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The Legal Foundations of Academic Freedom in Canada

Unlike most other jurisdictions, academic freedom in Canada has very limited statutory or constitutional recognition. Canadian courts have made only occasional comments on the topic, and these carry no legal weight. Human rights tribunals have rarely heard complaints that involve academic freedom. Apart from Quebec, provincial statutes governing universities and colleges are largely silent on academic freedom. Rather, the strongest legal protections for academic freedom are contractual and are embedded in and enforced through collective bargaining agreements negotiated by academic staff unions and associations. In this sense, academic freedom in Canada today is mainly addressed by labour arbitrators.

Canadian courts have rarely addressed the issue of academic freedom, but when doing so have granted it a broad and liberal interpretation. In 1990, Mr. Justice La Forest wrote for the majority in McKinney v. University of Guelph (a mandatory retirement case), in obiter dicta, that academic freedom is “an issue of pressing and substantial importance” as it is necessary to allow “free and fearless search for knowledge and the propagation of ideas” that is “essential to our continuance as a lively democracy.”  

In Maughan v. University of British Columbia, the court found that academic freedom, understood as the “freedom to express and explore ideas to advance both knowledge and understanding,” is akin to a Charter value insofar as it is “a critically important value in a free and democratic society.”  In Pridgen v. University of Calgary, Madam Justice Paperny wrote: “In my view, there is no legitimate conceptual conflict between academic freedom and freedom of expression. Academic freedom and the guarantee of freedom of expression contained in the Charter are handmaidens to the same goals; the meaningful exchange of ideas, the promotion of learning, and the pursuit of knowledge.”  In Parent c. R, the Court stated that “academic freedom and the importance of institutions of higher learning and academic research are key components of a democracy that values freedom of thought and expression.”

In several important decisions, labour arbitrators have determined that academic freedom serves an essential role in a democratic society and requires a broad interpretation. Arbitrator Sims, in University of Saskatchewan, held that: “…academic freedom and its protections are concepts to be interpreted liberally in ways that allow them to achieve their purpose.” In University of Manitoba Faculty Association: “The principle of academic freedom is of fundamental importance not only to the university and professors, but to the whole community.” Arbitrator Goodfellow, in York University, wrote:

There are few concepts or principles more important to the healthy and vibrant functioning of a university than academic freedom. The academy is and must be a bulwark against conventional thought and received opinion not just for the benefit of its members but for society at large. It is through free thought, investigation, and the development and dissemination of ideas that society advances and progress is made. Today’s accepted practices and beliefs become tomorrow’s discredited notions and out-moded ideas when exposed to the freedom of public debate and scientific scrutiny. The university has an essential role to play in this process – a role that can only be fulfilled if academic freedom is broadly defined and jealously guarded.

While labour arbitrators have demonstrated a sophisticated and nuanced understanding of academic freedom in teaching and research, their rulings on the right to express one’s opinion about the institution and its administration (intramural academic freedom) and the right to free expression of opinion on matters of public interest (extramural academic freedom) are mixed. This may be because arbitrators struggle to balance traditional employment law concepts, such as the principle of the duty of loyalty owed to an employer, with the unique features of the academic workplace. What can be lost is a recognition that while universities and colleges are workplaces, they are special workplaces because of academic freedom.

Further Reading

  • Michael Lynk, “Academic Freedom, Canadian Labour Law and the Scope of Intra-mural Expression.” Constitutional Forum, Vol. 29, No. 2 (2020), pp. 45-64.
  • David Robinson, “Academic Freedom in Canada: A Labor Law Right.” Academe, Fall 2019.