That joke has been appended to the list of allegations, all of which were recently filed in the Ontario Superior Court as part of a legal battle between University of Windsor law professor Julie Macfarlane and the Canadian Universities Reciprocal Insurance Exchange (CURIE).
On the face of it, the battle is about insurance coverage. Macfarlane is being sued for defamation, and she says that CURIE is obligated to defend her because her allegedly defamatory comments were made in a professional capacity. She says her lawyer learned via the University of Windsor’s lawyer in late April that CURIE has no intention of fulfilling that obligation.
A spokesperson for the university said it’s working with Macfarlane and declined further comment. CURIE did not respond to a request for comment.
Macfarlane and CURIE go before the courts in July. But this case is about much more than where a university insurance company’s responsibility to represent faculty members ends. It’s about sexual misconduct on campus and growing concerns over the use of non-disclosure agreements (NDAs).
Macfarlane is being sued for defamation by her former colleague Emir Aly Crowne-Mohammed — he’s “Professor Mohammed” to The Oyez and Emir Crowne professionally.
Macfarlane says he’s a sexual harasser who doesn’t deserve to move from job to job with the impunity afforded by an NDA (she’s called his employers at a law firm in Toronto and later at the University of the West Indies, where he taught for a while). Crowne says he’s innocent and Macfarlane has gone on a years-long “racist attack on [his] reputation which is totally lacking in any merit.” Crowne specifically denies allegations he “groomed” students, and he denies allegations he sexually harassed them.
None of the allegations in the Macfarlane-CURIE case have been proven in court.
WATCH: Privacy laws shouldn’t protect sexual harassers, law prof says
Macfarlane’s lawsuit against CURIE is further proof of her merit-less attack, according to Crowne’s lawyer Matthew Gayle, who called the legal action “vexatious proceedings intending to specifically frustrate” a sealing order put on the defamation case in Trinidad and Tobago, where Crowne currently works.
That sealing order effectively prohibits Global News from reporting on the Caribbean case. However, documents pertaining to that lawsuit were filed in the Ontario Superior Court as part of Macfarlane’s case against CURIE. Those documents are not under a publication ban.
On the one hand, there’s “a salaciousness to it — warring colleagues,” says Dawn Moore, a professor of law and legal studies at Carleton University, “but it strikes to a deeper issue that plagues a lot of us.”
How do you balance academic freedom and privacy with maintaining safety on campus and decreasing sexual violence?
WATCH: Queen’s University releases on-campus sexual assault numbers
The student’s impression of Prof. Emir Crowne was that he “lacked boundaries.”
The woman — now a lawyer in Toronto — started as a University of Windsor law student in 2011.
Her experiences are recounted from her March 22, 2019 witness statement that was entered into the Macfarlane v. CURIE proceedings. Given her fear that speaking publicly will cause her to be targeted in the defamation suit, Global News is not naming her. She says everything in the statement is “absolutely true.”
Crowne showed up at student events, including a boat cruise, and was active in their social media groups, she said. He added her on Facebook, even direct messaging her a “happy birthday.”
“He was not one of ‘us’ — he was a professor,” she said. “The weight his opinion had in a Facebook conversation, for example, could not be divorced from his position at the law school.”
Crowne’s lawyer says he “accepts that he interacted with students on social media” but that it was in a manner that was “wholly appropriate” given his job.
And yet, she said she was one of several students who avoided confronting Crowne because of his accolades and “his positions with different women’s organizations.”
During her first year, Crowne was voted Professor of the Year at the students’ law prom, according to the Macfarlane-CURIE documents. He was also a student adviser for the Windsor Review of Student and Legal Issues and Women in the Law as well as an adviser to the White Ribbon Campaign.
It was “common knowledge” that Crowne would offer research positions primarily to women students, ” she said in her statement, students whom “he would later invite out for private dinner.”
Crowne’s lawyer did not respond to questions about these specific allegations, however he said Crowne denies all allegations of sexual harassment.
In the fall of 2013, she wrote an exam for Crowne’s class. It asked students “to consider how to sue female students for defamation and how to sue the Law Union,” she said — scenarios that “felt very specific” in light of Crowne’s frequent criticism of the law union on social media.
She wrote a letter shortly thereafter to the dean of the law school, asking the dean to address “what I perceived to be a hostile environment to women.” She said she received no reply, although she was summoned to a meeting with the university’s president to discuss Crowne in January 2014.
At that meeting, she said she met Macfarlane.
Macfarlane became “a safe place” for her and other students who were scared and concerned about Crowne, in part because Macfarlane is a survivor of sexual abuse.
“We felt that we were in a weak position,” the student said.
“We felt that as burgeoning law students, with no money to our name and no careers to speak of, we were ending our careers before they started.”
WATCH: Universities struggling to confront sexual harassment reality, prof says
Freedom of information and protection of privacy acts, or FIPPAs, have “terrified universities,” says Moore, the Carleton University professor.
For the most part, Moore says students who want to know what’s happened with their complaints come up against the brick wall of FIPPA.
