking to understand Ms. McCue’s work, there was a large volume of work  
that was not brought to publication as she had understood Ms. McCue intended. It was  
280  
considered within the context of dissemination at what could be described as the embryonic  
stage and she pointed out that Ms. McCue had presented a significant volume of material  
which meets that description. Professor Bobinski testified that she looked for pieces of  
evidence wherever Ms. McCue had directed that the Faculty look. She said she took each piece  
that she could identify into account in order to come to a complete picture as to whether or  
not, as a whole, Ms. McCue’s work met the standard for promotion and tenure when  
considered in the broadest scope possible under the CA.  
[645] Similar criticisms including the lack of footnoting, lack of analysis were typical of  
comments respecting items in the CV to which her attention was drawn by Ms. McCue.  
[646] Professor Bobinski testified about concerns expressed in the Faculty Committee about  
Ms. McCue’s expressed intention to publish her work, in the context of the knowledge that it  
had not happened previously, in trying to assess the overall nature of her scholastic  
contribution and the overall shape of those contributions.  
[647] Professor Bobinski confirmed that peer review by First Nations lawyers was considered  
as part of the evidence of her scholarly activity in the context required by the CA.  
[648] Professor Bobinski testified that the New Modalities piece referred to earlier was  
published in a non‐refereed journal, that she was looking for indicators of quality and impact  
and she would say it was not a strong journal, but in her review of Ms. McCue’s file she applied  
the broadest approach and took it as a publication within the traditional stream. She  
acknowledged that the New Modalities piece had been cited by two other Aboriginal scholars.  
She made similar comments with respect to another piece listed in the CV under non‐refereed  
book chapter but appearing to be an article in a journal. She considered it as a publication in  
the domain of traditional scholarly work for the purpose of assessing Ms. McCue’s quality and  
impact of work as required by the CA.  
[649] Ms. McCue took Professor Bobinski to her June 8, 2010 CV at pages 16 to 19 where  
extensive reference to conference participation and other presentations was set out. Professor  
Bobinski pointed out that there was no information which set out the content of the oral  
281  
presentations. Ms. McCue then suggested to Professor Bobinski that the Faculty Committee  
and Professor Bobinski had rejected Ms. McCue’s proposal to have her oral presentations  
treated as publications. Professor Bobinski responded that she thought that the answer was  
quite the opposite. She said that the Faculty Committee and she had engaged in a broader  
review that includes the review of Ms. McCue’s oral presentations referring to the following  
paragraph in her recommendation of April 26, 2011 to President Toope:  
Professor McCue has also participated in a number of consultations,  
conferences, meetings and events. She has presented a large volume of  
material related to her participation in these activities without  
specifically identifying the significance of the materials to the standards  
of the Agreement. Some of these activities had associated documents  
that were not published or submitted by Professor McCue for external  
review and for which there are no specifically identified pages  
containing or reflecting her contributions ... many other activities do not  
have any associated documents or written works. Ms. McCue has urged  
the Faculty and university to nonetheless consider her participation in  
these activities as a form of scholarly dissemination under the  
Agreement.  
[650] Professor Bobinski pointed out that in the recommendation letter such works were  
considered within the domain of scholarly activity. But she pointed out the different aspects of  
the material provided by Ms. McCue failed to establish the high standard of scholastic  
accomplishment required for an award of tenure. She testified that while she appreciated the  
effort made in the CV to provide context for the materials, a difficulty is that the CV leaves it in  
the minds of the reader to attempt to understand, not just the topic, but also the original  
research that is actually being disseminated through that talk. She stated that while it was  
helpful that Ms. McCue had set out tags such as TOS (meaning Scholarship of Teaching public  
dissemination) to convey Ms. McCue’s view of the topics being discussed, it was not always  
straightforward to establish what evidence was being provided respecting new thought. She  
stated that there was not a neat match between the evidence in the CV and the idea of  
scholarly activity, that she was looking for evidence of what the nature of the Scholarship of  
Teaching was in that particular situation. She rejected the suggestion from Ms. McCue that the  
rejection of these presentations as publications adversely impacted her as an Indigenous  
282  
scholar saying that they were considered to be a form of scholarly activity but that it was  
Professor Bobinski’s conclusion that Ms. McCue had not met the standards for promotion or  
tenure.  
[651] Professor Bobinski testified that Ms. McCue’s work and presentations were considered  
using all of the evidence available to the Faculty that fit within the various scholarly tracks and  
giving full credit to the fact that oral dissemination should be part of the review in her case.  
Professor Bobinski spoke of the difficulty of evaluating Ms. McCue’s work. She said that there  
are reasons why the CA provisions on scholarly activity provide as they do for written published  
work being the primary evidence of scholarship. There is an understanding that that is the form  
where an individual’s contributions are clearly represented because it creates a record capable  
of being evaluated by other experts in the field and that provides a foundation for the  
continued advancement of knowledge. She also pointed to the challenge of thinking about oral  
dissemination in light of the fact that the nature of Ms. McCue’s activities were not, by the  
evidence, all that different in quantity or content from other candidates to tenure and not easy  
to discern from the record. She stated that in terms of distinguishing quantity and quality the  
evidence was not well developed. She stated that Ms. McCue’s record was different from other  
candidates for promotion and tenure because there was not the ability to look at other sources  
of information with respect to the content of the presentations. She said that in her review of  
the record she made every effort to try to counter those challenges. She said that where  
reasonable to do so she attempted to link the information provided in Ms. McCue’s materials to  
quality and quantity of research and work and reviewed material that would not normally be  
part of the promotion and tenure process. The conclusion she came to, to recommend against  
promotion to Associate Professor and to recommend against the granting of tenure without  
promotion, was based on the totality of the evidence presented by Ms. McCue considered in  
the context of the CA and taking into account the broad range of analysis being advocated by  
Ms. McCue and filling in the gaps where it was reasonable to do so.  
[652] Professor Bobinski made the point that, if a candidate presented at the outset of her  
tenure track that they wanted to use oral presentations as a form of scholarship dissemination,  
283  
there would be potential for attempts to develop a system to determine what the contribution  
was for scholarship based on the CA requirements. She pointed to the fact that one could look  
at Indigenous professors, concede that the balance of published work is different from other  
candidates and that nonetheless those Indigenous candidates were successful in achieving  
promotion and tenure at UBC.  
[653] Professor Bobinski testified that in Ms. McCue’s case she had a long track record of  
declaring that she was pursuing a traditional approach to promotion and tenure, advised that  
she was not ready for peer‐reviewed publications and provided evidence of dissemination  
orally and otherwise all of which was considered. She agreed that Ms. McCue’s work reflected  
the work of a non‐traditional scholar in actuality but stated that, to the extent that their  
discussions focused on tenure track that over many years, they reflected a traditional  
scholarship approach. She indicated that Ms. McCue’s promotion and tenure track proceeded  
along lines of traditional scholarship for many years then, at the last moment, Ms. McCue  
began to express concern respecting the materials to be considered. She pointed out that the  
material Ms. McCue submitted for external review in the winter of 2009/2010 was completely  
consistent with being on traditional track. She said that she realized that Ms. McCue was  
seeking something different than a traditional track evaluation in discussions with Professor  
Elliot in the academic year in which Ms. McCue sought promotion and tenure. There was a  
discussion of lack of appropriate material, from which she understood that Professor Elliot  
would be discussing the problems with Ms. McCue and looked to include Professional  
Contribution in her application. She testified that as of January and February of 2010 she would  
not know what evidence of scholarly activity could be available to Ms. McCue to fill in the gaps  
with respect to the quality and quantity of her oral disseminations.  
[654] Professor Bobinski testified that she recalled in the 2008/09 academic year when Ms.  
McCue was coming up for reappointment, she requested that her oral presentations be  
considered. She said her recollection of that meeting with Ms. McCue and her Shepherds  
around reappointment was searching for any evidence that could be presented in support of  
her reappointment in light of the absence of traditional publication. She said that this approach  
284  
was taken when Ms. McCue was not meeting the requirements of the CA with respect to  
reappointment but informed Professor Bobinski that she intended to meet those requirements.  
[655] Ms. McCue put to Professor Bobinski a letter of June 9, 2010 from the Indigenous Bar  
Association signed by the current and past president of that association and which supported  
Ms. McCue’s community‐based scholarship as an approach that should be valued at par with  
publication and peer‐reviewed journals. It stated that Ms. McCue’s academic presentations  
attended firsthand at Indigenous Bar Association events were able to withstand scrutiny from  
practitioners, other academics and graduate students within the Ingenious Bar Association.  
Professor Bobinski testified that the letter is indicative of the University’s willingness to review  
Ms. McCue’s application in a different way than it reviewed other applications. She considered  
that the fact that this material was considered where normally it would not be considered to be  
an example of the flexible approach the University took.  
[656] On the issue of Merit Pay and PSA awards for the years 2009 through 2011, Professor  
Bobinski testified to a different process. Ms. McCue asked, given that she had submitted her CV  
for each year along a multi‐track line and asked for equal weighting, whether those  
accommodation requests were accepted. Professor Bobinski responded that she had reviewed  
and considered the requests put in Ms. McCue’s annual report and CV and that she had  
reviewed and assessed the quality, quantity and merit and concluded that Ms. McCue’s  
performance did not justify an award of Merit Pay. She had also considered these things with  
respect to the allocation of PSA funds. PSA was rejected because it was considered that her  
performance was not meritorious and that PSA was not intended to make up for previous  
denials of Merit Pay. Professor Bobinski testified that in considerations for Merit Pay and PSA  
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.  
[657] Professor Bobinski was taken to the Faculty Committee’s letter of concern of April 19,  
2010 and it was pointed out to her that one of the three concerns expressed by the Faculty  
Committee was that “given your evaluations in first‐year courses and levels of graduate  
285  
supervision, Faculty members expressed concerns about whether you are able and willing to  
teach a range of subject matter and at various levels of instruction”.  
[658] Professor Bobinski pointed to the Faculty Committee decision and identified that on the  
issue of teaching “members of the Faculty Committee noted a sustained pattern of very low  
student teaching evaluations in the course the candidate taught within the first‐year mandatory  
curriculum. The candidate’s record also reflected uneven evaluations with some very weak  
evaluations offered by self‐selected students and upper‐level courses focusing on the  
candidate’s areas of particular academic interest.” She also identified that the Faculty  
Committee considered largely positive peer evaluations reflected in the Shepherds’ Report  
respecting the candidate’s teaching. She pointed out that several members of the Faculty  
Committee found that Ms. McCue had failed to demonstrate a high level of performance and  
promise of future high levels of performance required for tenure under the agreement. Those  
Committee members focused on a pattern of low teaching evaluations in first‐year Property  
course and her variable teaching evaluations in her upper‐level courses.  
[659] Professor Bobinski stated that other members of the Faculty Committee found that Ms.  
