U of T hiring scandal now taints Tax Court
The Canadian Association of University Teachers may have recently lifted its unprecedented censure of the University of Toronto over a hiring fiasco, but the point of scandal is moving from campus to the innermost sanctums of the halls of justice.
The saga that created international ripples in academic and legal circles has gone from lifting the veil on donor influence in places of learning to exposing a quiet ban on Muslims in a particular court. One thread that weaves its way through the tale is the lack of personal accountability.
The campus
The University of Toronto’s Faculty of Law has been mired in controversy for a year after the law school’s former dean, Edward Iacobucci, stopped the hiring of scholar Valentina Azarova as director of its international human rights program last September.
An external investigation in March found that Azarova was “the strong, unanimous and enthusiastic first choice” of the selection committee and that the dean’s decision came days after sitting Tax Court judge David Spiro, who is also a significant donor, relayed objections to Azarova’s academic work on the rights of Palestinians in territories occupied by Israel.
Inexplicably, the investigation by retired Supreme Court Justice Thomas Cromwell did not find the dean accountable. Instead, it took Iacobucci at his word that the influential judge’s expressed reservations about the job were not connected to Iacobucci’s own sudden interest in the post and actions to stop the hire.
Nor did the investigation find the university president responsible for fostering a culture in which donors expressing views on confidential hiring matters did not raise alarm bells.
The Canadian Association of University Teachers (CAUT) Council slapped a censure on the university in April for its serious infringement of academic freedom. A key condition to lift the censure was that the university make a good faith offer to hire Azarova to the post.
The university balked. Its stated position was that the only reason the dean got involved in her candidacy was because red tape around work permits would not allow her to start on time. But even when the work permit issue became moot, it did not offer her the job.
The CAUT censure asks its members to not accept appointments, distinctions or awards at the university and to decline speaking engagements. Several individuals and groups, including former governor general Michaëlle Jean, the Indigenous Education Network, the HIV Legal Network and Amnesty International cancelled their invitations or cut their ties with the university. Black intellectuals and Indigenous scholars, Jewish faculty, Palestinian students, and Arab and Muslim lawyers supported the censure.
Finally, last week, the university relented and offered Azarova the job.
She declined.
“In the light of events over the past year, I realized that my leadership of the program would remain subject to attack by those who habitually conflate legal analyses of the Israeli-Palestinian context with hostile partisanship,” Azarova told the Star in a damning statement. “I also understood that the university would not be in a position to remove these hazards and uncertainties.”
In a detailed analysis of donor culture at the university and its effect on academic freedom, University of Toronto anthropologist Girish Daswani writes: “The defunding of higher education by the Ontario government has led U of T to increase fees and international student enrolments, as well as to also seek alternative sources of revenue.”
Government funding of postsecondary education was reduced by $13 billion from the mid-’80s to the mid-’90s, he wrote in the blog Everyday Orientalism.
The lack of accountability of university higher ups also carried over to an institution whose core function it is to keep society accountable.
The Tax Court
In the fall of 2020, the Canadian Judicial Council received numerous complaints about Spiro’s actions, about their implications to his impartiality and about improper use of his judicial office. Its review in May ruled that Spiro committed a “serious error” in getting involved in the hiring, but that it wouldn’t remove him because he had expressed adequate remorse. Spiro has not commented on the story to the media.
After several complainants challenged this ruling, the council recently released all the materials submitted to it during the inquiry.
These papers offer the public a first look at Spiro’s account.
He confirmed in October that the Israel advocacy group Centre for Israel and Jewish Affairs (CIJA) had alerted him of Azarova’s potential hiring and characterized her as an “anti-Israel academic crusader.”
“I raised a controversial matter with an official of the university,” he informed the council. “In doing so I made a mistake. I deeply regret that mistake.” He says he did not weigh in on whether Azarova should be appointed and did not ask that the donor-relations official pass that information along to the dean.
Yet, he did not look askance when the official called him later that day to say the dean had said no decision had been made on the hire.
He does have one other regret:
“My contact with that official led to unintended consequences including raising a question about my absolute commitment to impartiality toward all litigants and counsel who appear before me in the Tax Court of Canada. I deeply regret that as well.”
It’s in relation to this latter point that a truly bizarre twist in the accountability process shows up. Instead of keeping Spiro from the bench until the review was done, Tax Court Chief Justice Eugene Rossiter simply barred Muslims from appearing in front of him, documents show.
“The court has taken the initiative for perception purposes,” Rossiter informed the Judicial Conduct Committee in October.
All cases in front of Spiro would be reviewed by the associate chief justice to make sure that nobody involved in it, whether litigant or lawyer, was Muslim.
“Further, Justice Spiro will recuse himself from any file at any time in which it appears to him that either the counsel, representative of any litigant, or a litigant is a Muslim or is of the Islamic faith immediately,” he wrote.
This ban, which essentially prevents Muslims from appearing before Spiro, was never made public.
Two law professors, Richard Moon from the University of Windsor and Anver Emon of the University of Toronto, called this a “startling error in judgment” by the chief justice in an article for the Centre for Free Expression. (Moon is married to a member of the search committee that selected Azarova.)
The error, they said, was that the chief justice “failed to grasp the character of the perceived bias. The target of Justice Spiro’s biased intervention is neither Muslim nor Arab.”
Since Azarova’s writings about international law around Palestinian rights were enough for Spiro to lobby against her candidacy, “it would seem that the alleged bias is against anyone who holds a different opinion than Justice Spiro (or perhaps CIJA) about the legality of the Israeli occupation.
“This should surely set off alarm bells about the fitness of a judge whose job it is to hear and weigh legal arguments impartially,” they wrote.
However, as we have seen throughout this process, mistakes were made, academic freedom was infringed, donor intervention succeeded.
Apparently nobody is to blame.
Instead of keeping David Spiro from the bench until the review was done, Tax Court Chief Justice Eugene Rossiter simply barred Muslims from appearing in front of him, documents show