Cromwell report: immigration issues were deciding factor, not external pressure from judge

‘This is a damning report,’ says Queen’s law prof behind judicial council complaint

Cromwell report: immigration issues were deciding factor, not external pressure from judge
Leslie Green, Michael Mostyn

While the independent review of the University of Toronto hiring scandal has found external interference played no role in law faculty’s decision-making, still pending is the Canadian Judicial Council investigation into the Tax Court judge who the review found raised concerns with the law faculty over their preferred choice.

Retired Supreme Court of Canada Justice Thomas Cromwell conducted the review, which looked at the school’s decision not to hire Dr. Valentina Azarova, an international law practitioner and researcher, for the directorship of the International Human Rights Program. Queen’s Law Professor Leslie Green and Professor Craig Scott of Osgoode Hall Law School both filed complaints with the CJC, last September, following media reports that two of the IHRP’s former directors had accused Law Dean Edward Iacobucci of rescinding a job offer to Azarova, due to pressure from Tax Court of Canada Justice David Spiro, an alumnus and donor.

Despite accusations that Azarova’s job offer was withdrawn after she had accepted it, Cromwell’s report found the school had made no formal job offer, “in the strictly legal sense of those words.”

Cromwell said that Spiro, whom he refers to as “the Alumnus,” had spoken by telephone with an assistant vice president for a “pre-scheduled stewardship call,” which was initiated by the school. At the end of the hour-long conversation, Spiro had “indicated that as a judge he could not become involved,” but “wanted to alert” the school that Azarova’s appointment would be controversial and may cause reputational harm. “He wanted to ensure that the University did the necessary due diligence,” said Cromwell.

According to Azarova’s page, she has “published extensively on the operation of international law in the Israel/Palestine context.”

Spiro told Cromwell he had learned about the appointment from a staff member at the Centre for Israel and Jewish Affairs, who had emailed him the day before the call. Spiro was a board member of the organization before he become a judge. The staff member asked Spiro to contact the dean, but Spiro refused, saying it would be inappropriate, said Cromwell.

The CIJA staff member had heard of the appointment from a professor at another university and Spiro provided Cromwell with the email and memorandum that person had sent. The email’s subject line read “U of T pending appointment of major anti-Israel activist to important law school position.” The email requested that someone find out the status of the appointment and continued: “The hope is that through quiet discussions, top university officials will realize that this appointment is academically unworthy, and that a public protest campaign will do major damage to the university, including in fundraising.”

Iacobucci knew about the phone call and the appointment’s potential for controversy, but Cromwell’s report indicates he was more concerned with immigration and employment law issues. His emails to the assistant dean and a member of the faculty advisory committee expressed his “considerable misgivings” about Azarova’s ability to get a Canadian work permit in time for her to be a practical choice and the fact she had requested summers off, which was unusual for a person in an administrative role. In Cromwell’s interview with Iacobucci, the dean said legal counsel had suggested an independent contractor agreement was the only way to make the timing work, but that the arrangement would likely have been illegal.

“My conclusion is that the inference of improper influence is not one that I would draw,” said Cromwell. He also said the nature of Spiro’s inquiry has been “misunderstood in much of the public discussion” as an “objection,” “complaint,” “attempt to block the appointment” and “external interference.”

“However, having the benefit of a detailed account from both parties to the initial conversation, my conclusion is that the Alumnus simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the University,” said Cromwell.

Though the report found Spiro’s input did not sway Iacobucci’s decision to forgo Azarova’s hiring, Cromwell’s findings do not cast the judge’s actions in as redeeming a light, says Green.

“This is a damning Report,” he says. “By the judge’s apparent admission to the Cromwell Inquiry… he was engaged in what has every appearance of lobbying to promote the interests of a pressure group. It is damning of the University of Toronto’s administration and culture, which shows itself open and receptive to such lobbying, and ready to act on it.”

“The bar and the public are now watching with grave concern how the CJC deals with the Spiro case,” says Green, who is professor of the philosophy of law and fellow of Balliol College, Oxford and holds a part-time appointment as professor of law and distinguished university fellow at Queen's.

“They will be interested in comparing that with the Ontario Judicial Council’s handling of the case of [Justice Donald] McLeod. Judges should not act in a way that suggests they are covert lobbyists, whether they seem to be promoting the agenda of the Federation of Black Canadians or of the CIJA. The appearance of bias is inevitable and poisonous. This is legal ethics 101.”

Michael Mostyn is a lawyer and CEO of B'nai Brith Canada, which made submissions to Cromwell’s inquiry. Mostyn says Cromwell’s report shows that there was no improper interference by Spiro.

“The search committee of the U of T clearly did recommend an unsuitable candidate for this position and there was an attempt to pressure the university into accepting their recommendations,” says Mostyn.

“The review by Justice Cromwell of the search, it did call on the university to prohibit expressly outside interference unless, and this is a quote from him, ‘the matter raised can be demonstrated to be evidence of unfitness for the duties of the position.’ And this candidate was unfit for the position, as set out in the report by Justice Cromwell.”

Cromwell advised the University to “re-affirm a fundamental principle.”

“[A]ttempts by anyone – including lobby groups, corporations and donors – to attempt to block, prevent or disqualify an applicant in a merit-based hiring process on the basis of the candidate’s religious or political views, their scholarly or other public work or their social activism must be firmly rejected unless the matter raised can be demonstrated to be evidence of unfitness for the duties of the position.”

Cromwell added that it would be helpful for the University to provide protocols and policies on how to handle alumni or others inquiring about the recruitment process.

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