McCue had met the standards for teaching required under the agreement, mentioning factors  
such as positive peer evaluations, the fact that the first‐year teaching evaluations and Property  
might possibly have been negatively affected by Ms. McCue’s focus on Indigenous issues, the  
fact that Ms. McCue had received positive evaluations in some upper‐year classes over the  
years, and Ms. McCue’s demonstration of her interest in and commitment to teaching through  
her participation in a TAG workshop and her work on the Aboriginal course modules.  
[660] Professor Bobinski pointed out that the Shepherds’ Report contained no reference to  
levels of graduate supervision. She said the Faculty Committee result was more related to  
whether the candidate has the ability to represent complex materials in a convincing manner.  
286  
VII EVIDENCE OF PROFESSOR ROBIN ELLIOT  
[661] Professor Elliot commenced as a member of the Faculty of Law on July 1, 1976 as an  
Assistant Professor and retired on June 30, 2016. He was granted tenure in 1981, was promoted  
to Associate Professor in 1983 and to full professor in 1991. He served as Associate Dean under  
Dean Smith from 1991 to 1993 and under Dean Bobinski from 2003 through 2006. He then  
returned to the role of a full professor. He assumed a significant administrative load, chairing a  
number of committees, including various appointment committees through the 2015/16  
academic year.  
[662] He also served on a number of external committees, including the Fraser Committee  
and the Community Legal Assistance Society.  
[663] Professor Elliot’s particular areas of interest were constitutional law, Canadian  
federalism and the Charter and he focused in the area of human rights.  
[664] He assumed the role of Chair and member of the Promotion and Tenure Faculty  
Committee in the 2009/10 academic year. Prior to his assumption of the role of Chair, Associate  
Dean Claire Young held the position. As it was explained to him at the time, Professor Young did  
not believe it was a good idea for her to continue in the position given that her partner was the  
Chair of the SAC, the committee to which all promotion and tenure files go as the penultimate  
step and route to the president’s office. Her concern was not to have two partners playing a  
significant role in the process.  
[665] Professor Elliot commenced mentoring Ms. McCue in the middle of October 2009  
carrying on with the role that Professor Young had performed with Ms. McCue up to October  
15, 2009.  
[666] As the chair of the Promotion and Tenure Faculty Committee, Professor Elliot assisted  
the Dean and the Dean’s office in the processing of applications for reappointment and for  
promotion and tenure. That assistance entailed generating a list of potential referees from the  
candidate and overseeing participation by the Shepherds.  
287  
[667] He testified that the external referees must be arm’s‐length persons of stature in the  
academic community. The greater the stature they hold the more weight their opinion will  
carry. Ideally, a candidate wants people who are full professors or very, very respected  
associate professors to serve as their external referees.  
[668] As chair of the Faculty Committee, Professor Elliot assisted the Dean in selecting  
external referees. The policy at UBC is that the candidate generates a list of names from which  
two are selected by the Dean. The Dean generates another list from which another two names  
are selected. The chair generates the candidate’s list. The chair communicates with the selected  
external referees to see if they are willing to serve. The chair then assembles packages  
comprised of the candidate’s CV and package of publications to send out to the external  
referees. In order to generate that package, the chair must work with the candidate to ensure  
the documents come in, in a timely way, that the CV is appropriate, and that the publications  
are eligible for consideration.  
[669] The chair also ensures that the materials to be considered by the Faculty Committee are  
ready to go. They include the Shepherds’ Report, student evaluations of the candidate’s  
teaching, the candidate’s CV, candidate’s publications materials, and the letters from the  
external referees.  
[670] Professor Elliot testified that the candidate has the primary responsibility for preparing  
the CV and selecting the materials. He said that he had served as a shepherd on many occasions  
and, always, the candidate takes the primary responsibility for putting the package together. He  
testified that candidates often come to a shepherd to discuss such topics as where a publication  
should go in the CV, what publications can be included in the CV, and the right kind of  
statement with respect of the pedagogical approach, but the primary responsibility remains the  
candidate’s.  
[671] Professor Elliot testified that the obligation of a Faculty member to keep their CV  
current is an ongoing one.  
288  
[672] Professor Elliot testified that during the period when Professor Bobinski served as Dean,  
the practice was for a Faculty member to update their CV annually and complete an annual  
report on an established form which the Dean could use to get a sense of the activity of the  
individual Faculty member. In the summer/fall, a meeting would take place where the contents  
of the annual report were discussed and it was an opportunity for the Dean to shore up  
weaknesses in the Faculty member’s CV.  
[673] When Professor Elliot became involved in mid‐October 2009, he understood that Ms.  
McCue’s CV was in the final stages, that Ms. McCue was working on it, and it would be ready  
fairly soon. Professor Young had hoped that the package could be sent out to the external  
referees in early September and at the very least by October. As time went on and the CV did  
not appear from Ms. McCue, Professor Elliot went back to the Shepherds. In early November  
2009, Professor Elliot requested that Professors Christie and Mickelson, Ms. McCue’s  
Shepherds, help Ms. McCue in selecting what would go into her publications package. He was  
getting concerned that the process was taking a whole lot longer than it should have. The  
meetings of the SAC normally take place in the months of March through May; it is a large  
committee and getting them together is not easy. The file needs to be available for them by  
then. The Faculty Committee meeting was to take place in late January/February as a target  
date as reflected in an email from Professor Elliot to the Shepherds, dated November 4, 2009.  
Professor Elliot testified that other candidates that he had worked with had no issues in getting  
their CV in proper form, but his experience with Ms. McCue was very frustrating, necessitating  
frequent emails, voicemails, impressing on her the need to get her CV assembled in a timely  
manner.  
[674] On November 27, 2009, Ms. McCue committed that she would have her updated CV to  
Professor Elliot by December 7. She did not do so and Professor Elliot was having difficulty  
understanding why a document that he expected was close to its final form would take so long  
to complete.  
[675] On December 7, Professor Elliot advised Ms. McCue that it would be better for her if her  
package could go out to the referees over the holiday season rather than in January. By  
289  
December 14, Professor Elliot was advising Dean Bobinski by email that Ms. McCue had agreed  
that she would provide him with her CV and publications binder by December 22 at the latest.  
The delay was attributed to academic responsibilities and illness, and Professor Elliot testified  
that he did not feel that Ms. McCue was prioritizing the process as much as she should be.  
[676] Professor Elliot testified that he received communication from external referees  
wanting to know how much material would be sent their way and was unable to answer the  
question because he had not yet received Ms. McCue’s package of publications. As a result, on  
December 16 Professor Elliot sought to ascertain the approximate volume of the dossier and  
was informed by Ms. McCue that it would be 50 to 70 pages. He was shocked by such an  
answer since it was such a low volume reflecting six and a half years of her work. He stated that  
he was astounded that the figure was that low.  
[677] Professor Elliot was asked what a typical amount of published material might be and  
testified that, based on experience as a shepherd and a senior colleague on the Faculty  
Committee, the average would be 300 to 400 or more pages. He testified that he had never  
seen a case where the package consisted of 50 to 70 pages of published material previously.  
Nor had he seen anything close.  
[678] By December 21, 2009, the material had still not been received and Professor Elliot  
engaged in several emails back and forth with Ms. McCue urging her to get her material in. On  
that date, Ms. McCue asked whether Professor Elliot could arrange to look at her CV at 3:00 pm  
on December 22 along with the Shepherds to see if it was ready. Professor Elliot was leaving for  
holidays the following day. At that point, the material was not going to be going out to the  
external referees before the holidays in any event, so the meeting never took place. On  
December 22, 2009 at 4:31 pm, Ms. McCue emailed Professor Elliot to say she was just getting  
to her CV at that point, hoping to complete it for the following morning. Due to communication  
issues Professor Elliot did not have an opportunity to view the dossier until his return from  
holidays in January.  
290  
[679] Professor Elliot testified that at that point he was new to the role of Chair of the Faculty  
Committee. Review of the candidate’s CV is not typically a part of that role. The candidates,  
according to Professor Elliot, tend to rely on senior colleagues in their area, or their shepherds,  
in that regard. He said, however, that if Ms. McCue had come earlier in the process he would  
have been happy to do that.  
[680] Professor Elliot first saw the CV when he returned from holidays. The email exchange  
suggests that the CV may have been presented for Professor Elliot before Christmas but that he  
had already left for his Christmas holiday when it was received. He testified that, when he  
reviewed the CV upon his return from holiday, it did not look like it had received careful  
attention. There were a number of blanks in it and other problems as well. Some entries were  
in the wrong place, some wording was not appropriate, there were typos and it was not the  
final product that he would have expected. He testified that the rules with respect to CVs at the  
time allowed members to incorporate in the teaching portion of the CV pedagogical philosophy  
up to 150 words. Ms. McCue’s CV included such a section but it was in the neighbourhood of  
400 words. Professor Elliot made the decision not to delete it because it was important for the  
external referees to read it in full. There were sufficient problems, including publications in the  
package that did not appear eligible, that there was significant concern. Professor Elliot  
concluded that the CV could not be sent off as it was, that the problems had to be sorted out.  
[681] Prior to a meeting with Ms. McCue on January 6, 2010, Professor Elliot met with Dean  
Bobinski and the two of them pulled out Ms. McCue’s conditions of appointment looking at the  
definition of scholarly activity for a description that would work to make the package as  
substantial as possible. They suggested approaching a significant report under the classification  
Professional Contribution, and in the end they decided to do that, although Professor Elliot felt  
it was a real stretch. Even with that report included, at over 30 pages, they were still looking at  
a package with less than 50 pages total, which was exceedingly thin. The piece in question was  
entitled “Towards Recognition of our Inherent Rights as Indigenous Peoples” and was co‐  
written and edited with three other academics. It was not included in the CV presented to  
Professor Elliot. It had not yet been published nor had it been accepted for publication, and  
291  
there was a need to identify the portion of the work that Ms. McCue was primarily responsible  
for. Another piece titled “Gratitude and Inspiration: An Honour Song for the Haundenosaune”  
had not been accepted for publication.  
[682] The Dean and Professor Elliot also discussed the CIILS report which was not included in  
the package and they wondered whether it might go into her package. Once again, it was  
unpublished and would have been better categorized as service, but it was an important part of  
Ms. McCue’s work.  
[683] On January 6, Professor Elliot met with Ms. McCue. They discussed the CV and Professor  
Elliot advised Ms. McCue that he had met with Dean Bobinski, that they had sorted out the  
Gratitude article quickly, then discussed the Recognition piece and that the Dean had proposed  
that the Recognition piece be treated as a Professional Contribution. Ms. McCue agreed with  
that approach and she undertook to change the CV to reflect these alterations.  
[684] Professor Elliot testified that he was frustrated at how long this was taking because it  
would not be possible to hold the Faculty Committee meeting by the end of February, but at  
least it could be held in March of 2010. He was using “time is of the essence” language with Ms.  
McCue as demonstrated by an email dated January 11, 2010. Ms. McCue in turn indicated that  
she would have the revisions completed and back to Professor Elliot by January 11 or early the  
following week. Eventually, the package went out to the external referees on January 15, 2010.  
