Professor Seeks Judicial Review Over Denial of Promotion

Venema v Brandon University, 2021 MBQB 155 (June 29, 2021) is a Judicial Review decision about an Associate Professor employed at Brandon University who was denied promotion to the position of Professor.

The Applicant, Mr. Venema, had been denied the promotion, and appealed to Brandon University’s Promotion Appeals Committee (“PAC”).  The PAC upheld the denial of promotion, so Mr. Venema applied for judicial review to the Manitoba Court of Queen’s Bench.

The application for judicial review was successful but the court declined to determine if the promotion should have been denied, and instead ordered that the matter be referred back to the Promotion Appeals Committee for reconsideration of the promotion application. 

Judicial Review of a decision rendered within the context of a university’s internal administrative framework is quite rare.

Facts

Mr. Venema, is an Associate Professor of philosophy at Brandon University. Mr. Venema applied for a promotion to become a Professor, in accordance with the guidelines set out in the Collective Agreement between the Brandon University Faculty Association and Brandon University. The application process required:

• Preparation of a dossier, which contains all evidence to be considered in support of a promotion
• Submission of the dossier the Applicant’s Faculty with a view of either recommending or not recommending the Applicant for promotion;
• Submission of the dossier to the applicant’s Dean who must also determine whether they will recommend or not recommend an applicant for promotion;
• Submission of the dossier to the University Promotions Committee who determines whether it will recommend or not recommend an applicant for promotion;
• Consideration of the application by the Vice-President who makes a final decision as to whether an applicant will be awarded a promotion.

The Applicant prepared and submitted his dossier to the Philosophy Department and received their recommendation for promotion. Then, the Applicant submitted the dossier to the Dean, but did not receive a recommendation. After the Dean’s refusal to recommend, the Applicant prepared new material, including text to 25 sermons that were mentioned in the original dossier as well as a medical accommodation letter relating to employment at Brandon University. The University Promotions Committee (UPC) and the Vice-President reviewed the dossier and supplemental materials.  Both declined to recommend the Applicant for promotion.

The Applicant appealed to the Promotions Appeal Committee (“PAC”), which upheld the Vice-President’s final decision not to grant the Applicant a promotion.  It provided 4 main reasons in support of its decision:

1. the dossier of the Applicant was poorly organized and failed to include substantial information necessary to evaluate the application for promotion;
2. the Vice-President erred by considering elements as Research rather than Service.  The greater error was that both the UPC and the Vice-President considered those elements at all, as they were not included in the dossier, just mentioned;
3. the UPC and Vice-President did consider the Applicant’s disability, the Applicant not being able to demonstrate any discrimination on their part;
4. the PAC concluded that the Applicant did not demonstrate that he had attained excellence in teaching and research, which could have compensated for his deficiencies in other areas.

The Applicant initiated the Judicial Review on the basis that grounds (i) and (ii) of the PAC decision were unreasonable. The Applicant conceded that there were no errors in the decision of PAC regarding grounds (iii) and (iv).

Analysis

Applying the principles set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov,  2019 SCC 65, the court held the PAC’s conclusion on ground (i) was reasonable, noting that PAC utilized internally coherent, logically justifiable reasoning. Regarding ground (ii), the Court held that the PAC’s conclusion was unreasonable.

In providing its reasons, the court noted that the Collective Agreement contained a clause permitting rebuttal information to be provided by the Applicant at any stage of the proceedings. The court reasoned that the supplemental material represented a rebuttal to the letter from the Dean. As such, the PAC erred by not considering that the supplemental material was properly before the Vice-President and UPC. The failure of the PAC’s reasons to provide an explanation or any reference as to the consideration of the rebuttal provisions of the Collective Agreement rendered its conclusion unjustified. Absent a chain of analysis outlining why the supplemental material was not properly before the Vice-President and UPC, the PAC’s decision was unreasonable.

The court declined to interfere with PAC’s decision stating at paragraph 81 “I am cognizant of the expertise brought at all levels of the application process, and the specific requirements to be met to be promoted to professor. It is not appropriate for the Court to substitute its own decision, given that unique expertise.” Accordingly, the court ordered that the matter be referred back to the PAC for reconsideration of the application. 

My Take

This case confirms that the courts have a limited ability to interfere with decisions of expert committees and tribunals. Furthermore, it emphasizes the importance for tribunals to provide logically coherent reasons in support of the conclusions drawn. If a logical chain or reasoning is not contained within the reasons, the decision will give rise to grounds for appeal.

A published copy of this decision can be found at the following link:  https://www.canlii.org/en/mb/mbqb/doc/2021/2021mbqb155/2021mbqb155.html?searchUrlHash=AAAAAQANMjAyMSBNQlFCIDE1NQAAAAAB&resultIndex=3