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Blog April 21, 2021

Bad Times at a Great University and Its Law School

When one looks more carefully into the controversy at the University of Toronto Law School over the hiring of a director for the International Human Rights Program (IHRP) and the university’s attempt to extradite itself, the picture only gets bleaker.

Part 1:  The IHRP Scandal at the University of Toronto

I should begin by acknowledging that I am married to Audrey Macklin, one of the individuals involved in the events described below. 

In August 2020 after a long and careful search, the selection committee for a new director of the International Human Rights Program (IHRP) at the University of Toronto law school unanimously decided that the directorship should be offered to Dr. Valentina Azarova, a prominent international human rights lawyer, who is currently based in Germany. The 3 person committee (Professor Audrey Macklin, Chair of the Faculty Advisory Committee to the IHRP, Vincent Wong, Research Associate at the IHRP, and Alexis Archbold, Assistant Dean at the law school) had decided that only two of the candidates they had seen were qualified and that Azarova was the stronger of the two. Neither of these candidates was Canadian. The committee members also agreed that, if neither of the candidates was available, the search would be designated as “failed”, and the process would have to begin again. The committee knew that because Azarova was not a Canadian citizen or permanent resident (although her husband is a Canadian citizen), she would not be able to start work at the IHRP until she had been granted a work permit, a process that would take 2 to 3 months. This was not a big concern, since the IHRP had been operating for some time without a permanent director, and arrangements had already been made so that the incoming permanent director would not begin teaching until January 2021. 

The Assistant Dean (an administrator who reports to the Dean of the law school) let the Dean, Edward Iacobucci, know of the committee’s decision and with his go-ahead began contract discussions with Azarova. After the position had been offered to Azarova, someone in the university administration suggested that she might be able to start work remotely (in advance of receiving a work permit) if the university were to engage her as an “independent contractor”. Apparently, the university had done this in other cases. The hiring committee saw this as a plus, but its decision to appoint Azarova was not based on her being temporarily engaged on this basis, in advance of the issuance of a work permit.

At the end of August, the process was moving along well. The Assistant Dean had consulted with the university’s lawyers about the independent contractor plan and was preparing to submit the application for Azarova’s work permit in early September. Azarova and her family were at this time making plans to move to Canada.   

However, on the Friday before the start of the Labour Day weekend, the Assistant Dean contacted Macklin to let her know that an important donor to the law school, David Spiro (a judge on the Tax Court) had spoken to an Assistant Vice-President (AVP) at the university (who deals with fund-raising and donor relations) to ask whether an offer had been made to Azarova and to express his concerns about her advocacy and writing relating to Israel/Palestine. The Assistant Dean also told Macklin that Spiro’s concerns had been, or would be, communicated to the Dean. Macklin was taken aback by this but imagined, or at least hoped, that the law school would give Spiro’s concerns no oxygen. Following this call from the Assistant Dean, Macklin checked the various pro-Israel websites that list the names of critics of Israeli policy and found Azarova’s name on one of them.  (In the course of checking Azarova’s references in late July, Macklin had contacted an Israeli academic, who confirmed that Azarova’s writing on the Israel/Palestine question was entirely within the mainstream of human rights discourse both within and outside Israel). 

Two days after the judge’s call (the Sunday of the Labour Day Weekend), the Dean called Macklin. Here I have a brief cameo in the story. Macklin and I were driving back from a family member’s cottage and had pulled over to get gas when the Dean’s call came. I was sitting beside Macklin in the car and overheard the call. In the call, the Dean expressed a number of concerns about Azarova’s hire. He said he was concerned about the independent contractor arrangement, which he thought was “unethical.” Macklin replied that she was aware that such arrangements were being used by the university to enable foreign nationals who could not enter Canada because of COVID19 restrictions to begin or carry on working for university. She pointed out, however, that because Azarova was married to a Canadian, she could enter Canada at any time (even under COVID) and could start work as soon as she received her work permit. 

The Dean was also concerned that Azarova had asked, in the negotiations, if she could be absent from Toronto for the summer months. Macklin said she did not see this as a problem as long as Azarova was available to speak to the IHRP students, who would be engaged over the summer in internships around the world. She also said that if the Dean was troubled by this request, he could simply take it off the negotiating table. Macklin reminded the Dean that people often ask for things in job negotiations that they do not get. 

Finally, the Dean noted that Azarova had a doctorate and a substantial publication record and expressed concern that what she really wanted was an academic position. Macklin told the dean that each candidate interviewed for the position had been told very clearly that the directorship was an administrative position, and that Azarova had understood this. Macklin said that there was no reason to question Azarova’s acknowledgment of this. 

