McWhirter v. University of Alberta (Governors), (1979) 18 A.R. 145 (CA)

• Judge: McGillivray, C.J.A., Prowse and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 12, 1979
• Citations: (1979), 18 A.R. 145 (CA)

McWhirter v. Alta. Univ. (1979), 18 A.R. 145 (CA)

MLB headnote and full text

McWhirter v. Governors of University of Alberta

(App. #11934)

Indexed As: McWhirter v. University of Alberta (Governors)

Alberta Court of Appeal

McGillivray, C.J.A., Prowse and Morrow, JJ.A.

September 12, 1979.

Summary:

This case arose out of an action by a professor for wrongful dismissal. The professor was a geneticist, who was hired by a university, not because he was a pure geneticist, but because of his interdisciplinary approach to the study and teaching of genetics. At the end of his two year probationary period, the Faculty Tenure Committee recommended to the Board of Governors that he not be granted tenure. The prescribed procedure for assessing the professor for tenure required the Department Head in preparing his recommendation to the Committee to gather information "by wide consultation" concerning the contribution of the professor. The Department Head in preparing his negative recommendation relied primarily upon a secret ballot of the members of the Department on the abilities of the professor. The Committee's negative recommendation to the Board of Governors was appealed by the professor to the Tenure Appeals Committee, which merely reviewed the procedures of the Faculty Tenure Committee and found that the Committee properly discharged its duties. The professor brought an action against the Board of Governors for wrongful dismissal, claiming that the proper procedures were not followed in considering him for tenure.

The Alberta Supreme Court, Trial Division, in a judgment reported 7 A.R. 376, allowed the professor's action. The Trial Division held that the Department Head did not discharge his duty to consult and to do so was bound to conduct personal interviews with Department members to determine not only their opinions, but also the basis for their opinions. The Trial Division held that the failure of the Department Head to discharge his duties vitiated the recommendation of the Faculty Tenure Committee. The Trial Division held that the decision of the Tenure Appeals Committee did not cure the defective proceedings before the Faculty Tenure Committee, because it conducted merely a review and not a hearing on the merits.

The professor appealed on the grounds that specific performance of his contract should have been ordered and that damages were improperly assessed. The university cross-appealed on the question of liability.

The Alberta Court of Appeal dismissed the professor's appeal and allowed the university's cross-appeal, dismissing the professor's action. The Alberta Court of Appeal held that the Department Head and the Faculty Tenure Committee properly discharged their duties in assessing the professor for tenure and that no interference by the court was justified.

Education - Topic 4352

Universities - Professors - Appointment - Tenure - Considerations - A professor of genetics was hired by a university, not because he was a pure geneticist, but because of his interdisciplinary approach to the study and teaching of genetics - The Faculty Tenure Committee assessed the professor's performance in considering and rejecting him for tenure - The professor alleged that the Committee assessed him as a pure geneticist, in stead of on the basis of his interdisciplinary approach, and also failed to consider the original correspondence respecting the terms of his hiring - The Alberta Court of Appeal held that the Committee fairly and reasonably fulfilled its function of assessing the professor's contribution and probable progress in the university, including the terms of his hiring and his special approach to genetics - See paragraphs 31 to 36.

Education - Topic 4355

Universities - Professors - Appointment - Tenure - Appointment procedure - The prescribed procedure for assessing a professor for tenure required the Department Head in preparing his recommendation to gather information "by wide consultation" among his colleagues and others concerning the contribution of the professor - The Department Head relied primarily upon a secret ballot of the members of the Department on certain questions respecting the abilities of a professor - The professor alleged that the Department Head failed to discharge his duty to consult and that he was bound to conduct personal interviews with the Department members to determine not only their opinions, but also the basis for their opinions - The Alberta Court of Appeal held that the Department Head discharged his duty and that the procedure adopted by him was fair and reasonable and should not be interfered with - See paragraphs 18 30.

Education - Topic 4623

Universities - Judicial review of exercise of powers of university - When available - The faculty and the Board of Governors of a university agreed upon a procedure for considering a professor for tenure - A Faculty Tenure Committee was established to examine a professor's contribution to the university and to assess his prospects - The Head of the Department of the professor was required to make a recommendation to the committee after "wide consultation" among his colleagues and others - The Alberta Court of Appeal held that a court should only interfere with decisions on tenure based on the recommendation of the Faculty Tenure Committee if the Committee exceeded or declined jurisdiction, failed to apply the rules of natural justice or failed to comply with the prescribed procedures - See paragraphs 28 to 29 and 37 to 41.

Cases Noticed:

Zeller's (Western) Limited v. Retail, Wholesale and Department Store Union, Local 955 and Bonsal, [1975] 1 S.C.R. 376, appld. [para. 29].

Marten v. Disciplinary Committee of the Royal College of Veterinary Surgeons, [1965] 1 All E.R. 949, appld. [para. 37].

In Re a Solicitor, Ex p. Law Society, [1912] 1 K.B. 312, appld. [para. 38].

Caswell v. Alexandra Petroleums Ltd., [1972] 3 W.W.R. 706, appld. [para. 39].

Counsel:

G.S. Wright, for the appellant;

W.J. Girgulis and S.D. Hillier, for the respondents.

This case was heard before McGILLIVRAY, C.J.A., PROWSE and MORROW, JJ.A., of the Alberta Court of Appeal.

On September 12, 1979, McGILLIVRAY, C.J.A., delivered the following judgment for the Court of Appeal: