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Executive Director's Corner / No place for “duty of loyalty” in academia

Executive Director's Corner / No place for “duty of loyalty” in academia

By David Robinson

The legal protection of academic freedom in Canada occupies a unique space, one in which academic staff associations play a central role. Unlike most other jurisdictions, academic freedom has very limited statutory or constitutional recognition in Canada. Canadian courts have made only occasional comments on the topic, and these carry little legal weight. Human rights tribunals have rarely heard complaints that involve academic freedom. Statutes governing universities and colleges are almost all 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 associations.

This legal foundation of academic freedom in Canada emerged slowly and was solidified only with the first wave of unionization that began in the mid-1970s. Prior to this, academic freedom was mostly codified in university policies and, occasionally, in so-called special-plan agreements. With no real legal force behind these normative policies or agreements, protections for academic freedom were tenuous at best and largely dependent upon the benevolence and goodwill of senior administrators.

Today, almost all academic staff in Canada are unionized and are covered by collective bargaining agreements that contain language protecting academic freedom. As a result, academic freedom cases are litigated almost entirely through the grievance arbitration process.

The few cases that have proceeded to arbitration have generally resulted in decisions providing a broad and liberal interpretation of academic freedom, particularly concerning an academic’s freedom in teaching and research. On the flip side, there have been some more mixed decisions involving the exercise of “intramural academic freedom” — the right to criticize the institution and its leaders — and “extramural academic freedom” — the right to comment on matters of general public interest without institutional censorship. In some of these cases arbitrators have leaned heavily — far too heavily — on the implied duty of loyalty in employment law. This duty requires employees to obey, and not challenge, directions given by the employer and to behave in ways that uphold the best interests and reputation of the employer.

The duty of loyalty — and particularly the obligation not to criticize one’s employer or to damage the employer’s reputation — has no place in academic workplaces. While universities and colleges are places of work and subject to employment and labour law, they are also unique spaces whose mission is dependent upon ensuring academic staff can engage in open and often sharp debate and discussion. In short, universities and colleges are different kinds of workplaces precisely because of academic freedom.

Academic staff associations need to ensure their collective agreement language on academic freedom provides explicit protections for intramural and extramural academic freedom. It is also critical that associations bring forward grievances that expand the understanding of academic freedom in labour law. While Canadian academics have clearly benefited from the fact that labour law plays such an influential role in protecting academic freedom, more needs to be done to ensure that arbitrators appreciate that the university or college is a workplace, but a workplace of a special type because of academic freedom.

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