Preparing Your Appeal Submission
Before filing your appeal you should plan what arguments you will make to the Tribunal, what evidence you will need to prove your case, and how you will present that evidence.
Whose decision is being appealed?
The Determining Committee
The decision under appeal shall be that of the “Determining Committee”. The Determining Committee is the Committee that prepared the principal statement referred to in Section III, clauses 63(a) and (b).
- If the decision of the Senate Committee on Appointments that is under appeal is the same as the recommendation made by the Faculty Committee, the Faculty Committee shall be the Determining Committee.
- If the decision of the Senate Committee on Appointments that is under appeal is different from the recommendation made by the Faculty Committee, the Senate Committee shall be the Determining Committee.
Types of Decisions that may be Appealed
Appointment Lapse
A faculty member shall be entitled to appeal a tenure or permanence decision only:
- when their tenure-track or teaching-track appointment is to be allowed to lapse on June 30 of the current governance year; or
- in an academic year when their Departmental and/or Faculty Committee has recommended that tenure or permanence be granted.
No Action (Promotion)
An appeal of a decision not to grant promotion shall be permitted only if the candidate has spent at least six (6) years in the current rank, except in the case when they have been recommended for promotion by their Departmental and/or Faculty Committee.
If an appeal of a decision not to grant promotion results in the decision being upheld, no further appeal will be entertained for three (3) years following the initial one unless the Departmental and/or Faculty Committee recommends promotion in an intervening year.
Steps in the Appeal Process
Letter from the Senate Committee on Appointments
The Chair of the Senate Committee on Appointments sends a letter to the faculty member informing them of the Committee’s decision, and that the Committee’s decision will be reported to the Senate.
Notice of Appeal
Within 30 days from receipt of the letter the faculty member must write (email) to the University Secretary to submit notice of their intent to appeal.
Upon receipt of the appeal request the University Secretary will set in motion the appeal procedures in Section IV of the Tenure & Promotion Policy. The Senate will be informed of the appeal.
Time-Sensitive Steps – Disclosures and Establishment of the Tribunal
The next steps are the Submissions of the Parties and the Establishment of the Tribunal, both of which begin once the notice of appeal has been received. These steps are time-sensitive. The sooner the Appellant submits their notice of appeal, the sooner these steps can be started and the scheduling of the Hearing can begin.
It is important to note that Hearings are usually scheduled between three (3) to six (6) months after receipt of the appeal. This means that an appeal hearing for an appointment lapse would usually be scheduled sometime in March, April, and/or May.
The later the process begins, the more likely the hearing could be scheduled for June, or even after the lapse has become effective on June 30th. The decision stays in effect unless and until it is overturned on appeal. This means that submitting an appeal will not prevent the decision being appealed from being carried out.
Why does it take this long to schedule a hearing?
The establishment of the Tribunal and the Disclosures of the parties take time. Scheduling of the hearing dates can only begin after the Tribunal has been established, and both parties’ submissions have been received. The number of witnesses testifying determines how much time is required for the hearing; and if the parties have Legal Counsel/Advisor, their availability will also affect the scheduling process.
Submissions of the Parties (Disclosure)
The Appellant will receive a letter from the University Secretariat confirming receipt of the Appellant’s notice of appeal. The Appellant will be asked to provide their submission for the appeal, usually within 3 weeks of receipt of the letter.
The Appellant’s submission will be sent to the Respondent (the Determining Committee) and they will be asked for their response within 3 weeks of receipt. The Respondent’s response will be sent to the Appellant.
This means that at a minimum the disclosure process requires 6-7 weeks, usually longer if the appeal begins before the holiday break in December/January.
Establishment of the Tribunal
Recommendations concerning membership of an Appeal Tribunal shall be made to Senate by the Tenure and Promotion Appeals Nominating Committee (the “Committee”)
Both the Appellant and the Chair of the Determining Committee shall be informed of the names under consideration by the Committee, and shall express to them independently, in writing, any objections that they may have concerning any of the proposed members of the Appeal Tribunal.
After careful consideration of any such objections, the Committee shall forward its recommendations on the membership of the Tribunal to the Senate for approval. When Senate approves the Tribunal membership it also agrees to be bound by the decision of the appeal Tribunal.
What is included in the Submissions?
Appellant Submission
Information you need to include in your Appeal submission:
- an indication of whether you want the hearings to be conducted in open or closed session;
- a list of witnesses you will be calling, if any;
- whether or not you will be represented by counsel or advisor, and if so, who that counsel will be (include the contact information for your counsel or advisor);
- a written statement giving reasons for contesting the decision of the Determining Committee
- any other written material you may wish to provide prior to the first hearing (subject to the limitations outlined in the Tenure and Promotion Policy, Section IV.
All written material submitted will be forwarded to the Determining Committee for a written response, subject to the limitations outlined in Section IV of the University’s Tenure and Promotion Policy. When this response is available, a copy will be shared with you.
Respondent Submission
Information the Respondent (the Determining Committee) will be asked to provide in their response submission:
- an indication of whether they want the hearings to be conducted in open or closed session;
- a list of witnesses they will be calling, if any;
- whether or not they will be represented by counsel or advisor, and if so, who that counsel will be
- the name of the individual(s) who will represent the Determining Committee at the hearings. (Section IV, clause 6(b), Tenure and Promotion Policy states “The Determining Committee shall be represented during the appeal by its Chair or delegate chosen by the Committee from among the elected faculty members on the Committee. If the Committee so wishes, the Chair (or delegate) may be accompanied by another faculty member, chosen by and from the Committee for this purpose.“)
Arguments & Evidence
What are Arguments?
At the Hearing you will make an Opening Statement where you will present your arguments to the Tribunal. You want the Tribunal to understand the reasons why you are appealing and what you want the outcome of the appeal to be. Remember, you are trying to persuade the Tribunal to overturn the decision you are appealing.
When preparing your arguments you will need to identify the issues, gather the relevant facts, and apply the relevant policies to those facts. You should also consider what counterarguments the Respondent may have to defend their decision and be prepared to address those issues. Your arguments should be backed up by the evidence presented during the hearing. You can also use your argument to explain why the other party’s case or evidence is not strong.
Closing Arguments are your last opportunity to convince the Tribunal to decide in your favour, to remind them of the most important pieces of evidence that support your case, and restate what you want the outcome to be.
What is evidence?
Evidence deals with proof; it is the information used by the parties to prove or disprove their case. Evidence includes the testimony of the parties and their witnesses. It can also include documents such as exam papers, emails, and letters, or other evidence such as photographs, videotapes, and audio recordings.
The arguments of the parties are not evidence; arguments are an analysis of what happened. Earlier decisions are not evidence; if a decision has been appealed to the tribunal, the decision is a part of the record but it is not something that the parties have to establish (prove to the tribunal).
**Some of this content has been adapted from AdminLawBC.ca by the Justice Education Society.
Best Evidence
The success of your case depends on the evidence that you provide to support your position.
The “best evidence” is always direct, relevant and original documents, statements, or other information that support the facts of your case.
Relevant Evidence
Relevant evidence relates to the issues and facts. When gathering your evidence you should ask yourself “does this evidence help prove the facts of my case?”
Direct Evidence
Someone who witnessed an event that is important to your case will be able to give direct evidence about what happened. This evidence is much better than someone who was told of an event, but did not see it happen.
Principles of Procedural Fairness
Administrative law is comprised of legal rules and common law principles, which govern the conduct of administrative tribunals. Administrative tribunals are meant to provide a less formal, decision-making process that is more efficient and flexible than the traditional court system. Nonetheless, tribunals cannot act beyond their legal authority or jurisdiction, and must adhere to the principles of procedural fairness.
Meaningful Participation
The parties also have the right to meaningful participation in the hearing process. This usually means they have an opportunity to be heard, present their side of the story or dispute the other side’s story.
Parties should be allowed to present evidence and argument. Depending on the type of decision, this could be done through writing, phone, video or an in-person hearing.
Right to Know the Case
The Appellant and Respondent (the “parties”) should be advised of the information that will be used by the tribunal in making its decision. Disclosure is integral to a party’s right to know the case to be met.
Disclosure includes the names of possible witnesses, and any documents or other materials submitted by the parties.
Right to Call Witnesses
At a hearing, the parties are generally entitled to call witnesses to give evidence that supports their case.
Witnesses should be able to provide the Tribunal with direct evidence (preferably first-hand knowledge of the facts) about your case.
Right to Cross-Examine Witnesses
Both parties can ask questions of the other side, including the other party’s witnesses. This right is especially important in cases where the tribunal must determine the facts of the case because there are different views of the facts, the alleged violation is under dispute, and/or the issues are adversarial.
Right to Representation
Parties may be represented by legal counsel, or accompanied an advisor such as a friend, a peer, or an advocate.
Impartial Decision Maker
An impartial decision maker means that the Tribunal members who decide the case will be unbiased and will make a decision based only on the arguments and evidence presented at the hearing. It also means that the Tribunal members cannot have (or appear to have) any personal connection with the parties or any personal interest in the outcome of the case.
Decision and Reasons
The Tribunal that hears the parties’ submissions during the hearing must be the person who decides the case.
The decision maker must give sufficient reasons for the decision. This helps the parties understand how the adjudicator came to that decision. What amounts to sufficient reasons depends on the type of decision. Generally, the more important the decision, the more thorough the reasons given are and are often in writing.