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Queen's University
 

B and W 

How should universities intervene when students sexually harass other students?

CASE: Re B and W et al. 23 D.L.R. (4th) 248. Ontario High Court of Justice. Rosenburg J, October 24, 1985.

Facts

If you leave me, I will kill myself.

In the summer of 1984, two students from the University of Sherbrooke, B and W became romantically involved. In September, 1984, when they began their first first year of law at Osgoode Hall Law School, W tried to end the relationship. B was devastated and threatened to commit suicide if W did not agree to stay with him. When W did not give in to this pressure tactic, B began to engage in stalking behaviors; he wrote her letters (including suicide letters), phoned her frequently, and followed her around campus. This harassment continued throughout the fall semester.

My personal life is of no concern to you

Fearing for her safety and wellbeing, W approached the associate dean of law in November 1984, requesting that he deal with the problem. The dean talked to B, who refused to comply with his request that he cease and desist harassing W. According to B, his personal life was none of the dean's business. The dean then advised W to contact the Sexual Harassment Education and Complaints Centre on the York University campus. On January 4, 1985, with the help of the Centre, W sent B a detailed letter informing him that his behavior was unwelcome and demanding that he stop the threats of suicide, the telephone calls and letters. Four days later, B took an academic leave of absence to avoid the need to be in the presence of his requited love interest. This did not stop his harassing behavior, however. B continued to mail letters to W's home and to follow her around the law school. Finally, on April 26, 1985, W filed a formal complaint of sexual harassment to the university. The complaint was investigated by the provost (a senior administrator) according to guidelines established by the president's committee.

University Investigation

The provost met with both parties individually, to hear their testimony and review their evidenceB was offered the right to counsel, but chose to represent himself. He demanded that he be allowed to be present at W's hearing and that he be given the opportunity to cross-examine her. The provost refused to comply and met with each party individually to hear their testimony and to review their evidence. B did not deny the allegations put forth by W, nor did he deny having written the letters put forth in evidence. His defense was based on two procedural objections; first of all the university had no jurisdiction over his personal life and secondly he should have the right to cross examine the witness.  These objections were dismissed by the provost.

Sanction: B kicked out of law school, twice

In August 1985,  the York University provost ruled that B had harassed and sexually harassed W. At a sanctions hearing, which B had unsuccessfully sought to adjourn in order to retain counsel, B was suspended from his academic program, banned from the law school premises and ordered to cease the sexual harassment. B retained counsel who appealed to the president of the university, who allowed B to reenroll for the fall semester on the condition that he desist from all contact with W. The stay was lifted one month later when B violated the contract twice by sending two letters requesting a meeting with W.

The Appeal to the Ontario High Court of Justice

B appealed to the Ontario High Court of Justice on two grounds: 1) the university had no right to interfere in his personal life and 2) the investigation failed to adhere to the rules of natural justice when it denied him the right to cross-examine W and to retain counsel before the sanctions were read. (Re B and W et al. 23 D.L.R. (4th) 248. Ontario High Court of Justice. Rosenburg J, October 24, 1985. Copyright 2004 Canada Law Book Inc.)

Issues

  1. Did the university have the right to make decisions about B's academic future based on his non-academic conduct?
  2. If so, did the university investigation fail to respect the rules of natural justice during its internal investigation when it refused B the right to cross-examine W and when it refused to stay the process so that he could retain counsel?

Ruling

  1. Yes.
  2. No.

Ontario High Court of Justice Reasoning

  1. The conduct of the applicant, both on campus and off, was something that the university was entitled to consider. Justice Rosenberg said "the university must make decisions with regard to admission of students and their right to remain. They are entitled to consider matters other than academic achievement in deciding who to accept and who to allow to stay. Certainly, the conduct of the applicant (B) both on campus and off, was something that they were entitled to consider. They were within their jurisdiction in assessing his conuct and determining whether or not to allow him to continue as a student" (pages 253-254)
  2. Justice Rosenberg held that when the credibility of the complainant is not in question, and when there is no major contradiction in the evidence presented by the two parties, it is not necessary to give the respondent the opportunity to cross-examine the complainant. In this case, the respondent did not deny any of the allegations nor did he deny having written the letters submitted by W. There was no contradiction in evidence and therefore no issues of credibility.  The Court also held that the respondent was given ample time to retain counsel, but chose not to. Moreover, he was allowed several delays throughout the investigation. It is therefore within the discretionary powers of the provost to deny him further occasion to retain counsel.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000