[685] Throughout all of this, Professor Elliot attempted to keep Dean Bobinski informed.  
[686] Professor Elliot testified very clearly that, to that point, there was no discussion of  
utilizing the classification Scholarship of Teaching to support Ms. McCue’s scholarly activity.  
Further, he testified that there was nothing in the package which had anything to do with  
Scholarship of Teaching. Professor Elliot was clear that he did not tell Ms. McCue not to include  
Scholarship of Teaching material in her package. The words he used were he “definitely did  
not”.  
292  
[687] It was put to Professor Elliot that Ms. McCue said that he had told her to include only  
2009 work in her CV. He responded:  
I most definitely did not – that’s absurd – preposterous thing – even for  
me to suggest – it would be ridiculous.  
[688] He testified that in any event the CV was not restricted to 2009 work but included  
entries for years prior. A review of the January 13, 2010 CV reveals that the conferences listed  
include conferences from 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2001 all the way through  
1998. The other events listed ranged between 2001 and 2008, and the publications include  
works from 2003, 2005 and 2008 as well as 2009.  
[689] Ms. McCue put it to Professor Elliot that he had told her that she would be treated as a  
“professional case”. He responded that he never said any such thing.  
[690] Ms. McCue asked Professor Elliot if she had told him that she should be assessed  
differently because she was an Indigenous scholar. He responded, no, she did not.  
[691] Professor Elliot was asked if, in any discussion, Professor McCue told him that her oral  
scholarship should be considered equivalent to peer‐reviewed publication. He responded, no,  
she did not.  
[692] He also denied that Ms. McCue said anything at all about oral scholarship or about  
community‐based research to him. He testified that she never told him that she was doing  
community‐based research to that point.  
[693] The role of Chair of the Faculty Committee at the meeting with a candidate is to make  
sure that the CV, student evaluation records and Shepherds’ Report are prepared in sufficient  
numbers for all attendees. They are placed in sealed envelopes. Letters from the external  
referees are copied and delivered in advance of the meeting. The Faculty Committee members  
who attend are expected to have read the material. At the commencement of the meeting the  
Dean turns things over to the Shepherds, who provide a brief overview of their report, which  
includes material regarding the standards for promotion and tenure. On this occasion, the Dean  
293  
made it clear that Ms. McCue is an Indigenous woman scholar and talked a bit about the unique  
position that status gave her within the Faculty. This alerted the attendees to the fact that they  
needed to be attentive to Ms. McCue’s status as an Aboriginal female scholar.  
[694] The role played by the Chair of the Faculty Committee is a limited one. At the first  
meeting of the Committee, Professor Elliot did not speak. With respect to the external referee  
letters, he testified that there were three positive letters respecting both promotion and tenure  
and a letter that was equivocal, opposing promotion but in favour of tenure, though the tenure  
recommendation was premised on the faculty being confident that the works included in the  
CV which were not yet published would very soon become published pieces. Professor Elliot  
decided it was difficult to give much weight to these letters because the positive comments  
were limited to the quality dimension. One letter really had not engaged fully with scholarship  
and none spoke to the quantity dimension. He said that to him the quantity dimension is very  
significant. The material in the package was exceedingly thin. That aspect of the file led the  
fourth external referee to say it was not a file favouring promotion and led to the limited  
recommendation he made. Professor Elliot testified that he was not confident that the pending  
works would be published in a timely manner. He testified that the Committee was advised by  
the Dean that this was a special case and had to be approached with a broader sense of how  
the faculty in attendance saw the criteria being applied.  
[695] Professor Elliot testified that the discussion at the Faculty Committee was:  
… one that evidenced the best of what one would expect from  
colleagues. Everybody took the comments very, very seriously. The  
concerns raised were very respectful of the candidate. Nobody  
suggested that the Committee should not take the factors of Indigeneity  
and femaleness into account.  
[696] He testified that at the meeting there were concerns with respect to teaching and  
scholarly activity. The teaching concerns were directed at the teaching evaluations. Specifically,  
the first‐year Property law course excluding the 2005/06 academic year. The upper‐end courses  
provided higher evaluations but were still low in the area of expertise and interest. The context  
of the consideration was that Ms. McCue was an Indigenous female with issues other Faculty  
294  
members were not facing. The overriding concerns with respect to scholarly activity related to  
quantity. The amount produced was simply insufficient for people to feel comfortable. At the  
end of the meeting, Dean Bobinski said that she felt that this was a case in which serious  
concerns had been raised, that the Committee should not take a vote but adjourn and the next  
stage in the process would be taken.  
[697] Professor Elliot testified that he recalled no Faculty member objecting to taking a more  
flexible approach and looking through a different lens with respect to scholarly activity. All of  
the comments suggested that that was an entirely appropriate approach.  
[698] Professor Elliot testified that in these circumstances the Dean provides the candidate  
with a summary of the serious concerns expressed at the first meeting after sharing the draft  
with all of the Faculty Committee members in attendance who are given an opportunity to  
comment. The final version of the letter is then sent to the candidate. The candidate has an  
opportunity to address the concerns orally, in writing or both.  
[699] Ms. McCue elected to present both orally and in writing and that was accepted by the  
Dean despite the fact that the Standard allowed for written or oral presentation but not both.  
Her oral presentation took place on June 9, 2010.  
[700] Professor Elliot testified that two large binders of material were provided in the late  
afternoon of June 8 from the Dean’s office. The materials were made available online, but he  
did not see them until the following morning. He testified that he went in early to the meeting  
room and looked at the materials. He testified that he was able to discern very little. He went  
through the binders very quickly to get a sense of what was there but was in no position to  
assess individual documents and hoped that the oral presentation would provide a sense of  
what the documents demonstrated. He pointed to Dean Bobinski’s email to Faculty members of  
June 8, 2010 at 4:55 pm in support of his recollection. That email included a paragraph that  
read:  
A short while ago we received two large binders of additional materials  
that the candidate has asked us to make available to you. We are  
295  
endeavouring to scan the materials as quickly as we can to add them to  
a new file on the confidential folder (McCue June 8, 1010 Submission).  
You previously received information about how to access this  
confidential electronic file. As you know, the candidate does have a right  
to supplement her file up until the president’s decision under Art. 5.03  
of the CA. Relevant materials that are made a part of the candidate’s file  
too late for one stage of the process are used to inform decision‐making  
in the next stage up to the president’s decision. I have informed the  
candidate that the Faculty Committee will decide whether and how the  
materials will be considered at this stage of the process.  
[701] The meeting took place on June 9, 2010 at 9:00 am. Professor Elliot played a role with  
respect to the transcript generated from that meeting by reviewing an initial draft of the  
transcript prepared by Dean Bobinski’s assistant, working with the recording equipment, and  
sending it to Ms. McCue for her comments. He is satisfied that the transcript is accurate.  
[702] Professor Elliot testified that at the top of page six of the transcript Ms. McCue stated:  
It is my interpretation of the CA 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 CA 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  
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 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.  
[703] Professor Elliot heard and accepted that oral presentation should be accepted as  
scholarly activity under the CA. He said that this was the first time that that suggestion had  
been made before the Faculty Committee. He accepted that as an Indigenous person the  
Indigenous oral tradition plays an important role. He stated that whether oral presentations an  
296  
Indigenous scholar makes should be considered as scholarly activity caused him to pause. He  
stated that a Faculty member must rely on him or herself or experts to assess the quality of  
what is being done and its impact. Unless there are recordings made or listened to or  
transcribed clearly, it is impossible to assess them. He stated that in his view this was a new  
submission and it was one that he had to accept with some caution.  
[704] Professor Elliot testified that in terms of treating Ms. McCue’s oral presentations as  
publications, some information was missing that the Faculty Committee needed.  
[705] With respect to teaching modules, a project prepared for use by Faculty to encourage  
the curriculum to use Aboriginal or Indigenous content, he had to ask whether this qualified as  
Scholarship of Teaching. Did it meet the criteria? He asked, in an attempt to clarify this, to what  
extent modules were used in the law school or, for that matter, in other law schools. Given Ms.  
McCue’s response, he was left in considerable doubt about the impact of these modules and  
their qualification as Scholarship of Teaching.  
[706] Professor Elliot described what happened after the oral presentation when the floor  
opened up to senior colleagues to discuss the merits of Ms. McCue’s candidacy. He described  
that everybody was open to approaching the case through a different lens and understanding  
the CA criteria in a different manner, but there was a varying degree of flexibility. Some went a  
very long way to putting a different gloss on the criteria, whereas, others treated the criteria  
with more respect. He described it as a difficult meeting at which the Faculty voted  
unanimously against Ms. McCue’s promotion to Associate Professor and that the majority also  
voted against McCue’s application for tenure, but a minority were prepared to accept her  
application for tenure.  
[707] After comments from Professor Elliot and all of the other participants on the Faculty  
Committee, a letter signed by Professor Elliot and Dean Bobinski dated November 3, 2010 went  
to Ms. McCue advising her of the Committee’s decision.  
[708] After signing that letter, Professor Elliot’s involvement in the process came to an end.  
297  
[709] Finally, Professor Elliot was asked about the difference, if any, between teaching and  
Scholarship of Teaching. He testified that teaching includes preparation of materials, syllabus,  
setting of assignments and presentation in the classroom. He described Scholarship of Teaching  
as reflections on pedagogy that advances teaching in some significant way. For example, he  
suggested that an academic who develops the argument that the lecture format had limited  
usefulness and that the Faculty should move to a problem‐based approach and generated  
material which is distributed for discussion in the academic community contributing to a  
reflective analysis on the topic is engaged in Scholarship of Teaching.  
Professor Robin Elliot Cross‐Examination  
[710] Professor Elliot confirmed that as Chair of the Faculty Committee he wore two hats, one  
as the Chair and one as a Faculty member in a position to vote.  
[711] Ms. McCue asked Professor Elliot whether he recalled meeting in the UCLL (the acronym  
given to the old Faculty club building) and being asked whether Scholarship of Teaching  
evidence should be included in her material. Professor Elliot had no recollection of such a  
meeting. He said, “You and I did not discuss Scholarship of Teaching.”  
[712] Ms. McCue pushed the issue asking whether it was true that she asked Professor Elliot if  
her CIILS project counted as Scholarship of Teaching. He responded, “We did not discuss  
Scholarship of Teaching. The answer is no.”  
[713] Ms. McCue then put to Professor Elliot that in their meeting of January 6, 2010 she gave  
Professor Elliot the first materials under the heading “Professional Contribution”. He responded  
that Ms. McCue did not introduce the category of Professional Contributions, but rather it was  
introduced by him after the meeting of January 6. He said it was introduced because the  
Recognition piece could not be included in her package as traditional scholarship since it had  
not been published. They sought other ways of summarizing Recognition so that it could remain  
in the package. He said they decided that Professional Contribution was the route to go and  
that he advised Ms. McCue of that on January 6.  