“We’ve even seen gag orders put on students who make complaints,” she says. “I’ve chronicled students who’ve been sanctioned by their deans for even posting on social media that they were sexually assaulted on campus — not even naming their perpetrators.”
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And yet, Macfarlane says, the privacy argument is a “total red herring.”
“Although employees have certain information protected as a matter of privacy,” she says, “if they have been found to have been a danger as a sexual harasser to others … privacy laws don’t protect them and shouldn’t protect them morally any more than they do not protect them legally.”
Macfarlane should know “based on the lawfully disclosed documents from the Trinidad proceedings” that Crowne wasn’t fired for misconduct in December 2014 and that his departure was not covered by an NDA, says Gayle, Crowne’s lawyer.
Crowne was suspended pending an investigation, but it was not relating to sexual harassment, Gayle says. Furthermore, Gayle says, “no allegations of sexual harassment were ever put to Dr. Crowne. It, therefore, follows that no findings of sexual harassment (have) been made against him by any employer or anyone else.”
WATCH: ‘There’s not just smoke, there is a raging fire’
Crowne left, Gayle says, but he was not terminated for misconduct and “the matters” pertaining to his departure are covered by a settlement agreement that he is “happy with.” Gayle would not clarify how the settlement is different than the NDA he denies exists.
A spokesperson for the University of Windsor declined to comment. However, Windsor professor Anne Forrest acknowledges the NDA in an email to the Windsor University Faculty Association earlier this year.
In that email, Forrest — former WUFA president — urges the association to support Macfarlane in her legal battle.
Forrest, who did not respond to Global News’ request for comment, wrote about being “intimately involved in negotiating the settlement of Emir Crowne’s grievance.”
The administration wasn’t able to convince the students who brought concerns forward about Crowne to testify at his arbitration hearing, Forrest wrote. That meant Crowne would likely have been able to return to his teaching job “even though I (and many others) were convinced that he had committed the acts he was accused of.”
It’s for that reason, Forrest wrote, that she felt WUFA did the best it could at the time even though NDAs “permit likely predators to move from employer to employer with impunity, thus exposing other unwitting students and faculty to sexual misconduct.”
“Our dilemma was real,” she wrote.
“We believed [Crowne] should not be permitted to continue his predatory behaviour at UW, yet we would not have been able to negotiate the termination of his employment without a no-disclosure agreement.”
Crowne denies the allegations.
“I have been investigated as a result of these baseless allegations on numerous occasions, at great personal expense to me, and each and every time the investigation has proven my innocence,” he said in a statement sent via his lawyer.
Earlier this year, Students for Consent Culture Canada published an open letter urging the University of Windsor to support Macfarlane. It had hundreds of signatures within days, says the organization’s national chair, Connor Spencer.
The issue of defamation suits being launched by alleged perpetrators of sexual misconduct against students is one SFCC is particularly attuned to. It was formed two years ago when students across the country came together to create a national action plan to address sexual violence on campus.
Among SFCC’s list of things a university’s sexual violence policy should not have? A gag order.
Organizing in support of Macfarlane was a no-brainer, says Spencer: “We’re going to stand up for professors that stand up for us.”
Macfarlane isn’t the only person to be hit with a defamation suit for speaking up about alleged sexual misconduct.
Last year, a McGill professor filed a defamation suit as a result of sexual misconduct allegations; a former student at Yukon College was served over a Facebook post implying a former instructor — one who had already lost his job as a result of a college investigation into sexual assault allegations — sexually assaulted her; and Steven Galloway, who was awarded $167,000 for the University of British Columbia’s handling of sexual assault allegations against him, filed suit against his accuser as well as nearly two dozen other people who shared the accusations online.
Defamation suits went from a vague possibility to reality in a short span of time, Spencer says. “People in positions of power wield their power in order to keep it.”
Most people who sue for defamation are likely hoping to rehabilitate their reputation, says Hilary Young, a law professor at the University of New Brunswick. And yet, that’s not really a guarantee, she says, because court proceedings are generally public and can actually compound the reputational concerns by bringing the allegations to more people’s attention.
“It depends on what harms have already been done,” Young says.
In Macfarlane’s case, she went public about the allegations against Crowne a year ago in a CBC article. She didn’t actually name him. She did, however, reach out to the dean at the University of the West Indies, where Crowne was a senior lecturer, to advise him of circumstances surrounding Crowne’s Windsor exit.
That job, which Crowne has since left — the strain of the investigation “caused him to experience a mental health crisis,” his lawyer says — was his second attempt at joining the University of the West Indies, according to the Macfarlane-CURIE documents. He’d been turned down for a position at the university’s other campus. Crowne’s lawyer says he never learned the reason why, but according to exhibits filed in the Ontario court case, his background check revealed the allegations surrounding his Windsor departure.
