2010 QCCQ 11915, 2010 QCCQ 11915

Ketterer c. Concordia University 2010 QCCQ 11915 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-121407-102 DATE: November 24, 2010 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ DAVID KETTERER, [...], Wavertree, Liverpool, [...] UK Plaintiff v. CONCORDIA UNIVERSITY, 1455, De Maisonneuve Blvd.

West – GM 930, Montreal (Quebec) H3G 1M8 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, in damages, for an amount of $999.80.

THE FACTS [ 2 ] Plaintiff is a retired professor of English. [ 3 ] He was a faculty member at defendant university for 30 years and a full professor in the English department, from 1978 to 2000, at which time he retired. [ 4 ] In 2008, plaintiff applied for the title of " Distinguished Professor Emeritus " (hereinafter "DPE"), on the basis of his "demonstrably outstanding contribution to research". [ 5 ] On May 25, 2008, plaintiff's department chair wrote a letter to the interim Dean of the Faculty of Arts and Science, in support of his application (exhibit D-8). [ 6 ] On October 27, 2008, the Arts and Science Faculty's DPE Committee (hereinafter "the Committee") reviewed plaintiff's application, and decided that it would not present positive recommendations to the Arts and Science Faculty Council in regards thereto. [ 7 ] On November 7, 2008, interim Dean Joanne Locke sent the following letter to plaintiff: "Dear Dr Ketterer, I am writing further to your e-mail of April 16, 2008, in which you requested that your nomination for the title of Distinguished Professor Emeritus be re-activated.

The Arts and Science Faculty's Distinguished Professor Emeritus Committee met on October 27, 2008 as required under the Senate procedures for conferring the status of "Distinguished Professor Emeritus" (US-2001-3-D8 Revised). The members of the committee are Dr James Grant, Dr Fran Shaver, and Dr Matthias Fritsch and I served as chair. I have appended a copy of the Call for Nominations for the title of Distinguished Professor Emeritus, which outlines the Senate and Faculty criteria.

"The committee considered your dossier, including the letter of support submitted by Dr Marcie Frank, former chair of the Department of English, in light of the criteria established by Senate and by the Arts and Science committee. Your nomination was made on the basis of your research record and, therefore, the committee considered the criteria for eligibility and assessment as outlined in paragraph 2. a of the Call.

Although the committee recognized that you had very good research productivity throughout your career with the University, the members did not find that it met the standard of a "demonstrably outstanding contribution" to research as called for in the criteria. As a result, the committee unanimously agreed that your nomination would not be forwarded to the Arts and Science Faculty Council for consideration." [ 8 ] On February 2, 2010, plaintiff filed the following judicial application: " APPLICATION

The cause of action is as follows: Direct violation of approved Concordia University criteria rules: in 2008 I was re-nominated by Concordia University's English Department (on the instruction of Provost Graham) for the title of Distinguished Professor Emeritus (DPE) on the basis of my "demonstrably outstanding contribution" to research as that requirement is justified according to the specific wording of the 2008 Arts & Science criteria statement (see Doc. 1).

The four category "on or more external awards … of a high order" criteria requirement is fulfilled by my receiving the top award (the Pilgrim Award) of the Science Fiction Research Association (an "international disciplinary" society/body) in 1996. Because Interim-Dean Joanne Locke's 7 November 2008 rejection letter (see Doc. 2) depends on overlooking my qualifying award, her letter is invalid. I first asked the current Dean of Arts Science, Dr. Lewis, to correct this mistake on 11 August 2009 (see Doc. 5). Concordia University has a Code of Ethics and Dr.

Lewis is ethically required to adhere to Concordia's formally approved rules and so correct any rule violation. He did not reply to my letter or any of my subsequent letters. I am claiming $999.80 from Concordia University (as represented by Dean Lewis and President Woodsworth), the cost of writing many letters since receiving Interim-Dean Locke's mistaken letter. I have only counted 20 of them at a time-cost rate of $49.99 a letter. I am a professional author and editor (see Doc. 7 and Doc. 8) and have been working on a full-scale biography intended for commercial publication for twelve years.

Although given formal notice, the Defendant has not paid or refuses to pay." ANALYSIS [ 9 ] According to the Faculty of Arts and Science's "Criteria for Eligibility and Assessment" of applications and nominations for the title of DPE, based on the record of teaching or research, as in the present case, "a «demonstrably outstanding contribution » is normally one sufficient to have been recognized by one or more external awards and distinctions of a high order, for example […] prizes and awards granted by national or international disciplinary societies or other bodies […]" (s. 2 a. of the Criteria) (exhibit P-1). [ 10 ] Plaintiff contends that the Pilgrim Award, which he received in 1996 from the Science Fiction Research Association, fulfilled the criteria of "a demonstrably outstanding contribution", and that the Committee therefore had an obligation to positively recommend his application to the Arts and Science Faculty Council. [ 11 ] Plaintiff also contends that the Committee erred in failing to prepare a "reasoned report", as required by the procedures outlined in exhibit P-1 and, more specifically, paragraph 5 thereof. [ 12 ] WHEREAS it would appear that the cause of plaintiff's action lies in the Committee's alleged omission to follow the appropriate procedures and to correctly apply and interpret the criteria for eligibility and assessment; [ 13 ] WHEREAS, in his book entitled « Droit administratif » [1] , author Patrice Garant states that universities are legal persons established in the public interest; [ 14 ] WHEREAS

article 33 of the Code of Civil Procedure states as follows: " 33. Excepting the Court of Appeal, the courts within the jurisdiction of the Parliament of Québec, and bodies politic, legal persons established in the public interest or for a private interest within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this

article is excluded by some provision of a general or special law." (emphasis added) [ 15 ] GIVEN the cause of action and the nature of the claim; [ 16 ] WHEREAS the power to review the Committee's actions and decisions belongs exclusively to the Superior Court [2] , in virtue of

article 33 C.C.P. above; [ 17 ] WHEREAS it should be noted, however, that the Committee's decision to recommend an application or nomination for a title is largely discretionary; [ 18 ] WHEREAS, time and time again, the Courts have refused to intervene in the decision-making process of teaching institutions [3] ; [ 19 ] WHEREAS the Court of Appeal's comments in this regard are unequivocal [4] ; [ 20 ] WHEREAS , furthermore, in Université de Montréal v.

Charles [5] , the Court of Appeal ruled that a committee or internal advisory board of a university may legitimately express the reasoning behind its decisions in general terms alone; [ 21 ] GIVEN the evidence adduced at trial; [ 22 ] GIVEN plaintiff's allegations that there was a "direct violation of … criteria rules"; that "Locke's 7 November 2008 rejection letter… depend(ed) on overlooking (his) qualifying award"; and that "her letter (was) invalid"; [ 23 ] WHEREAS adjudication would thus entail reviewing the Committee's work and the merits of its decision, that for which the Court has no jurisdiction; WHEREFORE THE COURT HEREBY: DECLINES JURISDICTION; THE WHOLE, with costs.

__________________________________ ELIANA MARENGO, J.C.Q. Dates of hearing: September 14 and October 5, 2010