University Professor Unable to Rely on Copyright Fair Use in Plagiarism Suspension

On July 15, 2015, Justice Bich of the Quebec Court of Appeal released her judgment in Syndicat des professeures et professeurs de l’Universite du Quebec a Montreal (SPUQ-CSN) c. Universite du Quebec a Montreal, 2015 QCCA 1256, an application for leave to appeal brought by the SPUQ-CSN.

In February 2013, the University of Quebec in Montreal dismissed one of its professors, after determining that they had plagiarized a number of passages in one of their books. The dismissal was preceded by a suspension with pay while an investigation into the plagiarism accusation was ongoing.

The SPUQ-CSN (on behalf of the professor) filed a complaint challenging both the suspension and the dismissal. On April 10, 2014 an arbitrator upheld the suspension but held that dismissing the professor on the basis of plagiarism would be abusive, cancelled the dismissal, and substituted it with a 6-month suspension without pay.

The parties’ appeal to the Quebec Superior Court was dismissed, and the SPUQ–CSN sought leave to appeal. The primary basis for the SPUQ-CSN’s appeal was that the professor should not have been found to have plagiarized in their book because their conduct did not violate the Copyright Act. The SPUQ-CSN argued that the professor took passages from books written by two other people (without proper citation) but that this conduct amounted to fair dealing for the purposes of education. The SPUQ-CSN pointed out that Section 29 of the Copyright Act does not require citation for fair dealing for the purposes of education, and therefore, the professor’s failure to cite the passages did not amount to conduct meriting disciplinary action.

Justice Bich held that even if the professor’s behavior didn’t violate the Copyright Act it could still constitute a breach of the standard of conduct applicable between employer and employee, and therefore, amount to a fault that is punishable. Justice Bich noted that the arbitrator specifically discussed several cases where plagiarism by teachers, due to their unique position, was not to be tolerated.

The SPUQ-CSN also argued that the arbitrator failed to refer to the Copyright Act (as well as several other relevant policies and regulations) in their reasons. Justice Bich stated that this was irrelevant and that the reasons did not need to specifically reference all arguments/materials that the court read in coming to a decision provided the reasons allowed a trial judge to understand the basis for the decision.

A copy of the decision (in French) can be found here.