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Queen's University
 

Noble v York University

Freedom of expression: When do constitutional/collective agreement rights override Human Rights? 

Facts

"On November 18, 2004, Noble distributed a hand-out entitled “The York University Foundation: The Tail that Wags the Dog” (3). On November 19, 2004, The Canadian Jewish Congress Ontario Region and the United Jewish Appeal issued a press release, suggesting that Noble’s actions constituted anti-Semitism. The same day, York issued a joint press release (with the York University Foundation, Hillel, and Solidarity for Palestinian Human Rights), denouncing the material distributed by Noble as highly offensive bigotry. (4) On November 21, 2004, the Canadian Jewish News ran a story on the topic. The Story also noted that Noble was trying to stop York from cancelling classes on Rosh Hashanah, Yom Kippur and Good Friday. The article noted that the president of the Canadian Jewish Congress supported York’s practice. At this point, Noble’s letters to Marsden and Bradshaw had not been made public. (5) As a result of the joint press release, Noble filed a grievance, alleging that York had breached Article 10.01 of the Collective Agreement. The grievance proceeded to arbitration, and by decision dated November 26, 2007, the arbitrator found that the issuance of the joint press release was a breach of Article 10.01 by York. York was ordered to remove the media release from its website, and to pay damages to Noble."   In the Matter of an arbitration between York University and York University Faculty Association and in the matter of a grievance dated November 29th, 2004 (2007 CanLII 50108 (ON LA)) (This list of facts is taken from Noble v York University (no1) (2009) CHRR Doc. 09-1644, 2009 HRTO 1201. Page 7 of 15)

Questions

  1. Did the issuance of a Media Release by York University on Friday, November 19, 2004, contravene Article 10.01 of the Collective Agreement  

    • "The parties agree to continue their practice of upholding, protecting, and promoting academic freedom as essential to the pursuit of truth and the fulfillment of the University’s objectives. Academic freedom includes the freedom of an employee to examine, question, teach and learn; to disseminate his/her opinions on any questions related to his/her teaching, professional activities and research both inside and outside the classroom; to pursue without interference or reprisal, and consistent with the time constraints imposed by his/her other University duties, his/her research, creative or professional activities, and to freely publish and make public the results thereof; to criticize the University or society at large; and to be free from institutional censorship. Academic freedom does not require neutrality on the part of the individual; nor does it preclude commitment on the part of the individual. Rather, academic freedom makes such commitment possible." Article 10.01Did the issuance of a Media Release by York University on Friday, November 19, 2004, breach Article 3.01 of the Collective Agreement?

  2. Did the issuance of a Media Release by York University on Friday, November 19, 2004, contravene Article 10.01 of the Collective Agreement  

    • "The parties agree that there shall be no discrimination, harassment, interference, restriction, or coercion exercised or practiced with respect to any employee in any matter by reason of race, creed, colour, age, sex, marital status, family relationship, number of dependents, nationality, ancestry, place of origin, place of residence, political or religious affiliation or beliefs, sexual preference or orientation, nonconforming personal behavior, disability m nor by reason of membership or non-membership in the Association, nor previous or impending exclusion from the bargaining unit, nor lawful activity or lack of activity in the Association. Non-conforming personal or social behavior: shall not include failure to conform to the terms of this Agreement or to carry out the duties and responsibilities stipulated herein.

  3. Did the issuance of a Media Release by York University on Friday, November 19, 2004, constitute defamation?

    • In order to succeed in a defamation case, the parties agree, three things must be proven:

      1. That the words about which the plaintiff complains are defamatory 

      2. That they referred to the plaintiff

      3. That they are published to a third person

Answers

  1. Yes
  2. Yes
  3. Yes

Reasons

  1. In its response to Professor Noble’s pamphlet, the University failed to live up to its obligations under Article 10.01.

  2. This argument was not well developed during the hearing. 

  3. In this case, the words used by the University, and published to a third person, implied that the plaintiff's words and ideas were racist. This is in and of itself defamatory. However, the University did not identify Noble as the author of those ideas.Therefore the University's actions were "not sufficient to satisfy the requirement of identification in defamation"

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