298  
[714] Ms. McCue pushed the matter further asking whether it was true that she brought the  
classification of Professional Contribution forward and suggested that the Recognition piece  
constituted Professional Contribution. Professor Elliot responded: “That is dead wrong.”  
[715] Ms. McCue suggested that Professor Elliot was trying to get her agreement to how the  
file might be presented overall. Professor Elliot responded that that was not the case and it  
needed to be looked at in context. He was trying to obtain a package from her that could go out  
to the external referee. He said: “There was no general discussion of your file. It was far too late  
for such a discussion. Our discussion was very narrowly focused.”  
[716] Ms. McCue asked if he recalled Professor Christie saying that he did not understand  
assisting with Ms. McCue’s package to be his role. Professor Elliot did recall that. It was then  
put to him that he had said the Shepherds could give such advice. He responded: “Absolutely,  
but very much when that advice is sought by the candidate.”  
[717] Ms. McCue then asked Professor Elliot if she sought that advice of Professor Elliot or her  
Shepherds. Professor Elliot responded that she did not seek advice from him until December 23  
or 24 after he had left on his holidays. His first opportunity to provide advice was in January of  
2010. He said that Professor Christie was able to review her CV before that and able to provide  
some advice and that he could not say if Professor Mickelson was able to provide advice or not.  
[718] Professor McCue then asked Professor Elliot if it was true that Professor Christie had  
said to her that she should put in only her 2009 work. Professor Elliot responded that he had  
never heard Professor Christie suggest such a thing.  
[719] Professor Elliot described his role in reviewing a candidate’s CV. He said he reviewed  
every line of Ms. McCue’s CV. He pointed out that he was not in a position to know the details  
of the information in the CV but was just checking spelling and that appropriate information  
was provided in the appropriate place in the CV. He does not ask whether the CV is complete.  
[720] Ms. McCue asked Professor Elliot his reaction to the language at the bottom of page  
nine of the Shepherds’ report of March 30, 2010. That provision reads:  
299  
Professor McCue has focused much of her attention on the production  
of research that is meant to primarily benefit Aboriginal communities  
(and only secondarily herself) she may be assessed unfairly within this  
category (a fact that, as mentioned above, the university is beginning to  
acknowledge and respond to). Perhaps the Faculty of Law might wish to  
lead the way in pressing this point around scholarly metrics.  
[721] Professor Elliot responded that he perceived this as part of the invitation for the Faculty  
Committee not to assess Ms. McCue’s file as they would assess the file of a non‐Aboriginal  
colleague, but rather that they had to think broadly and flexibly. He said that he and those who  
spoke on the Faculty Committee respecting Ms. McCue’s application did that. He testified that  
without those paragraphs, the consideration would involve a strict application of the CA  
criteria. He said that the Committee looked at the material flexibly giving her application  
favourable treatment to the extent that they could, given the conditions of appointment. He  
testified that there was no suggestion from her that her candidacy needed individual  
assessment with a different metric or that she was not prepared to be considered under the  
criteria contained in the conditions of appointment in the CA. All of these comments relate to  
the original meeting of the Faculty Committee prior to the Letter of Concern.  
[722] In light of Ms. McCue’s May 28, 2010 CV, which was before the Faculty Committee,  
Professor Elliot stated that a reference to oral presentation with no written record is not being  
consistent with scholarly activity as it is generally understood. He said that when considering  
the oral tradition, as a cautionary note, it is important when assessing the file of a candidate to  
be able to have before one some sort of record so that some sort of evaluation can be made.  
He said that if there is no record it will not be possible to assess the work, which is important  
because the process is looking at the quality and impact of the work. He said, therefore, that it  
is important that there is a record that can be assessed, but it need not be written.  
[723] Professor Elliot testified that the revised Shepherds’ Report dated June 3, 2010 was  
provided before the June 9 oral presentation to the Faculty Committee.  
[724] The additional language in the revised Shepherds’ Report at page 12 reads, in part:  
300  
Furthermore, this sort of research has its own particular life‐path – that  
is to say, in working in a respectful manner with an Aboriginal  
community one must be prepared to engage in a process that will likely  
unfold in unexpected ways, over unexpected stretches of time. The key  
to making such collaborative enterprises work in a meaningful manner is  
gaining trust in the community itself, a process that is better measured  
in years rather than weeks or months.  
[725] Professor Elliot testified that he read and absorbed the message in this passage. He felt  
the critical message to take from that language was that the production of the results of  
community‐based research might take longer to appear. He was asked by Ms. McCue whether  
he thought a new scholarly metric might be required in those circumstances. He responded:  
If you mean replacing UBC’s conditions of appointment, no, those were  
the governing conditions for a promotion and tenure application. It is  
my job to apply the language of those conditions in an appropriate way  
to weigh this particular file.  
[726] Ms. McCue asked Professor Elliot, given the Faculty’s understanding of a broad flexible  
approach and her call for a blended weighting of the criteria, how would he go about it. He  
testified that it is a holistic exercise in which the faculty member looks at the file respecting  
teaching, scholarly activity and service, and taking into account all of the information provided  
to the Committee respecting that faculty member’s ability, they make the call. He said that, for  
example, if a faculty member had minor concerns with respect to teaching but there was  
exemplary scholarship and strong service, they could determine that the candidate has met the  
standard.  
[727] Ms. McCue put to Professor Elliot page 18 of the May 28, 2010 CV and asked whether  
there was enough information to assess a paragraph relating to her involvement as a member  
of a subcommittee for the ACWHRP in respect of scholarly activity. He responded that if it were  
to be counted as scholarly activity you would have to see appropriate information respecting  
the work. He said that it would be a mistake for the University, if it received a letter saying in  
summary fashion, as set out in a May 27, 2010 letter to Dean Bobinski from the Director of  
Human Rights for Canadian Lawyers Abroad, just generally providing a reference in support of  
Ms. McCue, to rely on that in considering scholastic activity. He said the University would be  
301  
loathe to rely on such a letter in the absence of information of the detail, subject matter and  
thought processes that were put into that work.  
[728] Ms. McCue asked Professor Elliot with respect to the Indigenous Law Course Wheel,  
presented in the June 9 oral presentation as an example of Scholarship of Teaching, that, if it  
was to be considered as an example of Scholarship of Teaching on the basis of the brief  
encounter with it at that meeting it would be desirable for it to go through some sort of  
normative process such as being incorporated into the package of materials and sent out for  
evaluation by the external referees. Professor Elliot stated it was received in material late in the  
afternoon on the evening before the presentation was made, and part of two binders of  
material two and a half to three inches thick comprising hundreds of pages. He described it as  
being irresponsible to categorize it as Scholarship of Teaching on the basis of such a brief  
encounter.  
[729] He made the point that the SAC and President Toope would have had that material  
before them when making their decisions.  
[730] With respect to Ms. McCue’s presentation of June 9 on Professional Contribution,  
Professor Elliot stated that, unless they were characterized as Scholarship of Teaching,  
Professional Contributions would form part of the big picture but not be assessed in support of  
scholarly activity because they had not been sent out for assessment by the external referees.  
[731] Ms. McCue took Professor Elliot to a letter of support provided to Dean Bobinski on May  
26, 2010 from the spokesman for the Indigenous Network on Economies and Trade. The letter  
commented on international submissions as well as local submissions he witnessed Ms. McCue  
present orally to various committees of the UN community meetings of Indigenous peoples. He  
responded that he would have read the letter but did not have access to the actual submissions  
that were made. He stated:  
I would attach significance to the views expressed by Mr. Manuel. But it  
would not be a single piece overwhelming anything. It would be part of  
the whole, balanced on Ms. McCue’s side. ... there would be little time  
to assess it so I did what I could to factor it into the equation. ... the fact  
302  
that the candidate labels the work under a particular rubric is not  
determinant in and of itself that that is the proper characterization.  
[732] He suggested he would look at all of the material available to form an overall opinion  
which would guide his vote.  
[733] Professor Elliot testified that at the first meeting of the Faculty Committee he got the  
sense that each and every Faculty member present realized that they were dealing with a  
serious issue and had to apply their own minds in the best way possible to do right by the  
candidate bearing in mind the requirements of the University. He said that each faculty  
member had to reach the result that in good conscience they thought was the correct one.  
[734] Professor Elliot testified that, with respect to the invited presentations and conferences  
set out at pages 14 to 16 of the CV, that material was not sent out to the external referees.  
When talking about Scholarship of Teaching, the assessment is going to be made initially by an  
expert in the field. The expectation is that these presentations would be taped, video‐  
conferenced, or something, which could be sent out to the external referees so that they could  
assess it. The Faculty Committee could then rely on that assessment as part of that broader  
consideration being requested by Ms. McCue. Because no material was provided by Ms. McCue  
to demonstrate what the content of these presentations was, there was nothing to send out to  
the external referees.  
[735] Ms. McCue suggested that transcribing or recording the presentation would be like  
running the track twice for Indigenous scholars. Professor Elliot responded that if the University  
is to properly assess the work it needs some sort of tangible record.  
[736] Ms. McCue suggested that if a tangible record did not exist then the oral presentation  
would be excluded as scholarly activity or Professional Contribution. Professor Elliot responded  
that he would not say that the lack of tangible record excludes the presentations. External  
reviewer’s comments on written presentations and additional paragraphs commenting on the  
oral presentations exist. However, each of those presentations cannot be given the same  
weight as work properly assessed by an external reviewer. He said that the Faculty Committee  
303  
were, within the broad parameters, looking at her file in a way of being open and being flexible  
rather than being strict in their application of the criteria.  
[737] Professor Elliot was asked by the Tribunal what information under presentations and  
conferences in the CV could be evaluated beyond what initially went out to the external  
referees. Professor Elliot responded that unless additional material was provided to the  
external referees beyond what was in the CV there would not be anything new for those  
referees to assess. He said that the information at pages 14 to 17 of the CV of May 28, 2010  
was not sufficient to allow the external referees to make an assessment.  
[738] Professor Elliot was asked whose responsibility it was to provide the material that would  
allow the assessment of the material more broadly. He responded that the candidates are  
responsible to generate the record. That the record is not simply the fact that an oral  
presentation is set out on the CV but the content must be assessed. The candidate must take  
the initiative to ensure that a record is generated and available and introduced into the process  
at the appropriate time. The record needs to be part of the package that goes out to the  
external referees and ultimately to the committee.  
[739] Ms. McCue put to Professor Elliot the question as to how the minority of the Faculty  
Committee reached a different conclusion than the majority with respect to tenure. He  
responded that the principles set out on page two of the decision letter dated November 3,  
2010 would be taken into account by the minority viewing Ms. McCue’s role as an Indigenous  
academic and that they ended up looking at the file with a different balance than the majority.  
He stated that differences of opinion cause people to assess evidence in their own mind  
somewhat differently.  
[740] It was put to Professor Elliot that there could be barriers for an Indigenous candidate to  
bring such a record. He responded that the onus lies with the candidate that the conditions of  
appointment are established when the person is first appointed. The onus is on the candidate  
to say this is the way I want to conduct my research. There needs to be a discussion between  
the candidate and the Dean to make sure that the non‐traditional research will be supported.  
