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Queen's University
 

Emily Carasco and University of Windsor 

Emily Carasco and University of Windsor, faculty of law, and Richard Moon Respondents Interim Decision 2010-06245-l  

The University submits, and I agree, that the appointment of a new Dean does not preclude the option of a remedial order instating the applicant to the position of Dean should the applicant succeed in her Application.

Facts

Emily Carasco is a law professor, and a woman of colour, who was one of two finalists for the position of dean at the Faculty of Law, University of Windsor in February 2010.  However, just before the committee made a decision, one of her colleagues came forth with allegations that the professor had engaged in plagiarism.  On April 14th, the Faculty was advised that the search committee had decided to hire neither of the two finalists.

On April 28th, the day of a Faculty meeting, Carasco's legal counsel advised the university legal counsel of Carasco's position: that the University not fill the position of dean until her claim of racial and gender discrimination had been settled and that a new search committee not be struck. At the meeting of April 28th, an interim dean was appointed and a new search committee was struck. On May 12, the university legal counsel advised Carasco's legal counsel that it was not prepared to postpone preoceedings and that it welcomed it to file an application for interim remedy.

On July 14, the applicant applied for an interim order and on September 10th requested an interim order. Her request consists of the following points:

  • that she be appointed Interim Dean for a term of five years
  • that the University be ordered to suspend its search for a new dean

Her arguments were that allowing the University to hire a new dean at this point would..

  • prevent her from applying for the position when it next became available in another five to ten years because she would be too old
  • prevent the tribunal from being able to remedy the situation in an appropriate way (by making her dean) because there would already be another dean in place
  • allow the University to drag out its handling of her case

The University's arguments were that:

  • granting the applicant's request would bring undue prejudice to the Faculty of Law, impairing its ability to carry out its mission. By stopping the search for a new dean, the Faculty would be forced to hire a series of interim deans whose mandates would be only one year in length and whose duties would be greatly diminished, compared to those of a full-time dean.  This diminution of the dean's duties would impair the Faculty from  carrying out its academic mission, discourage donors and would rob students, staff and faculty members of a leader.
  • while it maintained that putting the applicant in the position of dean was an inappropriate measure, even if her application was acceptable, the University argued that the Tribunal did have the power to do so, even if the University had placed another person in the position of dean.
  • The applicant waited for months before filing her application. In that time, the University had spent considerable time, energy and money into searching for new dean candidates.  Granting the applicants interim request would seriously harm the University's reputation.

Issues

Should the Tribunal grant the request?

Decision

No

Reasons

The Tribunal applied rule 23.2 of the Tribunal's Rules of Procedure, relating to requests for interim remedies. This rule states:  

Rule 23.2

The Tribunal may grant an interim remedy where it is satisfied that:

  1. the Application appears to have merit;
  2. the balance of harm or convenience favours granting the interim remedy requested;
  3. it is just and appropriate in the circumstances to do so.

It answered each the of following question as follows:

a. Does the Application appear to have merit?

Yes.

The Tribunal assumed, without deciding,  that the application had merit.

b. Does the balance of harm or convenience favour granting the interim remedy requested?

No.

The Tribunal said that the university had much more to lose than the applicant. On the one hand, it acknowledged that granting the applicant's request would harm the University, stating "I accept that the detriment extends to the law school community as a whole, including its students, and that the interim orders sought will affect its ability to accomplish both short-term and long-term objectives, with potentially lasting impacts." On the other hand, it pointed out that while the applicant would suffer some degree of harm if the Tribunal failed to grant her request,  it is untrue that "she [would] be deprived of the opportunity to receive the remedy she [sought]". This is because the Tribunal does have the power to remove an incumbent from the position of dean and to place the applicant into that position following a finding of discrimination.  The Tribunal added that this remedy, while possible, is not necessarily the most appropriate choice. That would have to be determined.    

c. Is it just and appropriate in the circumstances to grant the interim remedy

No.

 For the same reasons stated above.  

Order

Request denied

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000