After listening to the Dean’s concerns, Macklin said to him – “I feel like the real issue here is her scholarship on Israel/Palestine” to which the Dean replied, “It is an issue, but I don’t have to get to it, because of the first two issues.” The Dean indicated that he would not be proceeding with the hiring of Azarova and would look instead into interviewing Canadian candidates. Macklin explained to the Dean that the selection committee had unanimously agreed that none of these candidates were qualified for the position. (As noted in the Cromwell report, a member of the university’s human resources department later said the same thing to the Dean). 

In the hope that the Dean’s mind might be changed, Macklin spoke to Kelly Hannah-Moffat, Vice-President of Human Resources and Equity at the university. The Dean had told Macklin that he had spoken to Hannah-Moffat over the weekend about his concerns regarding the Azarova hire. Hannah-Moffat told Macklin that she had not understood from her conversation with the Dean that he was intending to cancel the hire. She acknowledged that the Dean had mentioned his concerns about Azarova’s Israel/Palestine scholarship but that he had spoken to her mostly about the independent contractor issue. 

On Wednesday, September 9, the Dean informed Macklin in an email that he would not be proceeding with the hire of Azarova. Two days later, Macklin wrote to the Dean, resigning from her position as faculty advisor to the IHRP. The Dean did not reply to, or even acknowledge, Macklin’s resignation letter. Macklin informed the other members of IHRP Faculty Advisory Committee of her resignation. The committee members then wrote to the Dean, asking him to reconsider his decision. After receiving no reply, they submitted their resignations. Azarova’s references (who had learned from Azarova that the hire had been cancelled) also wrote to the Dean and to the University President expressing their concerns. On Monday, September 14, the Dean informed the entire Law Faculty that there would be no attempt to find a new IHRP director for this year. (You would not be wrong to wonder why then it was not possible to hire Azarova). A few days after the Dean’s announcement, the issue became public.  

The university, embarrassed by the public criticism of the Dean’s actions and the possibility of a censure from the Canadian Association of University Teachers, decided to appoint an independent investigator to determine what had occurred and whether there had been improper conduct by any member of the university community. The university announced that Bonnie Patterson, former President of Trent University, would conduct the investigation. However, concerns were raised about her independence and the university then invited retired Supreme Court of Canada judge Thomas Cromwell to serve as the investigator.

Part 2: The Cromwell Report on the IHRP Scandal

In February 2021, Thomas Cromwell, the investigator appointed by the university, interviewed the principal parties and reviewed email correspondence related to the Dean of Law’s decision to cancel the hire of Valentina Azarova as director of the IHRP. Cromwell’s report was submitted to the university in early March and was made public a week later. In his report, Cromwell concluded that the Dean’s decision to terminate the hiring of Azarova had not been influenced by Judge David Spiro’s call to the university. 

Cromwell had said during his investigation, and affirmed in his report, that he would not be making any determinations about the credibility of the parties involved in the controversy: “My task has been to construct a comprehensive factual narrative, not to resolve points on which memories differ.” It is difficult, though, to understand how an investigator could make factual determinations without assessing the credibility of the claims made by the different parties. 

Apparently, this meant that Cromwell would accept without question everything the Dean said about his actions and motivations, even when the Dean’s account was contradicted by others. For example, the Dean told Cromwell that it was he and not Macklin who raised the matter of Azarova’s scholarship on Israel/Palestine in their telephone conversation on the Labour Day weekend and that he also told Macklin that Azarova’s work on this issue was “irrelevant” (in his decision not to move ahead with the hire).  As I noted earlier, I heard Macklin raise the matter with the Dean, and I heard the Dean’s reply that Azarova’s work was “an issue”, but he didn’t have to get to it “because of the other two issues” (independent contractor and partial absence). Immediately after the call, when we began driving again, Macklin and I discussed what had been said. 

I know that the Dean’s account of the call with Macklin is untrue. The best that I can say about this is that the Dean mis-remembered. Cromwell was told I had been a witness to the conversation, but declined to contact me, presumably because he was not going to make findings of credibility. In his report, Cromwell said that he did not think anything turned on the differences between the two accounts of this conversation, since both confirmed that the Dean’s decision was not based on Azarova’s scholarship. 

There are many things that could be said about this, and it is surprising none of them occured to Cromwell. First, Azarova’s scholarship was clearly in the Dean’s mind, even on his own account of the conversation, since he says he raised it with Macklin - an odd thing to do if it was, as he claimed, “irrelevant”. If this matter was in the forefront of the Dean’s mind, as it seems to have been, it might well have affected his decision, particularly given the flimsiness of the formal reasons he gave for terminating the hire. Second, whether or not the Dean was telling the truth mattered. If the Dean’s account was found by Cromwell to be untrue (which I know it was) Cromwell might then have asked himself why the Dean thought it necessary to give a false account. Did the Dean realize that a truthful account of the conversation might suggest impropriety on his part?  Or if the Dean’s account of this conversation was found to be untrue, would that not raise reasonable doubts about his other statements, particularly when they often seemed to be unreasonable or implausible. 