304  
He said that it was his experience that the administration will do what it can to promote the  
research but that the initial step must be taken by the candidate. He further stated that in the  
promotion and tenure process it is a plus if a candidate is going to take a novel approach to  
research. He gave the example of empirical research.  
[741] Ms. McCue concluded her cross‐examination by asking Professor Elliot if it were true  
that the Faculty could not accommodate her with the request she was making. He responded:  
That’s not how I’d put it. The Faculty Committee honestly and fairly  
were not able to conclude that you passed the standard that the  
University requires for promotion and tenure.  
VIII EVIDENCE OF PROFESSOR CLAIRE YOUNG  
[742] Professor Young obtained her law degree at the London School of Economics and  
Political Science, articled in Saskatchewan and practiced law there until 1984. She became an  
Assistant Professor at the University of Western Ontario in 1984 and obtained promotion and  
tenure there in 1989. She served on the Faculty of Law at UBC as a visiting professor in the  
1991/2 academic year and in November of 1992 became a permanent Associate Professor with  
tenure at the UBC Faculty of Law. In 1996, she was promoted to full professor.  
[743] Professor Young was involved in the assignment of course work to Faculty. She assigned  
Ms. McCue to teach a first‐year Property course because Ms. McCue had expressed an interest  
and because it was both important and exciting to have an Aboriginal instructor teaching that  
course.  
[744] It was put to Professor Young that Ms. McCue had stated that she had asked on two or  
three occasions to be removed from teaching Property. Professor Young responded that that  
was not the case and that when Ms. McCue was on a teaching release she asked specifically to  
continue teaching Property. She offered as well that in the 2007/2008 academic year Ms.  
McCue expressed that she felt she had turned a corner with Property and was really enjoying  
teaching the course.  
305  
[745] Professor Young testified that in 2003 Dean Bobinski asked her and Professor Wes Pue  
to work with Ms. McCue on her scholarship. The request with respect to Professor Young was  
that she meet with Ms. McCue to discuss productivity expectations, the need for refereed  
articles, et cetera. She testified that every new pre‐tenure Faculty member was assigned a  
mentor. Professor Young testified, as well, that informal mentoring is what colleagues do with  
faculty working in their area. The mentoring experience is always varied. She said some faculty  
members were self‐starters and that their issues were different, that those faculty members did  
not need to be monitored with respect to productivity but simply needed to be provided with  
strategic advice, whereas, others needed to be nudged and pushed. She said she always offered  
to read drafts and talk to them about how to take their research and disseminate it.  
[746] Professor Young was asked what she recalled of the mentoring process with Ms. McCue.  
She responded that she sat down and chatted with her. She got the sense that Ms. McCue was  
working on things. She made it clear that she was available for questions and consultations and  
met with her a couple of times. Professor Young was informed that Ms. McCue had a piece  
going to the Alberta Law Review which she understood to be a refereed article. She said,  
however, that she never saw a draft of any of Ms. McCue’s work. She testified that she recalled  
telling Ms. McCue to use her Masters Treatise body of work as a basis for her publication. She  
said that Ms. McCue could carve that work up into two or three articles. She said that if she  
could turn it into a book that would be even better and be exciting and rewarding. She said Ms.  
McCue seemed enthusiastic. She testified that Ms. McCue advised that she had work going out  
to Purich Publications, a business that specializes in Aboriginal books and publishes literature in  
all disciplines, but that she never actually saw the correspondence with Purich. She assumed  
that that is what Ms. McCue was working on.  
[747] She recalled that the work was on Ms. McCue’s CV in the early days with an indication  
that it was “in the works and would be coming out”. She said nothing was published.  
[748] Professor Young testified that she became concerned after about three years that Ms.  
McCue was not finalizing work that she was talking to her about. She started emailing her trying  
to set up meetings and seeking to follow up where she was at.  
306  
[749] Professor Young confirmed that she sat in with Dean Bobinski on a couple of annual  
reviews of Ms. McCue. She testified that in 2008 Ms. McCue committed to provide a draft piece  
for review but never provided Professor Young with that draft. Professor Young confirmed that  
in a meeting of April 26, 2005 Dean Bobinski sought to determine whether Ms. McCue had  
been able to significantly advance her scholarly agenda during the 2004/05 academic year given  
her greatly reduced teaching and administrative responsibilities, and that Ms. McCue had  
indicated she was close to completing a major scholarly project and would forward a current  
draft to Professor Young by May 3, 2005. She testified that she followed up with an email on  
June 24, 2005 and was informed by Ms. McCue that she was still working on the article but  
would be sending what she had been working on to Professor Young by the following Friday.  
She testified at the time Ms. McCue had a teaching release underway which was done to  
facilitate scholarly productivity by allowing her to get on with writing or other forms of  
scholarship. The article referred to in their discussion was an Alberta Law Review article. It  
never was provided by Ms. McCue to Professor Young.  
[750] Professor Young testified that she addressed with Ms. McCue the difficulties where all  
publications were produced at the end of the promotion and tenure process. She testified that  
she told her the difficulty is that a burst of publications in the last two or three years would  
make the SAC a little anxious, whereas, if she were publishing regularly that would not be an  
issue.  
[751] After taking a sabbatical in the academic year 2005/06, she phoned Ms. McCue to sit  
down and discuss where her work was at. She testified that they had trouble reconnecting  
because Ms. McCue was unavailable for some time and they had up to three cancelled  
meetings all cancelled by Ms. McCue.  
[752] Professor Young testified that Ms. McCue never told her that the criteria for promotion  
and tenure in the CA was unfair to her. She said she never questioned the need to publish. She  
testified that she never mentioned anything about concerns she might have as an Indigenous  
scholar about doing what Professor Young was recommending.  
307  
[753] Further, Professor Young testified that Ms. McCue never raised any confusion or  
concerns about what peer review meant, saying that she was very explicit with Ms. McCue  
about exactly what peer review was.  
[754] She testified that peer review is important as an academic’s work has to be evaluated. If  
a journal or a publication accepts an academic’s work for publication, it is significant. That  
academic has made a contribution to the knowledge. In an independent review the question is  
whether there is a contribution which will advance the academic’s field. Peer review is an  
integral part of the system because it is evidence that an academic’s scholarship is considered  
to be of a high caliber and that a contribution has been made to knowledge in the field.  
[755] In 2006, when acting as Ms. McCue’s mentor, Professor Young took Ms. McCue at face  
value. She did become concerned, however, over time when her written work did not appear.  
After three to four years Professor Young began to view Ms. McCue as having ignored the  
advice given.  
[756] Professor Young had discussions with Ms. McCue respecting how she could generate  
evidence to support her promotion and tenure application. She suggested ways Ms. McCue  
could tackle publication to reduce the overwhelming nature of the task. Ms. McCue never  
suggested to her that her scholarship should be strictly oral. Nor did she ever suggest that her  
peers were her community members.  
[757] Professor Young testified that Ms. McCue would be aware of the category of Scholarship  
of Teaching because she took her through the CA requirements in preparation for the  
Promotion and Tenure Faculty Committee. So she spoke of service, scholarship, Scholarship of  
Teaching, Professional Contribution.  
[758] Professor Young testified that she never saw work from Ms. McCue that would count as  
Scholarship of Teaching. Further, she testified she never saw anything from Ms. McCue that  
would constitute Professional Contribution.  
308  
[759] Professor Young was never told by Ms. McCue that she was being treated as a  
professional case in her candidacy.  
[760] Professor Young testified as well that it was extremely unusual for a Faculty member to  
be relieved of all teaching duties to assist them to publish. She testified she could not recall  
another instance of that while she was at UBC.  
[761] Professor Young testified about the supports and information available to new faculty  
with respect to the promotion and tenure process. She testified that the letter of appointment  
contained a link to the appropriate rules. In addition, the University runs orientation sessions  
for new faculty, which include expectations for tenure track. She personally ran sessions for  
everybody in the Faculty of Law who was pre‐tenure or eligible to apply for promotion to full  
professor. In those sessions there was discussion of the requirements and she would answer  
questions. She does not recall Ms. McCue attending those sessions. She introduced into  
evidence a two‐page document entitled Promotion and (Tenure) Process, setting out in point  
form key steps to be taken by a Faculty member, including choosing external referees,  
preparation of the CV and how the Faculty process and vote works as well as how the SAC  
functions. She points out at those sessions that the faculty member must apply for promotion  
and tenure no later than the seventh year, although, that can be extended by special leaves.  
She pointed out to the faculty members that it is a paper‐driven process that documents the  
candidate’s work and, with respect to research, that detail respecting publication is key and  
that research must be placed in the correct categories. Also, while service is important it cannot  
compensate for deficiencies in teaching and scholarship.  
[762] Professor Young also pointed out that gaps in productivity are problematic and that an  
applicant should try to avoid a significant gap in publication.  
[763] Professor Young sent to Ms. McCue the Promotion and (Tenure) Process document as  
well as a document in one page setting out a summary of the promotion and tenure process  
and a one‐page document setting out criteria for tenure and promotion for various promotions,  
including promotion to Associate Professor. She sent it to her because she had concerns that  
309  
she might not come to the meetings she held and wanted her to have the information,  
particularly with respect to scholarship. The information was sent by email on June 16, 2009.  
The email was entered into evidence as were the documents.  
[764] The email refers to a meeting that was held the next day. That meeting never took place  
because Ms. McCue cancelled it. Professor Young offered that she never saw a CV from Ms.  
McCue, although, she talked to her about the importance of it.  
[765] Professor Young was asked how much lead time was needed to provide the dossier to  
the external referees in order to receive the external referees’ letters by mid‐January. She  
responded that you need six weeks and prefer a minimum of three months to receive the  
candidate’s material.  
[766] Professor Young confirmed that once Professor Boyd, her partner, was asked to chair  
the SAC, she went to the Dean and asked to step down as chair of the Faculty Committee. Her  
concern was a perception of bias having two partners chairing key committees in the  
promotion and tenure process. Once she stepped down in late September/early October 2009,  
she had no further involvement in the process.  
[767] She attended the first Faculty Committee meeting. She described that those in  
attendance represented tenured Faculty members at the rank of Associate Professor and  
above. Prior to the meeting, they received a package including the CV, the report of the  
Shepherds and the external referee letters at the start of the meeting and they were collected  
back at the end of the meeting. When she reviewed Ms. McCue’s CV she had concerns and was  
sorry that it did not include more scholarly work. Concerns were raised by others. The quantity  
was inadequate and did not meet the standard by any measure. She testified that it was  
important to meet the standard of quantity and quality. A convention is to try to get a good  
publication a year out, preferably refereed. The knowledge must be quantifiable, reviewable  
and examinable by experts in the field. As of the first meeting, Ms. McCue had not met the  
scholarly activity requirements.  
[768] No vote was taken at that time.  
