Berklee College of Music says the University of Manitoba gave positive references for former jazz professor Steve Kirby.

Berklee said its pre-employment screening process included professional references and background checks, and that it "spoke with individuals at the University of Manitoba, who provided uniformly positive references," said Jay Kennedy, vice-provost of the Boston-based college, in an email. 

"The College was not made aware of the recently reported allegations involving Mr. Kirby by anyone at the University of Manitoba," Kennedy said.

Jazz professor Steve Kirby retired in late June after being on leave for six months, the university has said. As the CBC News I-Team reported, an internal investigation found Kirby's behaviour amounted to "sexual harassment" after a group of students filed complaints last February.

Berklee has not identified who gave the references at the U of M.

"The University of Manitoba is unaware of who Berklee College might have contacted in its pre-employment screening, and when," said John Danakas, the university's public affairs executive director.

"However, the dean, the associate dean, the president's office, the HR department — none of these were contacted by Berklee College in order to provide an appropriate reference check," Danakas said in an email. 

Kirby denies claims

Attempts by CBC News to contact Kirby have been unsuccessful but in the university's internal investigation report, he "denies all claims made of any sexual innuendo or outright sexual approaches."

Several of the students who filed complaints against Kirby have told CBC they're upset he was able to get a teaching job at another college after leaving the University of Manitoba.

Following recent news stories about the issues at University of Manitoba, Berklee said Kirby was placed on leave pending a review.

Steve Kirby

An internal University of Manitoba report says Steve Kirby denied many of the points raised by the complainant about sexual harassment. (CBC)

Even if a reference request is received, the University of Manitoba said it could not disclose a finding of sexual harassment about an employee unless that person consents to the release.

"References can only be provided with the consent of the employee," said Danakas.

"Without such consent, the former or current employer can only confirm employment, position, title, years employed," said Danakas, citing section 44 of Manitoba's Freedom of Information and Protection of Privacy Act (FIPPA).

Privacy rules 'scandalous'

"This is absolutely scandalous," said Julie Lalonde, an Ottawa-based women's rights advocate. "I hope this serves as a launching point to have a broader discussion around privacy."

Lalonde said laws that prevent universities from sharing information in reference checks need to be reviewed.

"Saying that we can't make that information public to a potential employer means that you don't care about what that person does to other students, because they're no longer on your campus so they're no longer your problem." 

"Why is it that universities are allowed to only care about the liability of what happens on their own campus and that they're enabling people to hop from institution from institution?" Lalonde said.

Students 'outraged'

Students in the University of Manitoba's faculty of music are calling for greater transparency from the university.

"We, the students at the Desautels Faculty of Music, are outraged at the university for the way they have dealt with the incident involving Steve Kirby," the students said in an open letter made public on social media. "We have asked many questions to the university and have not been given proper answers."

"By hiding information from the students, it can only be assumed that the university was aware of the situation, but was not acting, in order to save their image," the letter said.

A meeting last week between staff and students failed to clear the air, said Kieran Labossière, former president of the Faculty of Music Students Association.

Kieran Labossière

Kieran Labossière, former president of the Faculty of Music Students Association, said a meeting last week between staff and students failed to clear the air about Steve Kirby. (CBC)

"Students felt that the university is not forthcoming enough with the details of professor Kirby's retirement, nor about the investigation itself, process, and the findings of the investigation," Labossière said in an interview.

"The policy works to absolve the university of liability but the policy does not appear to benefit students in any way," Labossière said. 

"It's absurd," he said. "The fact that the legislation prevents that kind of disclosure is actually just horrifying."

Students' voices 'deeply respected'

In response to the students' letter, the university said it supports students "who show the courage to disclose inappropriate behaviours. The concerns are taken seriously. And the student voices raising them are deeply respected," said Danakas.

He said there were legal, human rights and student advocacy experts at the meeting last week, along with administrators from the faculty, to answer questions.

"The exchange was productive, and the university will continue to meet with students and answer more of their questions," Danakas said in an email to CBC. "Privacy legislation complicates what the university can or can't share publicly."

"Providing for the safety of students remains a priority, and the University continues to be open to hearing from students on what else it can do to ensure that safety," Danakas said.

Reference checks a 'minefield'

Tracey Epp, a lawyer who practices in labour and employment law, says she deals with issues around reference checks often.

"It's a huge minefield and it's one that employers grapple with a lot," Epp said, "not only in the written references — the letter — but also if a telephone call comes in."

"Be careful. Don't conduct them without consent, and don't provide information without consent," she said. 

'The advice I almost always give my employers is don't give a reference at all.' - Tracey Epp, employment lawyer

Epp said she has no direct knowledge of the situation involving Steve Kirby, but she doesn't blame the University of Manitoba for the situation.

"Realistically Berklee, which is the new employer, is the one that has an obligation to conduct appropriate reference checking when they're hiring someone new," she said. "And if they don't do their due diligence properly then they're the ones that are going to have to deal with consequences if they made a mistake in that regard."

She said privacy laws are likely to become more restrictive about what information can be shared in reference checks.

Tracey Epp

Tracey Epp, a lawyer who practices in labour and employment law, says she deals with issues around reference checks often. (CBC)

While FIPPA applies to public employers such as universities and governments, Epp said another provincial law — the Personal Investigations Act — also governs reference checks and applies to both public and private employers.

"The advice I almost always give my employers is don't give a reference at all. At the most, be prepared to confirm that somebody was employed by you from X date to X date, and this was the position that they held, and maybe outline some of the duties, but that's it. Nothing more. Nothing about 'they did a great job, they did a moderate job, they did a poor job,' because that gets you into that whole subjective area," said Epp.


On your mobile device, click here to see the full text of U of M students' petition.

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