Cromwell accepted without any hesitation the Dean’s account of the reasons for his decision to end the hire. The Dean claimed that:

  • the new director had to be in place by Sept 30 
  • since a work permit would take 2-3 months, the only way to have Azarova on the job by September 30 would be to engage her as an independent contractor but, 
  • such an independent contractor arrangement would be “illegal”.  

What is surprising is not just how easily the Dean’s claims can be refuted, but that Cromwell’s report provides all the information needed to do so.  

First, as the Cromwell report shows, the Sept 30 date was pulled out of thin air. It certainly came as news to the selection committee. When the committee decided to offer the position to Azarova, they knew that her work permit would take a few months and so she would not be able to start work until later in the fall. The Sept 30 date made no sense as a deadline since the term would already have begun by then and the director would not be teaching until January. The centre had been operating already for many months without a permanent director and contingency plans had already been made for the fall term. It seems possible that the Assistant Dean invoked this date in her email correspondence with the university’s human resources department in an attempt to speed up the independent contractor process within the university. The Dean himself, according to Cromwell, talked about finding a director who could be in place by Sept 30 “or sometime in the fall”. Yet, Azarova would have had no difficulty in obtaining a work permit that would have allowed her to be on the job no later than mid-late fall. Moreover, if this date was so critical, why did the Dean respond to the internal criticism of his decision not to hire Azarova, by deciding in mid-September that there would be no attempt for the time being to find a new director, thus leaving the IHRP without a permanent director for another 7 months and counting. 

Second, Cromwell accepted the Dean’s claim that the independent contractor arrangement would be “illegal”. This claim, though, is easily undermined by the facts set out in Cromwell’s report. First, though, it is important to recall that this arrangement was proposed by the university only after the offer to Azarova had been made. This arrangement would have enabled Azarova to start working before she obtained her work permit later in the fall. The university’s lawyers had approved the use of independent contractor plan. Indeed, as earlier noted, the university had done this with other individuals, who were awaiting work permits or were unable to enter Canada because of Covid restrictions. The Assistant Dean had also consulted with German lawyers (since Azarova was based there) who said that this arrangement was possible but that there was a small risk that Azarova might be viewed as an employee (rather than an independent contractor) under German law. The lawyers informed the Assistant Dean that if the German authorities decided that Azarova was an employee of the university (which again they said was a low risk), the university would be required to pay German social security charges and that failure to do so (if required) would be unlawful. Yet Cromwell, following the Dean’s lead, refers to this arrangement as illegal, when the only illegality would have been the refusal to pay if required to do so by the German authorities. 

Cromwell’s report is most revealing in its account of Judge Spiro’s intervention. Cromwell provides information about Spiro’s call including how it came about and how it was received in the university. How much more Cromwell learned about the intervention we don’t know, but there are large gaps in his account. Either he was not given all the relevant information, or he decided not to include it in his report. 

What the Cromwell report tells us is that on the Friday before the Labour Day weekend Spiro spoke to the Associate Vice-President (AVP) (who oversees fundraising and donor relations) in a pre-scheduled call, during which they discussed the Azarova appointment. 

Spiro told Cromwell that he learned of Azarova’s (potential) hire from a staff member of the Centre for Israel and Jewish Affairs in Toronto (CIJA) of which Spiro had previously been a director. The staff member asked Spiro to contact the Dean about the potential appointment of Azarova. According to Spiro, he told the staff member that he would not directly contact the Dean, since that would be inappropriate. (But as we will see Spiro was happy to have his concerns about the hire passed on to the Dean and to be kept in the loop about the process). The CIJA staff member “provided [Spiro] with a memorandum that a professor from a university outside Canada had sent to [CIJA]”. Apparently, the unnamed professor from abroad had learned of Azarova’s potential hire from an unidentified Canadian faculty member – presumably someone at the University of Toronto. 

Cromwell tells us that the unnamed professor’s email and memorandum raised concerns about the university’s “pending appointment of major anti-Israel activist to [an] important law school position.” The professor asked CIJA staff to see if they “could quietly find out the current status and confirm [Azarova’s] pending appointment” with “[t]he hope … that through quiet discussions, top university officials will realize that this appointment is academically unworthy, and that a public protest campaign will do major damage to the university, including in fund- raising.”

