McWhirter v. University of Alberta (Governors), (1977) 7 A.R. 376 (TD)

• Judge: Steer, J.
• Case Date: October 07, 1977
• Citations: (1977), 7 A.R. 376 (TD)

McWhirter v. Alta. Univ. (1977), 7 A.R. 376 (TD)

MLB headnote and full text

McWhirter v. Governors of University of Alberta

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

Alberta Supreme Court

Trial Division

Judicial District of Edmonton

Steer, J.

October 7, 1977.

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 the the proper procedures were not followed in considering him for tenure.

The Alberta Supreme Court, Trial Division, 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 - see paragraphs 48 to 74. The Trial Division held that the failure of the department head to discharge his duties vitiated the recommendation of the Faculty Tenure Committee - see paragraphs 48 to 74.

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 - see paragraphs 99 to 100.

Administrative Law - Topic 1103

Classification of power or function - Powers or functions classified as judicial - Power to make recommendations - The faculty tenure committee of a university had the power to make recommendations to the Board of Governors on whether a professor should be granted tenure - The Alberta Supreme Court, Trial Division, held that the committee was not performing a judicial function, but still was required to act fairly and impartially in forming its recommendation - See paragraph 46.

Administrative Law - Topic 2143

Natural justice - Administrative decisions or findings - Duty of administrative bodies to act fairly and observe rules of natural justice - The faculty tenure committee of a university had the power to make recommendations to the Board of Governors on whether a professor should be granted tenure - The Alberta Supreme Court, Trial Division, held that the committee was not performing a judicial function, but still was required to act fairly and impartially in forming its recommendation - See paragraph 46.

Damages - Topic 1527

General damages - Elements of general damages - Loss of opportunity - A university professor was refused tenure after a two year probationary period, but the university failed to follow the prescribed procedure in doing so - As a result, the professor was deprived of the chance to be reconsidered for tenure the following year - The Alberta Supreme Court, Trial Division, held that general damages should be awarded for the loss of the chance or opportunity, notwithstanding that assessment was difficult - See paragraphs 31 to 34.

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 - However, in assessing the professor's performance, in considering and rejecting him for tenure, the faculty tenure committee assessed him as a pure geneticist - The Alberta Supreme Court, Trial Division, held that the tenure committee should have assessed the professor as an interdisciplinary and not as a pure geneticist - See paragraphs 89 to 94.

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" concerning the contribution of the professor - The department head relied primarily upon a secret ballot of the members of the department on the abilities of a professor - The Alberta Supreme Court, Trial Division, held that the department head did not discharge his duty to consult and to do so he was bound to conduct personal interviews with department members to determine not only their opinions, but also the basis for the opinions - See paragraphs 48 to 74.

Education - Topic 4355

Universities - Professors - Appointment - Tenure - Appointment procedure - At a meeting of the faculty tenure committee to consider a professor for tenure members of the committee in the professor's absence made allegations of fact about the professor, which he might have been able to refute - The Alberta Supreme Court, Trial Division, held that the professor was denied a fair hearing in not having the opportunity to hear and meet the allegations made by members of the committee - See paragraphs 82 to 83.

Education - Topic 4425

Universities - Professors - Wrongful dismissal - Damages - A university refused to give a professor tenure at the end of his two year probationary period, but failed to follow the prescribed procedure in doing so - As a result, the professor was deprived of the opportunity to be reconsidered for tenure the following year - The Alberta Supreme Court, Trial Division, awarded the professor $12,000.00 general damages for the loss of the opportunity for reconsideration - See paragraphs 101 to 105.

Master and Servant - Topic 2387

Breach of contract - Remedies of employee - Specific performance - A university professor brought an action for wrongful dismissal after he was refused tenure and claimed inter alia reinstatement in his contract to employment - The Alberta Supreme Court, Trial Division, held that specific performance of a contract of service was not appropriate and that damages would adequately compensate the professor for his loss - See paragraphs 27 to 34.

Cases Noticed:

Vanek v. Governors of University of Alberta, [1975] 5 W.W.R. 429, refd to. [para. 7].

Pyx Granite v. Ministry of Housing & Local Government, [1969] A.C. 260, refd to. [para. 7].

Zellers (Western) Ltd. v. Retail Wholesale & Dept. Store Union, Local 955 et al. (1974), 40 D.L.R.(3d) 761, dist. [para. 28].

Re Wright & Public Service Staff Relations Board (1974), 40 D.L.R.(3d) 698, dist. [para. 28].

Vine v. National Dock Labour Board, [1957] A.C. 488, appld. [para. 28].

Red Deer College v. Michaels & Finn, [1976] 2 S.C.R. 324; 5 N.R. 99, appld. [para. 28].

Francis v. Municipal Councillors of Kuala Lumpar, [1962] 3 All E.R. 633, refd to. [para. 28].

Hill v. C.A. Parsons & Co. Ltd. [1971] 3 All E.R. 1345, appld. [para. 28].

Chaplin v. Hicks, [1911] 2 K.B. 786, appld. [para. 32].

Hall v. Heyrick, [1957] 2 Q.B. 455, consd. [para. 33].

Barber v. Manchester Regional Hospital Board, [1958] 1 W.L.R. 181, folld. [para. 34].

Roper v. Royal Victoria Hospital, 11 N.R. 39; [1975] 2 S.C.R. 62, appld. [para. 46].

Hardayal v. M.M.I. (1977), 15 N.R. 396, refd to. [para. 46].

Harelkin v. University of Regina, [1973] W.W.R. 754, consd. [para. 100].

Ridge v. Baldwin & Others, [1964] A.C. 40, consd. [para. 100].

Counsel:

G.S.D. Wright, for the plaintiff;

C.P. Clarke, for the defendants.

This case was heard at Edmonton, Alberta, before STEER, J., of the Alberta Supreme Court, Trial Division, Judicial District of Edmonton.

On October 7, 1977, STEER, J., delivered the following judgment: