Academic Freedom in Canada: A Labor Law Right

Academic freedom in Canada occupies a unique legal space. Unlike in the United States and other Anglo-American jurisdictions, academic freedom has very limited statutory or constitutional recognition. Canadian courts have made only occasional comments on the topic, and these carry no legal weight. Human rights tribunals have rarely heard complaints that involve academic freedom. Statutes governing universities and colleges are for the most part surprisingly silent on academic freedom. Rather, the strongest legal protections for academic freedom are contractual and are embedded in and enforced through collective bargaining agreements negotiated by faculty unions. In this sense, academic freedom in Canada today is best understood as a labor law right. Canadian labor law has generally provided solid protection for the enforcement and enhancement of academic freedom rights. That is because almost all faculty in Canada are unionized and all collective bargaining agreements have strong language on academic freedom. Importantly, the enforcement of rights in a collective bargaining agreement is the responsibility of faculty unions, which are likely to have the resources necessary to litigate complex and lengthy cases that individuals alone do not.

On the flip side, it is disappointing that Canadian courts have taken a minimalist approach to what is a fundamental freedom. While labor arbitrators have over the last forty years demonstrated a reasonably sophisticated and nuanced understanding of academic freedom in teaching and research, their rulings on the right to express one’s opinion about the institution and its administration (intramural academic freedom) and the right to free expression of opinion on matters of public interest (extramural academic freedom) are mixed. This may be because arbitrators are struggling to balance traditional employment law concepts, such as the principle of the duty of loyalty owed to an employer, with the unique features of the academic workplace. What can sometimes be lost in this balancing act is a recognition that while universities are workplaces, they are special workplaces because of academic freedom.

The Struggle for Academic Freedom

Contractual protection of academic freedom in Canada emerged slowly over the past century and was solidified only with the first wave of faculty unionization that began in the mid-1970s. Prior to unionization, academic freedom was mostly codified in university policies and, occasionally, in so-called special-plan agreements with faculty. With no real legal force behind these policies and agreements, protections for academic freedom were tenuous at best and largely dependent upon the benevolence and goodwill of senior administrators.

The case of University of Toronto professor Frank Underhill is illustrative of this. At the time of Underhill’s appointment in 1927, Robert Falconer was the university’s president. Falconer was a highly influential national figure in Canada who had written and spoken about the importance of academic freedom. For Falconer, freedom of thought was “the most treasured privilege of the University” and academic freedom “one of the most sacred privileges of the university.”

Under Falconer’s benign leadership, Underhill’s exploration of progressive causes and socialist politics were, while not openly encouraged, certainly tolerated. Then Canon Cody replaced Falconer in 1932 and Underhill’s difficulties began. Cody was scandalized to no end by Underhill’s left-leaning writings and activism. Particularly irritating to Cody was Underhill’s prominent role in helping to found the Co-operative Commonwealth Federation, a democratic socialist political party and precursor of the modern-day New Democratic Party. By 1939, politicians in the provincial legislature had singled out Underhill for his “disloyalty” to “British democracy.” In the face of this political pressure, and despite its lofty commitments to academic freedom on paper, the university seemed poised to fire Underhill. Cody reluctantly backed down only after colleagues and alumni expressed their support for Underhill and more than one thousand students signed a petition urging the board not to fire him.

Nearly twenty years later, events were not so favorable to Professor Harry Crowe of United College. In 1958, a letter Crowe had written to a colleague while on sabbatical mysteriously ended up in the hands of the college’s principal, Wilfred C. Lockhart. In the letter, Crowe expressed his worry about the likely election of a federal Conservative government. If that was not enough to set Lockhart off, Crowe also confided to his colleague that religion had a “corrosive” influence on the college, which at the time was affiliated with the United Church of Canada. Within months, the college sent Crowe a perfunctory dismissal notice: “The Board is of the opinion that your conduct has been such that would enable it to dismiss you for cause and without notice.” Sixteen colleagues eventually resigned in protest, and the Canadian Association of University Teachers (CAUT) launched its first investigation.

The impact of the Crowe case was considerable. It propelled discussion about academic freedom directly into the public spotlight. It also prompted the then-fledgling CAUT to develop a policy on academic freedom, establish a permanent committee, and make the issue central to its mission. The report of the CAUT investigative committee guided this work by setting out a number of core principles of academic freedom. In time, those principles would be translated into collective bargaining agreement language.

The first principle the authors identified was that academic freedom and tenure are not ends in themselves or a special privilege but rights of faculty that are indispensable for the performance of their work. If higher education is to serve the public good, then faculty must have the right to teach, research, and speak freely—including the right to criticize administrative policy and practice within the university. Without the latter, the report was careful to emphasize, administrative power would inevitably impinge upon professional decisions about teaching and research that are best made by faculty.

The second principle was that no university teacher should have to accept a prescribed doctrine—be it religious, political, or ideological—as a condition either of appointment or of ongoing employment. The CAUT investigation took great exception to the college’s claim that Crowe had overstepped the boundaries of decency by expressing negative attitudes about religion. To this claim, the authors of the report irreverently noted, “The Committee would observe that the administration of United College, judged by its conduct, seems to hold the view that religious belief is so fragile that it may be shattered by a breath of criticism.”

The final principle was to link the exercise of academic freedom to due process, natural justice, and security of employment through tenure. The way faculty are appointed, reappointed, assessed, and disciplined has to be fair and based on open, reliable, and accepted evidence of competence in teaching, research, and service—not on their political views or criticisms of the institution. “Security of tenure,” the report noted, “is prerequisite to academic freedom.”

The Path to Faculty Unionization

While the Crowe Report was highly influential in advancing basic principles of academic freedom and tenure, the challenge of how to enforce these principles remained. A decade after Crowe’s dismissal, the University of New Brunswick summarily terminated the appointment of Norman Strax. An American academic who had been active in the civil rights and antiwar protests that were sweeping the United States, Strax brought his revolutionary zeal to the sleepy, conservative campus. In 1968, while students took to the streets in Paris and millions of Americans protested against the draft, Strax led a protest against, of all things, new library lending rules (there is surely something quintessentially Canadian about that). After refusing to end the protest, Strax was suspended by the university. A student sit-in followed, and the matter eventually ended up before the courts.

In a controversial judgment, the provincial court found that Strax was guilty of gross misconduct by engaging in actions that disrupted the normal operations of the library. The judge in the case did not consider arguments about academic freedom and held the suspension to be lawful. In addition, an injunction was issued preventing Strax from entering the premises of the university. As this was tantamount to dismissal, CAUT intervened to press the university to agree to an independent arbitration hearing on the suspension. CAUT eventually threatened censure, but Strax’s career at the University of New Brunswick effectively ended on July 1, 1969.

The Strax affair starkly highlighted the weak procedural and legal protections afforded professors at the time. The courts seemed unwilling to consider academic freedom arguments, and the university was under no obligation to agree to an independent arbitration process to settle the dispute. Around the same time, academic staff associations, including at the University of New Brunswick, had begun openly debating the merits of unionization. While much of this talk was driven by unhappiness over salaries, it was also the case that associations began to recognize that rights negotiated in collective bargaining agreements could be legally enforceable under the mandatory grievance and arbitration process in labor legislation.

Faculty associations began securing certification as trade unions in the mid-1970s, first in Quebec and then in the rest of the country. A decade later, about half of Canada’s academic staff were in unions. Today about 90 percent are covered by collective bargaining agreements that include legal protections for academic freedom.

Tensions in Labor Law

The high level of unionization of faculty in Canada means that most disputes about academic freedom are dealt with through the labor grievance and arbitration process. Only rarely have Canadian courts considered academic freedom, and when doing so they have given it a very limited legal grounding. In 1990, the Supreme Court of Canada acknowledged in an aside that academic freedom is essential in a democratic society but also considered that its legal scope should be interpreted narrowly. In McKinney v. University of Guelph, a case dealing with the mandatory retirement of professors, Justice Gérard La Forest wrote: “Academic freedom and excellence is essential to our continuance as a lively democracy. . . . [But] while I believe that the principle of academic freedom serves an absolutely vital role in the life of the university, I think its focus is quite narrow. It protects only against the censorship of ideas.”

The court went on to assert that universities in Canada, though publicly funded, are not agencies of the state. Consequently, free-expression rights embodied in Canada’s Charter of Rights and Freedoms do not generally apply in a university setting. As a result, and in sharp contrast with their American counterparts, Canadian judges have not established any significant legal interpretation of academic freedom.

Similarly, while most provincial human rights laws prohibit discrimination based on a person’s political beliefs and some provinces have a tribunal dedicated to enforcing these laws, there are only a few instances of tribunals taking up cases involving academic freedom. In a 2012 complaint alleging that a group of Brock University professors engaged in religious discrimination by criticizing a program operated with the local Catholic diocese, the Ontario Human Rights Tribunal stated that the principle of academic freedom does not override obligations set out in legislation. In dismissing the case, however, the tribunal noted that “it is well established that courts and tribunals should be restrained in intervening in the affairs of a university in any circumstance where what is at issue is expression and communication made in the context of an exploration of ideas, no matter how controversial or provocative those ideas may be.”

By contrast, labor arbitrators have ruled on numerous cases involving disputes over academic freedom. In an important 2007 case, a labor arbitrator was asked to decide on what had become a bitter public spat between a professor and the York University administration. The professor had distributed a pamphlet at a campus event alleging that the York University Foundation was “biased by the presence and influence of staunch pro-Israel lobbyists, activists, and fundraising agencies.” In response, the university issued a media release in which it strongly condemned “this highly offensive material.” The York University Faculty Association filed a grievance over the statement on the grounds that it violated the collective bargaining agreement’s protections for academic freedom.