According to the AVP, her conversation with Spiro was “wide-ranging” and the Azarova appointment was only one of many things they discussed. Her summary of the call did not mention the directorship of the IHRP (even though, as we will see, she thought it important enough to immediately pass Spiro’s concerns on to the law school administration and to report back to him, on the same day). Cromwell gleans from the accounts of Spiro and the AVP (which he tells us are consistent on the essentials) that: “Spiro asked the AVP whether she knew anything about the potential appointment [of Azarova] …. The AVP replied that she did not. She remembered that [Spiro] indicated that as a judge he could not become involved but that he wanted to alert the University that if the appointment were made it would be controversial and could cause reputational harm to the University and particularly to the Faculty of Law. He wanted to ensure that the University did the necessary due diligence. … The AVP recalls that [Spiro] referred to [Azarova’s] published work on Israel ... [but] did not provide the AVP with the source of his information or go into any further details about the nature of the concern.” 

According to Cromwell, the AVP immediately communicated to the Assistant Dean of Alumni and Development in the Faculty of Law, informing her that Spiro had said “that the Jewish community would not be pleased by [Azarova’s] appointment and that she [the AVP] wanted to have more information about the search.” 

This message was then conveyed to the Assistant Dean (Archbold), who confirmed to the AVP that Azarova had been selected but that “no decision had yet been made”. (It is not clear whether this information was passed on to the AVP, before or after the Assistant Dean spoke to the Dean). The Assistant Dean the informed the Dean about Spiro’s call. Up until this point, the Dean had had no involvement in the hiring process. He told Cromwell that he did not even know the candidate’s name until he learned of Spiro’s call. The Dean had left it to the Assistant Dean (who reports to him) to negotiate with Azarova and take all the necessary steps to bring about the hire. The Dean now asked the Assistant Dean “to send him Azarova’s  CV (which she did at 6:38 pm that evening)” and said, “that they would talk again over the weekend.” 

Still on Friday September 4, after she received information about the status of the Azarova hire, the AVP (breaching confidence) sent Spiro the following email: “Quick update – understand from [the Dean] that no decisions have been made in the matter discussed. I’ve communicated the points discussed and he will connect w [sic] me next week. Look forward to closing the loop w [sic] you.” The AVP sent this message even though the Dean claimed to Cromwell that he had told the AVP to “back off” any involvement in the hiring process. Spiro immediately responded to the AVP “I look forward to closing the loop as well. If you need any further information on this matter, please don’t hesitate to let me know.” All this occurred in a single day, suggesting that everyone involved thought that the matter was urgent and serious. Spiro’s question was answered – Azarova had not yet been hired. Before the long weekend was over, the Dean had decided to cancel the hire. 

In the two days following Spiro’s call – during the Labour Day Weekend – the Dean spoke to the Provost and the Vice- President Human Resources. By Sunday he had decided to cancel the hire of Azarova, apparently unwilling to wait for a scheduled meeting with the university lawyers at the start of the week to discuss the independent contractor arrangement and other matters. 

Cromwell concludes that Spiro did not seek to intervene improperly in the hiring process and “simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University.” In other words, according to Cromwell, Spiro was just giving the university a heads-up and suggesting it do due diligence. Cromwell also says that he could not “draw the inference that external influence played any role in the [Dean’s] decision to discontinue the recruitment of [Azarova].” 

Both the intervention and Cromwell’s framing of it are deeply troubling. Indeed, I would venture to say that Cromwell’s willingness to discount the significance of the judge’s intervention undermines the credibility of his entire report. Cromwell shows a complete lack of understanding of the way influence works in institutional settings such as the university. It is even harder to fathom Cromwell’s absolution of the Dean  – when we know from Cromwell’s report that on the day the Dean learned that a significant donor to the law school had expressed concerns about the hiring of Azarova, he suddenly became interested in a hire in which he had previously shown no interest and decided, two days later, that the hire should not go ahead, offering only empty reasons for his decision.

There is much more that could be said about this, none of which reflects well on the Dean (now the former Dean) or on Cromwell. The university seeks to move past this controversy by pointing to this report, from a former Supreme Court of Canada judge, as absolving the administration of any impropriety. Surely, insists the university, no one would question the findings of such an eminent figure. But if anyone still thinks that we should simply defer to findings of a former judge of Supreme Court of Canada, consider this: Cromwell delivered the keynote address at a CIJA run conference, while he was in the process of writing his report. Remember it was a CIJA staff member who asked Spiro, a former director of CIJA, to contact the university about Azarova. How could a former Supreme Court of Canada judge not recognize the necessity of avoiding such a conflict?