Emily Carasco and University of Windsor, faculty of law, and Richard Moon Respondents Interim Decision 2010-06245-l
The University submits, and I agree, that the appointment of a new Dean does not preclude the option of a remedial order instating the applicant to the position of Dean should the applicant succeed in her Application.
Emily Carasco is a law professor, and a woman of colour, who was one of two finalists for the position of dean at the Faculty of Law, University of Windsor in February 2010. However, just before the committee made a decision, one of her colleagues came forth with allegations that the professor had engaged in plagiarism. On April 14th, the Faculty was advised that the search committee had decided to hire neither of the two finalists.
On April 28th, the day of a Faculty meeting, Carasco's legal counsel advised the university legal counsel of Carasco's position: that the University not fill the position of dean until her claim of racial and gender discrimination had been settled and that a new search committee not be struck. At the meeting of April 28th, an interim dean was appointed and a new search committee was struck. On May 12, the university legal counsel advised Carasco's legal counsel that it was not prepared to postpone proceedings and that it welcomed it to file an application for interim remedy.
On July 14, the applicant applied for an interim order and on September 10th requested an interim order. Her request consists of the following points:
Her arguments were that allowing the University to hire a new dean at this point would..
The University's arguments were that:
Should the Tribunal grant the request?
The Tribunal applied rule 23.2 of the Tribunal's Rules of Procedure, relating to requests for interim remedies. This rule states:
The Tribunal may grant an interim remedy where it is satisfied that:
It answered each the of following question as follows:
The Tribunal assumed, without deciding, that the application had merit.
The Tribunal said that the university had much more to lose than the applicant. On the one hand, it acknowledged that granting the applicant's request would harm the University, stating "I accept that the detriment extends to the law school community as a whole, including its students, and that the interim orders sought will affect its ability to accomplish both short-term and long-term objectives, with potentially lasting impacts." On the other hand, it pointed out that while the applicant would suffer some degree of harm if the Tribunal failed to grant her request, it is untrue that "she [would] be deprived of the opportunity to receive the remedy she [sought]". This is because the Tribunal does have the power to remove an incumbent from the position of dean and to place the applicant into that position following a finding of discrimination. The Tribunal added that this remedy, while possible, is not necessarily the most appropriate choice. That would have to be determined.
For the same reasons stated above.