John Knechtle, who works at the University of the West Indies, volunteered to do the check because he knew Richard Moon, a law professor at the University of Windsor who used to be married to Macfarlane. According to Knechtle’s witness statement, the first words out of Moon’s mouth were that he shouldn’t hire Crowne and that Knechtle should speak with Macfarlane “or any of the other female professors at the Faculty of Law.”
FROM 2017: Fighting sexual assault on campus
Crowne’s lawyer dismissed the unsigned statement, saying Knechtle is a “known” friend to Macfarlane. In an email to Global News, Knechtle said “it would be unwise for me to talk” given the litigation ongoing in Trinidad. However, he noted: “Whatever witness statement you have is certainly not signed by me.”
To this, Macfarlane’s lawyer Natalie MacDonald says she spoke with Knechtle “at length, and prepared what is known as his affidavit which was to be sworn by him.” Knechtle did not respond to a subsequent email sharing the statement and asking for comment.
Moon told Global News that he was asked to give a reference and that he was clear: he had no direct knowledge of the allegations but he was aware of them, and he advised against hiring Crowne because of other issues with his work, including that he was known to party with his students, which faculty felt was not appropriate.
There was no similar concern raised when Crowne applied to be a senior lecturer at the university’s other campus.
Indeed, the dean expressed shock when Macfarlane initially emailed him about the allegations, according to copies of the email exchange filed in Ontario court.
However, according to subsequent emails, dean Leighton Jackson conducted his own investigation and found there to be no truth to the allegations. It’s unclear what exactly Jackson’s investigation consisted of.
When a professor forwarded him a copy of the CBC article in May 2018, saying a “very senior attorney” had flagged it to her, Jackson responded, saying he applied his own “very senior attorney” mind and called it “an attempt at a new spin on old discredited news in light of the ‘Me Too’ movement in the Trump era.”
Jackson went on to say MacFarlane is “quite a dishonest person who is obsessed with Crowne” and that his own investigation reveals that the allegations stem from “racial tension at Windsor.” He highlighted the case of a black woman professor who was turned down when she applied to be dean of the law school and on whose legal challenge Crowne worked.
Presumably — Crowne’s lawyer could only say it was “most likely” and Jackson did not respond to Global News’ requests for comment — he was speaking about the human rights complaint filed by fellow law professor Emily Carasco. Carasco launched her complaint in 2010 after she was rebuffed as the new law school dean. Carasco said it was because she is a woman of colour.
Jackson wrote that “the McFarlane [sic] crew” was not about to have a black woman become dean. Macfarlane denies being part of a group trying to block Carasco’s appointment, although she says she did tell the committee in confidence that she didn’t think Carasco was a good fit. She denies it was related to Carasco’s race. Carasco’s human rights application was withdrawn after she reached a settlement. Macfarlane says race has nothing to do with her informing Crowne’s employers about the allegations against him.
Jackson wrote that the university “chose not to go forward” with the disciplinary charges against Crowne but paid him “a generous settlement” and sealed the settlement with a confidentiality agreement “as is customary.”
Jackson also wrote about allegations Macfarlane made that Crowne inflated and, in some cases, falsified his qualifications. Crowne vehemently denies this. Jackson wrote that his own investigation found it to be untrue. Global News has not been able to independently verify.
“As my investigator commented, [Macfarlane] is either mentally ill or a woman scorned,” wrote Jackson, who did not return requests for comment from Global News.
“I am completely and personally familiar with false accusations. Those have been made against me even in quite recent times. It’s a part of this imperfect life of mischief makers.”
Jackson copied Crowne on the email as “due process and natural justice demands.”
As it stands, Macfarlane is not participating in the defamation case against her in Trinidad. It’s for a few reasons, she says. First, Macfarlane has cancer and is in chemotherapy. And second, she says, “we cannot properly defend the case” until they can get the university to release Crowne’s original termination letter and the settlement agreement.
If the case was filed in Ontario, she says her lawyer could compel them to do so. That the case was filed in Trinidad means the process has been “a complete joke,” Macfarlane says, with “absolutely no fair process or regard for my situation and apparently completely biased in favour of the plaintiff making whatever assertion he wants.”
Macfarlane has no intention of complying with the Trinidad order telling her to stop talking.
WATCH: Universities should stop using gag orders, prof says
“I do believe that universities will step up. I do believe that they will put the protection of students first,” she says, but “in order to do that, they have to stop using NDAs to cover the tracks of people whom they terminate for sexual misconduct.”
Other industries have a duty to protect their employees, says MacDonald, Macfarlane’s lawyer. There’s the Occupational Health and Safety Act specifically to ensure that if an employer has information about potential risks, they report that.
“When a person who knows that and has that information is providing it in the course of their duties and responsibilities as a professor, how is that any different?” MacDonald says.
Ultimately, Macfarlane’s is a case with ramifications for all of academia, MacDonald says.
“It signifies how far a university is prepared to go to stand behind its faculty when there is an NDA present,” she says.
“I understand why there is an issue of privacy. I certainly appreciate that, but privacy should not be so broad as to protect perpetrators of abuse.”