Within the Faculty of Law at TMU the appointment process, and the evaluation process, and the promotion process, are not the same collegial processes that are experienced by all other faculty members at TMU. Within the Faculty of Law the Dean is currently a voting member of the Departmental Hiring Committee (DHC), and an Associate Dean is a voting member of the Departmental Evaluation Committee (DHC), and there is no Faculty Tenure Committee (FTC).
2018 – 2020
The Faculty of Law received its first cohort of students in September 2020. Earlier in 2020 a hiring process had taken place for the appointment of new faculty members who were appointed to the new Faculty of Law.
A challenge to be met in this hiring process was the fact that, obviously, no Departmental Hiring Committee (DHC) existed in the new Faculty of Law, as the Faculty did not yet exist.
Consequently, in order to expedite the hiring of these new faculty members, in July 2018, the Faculty Association and the Administration had entered into a Memorandum of Agreement. This Memorandum of Agreement contained an initial list of thirteen faculty members in TRSM, Arts and the Creative School, who could be cross-appointed into the newly created Faculty of Law. The Memorandum of Agreement contained a revised process for the execution of these cross-appointments and a revised process for the creation of a Department Hiring Committee to serve from May 15, 2019 until August 31, 2020 in the newly created Faculty of Law. This ad hoc DHC was to take care of the hiring of the initial new faculty members into the Faculty of Law. Thereafter, it was the understanding of the TFA and the Administration that once the Faculty of Law was established it would be governed by the terms of the Collective Agreement, and that any necessary amendments to the Collective Agreement would be negotiated by the parties.
It is notable that, absent the newly cross-appointed faculty members, there would have been no faculty members to form a DHC. Further, it was understood by the Faculty Association that it was the intention of the new Faculty of Law to appoint four or five new faculty members in each of the first four or five years of the new Faculty’s existence. Thus, it was likely to be several years before there would be sufficient eligible faculty members from amongst the new ranks who would be able to serve on hiring, evaluation, and promotion committees in the new Faculty.
The Faculty of Law was TMU’s first single-department faculty. There was to be no Department Chair. The Dean would perform the duties that in all other Department and Schools, at TMU, are performed by Chairs and Directors.
Consequently, it was the Administration’s position that the Dean (or Dean’s designate), as a non-bargaining unit member should serve as a voting member of the DHC and the DEC and the FPC – all of which would make recommendations to the same Dean. This clearly was not contemplated in our Collective Agreement and is not consistent with the spirit of our Collective Agreement.
In this regard the Faculty of Law would be drastically different from all other Schools and Departments at TMU. It would be a major departure from the collegial and peer driven process of appointment and evaluation at TMU.
2020 Round of Negotiation
When the above mentioned July 2018 Memorandum Agreement expired on August 31, 2020, the 2020 Collective Bargaining negotiations had not yet been concluded, and no provisions existed for appointment of faculty members into the Faculty of Law. Therefore, the terms of the Memorandum of Agreement were extended for another year, and the cross-appointees continued to serve on the ad hoc DHC.
However, during the 2020 round of negotiations this item was not properly negotiated between the parties. As a result of a fairly dubious approach adopted by the Administration, the appointment and evaluation of faculty members in the Faculty of Law was never discussed at the bargaining table. The Administration’s proposal was only raised for the first time during the arbitration process in Spring 2021 at the final stages of that round of negotiation.
At that stage the Administration incorrectly argued that at other Ontario Law Faculties the Dean was a member of the DHC and the DEC, and that the role that they were prescribing for the Dean in the hiring and evaluation process, was the same at the majority of the other Ontario Law Faculties. The arbitrator accepted their claim that their proposal was normative and awarded their proposal.
2023 Round of Negotiation
During the recent (2023) round of negotiations the TFA submitted a comprehensive review of other Ontario Faculties of Law and demonstrated that the procedure that has been put in place at the TMU Faculty of Law was not normative. While the Dean is a member of the DHC and DEC in the Faculty of Law at several other Ontario universities, in most of these institutions the decision making in these committees is far more collegial than it is at TMU. The Dean is constrained by the will of the bargaining unit members on these committees. There is also generally more oversight of the Deans’ decisions by Faculty and University level structures.
The TFA has serious concerns about the integrity of the current process in the Faculty of Law, and proposed that the DHC and DEC and FPC be composed only of TFA bargaining unit members. Each of these committees would then submit recommendations to the Dean or an FTC, which was also included in the proposal.
During the course of the negotiations the Administration simply declined to respond to the TFA proposal.
Accordingly, the TFA subsequently included their proposal in their submission to Arbitrator Kaplan. The text of this rationale, provided to Arbitrator Kaplan in support of this proposal, can be found here.
In the Administration’s written response to the Arbitrator Kaplan, in response to the TFA submission, the Administration argued once again that the TFA proposal was not in accord with sectoral norms. In this regard their position was not fully supported by their written submission.
Unfortunately, this item was one of the several items that Arbitrator Kaplan chose not to address.
This was despite the fact that within his award Arbitrator Kaplan very effectively summarized the TFA proposal as follows:
“Another one of the Association priorities was amending the Faculty of Law Appointment Process, including the law faculty tenure process. It was completely unacceptable, from the Association’s perspective, that appointments at the law school were not subject to the same collegial appointment process that was otherwise ubiquitous across the University. A detailed proposal was advanced to remedy this situation (which was focused in large part on reducing the Dean’s role in accordance with sector norms, which the Association reviewed). The evidence established that while hiring models varied at Canadian law schools, general structures were in place to promote broad collegial participation and to ensure, in recruitment and tenure decisions, that the Dean’s voice not predominate. Safeguards were required to prevent the Dean from exercising undue influence in these critical academic decision-making processes.”
Nonetheless, Arbitrator Kaplan referred to the dispute over this item as illustrating the culture of “no” that he suggested has become the default between the Administration and the Faculty Association. In so doing he stated that he was not going to comment on the legitimacy of the proposals and that the parties needed to engage with one another and work out an agreement themselves.
In something of an overstatement, given the recency of the creation of the Faculty of Law, he wrote:
“The Association, for example, has long sought major governance reforms at the Lincoln Alexander School of Law. The University response has always been a hard no.”