Written by Dr. Julie Macfarlane, Distinguished University Professor and Professor of Law, University of Windsor, Ontario, Canada.
I want to update readers on my experience with my employer, the University of Windsor, which had refused to defend me in a “defamation” lawsuit brought by a former colleague who was terminated for sexual and other misconduct.
Why would they not defend me when I told the truth in a reference check? Because the university gave him a non-disclosure agreement (NDA) in order to avoid a costly arbitration, in which fatigued and traumatized students would have been asked to testify.
The NDA enabled my former colleague to present himself to other universities where he applied for positions without disclosing that he had been terminated by Windsor for “just cause” including sexual and other misconduct.
As I explained in My Life as a Whistleblower, I was approached by two schools where my former colleague applied for a job asking if I could explain “why?” he would have left a tenured position at Windsor.
I told the truth. I was not bound by the NDA (until I received these calls, I had not even been aware of it), and my clear first obligation as a professor is to student safety. I believe that this obligation extends beyond students at my own law school, to students at other universities.
My former colleague sued me for “defamation”, knowing that the truth was hidden by the NDA the university had made with him (and unfortunately was also signed by the University of Windsor faculty association, my representative body).
Turning to my employer for help
As soon as I was served with legal papers from the country where he currently resides, I contacted my employer. Since providing a truthful reference was a duty undertaken “in the course of my employment”, I assumed they would as a matter of course defend me.
How wrong I was.
The last time I wrote about this I was just one week away from the first case management date (to set a schedule for the case to come to trial). The university had eventually forwarded the claim against me to their insurer (CURIE, which insures all Canadian universities) and I was awaiting their response.
The answer — when it finally came — was “we decline coverage”. In other words, no. A single line in an email.
When my pro bono lawyer — former student and now star employment lawyer Natalie MacDonald — followed up, they produced only the barest of further information. The insurer claimed that I was not “acting in the course of my employment”.
This was a far from a convincing argument. Giving a reference is very much part of a faculty member’s job. So is telling the truth to protect students.
But the insurer refused to back down.
And the university (and the faculty association) refused to help me.
As I wrote in April, both were watching me “tumble beneath the wheels of a juggernaut called ‘phony defamation suit’.”
Meantime the trial timetable was proceeding apace.
Suing my employer
So what now? My amazing group of supporters and friends put their heads together.
On their collective advice, I agreed to instruct Natalie (still acting pro bono) to bring a motion in the Ontario Superior Court to compel my employer of 25 years to defend me ….for doing my job.
In those awful days, I kept asking myself: surely the university and their insurer would see sense here and simply agree to defend me? They had no legal or moral argument not to. The only block was the NDA. But we know that courts are increasingly willing to roll back NDAs where there are student safety issues in public institutions. And besides, what was worse for the university — the possibility of litigation over a likely unenforceable NDA, or standing up for one of their senior professors?
I was wrong. They forced us to take legal action. We went to court on July 10 and argued the motion.
The insurer argued that because my position was “at odds” and “critical” of the university’s decision to give the terminated faculty member an NDA, I should not be indemnified.
Ordered by the court to defend me
A decision was released by Justice Kimmel on August 3. She found that I was acting in the course of my employment by providing references to the schools that contacted me.
Her decision ordered CURIE to pay for my legal defence and to indemnify me for any damages awarded (as well as to pay Natalie’s costs for bringing the motion, which should never have been necessary).
Significantly for professors everywhere, Justice Kimmel shredded CURIE’s argument, and concluded that action critical of or at odds with the university’s “policy” of signing an NDA was still subject to indemnification or defence.
“A university is not an institution with a single voice or a single set of interests — the interests of a university will be broad and diverse and may even be in conflict with one another from time to time.” (Macfarlane v CURIE ONSC 2019 4631 para 43)
“While the University of Windsor may have an official position… that does not mean that others within the institution no longer speak on its behalf just because they have another view or perspective. “Acting on behalf of” does not mean that the specific act be authorized, instructed, permitted or approved by the University of Windsor.” (para 44)
She also pointed out that my actions in raising the alarm about a sexual harasser was perhaps also in the legal interests of the university:
“…(T)he fact that it signed an NDA with [Mr X] and may have an interest in upholding that agreement does not mean that the University does not also have an interest in protecting itself and its reputation by endorsing the practice of its professors providing honest and truthful off-list references. Similarly, signing the NDA with [Mr X] does not mean that the University does not have an interest in protecting itself against claims by students at other universities to whom it may be found to have owed a moral and legal duty… (T)here is at least a possibility that Dr MacFarlane (sic) was acting in the interests of the university where the disclosures she made….may protect it from reputational damage or exposure to further third-party tort liability.” (para 46)
I hope that this decision will be helpful in encouraging professors that they should tell the truth even where there is an NDA.
What happens next?
The trial continues.
“Defamation” is the claim that a false statement resulted in harm to one’s reputation. The absolute defence to “defamation” is demonstrating that the statement in question was true.
So the next dilemma CURIE faces in order to successfully defend the lawsuit is that they must insist that their policyholder, the University of Windsor, come out from behind the NDA and produce the documents which will show I told the truth.
I shall keep you updated on the outcome of this case, and hopefully other systemic outcomes which I hope will result from this case — including CURIE instructing its university policyholders to stop handing out NDAs to employees terminated for sexual misconduct.
Thank you to everyone who has supported me in so many different ways.
If my hopes for systemic change — in particular the banning of NDAs where there has been sexual misconduct — become reality, the personal stress and anguish of the last ten months will feel worthwhile.