The Honourable Thomas Cromwell conducts external review of the Faculty’s conduct
On March 29, the University of Toronto’s Office of the President released the Honourable Thomas Cromwell’s Independent Review of the International Human Rights Program (IHRP) Hiring Controversy from earlier in the academic school year.
The Allegations
In the fall of 2020, there were allegations that the Faculty of Law allowed inappropriate external influence to interfere with the search process for an IHRP director. As a result, many were concerned that the Faculty had impinged on academic freedoms.
Justice David Spiro, a sitting judge of the Tax Court of Canada, alumnus of the law school, and significant donor to U of T, was alleged to have called the Faculty’s administration attempting to intervene in the hiring decision. Valentina Azarova was alleged to have accepted the job in August, 2020, only to have the offer rescinded in early September.
According to Vincent Wong, previous Associate Professor, IHRP Lawyer, and member of the Hiring Recommendations Committee, the university and Azarova were amicably discussing different options with respect to her work permit and employment contract, up until this point.
In light of these allegations, the Faculty asked former Supreme Court Justice Thomas Cromwell to conduct a fact-finding investigation about the decision not to hire Azarova — the candidate a committee had unanimously recommended for the IHRP director position.
Findings of the Report
The report explains that the key factors influencing this decision did include reasons pertaining to the challenges of immigration-related obstacles, cited publicly by former Dean Iacobucci and Vice President of Human Resources and Equity Kelly Hannah-Moffat.
Cromwell found that no offer “in the strictly legal sense” was extended to Azarova. He also found that Justice Spiro “simply shared the view that the appointment would be controversial with the Jewish community and cause reputational harm to the university,” but that these comments were “misunderstood in the public discussion as interference or ‘outside political pressure.”
A September 3 email to Justice Spiro from a staff member at an organization of which he had been a director wrote, “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.” The staff member also asked him to contact Edward Iacobucci — the then-dean of U of T Law.
Justice Spiro declined the staff member’s request. Instead, Justice Spiro raised the issue at the end of a call with an Assistant Vice-President. In a later conversation with another administrator, the Assistant Vice-President, flagged “the importance of due diligence on the IHRP file,” and that administrator later briefed Iacobucci. Iacobucci said he had not heard the candidate’s name before nor did he know why her appointment might be controversial.
The report also notes that the Assistant Vice-President characterized the phone call to Justice Spiro as part of normal outreach to donors.
After Iacobucci was informed of this issue, a number of calls among senior U of T administrators were made. The report, however, concludes that Iacobucci was concerned about the legality of hiring Azarova as a contractor and not, primarily, the issue raised by Justice Spiro. Cromwell found that Iacobucci had already had concerns about immigration issues — indeed, she was not a Canadian citizen — before the judge’s attempted intervention. These obstacles were found to be material.
Response and Criticisms
After reading and reflecting on the report, U of T President Meric Gertler believes it “provides the factual comprehensiveness and analysis needed to clarify and settle key aspects of this controversial matter.”
Cromwell expressed concern about the harm done to the preferred candidate, and explained the need to find a means of acknowledging this harm.
In an email to law school students, Dean Jutta Brunnée said she “fully embrace[s] the recommendations Cromwell offered” and aims to ensure that the recommendations are implemented at the Faculty level.
These recommendations include: all requirements of the position should be made explicit; key decisions should be recorded; immigration advice should be obtained early in the process to avoid similar problems in the future and assist members in achieving reconciliation after this event. More recommendations are outlined in the report.
Dean Brunnée hopes that Cromwell’s review, along with the President’s response, will address questions that students and Faculty have towards last year’s events and allow the U of T Law community to move forward. She hosted a debrief session on March 31 to provide more information about this report, and allowed students to ask further questions and express their concerns. However, this session was scheduled during many students’ class-times, and many students could not attend.
Dean Brunnée also hosted a similar session for Faculty and staff, which discussed the IHRP’s future. Additionally, Professor Cook, the interim director of the IHRP, will write a report with recommendations to strengthen the program.
However, despite the conclusion of an independent review, not everyone had the same optimistic outlook.
In a comment to the Globe and Mail, Denise Réaume, a professor in the law faculty, described the events elucidated in the report “a scandal.” She said it reveals the university’s troubling relationship to big donors.
“It’s clear as day that people in alumni and development think their job is to pass on concerns from donors about hiring decisions, which they have no business weighing in on.” said Réaume.
Wong felt disappointed by the report’s conclusions. Although he acknowledged that the report helped members of the public piece together more facts than before with respect to former Dean Iacobucci, the funding office, and the donor who raised the issue, he lamented the discrepancy between, what he considered, “the damning facts” and “Cromwell’s inference that external influence did not play a role.
“The inference that Cromwell makes — that external influence was part of the decision — confuses external influence as a factor in the decision with external influence as the primary factor in the decision,” says Wong. “But all the contextual factors point to discriminatory treatment [of Azarova].”
Wong emphasized that Cromwell’s analysis failed to explore the implications of power. Wong argues that Cromwell did not consider how intersections of power and privilege — wealth and status (as a sitting judge) — may have influenced this decision. Nor did Cromwell consider how the generous interpretations could be applied to the conduct of these powerful individuals.
“Grossly inappropriate meddling by a sitting judge and high ranking university complicity in that meddling is described as ‘due diligence’,” argues Wong.
Lily Chapnik Rosenthal (4L JD/MSW) also felt disappointed by the report, but her disappointment is directed to the lack of acknowledgement of anti-Semitic comments prompted by this incident.
Although she is pleased that the Faculty initiated an external report, she expresses that “at both the Faculty and in the greater media tropes were utilized of wealthy, powerful Jews controlling institutions with money and power to sway internal hiring decisions.” These tropes, she said, were harmful stereotypes that could lead to a lack of safety, and even violence, for Jewish people.
“I urge the Faculty to explicitly address the anti-Semitic aspects of this incident, and to include training in anti-Semitism for all students to avoid these trends from re-occurring.”
President Gertler acknowledges the divisiveness of this issue and admits that certain things should have been done differently in the search process. However, he hopes that this report will allow individuals to move forward.
Ultra Vires has reached out to Professor Mohammad Fadel and Professor David Schneiderman for comment. Both faculty members have been vocal about the IHRP hiring controversy in an earlier Faculty Council meeting. At the time of initial publication on April 7, both professors have declined to comment.
Editor’s Note: this article is current as of April 7, the date of initial publication. Vivian Cheng is a member of the IHRP for the Venezuela Accountability Project and was previously a summer research fellow at the IHRP.