In ruling in favor of the faculty union, the arbitrator relied upon language in the collective bargaining agreement that defined academic freedom as including the right to examine, question, teach, and learn free from institutional censorship. The arbitrator found the university violated the collective bargaining agreement by publishing a statement that “interfered” with the academic research activities of the professor. In reaching his decision, the arbitrator also emphasized the central importance of academic freedom to the university’s mission: “The academy is and must be a bulwark against conventional thought and received opinion not just for the benefit of its members but for society at large.”

Other labor arbitration decisions have not been as supportive of intramural academic freedom. In a 2011 case involving the University College of the North, a professor faced disciplinary action for publicly criticizing the president of the college for having rejected a hiring committee’s recommendation. In an email sent to several administrators, the professor expressed no confidence in the president and accused him of violating established hiring policies and procedures. The professor then sent a second email to the rejected candidate advising him of the outcome of the search and recommending that he contact the union. The email was copied to others in the college. In response, the president fired the professor for his “insolent” messages and for breaching college policies.

The union filed a grievance over the dismissal, arguing that it violated academic freedom protections in the collective bargaining agreement for intramural speech. However, the arbitrator was not convinced by this argument and instead seemed to rely upon traditional labor law principles in finding the professor guilty of insubordination. The arbitrator concluded, without much argumentation, that both emails fell outside the bounds of academic freedom. He noted that it was particularly inappropriate for the professor to have contacted the rejected candidate. In the arbitrator’s view, this was “in defiance of and a challenge to the employer’s authority” and “an invitation to challenge the employer’s decision.” While finding the actions of the grievant serious, the arbitrator substituted a two-month suspension for dismissal.

The last case highlights how labor arbitrators can sometimes struggle to appreciate the specific features of the academic workplace. While they have displayed some appreciation that employment relationships in universities and colleges are unique because of the existence of academic freedom and collegial governance, arbitrators are also influenced by general employment law considerations. In Canada, as in the United States, an employee’s duty of loyalty to an employer is firmly established in labor law. This can give rise to competing claims in academic freedom arbitration cases between the right of academics to exercise their free expression and the duty of loyalty owed to the employer.

These tensions will continue to play out as more cases arise. As they do, it is critical that Canadian academic unions use the grievances they bring forward to arbitration to help expand the understanding of academic freedom in labor law, particularly for matters of intramural and extramural academic freedom. While Canadian professors have clearly benefited from the fact that labor law plays such an influential role in protecting academic freedom, more needs to be done to ensure that arbitrators appreciate that the university is a workplace, but a workplace of a special type. 

David Robinson is executive director of the Canadian Association of University Teachers. His email address is [email protected].

The Case of Lindsay Shepherd

Some recent controversies relating to academic freedom in Canada fall outside the scope of labor law. In 2017, Wilfrid Laurier University teaching assistant Lindsay Shepherd sparked a national debate about free speech and academic freedom when, in a communications studies tutorial class, she showed students a portion of a televised debate featuring controversial University of Toronto psychology professor Jordan Peterson. In the video, Peterson justified his now-infamous refusal to use gender-neutral pronouns on the grounds that fluid notions of gender identity and expression are “propositions of radical social constructionists.”

One or more of her students complained about the video, and Shepherd was hastily summoned to a meeting with the department chair, her faculty supervisor, and a representative of the administration. They sharply criticized Shepherd for displaying the video, which they claimed might have constituted hate speech. What the meeting conveners did not know was that Shepherd was secretly recording the discussion. She later released it to the media and immediately became a cause célèbre in the conservative press, which portrayed her as a gallant champion of campus free speech bravely standing up against illiberal leftists.

The university clearly mishandled the case and deflected this mishandling by shifting blame to the faculty members involved. While the incident was portrayed in the press as a clear-cut case of censorship, it was in fact more complicated. As a teaching assistant, Shepherd had limited academic freedom. Under the Canadian system, the faculty supervisor has the academic freedom to determine what materials are appropriate to be covered or presented in a tutorial, not the teaching assistant.

If not a violation of academic freedom, was this a case of stifling free speech? It is well accepted in Canada that universities and colleges should promote the free exchange of ideas. However, they are also bound by legal prohibitions against hate speech and discriminatory and harassing expression—prohibitions that would not be accepted under the US First Amendment. The challenge has been the tendency of some to view anything that may be offensive as equivalent to hateful expression under the law. In the end, the Shepherd case highlights the difficult conversations being held about free speech on Canadian campuses today that involve reconciling commitments to open debate with the need to ensure that all voices in the community can be heard without discrimination or harassment.