310  
[769] The student evaluations were low and she considered them to be a prime indicator. She  
was troubled by Ms. McCue’s evaluations and undecided on whether she had met the teaching  
requirements at the first meeting. She was glad she did not have to vote.  
[770] She described the tone of the first meeting as thoughtful and respectful. She said Ms.  
McCue’s case was very weak, but those in attendance did the best they could. They discussed  
Ms. McCue in the context of an Indigenous woman scholar and what difference, if any, that  
should make. They engaged with her CV and the Shepherds’ Report. Those in attendance were  
trying to see the strengths in the file.  
[771] She also attended the second Faculty Committee meeting. She recalled that a very  
significant amount of material was provided the evening before that meeting. She was unable  
to read it all. She went through the indices looking for material that would address the  
weaknesses in the file looking for impact evidence. Ms. McCue spoke and led the Committee  
through some of the highlights. She recalled her speaking of “oral tradition” and the  
importance to her community of oral scholarship.  
[772] Professor Young was asked if she was familiar with other Indigenous scholars relying on  
oral tradition and confirmed that she was. She described the stories of Professor John Borrows,  
which are then incorporated into his writing. She said that in his writing he tells the story again  
but incorporates new ideas, new knowledge respecting legal issues “writ large”. She testified  
that there are quite a few tenured Indigenous professors in Canada. She testified that their  
research is evolving, that it involves oral publication and then dissemination in other ways as  
well.  
[773] Professor Young testified that the discussion at the June 9, 2010 meeting was open,  
frank, honest and respectful. She testified that on the basis of the discussion there was an  
incredibly liberal interpretation of the standards. She said that the Committee looked at the  
context that Ms. McCue worked in, wrote in and that all attendees regardless of how they  
voted wanted to apply the rules in the most beneficial way.  
311  
[774] Professor Young’s own view of Ms. McCue’s oral presentation is that she wanted more  
weight put on service. She saw Ms. McCue as submitting that service was equivalent to  
scholarly activity. In her view, the documents presented by Ms. McCue argued for that.  
[775] On the subject of oral dissemination as evidence of impact of scholarly activity, she  
testified that while the evidence included material from the Indigenous community, including  
from a chief, in her view they did not incorporate evaluation. She said:  
Just saying something is something isn’t sufficient. ... if there was a tape  
recording of her oral presentations that she wanted considered it could  
be sent out. It could be evaluated.  
[776] Professor Young felt that Ms. McCue’s material lacked evidence of impact and  
significance. She felt that the material needed an expert who had evaluated it to say that it  
contained evidence of impact and significance.  
[777] Professor Young testified that there was a call to treat Ms. McCue’s case as a blended  
case where Professional Contribution was blended with and supplemented the scholarly  
activity. She testified, however, that she would expect in a blended case to see at least one or  
two refereed articles as well as the evidence of the Professional Contribution.  
[778] Professor Young was on the Merit Pay/PSA Committee in or around 2008. The function  
of that Committee she testified is to take a limited pool of dollars and distribute it to those  
whose performance in the previous academic year deserved it. The Merit awards are based on  
a 100‐point formula and result in payments to approximately 12 out of the 40 or so candidates.  
It rewards Faculty members for outstanding performance during the academic year. The  
performance salary adjustment is meant to adjust anomalies in salary. It is not to be used to  
compensate for Merit Pay differential.  
Cross‐Examination of Professor Young  
[779] Professor Young was asked whether she recalled Ms. McCue asking her not to have her  
teach Property law. Professor Young did not recall that.  
312  
[780] It was put to Professor Young that Ms. McCue had told her that she had approached  
Dean Bobinski about the approach to her candidacy respecting scholarly activity and Dean  
Bobinski had agreed her case was to be treated as a professional case. Professor Young  
responded: “You never told me your case was a professional case at any time.”  
[781] Professor Young testified that, respecting getting a promotion and tenure application  
package together, although the CA provides a September 15 deadline the Faculty of Law did not  
have that deadline but just required the CV to be provided in a reasonable time.  
[782] Ms. McCue asked Professor Young whether she felt that her file might have been  
assessed unfairly if a new metric was not imposed. Professor Young responded that looking  
back at the time she thought the Faculty Committee had to make sure to interpret the rules in  
the CA in a manner recognizing that Ms. McCue was to be assessed as an Indigenous female  
scholar. She did not believe that Ms. McCue was assessed unfairly because the criteria were  
assessed liberally.  
[783] Professor Young added that Ms. McCue never said to her that refereed publications  
were not appropriate to evaluate her work. She said that in fact the two of them were  
discussing where and how Ms. McCue’s work would be published. She added:  
If you had told me at some point that the CA terms were inapplicable to  
you or should be reinterpreted in a significant way I would have talked  
to you and we would have taken it to the Dean.  
[784] She added that:  
If you had told me I’d have advised you more how to take an oral  
presentation to community‐based research approach and pursue it so it  
can be evaluated. ... I would have tried to give advice on how to  
disseminate to allow others to evaluate your work. ... I would say if it is  
impossible to evaluate your work you should concentrate on something  
else for promotion and tenure evaluation. ... I would have said stop right  
there.  
[785] The May 28, 2010 CV was put to Professor Young and she was asked what impact the  
first introductory paragraph had on her. This is the paragraph reading, “...Based on Professor  
313  
McCue’s social location within the University, she had structured the following information in  
her CV to accord with her wholistic (sic) Indigenous interpretation of the criteria for tenure and  
promotion. This interpretation includes assessing her file by placing equal weight on her  
teaching, scholarly and professional activities and service for academic purposes under the CA.”  
She responded that while she could approach the file in a manner recognizing Ms. McCue’s  
Indigeneity, she would have difficulty interpreting the CA respecting weighting in the way  
proposed.  
[786] Professor Young’s attention was then called to the lists of invited presentations and  
conferences starting at page 14 of the CV. Ms. McCue suggested that the same paragraph at  
the commencement of the CV calls for dissemination through oral presentation to be  
recognised as publication. Professor Young responded:  
I do not consider these to be publications. We all do talks all the time in  
different venues. ... I would encourage you to use your oral  
presentations as the basis for a publication. ... I do not see those as  
scholarly publications. ... the talks, if taped so that they could be  
evaluated, could be a publication.  
[787] Ms. McCue then challenged Professor Young as to who her peers are if she presents to  
an Indigenous community, suggesting that that community represents her peers. Professor  
Young’s response was:  
The difficulty is that the University treats peers as experts in the field.  
They are persons who have tenure and work in the University. ... I could  
give a talk to a lesbian feminist activist group. A person in the audience  
could say that my presentation represented ground‐breaking work. That  
is not peer‐reviewed work.  
[788] Ms. McCue then put it to Professor Young whether, given what she had just testified, it  
would not be possible to have oral knowledge treated as publication. Professor Young  
responded: “This is my view.”  
[789] Professor Young testified that prior to the June 9 meeting there was a significant  
addition to the materials. She said she kept looking for something she could treat as scholarly  
314  
activity. She said that Ms. McCue added material but it did not differ from the categorizations  
that had previously been presented.  
[790] Next, Ms. McCue challenged Professor Young with respect to the existence of  
Professional Contributions in her CV. She called her attention to page 23 of the CV, the CIILS  
submission respecting the UN Permanent Forum on Indigenous Issues, agenda item number 7,  
entitled Indigenous Principles for the Development of an Internal Governance Policy for  
Member of the Permanent Forum on Indigenous Issues. She pointed out that some of the  
principles in the submission were adopted to create a code of conduct for the Permanent  
Forum on Indigenous Issues at its inaugural meeting. Professor Young acknowledged that  
represented “having an impact”. However, she testified she did not know what the UN  
submission was and could not find evidence of what Ms. McCue’s assistance produced that  
could be evaluated. She questioned where the evidence of impact could be derived from Ms.  
McCue’s contribution is. She testified that:  
We must be able to link what you did with whatever the impact is. There  
is impact if there is a link between your submission and the document  
establishing impact.  
[791] Professor Young suggested that in scholarly activity the experts receive the candidate’s  
material and they get a real sense of the material that can be evaluated. She testified that there  
are Indigenous Faculty on the Faculty Committee. They were asked about Indigenous traditions  
in respect of Ms. McCue’s candidacy. They felt confident that the knowledge in Ms. McCue’s  
portfolio was largely insufficient to allow evaluation.  
[792] Ms. McCue put it to Professor Young that if the Faculty Committee were acting within  
the strictures of the CA and the metric is not right, could it not lead to discrimination. Professor  
Young responded:  
No, it leads to the need to renegotiate the CA. ... people were willing to  
interpret the CA as much as possible to take into account what was dear  
to you. We took it into account.  
315  
IX EVIDENCE OF PROFESSOR SUSAN BARBARA BOYD  
[793] Professor Boyd obtained her law degree at McGill University in 1978 and her Masters of  
Law at the University of London in 1981. She was hired by Carleton University in 1984 and  
achieved tenure and Associate Professor status in 1988.  
[794] Professor Boyd attended UBC in the 1992/93 academic year as a visiting Associate  
Professor, and in 1993 was hired as a tenured Associate Professor designated Legal Chair  
Feminist Women’s Studies. She became a full professor in July 1996 and retired as professor  
emeritus in 2015.  
[795] Professor Boyd co‐chaired the SAC in 2009 and became the sole chair in 2012.  
[796] Professor Boyd testified that the SAC is the standing committee appointed by the  
president of the University, which makes recommendations to the president on promotion and  
tenure, mainly respecting levels of appointment over that of Assistant Professor. They are  
guided by the CA and also refer to the Guidelines. She testified that there are changes to some  
extent to the Guidelines annually, and to demonstrate that, seven versions of the Guidelines  
starting with an early version and then versions from the 2003/04 calendar year through the  
2010/11 calendar year were introduced into evidence.  
[797] Professor Boyd pointed out that the SAC has 20 professors from across the University  
representing all of the faculties. They look at various standards of excellence and procedural  
fairness. They review the paper file accompanying a letter of recommendation from the Dean  
of a Faculty in respect of a promotion and tenure application. The typical file is comprised of  
the Dean’s letter, the full CV, four letters from external referees, and any updates to the CV,  
such as new conference reports or research grants. In addition, if there were serious concerns  
raised at the earlier level, the candidate must be invited by the Dean to respond and the SAC  
receives those documents as well. They also receive a summary of the teaching evaluations.  
316  
[798] Professor Boyd testified that the 20 members are appointed by the president. Each  
member serves at least one year, based on nominations from the Deans, and one member from  
the Faculty Association.  
[799] Professor Boyd testified that typically the SAC begins meeting in September after a  
meetings schedule is set in August. They then meet every two to three weeks through to the  
end of June of the following calendar year. In that timeframe they deal with between 140 and  
180 files approximately. The candidate is made aware that the Guidelines exist and what it  
contains. It is posted on the website of UBC’s Faculty Relations and on the Faculty Association’s  
website.  
[800] Professor Boyd testified that it was one of her duties to provide workshops during the  
year about the promotion and tenure process. At that workshop, faculty members in  
attendance would be directed to the Guidelines. In her experience, faculty in attendance were  
interested in the Guidelines due to anxiety respecting the requirement for promotion and  
tenure.  
[801] In the process, a tenure clock refers to the marker where a candidate is first appointed  
to tenure‐track position and when, depending on the start date, they would have to apply for  
tenure. The Guidelines set out information with respect to the tenure clock and the criteria for  
promotion and tenure. The Guidelines are consistent with the CA provisions. They also may  
expand on those provisions.  
[802] Professor Boyd testified that scholarly activity is defined clearly under both the CA and  
Section 3.1.1 of the Guidelines. The Guidelines express that 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.” It  
expresses that judgment of scholarly activity is based “mainly on the quality and significance of  
an individual’s contribution.”  
317  
[803] She pointed out that scholarly activity is measured by looking to the merits of the  
individual case and considering the case objectively on the basis of traditional scholarship,  
Scholarship of Teaching and Professional Contribution.  
[804] The Guidelines are detailed, covering all aspects of the process, including the criteria for  
promotion and tenure, how external referees are selected, a model CV, guidance on updating  
CVs, obligations of the heads of the departments with respect to the process and virtually every  
other area of the process, including the confidentiality of the SAC decisions and deliberations.  
The procedures at the SAC are set out at page 33 and 57 of the 2009/10 Guidelines.  
[805] Where tenure is denied, the chair or co‐chair of the SAC generates any questions the  
SAC may have respecting the file and send them to the Dean of the relevant Faculty. The Dean  
provides an oral response at the SAC meeting.  
[806] Professor Boyd testified that the SAC wanted to be as fulsomely informed as possible  
given, in particular, the recommendation against tenure.  
[807] The SAC members do not typically perform an evaluation of the candidate’s work at  
their meetings. They do not receive copies of transcripts of oral publications. They receive the  
CV, the letters from the external referees. It is not part of their mandate to read the works of  
the candidate. They are not typically equipped to evaluate the works. Given the difference in  
the norms between the various faculties, the evaluation of particular works is discouraged. It is  
appropriate for the faculty member from the candidate’s discipline to explain the quality of a  
reviewing entity such as a journal. The external reviewer’s letters are taken very seriously, they  
are read with care looking for indications that the external referees are not arm’s length,  
looking at the external reviewer’s recommendation and how they have related their  
assessment to the language of UBC’s CA. They look in particular to the detail of the external  
reviewer’s assessment of the candidate’s body of work.  
[808] They also look to the student evaluation scores and peer evaluation.  
318  
[809] Professor Boyd testified that she received all of the typical documents on Ms. McCue’s  
application as well as a large quantity of materials on a flash drive. She testified it is unusual to  
receive such a volume of material.  
[810] Professor Boyd testified that all of the members of the SAC were aware that this was an  
atypical file in the sense of a wide range of materials. They took the matter seriously and  
assessed Ms. McCue’s application accordingly.  
[811] Dean Bobinski was invited to meet with the SAC. The SAC was reminded this was a  
blended case and a sensitive case. The Dean recommended against both promotion and tenure.  
The external referees’ letters were discussed. Although three of those letters were positive,  
some of the letters were not as fulsome as the committee sometimes sees. Professor Boyd  
recalled that the Dean answered questions about those external referees’ letters along those  
lines. She believed some of the external referees’ letters analysed Ms. McCue’s work in the  
context of the CA but she did not recall the specific language of those letters.  
[812] Professor Boyd testified that the SAC’s discussion with the Dean was very serious as the  
SAC members knew what was at stake. Tenure denials are not recommended lightly, they are  
very rare and, hence, there was a serious discussion.  
[813] Professor Boyd was asked if there had been any other cases where unanimous votes  
against both promotion and tenure resulted. She could not recall that but testified that  
recommendation for denials were very rare.  
[814] The SAC went back to the CA and Guidelines looking for standards of excellence. For  
scholarly activity they were looking for quality and significance. For teaching they were looking  
for a high degree of effectiveness. The SAC determined that the criteria had not been met. For  
promotion they were looking for sustained and productive scholarly activity.  
[815] Professor Boyd, pursuant to normal procedure, prepared notes which were provided  
ultimately to President Toope setting out the SAC meeting components. It sets out a detailed  
recounting of the questions the SAC put to Dean Bobinski, which included:  
319  
a. how the candidate’s teaching record compares with the Faculty’s expectations for  
promotion and tenure;  
b. how the candidate’s record of scholarly activity compares with Faculty expectations  
for promotion and tenure;  
c. what criteria did the Dean consider in judging the candidate’s record of scholarly  
activity, in particular, were any of the candidate’s unique contributions considered  
as “Professional Contributions”;  
d. how the evaluations of the referees were weighed in forming the negative  
recommendation;  
e. why five colleagues abstained from the vote on tenure and how common  
abstentions are in this Faculty; and  
f. what mentorship and advice was provided to the candidate, including in relation to  
the standards for promotion and tenure within the Faculty and her progress in  
meeting these criteria.  
[816] The Dean’s answers are set out in full and appear balanced and accurately reflective of  
the process at the Faculty Committee level and prior. Most notably, the Dean stated:  
a. That while evaluations for the first‐year Property course were quite troubling  
because they reveal very low scores in the required first‐year course, which it is  
expected the Faculty member can teach. At the same time, the Faculty realizes that  
an Aboriginal woman teaching a mandatory first‐year course with a major  
component about First Nations land might face student resistance based on a notion  
that she was forcing material on students due to her own background. As a result,  
the Faculty looked carefully at the upper‐year Indigenous law courses which also  
raised questions about teaching effectiveness, especially given that students self‐  
select the course.  
320  
b. With respect to scholarly activity, all three types of scholarship (traditional,  
Professional Contribution and Scholarship of Teaching) were considered. While with  
respect to quantity and quality of traditional publications, the case did not meet the  
criteria for promotion and tenure, the Faculty tried to understand the work and the  
different approach taken by the candidate.  
c. The Faculty recognized that, if it was to carry through on its vision of supporting  
Indigenous scholarship, it must take seriously the argument that consultations and  
oral presentations may constitute scholarly contributions. The Dean identified that  
much of the work was not subject to third‐party evaluation. Even when all three  
types of scholarship are interpreted in the most liberal manner, the quality and  
quantity of the candidate’s contributions do not meet the criteria of the CA. Most  
candidates for tenure and promotion within the Faculty of Law provide these levels  
of contribution in addition to their traditional scholarship.  
d. The external referees’ letters were taken seriously. Some of the positive letters did  
not analyse or detail particular strengths of the candidate’s work and some included  
language of concern. A negative letter was particularly negative in its criticisms of  
each piece provided.  
e. The SAC received the perspective that because the candidate consistently presented  
CVs and materials suggesting that traditional publication was in progress, mentoring  
proceeded on the basis that the candidate was constructing a case based primarily  
on traditional scholarship. The perspective of a broader interpretation of the criteria  
emerged only after the Chair of the Faculty Committee attempted to marshal  
materials to send out for external review.  
[817] The SAC voted unanimously against promotion to the rank of Associate Professor and  
against the awarding of tenure as an Assistant Professor. The reasons for the negative votes on  
the award of tenure were the lack of evidence of a high standard of performance in relation to  
scholarly activity, having considered the non‐traditional framework presented by the candidate  
321  
and having contextualized the context of the scholarly activity. Secondarily, there was a lack of  
evidence of a high standard of performance in relation to teaching effectiveness.  
[818] Professor Boyd testified that the notes were an accurate representation of the SAC’s  
discussions and decisions. She also testified that the notes were especially long. The normal  
notes would occupy approximately one page, whereas, the notes with respect to Ms. McCue’s  
candidacy were three and a half pages in length.  
[819] The notes revealed that there were five abstentions. Professor Boyd testified that the  
Guidelines provide that unexplained abstentions are “usually to be treated as tantamount to a  
negative vote”. She said, however:  
Abstentions are not necessarily treated as negative votes in my mind.  
They are not counted as formal negative votes.  
[820] After the notes were provided to President Toope, Professor Boyd had no further  
involvement in Ms. McCue’s application.  
Cross‐Examination of Professor Susan Boyd  
[821] Professor Boyd was asked which version of the CV was before the SAC. She was shown  
the May 28, 2010 version. She testified that the most recent version of the CV was provided to  
them but that she honestly was not able to say at this point which CV was before them.  
[822] She confirmed that she recognized the revised Shepherds’ Report and was “almost  
certain that it was in the file”. She was unable to recall whether the transcript of the June 9,  
2010 meeting of the Faculty Committee was in the file.  
[823] Professor Boyd confirmed that Ms. McCue’s response to Dean Bobinski of January 18,  
2011 was in the file before the SAC. In it was Ms. McCue’s urging that a different paradigm was  
being requested balancing her scholarly activities, teaching and service equally on her  
application for promotion and tenure at UBC.  
322  
[824] Professor Boyd testified that the SAC had received all of the materials respecting Ms.  
McCue’s application at least two weeks prior to their meeting held May 27, 2011.  
[825] Professor Boyd also confirmed that the SAC had Ms. McCue’s letter to President Toope  
dated May 25, 2011, responding to Dean Bobinski’s recommendations against promotion and  
tenure. Professor Boyd was asked if there was discussion at the SAC of sending Ms. McCue’s  
application back for a restart. Professor Boyd responded “not that I recall”.  
[826] Respecting the SAC process, Professor Boyd testified that the SAC reviews the records of  
previous processes. They are not assessing Ms. McCue’s scholarly activity and teaching per se.  
Rather, they are relying on the reviews, the Dean’s letter and Ms. McCue’s responses to the  
previous recommendations. She said the “notes speak to the type of factors we considered in  
reviewing the file”.  
[827] Professor Boyd acknowledged that Ms. McCue’s response of May 25, 2011 was not  
factored into the subcommittee’s questions to Dean Bobinski which were addressed at the May  
27 meeting, because it was received very close to that SAC meeting.  
[828] Ms. McCue asked Professor Boyd whether the SAC’s analysis was a standard one or  
different. Professor Boyd testified that the starting point for all candidates, including Ms.  
McCue, is the language in the CA.  
[829] She recalled that the SAC discussed Ms. McCue’s status as an Indigenous female scholar,  
that her case involved additional considerations with respect to scholarly activity, that the SAC  
looked at Scholarship of Teaching because some of the material provided by Ms. McCue  
required that, and that they took a broad approach to scholarly activity in their deliberations.  
She testified that the SAC had before them all of the evidence, including flash drives. She said  
that all of it was available for review by all SAC members and that they made their assessment  
based on the record before them. They did not contact Ms. McCue directly.  
323  
[830] Professor Boyd testified that, if Ms. McCue was asking her whether the SAC evaluated  
her file based on the same criteria as the other levels of the process she would say yes. All  
members of the SAC, in her view, were guided by the CA and the Guidelines.  
[831] Ms. McCue inquired where the process was outlined for the candidate. Professor Boyd  
referred her to the Guidelines at page 14, which is a section of the Guidelines outlining the  
process quite comprehensively for the candidate. I note that paragraph 4.9.1 reads:  
July 1 of the following year of the review is the effective date for all  
reappointment, tenure and promotion decisions.  
[832] Ms. McCue took Professor Boyd to the May 25, 2011 version of her CV. Professor Boyd  
confirmed that the SAC would have had this CV before them. She testified that members of the  
SAC would have assessed the CV against the definition of scholarly activity in the CA looking for  
evidence of quality and significance. With respect to scholarly activity, they were looking for  
evidence of the distinction of the work. With respect to tenure, they were looking for evidence  
of a high standard of performance. With respect to promotion, they were looking for evidence  
of sustained high standard of performance. They looked at what the Faculty Committee  
assessed and whether the language of the CA was met.  
[833] Ms. McCue inquired of Professor Boyd how Professional Contribution was treated by  
the SAC. Professor Boyd responded that she could not read the minds of the attendees, but  
generally speaking they were looking to some degree to length, how many publications, how  
many pages; she said that the members had to struggle with how to assess quality and  
significance. What kind of impact did it have in the world? She said, “Peer review gives us a  
good marker on how a piece is received in the academic community.”  
[834] Ms. McCue put to Professor Boyd a paper entitled Towards Recognition of Inherent  
Rights as Indigenous Peoples co‐written by Ms. McCue and two other authors. She then put a  
letter from Callison & Hanna, Barristers and Solicitors, practitioners of Aboriginal law, on which  
Ms. McCue collaborated. The letter stated that the paper was presented at:  
324  
A historic all Chiefs meeting of First Nations in British Columbia as part  
of the debate, which included other leading legal counsel for First  
Nations, about the proposed provincial Recognition and Reconciliation  
Act. The Chiefs accepted our analysis and recommendations and  
rejected the proposed legislation. Although the paper was not published  
in the academic sense, it was peer reviewed by First Nations and their  
legal council (sic) throughout British Columbia. As First Nations people  
trained in the legal profession, our responsibility was to ensure that First  
Nations people in British Columbia had legal information and analysis on  
which to make an informed decision about the potential implications of  
legislation on Aboriginal title. In addition to First Nations review, our  
paper was reviewed and accepted by many distinguished lawyers who  
have litigated Aboriginal title and rights throughout Canada and  
specifically, Ms. McCue’s analysis of inherent rights was accepted as  
correct by those lawyers.  
We unequivocally support Professor McCue’s application for tenure and  
promotion and hope that the Faculty of Law at UBC provides a space for  
her unique perspective on Aboriginal title and rights.  
[835] Professor Boyd testified that the SAC took the letter of support seriously. She testified  
that in peer review, a co‐author cannot conduct a peer review. It was counted as part of Ms.  
McCue’s academic record but not given the weight of something that was peer‐reviewed as  
accepted in academia. It was part of the overall picture considered by the SAC.  
[836] Professor Boyd testified that the SAC applied the University standard of peer review.  
She said that while the SAC understood that with an Indigenous scholar a more holistic  
approach needed to be taken, they still had to have an eye towards the standards in the CA.  
[837] Professor Boyd testified that peer review involves some form of anonymous  
assessment. She testified that is a way of gaining impartial assessments of people’s scholarship.  
She testified that most universities apply independent assessment by somebody acknowledged  
as expert in the field.  
[838] Professor Boyd testified that the public and policy reports submitted to UN committees,  
such as the Report on Indigenous Network on Economies and Trade submitted to the UN  
Committee for Economic Social and Cultural Rights, are not read anonymously or assessed in  
the way peer referees read publications. Accordingly, the weight placed on these contributions  
325  
by SAC members would likely have been less than peer‐reviewed works, but they would have  
been considered and given some weight by members of the SAC.  
[839] Ms. McCue inquired of Professor Boyd how the SAC would have treated the CIILS  
community legal needs assessment final report. Professor Boyd could not recall exactly but  
testified the SAC would have searched for the impact the CIILS needs assessment had on the  
curriculum. She testified that the SAC, in searching for impact, is looking at quality and  
significance when weighting a candidate’s work. She testified:  
We would be looking for indicators particularly in the external referees’  
assessments and in the Faculty Committee’s assessments, because  
those were the closest to being experts in the candidate’s field and  
closest to evaluating impact. In a normal file, those are the main  
indicators. In this file, because we were provided with a wide range of  
materials we were looking for quality, significance and impact. ... it’s not  
an exact science. So we just obtain an overall impression ... the nature  
of the blended file required us to look outside the traditional box and all  
the members were aware that the file involved Indigenous scholarship,  
Indigenous knowledge and knew they needed to take account of a  
broad range of contributions as best we could.  
[840] Looking at the May 25, 2011 CV, at page 17, Ms. McCue inquired whether the SAC  
worked with her framework. Professor Boyd responded:  
They read your framework and took it into account in their  
deliberations. ... I can’t say how members weighed your individual  
contributions. ... the CA is clear we must weigh scholarship and teaching  
more heavily than service contributions. ... it was a global decision. ... I  
recall a blend of contributions was spoken to. The file made it clear that  
a blend of contributions was being put forward. ... I recall it was a global  
decision. We were not in a position to place equal weight on service  
because of the CA language. The committee took note of the broad  
factors in the CV.  
[841] Ms. McCue asked Professor Boyd how the SAC considered and weighed oral  
presentations set out commencing on page 17 through page 20 of her May 25, 2011 CV.  
Professor Boyd responded:  
326  
As we weighed all oral presentations on Ms. McCue’s file as  
dissemination of knowledge we had to assess significance and impact of  
those presentations. It was a more difficult question as to how to assess  
impact in an oral contribution. ... the SAC was aware that your work  
identifies as that of an Indigenous woman scholar and it was evaluated  
accordingly.  
[842] Ms. McCue asked Professor Boyd how the SAC factored in her status to recognize her  
presentations so that her status does count and is not just viewed as another presentation by a  
Faculty member. Professor Boyd responded:  
The Faculty member takes your identity as an Indigenous scholar by  
taking a contextual approach to assessing the work on your file in the  
context of the University’s system having a high standard of excellence  
in awarding both promotion and tenure the standards are very well  
articulated in the Guidelines and in the CA so we take Indigenous status  
and knowledge into account as well as we could as we applied those  
standards and the language in the agreement against your file.  
[843] Ms. McCue asked Professor Boyd how her project entitled Research and Documentation  
of the Maiyoo Keyoh Society Potlatch System, which received a $20,000 grant from the Law  
Foundation of British Columbia and which was a pilot research project with findings presented  
to the Maiyoo Keyoh Society orally to take place in August of 2010, was assessed by the SAC.  
Professor Boyd responded the SAC always looks for evidence of a candidate receiving grant  
funding and that is a positive sign. She noted that the project related to Indigenous knowledge  
and potlatch practices, so the SAC would be looking for evidence of the report’s impact. She  
had no recollection that there was anything in the material that provided the outputs from the  
project that could be evaluated with respect to impact.  
[844] Professor Boyd further stated that she recalled reading Ms. McCue’s Road Map,  
produced on June 8, 2010, for accessing her documents in her scholarly activities binder,  
prepared for her tenure and promotion application. She commented that she did not recall any  
detail in the Road Map explaining the purpose of various documents. She stated that if an  
explanation was put in front of the SAC she would have expected it to be in the Road Map. I  
would comment that the Road Map itself is a four‐page document simply outlining Article 4.03  
327  
relating to scholarly activity and other portions of the CA related to promotion to the rank of  
Associate Professor and then summing up the criteria for tenure and promotion as traditional  
scholarship, Professional Contributions and Scholarship of Teaching under the rubric of  
scholarly activity. It provides no information respecting how any of the documents in the CV are  
to be viewed or what their impact is beyond what is in the CV itself.  
[845] Professor Boyd confirmed that the SAC had the Shepherds’ Report and that it included  
comments of the Shepherds on community‐based research initiatives in terms of the challenges  
and the measurement of scholarly activity and that, in the context of Aboriginal community  
initiatives, such concerns are heightened. She testified, however, that she could not speak to  
what was in the minds of the individual members of the SAC and could not recall specific  
discussions at the SAC with respect to the paragraph at the bottom of page 11 dealing with that  
subject and concluding with the comment that since Professor McCue had focused most of her  
attention on the production of research with Aboriginal communities she may be assessed  
unfairly and that new scholarly metrics might be appropriate. Ms. McCue suggested that it was  
Professor Boyd’s position that, without some kind of peer review or assessment, it could not be  
weighed for promotion and tenure purposes. Professor Boyd responded saying:  
I am not saying it couldn’t be weighed – the fact of receiving the grant  
would be weighed as important under the research or equivalent grants  
portion of the CV. The overall challenge is to look at the output and  
evaluate the quality and significance of that output.  
She testified that she suspected there was a lack of evidence to evaluate this particular grant  
project.  
[846] Ms. McCue drew Professor Boyd’s attention to her response to Dean Bobinski’s  
recommendation submitted on May 25, 2011 at page 23 of 24 where she expresses:  
It is unclear to me at this stage whether the appropriate steps to take  
next are to either:  
1. make a recommendation/decision based on all the evidence  
submitted to date with the equitable paradigm proposed and  
with a multiple‐track assessment of my scholarly activity;  
328  
2. re‐start the process by sending the file back to begin the process  
again according to agreed upon frameworks and proper  
timeframes and mentorship, and so that I can submit a record to  
establish that I meet the requisite criteria has been met. Any new  
process would have to ensure that the alleged procedural and  
substantive errors are not replicated;  
3. send the evidence submitted to date back to all the referees  
below to assess according to the equitable paradigm proposed  
and multiple‐track assessment of scholarly activity for re‐  
evaluation; and  
4. other suggestions.  
She asked Professor Boyd what the SAC did with this part of her response. Professor Boyd did  
not recall. She testified that she assumed the external referees had already reviewed the file.  
[847] Professor Boyd testified that the question is, could the SAC evaluate the oral  
presentations and conferences listed in the CV in some way. She indicated that it is possible to  
do that with both written publications and taped oral publications which can be sent to  
external referees. She testified that you can evaluate and provide an external reviewer with  
both. It is harder with a tape because in that case the external reviewer is the only person  
assessing impact as opposed to a peer‐reviewed process. It might matter to her if she was  
serving as an external reviewer. The quality of the conference, whether there is a competitive  
process to determine who is giving presentations, and the size of the audience are all factors to  
consider.  
[848] Ms. McCue asked Professor Boyd how it is possible to measure oral presentations.  
Professor Boyd responded that, barring the tape method, she is aware of some scholars having  
difficulty getting that research accepted. She referred to virtual journals in which work may be  
published and that methods of dissemination have expanded over the past few years due to  
online texts and such. She says that in the end the University must be able to assess the quality,  
quantity, significance and impact of the research and presentation.  
329  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission