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Queen's University
 

Ford v. Nipissing University

Ford v. Nipissing University. Ontario Human Rights Tribunal, January 2011.

The respondent University met its duty to provide a safe work environment, The respondent acted promptly to the incident of sexual harassment, but failed to remain diligent in pursuit of the matter. There were serious breakdowns in communication linkages within the University. Policies and Procedures were inadequate to deal with the offensive and threatening email. I find that, in responding to the harassment, the University met its substantive obligations under the Cope. However, because after its initial response, the University failed to remain diligent in pursuing the matter and because of the failure to sustain communications with the applicant, I find that hte University did not meet its procedural obligations under the Code."72-73

Facts

On Friday, March 31, 2006, an Assistant professor at Nipissing received an email sent from an account named dianneslover@hotmail.com whose subject was "Hey Babe". The author of the email identified himself as Dr. Ford's "stalker". The contents of the email were threatening and so offensive that the Tribunal chose not to quote them in its decision. The professors, who was seven months pregnant, was angry, embarassed and afraid. 

  • Notification of the harrassment

Dr. Ford's husband sent a copy of the email to several members of senior administration on Friday and Dr. Ford wrote a follow-up email stating that she suspected one of her students wrote the email because she had previously received an email from a student who had used the expression "hey babe".   She stated that she did not believe that the suspected stalker was in her first class on Monday. Dr. Chase, Vice President Academics and Research, responded to Dr. Ford's message on Saturday, acknowledging the seriousness of the offence ( "this incident is extremely serious and needs to be treated as such"), offering to attend her first class on Monday and asking her to identify any further safety measures she might require.Dr. Ford's husband responded to Dr. Chase's email, suggesting that campus security accompany Dr. Ford to her Monday class and asking that police be notified of the incident. Dr. Ford then emailed to thank Dr. Chase for his support, to reiterate the requests made by her husband and to request that Campus Security attend her upcoming classes on Tuesday and Thursday. Dr. Chase emailed colleagues to discuss the appropriateness of these requests.

  • Meeting with Security Services

A meeting was set up for 8:00 monday with Security Services. At this meeting, Dr. Ford (accompanied by her husband and several members of administration) was informed that Security Services did not have the resources to have an officer sit in on her classes. Furthermore, they did not think the matter was very serious; in their opinion, Dr. Ford probably did not require further assistance. Mr. Guy (a memer Security Services) testified that it was his goal to console Dr. Ford when he said something to the effect of: "If it makes you feel any better, this isn't the worst case we've seen".  This statement did not reassure Dr. Ford; rather she felt belittled and offended by it.  The Tribunal found that Security Services failed to console the applicant, and added that this was probably due to the lack of training in how to deal sensitively with victims of sexual harassment.

The professor subsequently declined the offer to be escorted to her 8:30 class because her husband was with her and declined the Dr. Chase's offer to sit in on class because she felt it would be disruptive to the students.Following this meeting, Dr. Ford's husband complained to senior administration about his dissatisfaction with his wife's treatment by Security Services. In response, Dean Vanderlee, offered to sit in on Dr. Ford's classes and to escort her to class. The husband declined both offers on behalf of his wife.

  • Efforts to identify the Sender of the Email

On the same morning as the meeting with Security Services, Dr. Vanderlee sent a copy of the email to Technology Services (TS), asking them to conduct an investigation in order to identify the sender. By noon, TS had communicated its findings to the University and Dr. Ford. It had determined that the email had been sent from a public computer at the university library. No data could be retrieved from the computer as it was designed to shed all transient data at the end of every day. Furthermore, no computer logs were kept, no security cameras were in place and no librarians reported seeing any suspicious behaviour at the time. After contacting MSN Hotmail, TS advised the University that MSN Hotmail's Privacy Policy precluded them from revealing the identity of the user and it would probably not be able to shut down the user's account because the offensive email would probably not offend that company's User agreement. A subsequent email sent out by TS indicated that they might have stumbled upon the identity of the user. In response, Dr. Ford requested not to know the name of the person, but only to know if he/she was registered in one of her classes. If yes, she wanted someone to sit in on her classes (she suggested that Jack Jones, a person that often sat in on teachers' classes to provide feedback, would be appropriate). Finally, the professor refused to divulge the name of the student she suspected of sending the email. Security began interviewing students in her classes late that week.   

  • Invigilation of Examinations

Two weeks later, on April 13th 2006, Dr. Ford was required to invigilate, alone and in an isolated area, a final exam for the class in which she thought her suspected stalker was registered. She was terrified.  The night after the exam, she was hospitalized and gave birth to a premature son. She testifed that both her obstetrician and midwife told her that the stress from having to invigilate the exam under the stress of the unresolved harassment case caused her to go into early labour. Neither testified at the hearing. Unfortunately, she had no direct evidence to prove this and the Tribunal could not accept her argument on the balance of probabilities. 

  • Resignation and Exit Interview

Shortly after the final exams, on April 24 2006, Dr. Ford resigned her employment at the University. In her letter of resignation, she thanked Dr. Vanderlee for his support and leadership, stating that he had gone "above and beyond the call of duty" to ensure her safety  and encouraged him to continue to investigate the email. In the exit interview questionnaire, Dr. Ford acknowledged that the harassing email, though not a "primary reason for leaving", was a factor in her decision to leave Nipissing for another Univesrity.   She noted, however, that had she not found another job, she would have probably quit over the incident. In conclusion she wrote that she was "Still considering legal and/or union action pending the outcome of the President's actions to ensure this doesn't happen to another faculty member".

  • Discussions with President 

 In June, after a meeting with Dr. Ford, the president of Nipissing offered to look into the investigation and to provide feedback to the applicant. He requested that senior administration create a report on steps taken thus far. He testified at the hearing that he was satisfied with that report. He failed, however, to get back to Dr. Ford.

  • Resolution

The University was unable to identify the sender of the email and initiate complaint procedures.  It closed its investigation.

  • Request for feedback on Women's safety initiatives

In October 2006, the applicant responded to a general call for suggestions for initiatives dealing with women's safety on campus. She indicated that she was dissatisfied with the University's response to the offensive email.  She went on to accuse the University of neglecting to ensure her safety, of belittling her experience (the Security Services response), of "turning a blind eye to the offender" and of failing to protect her safety to the point of causing her to give birth prematurely.

  • Complaint filed with the Commission  

The complainant provided medical documentation showing that she had been traumatized by the events arising from the offensive email (post traumatic stress disorder) and would require ongoing psychotherapy.

Issues

  1. Did the applicant experience discrimination and harassment in her employment on the basis of sex contrary to the Code?
  2. Did the University meet its substantive obligations under the Code by appropriately responding to the harassment?
  3. Did the University meet its procedural obligations under the Code by appropropriately investigating and responding to the applicants complaint ?

Decisions

  1. Yes
  2. Yes
  3. No

Reasons

  1. Both parties agree that the email constituted harassment 
  2. To assess issues 2 and 3, the tribunal used the test outlined in Laskowska v Marineland (2005) HRTO 30 using the following questions:
  • Did the employer meet its obligation to provide a healthy work environment? YES

The standard is not the best solution or the solution most desired by the applicant, but a reasonable solution. The University met this standard, according to the Tribunal, when the dean offered to attend Dr. Ford's classes and when Security Services provided her with a security services business card, a personal alarm and a cell phone.  The University was not obligated to provide the applicant with her prefered solution, i.e. the presence of a plain-clothed officer in her classroom. A mitigating factor was the applicant's refusal to provide the name of the student she suspected of sending the email. Had she cooperated with Security Services, the University could have interviewed the student and determined if he/she was responsible.

  •  Did management communicate its actions to the applicant in a reasonable manner.  NO

The Tribunal found that although Technical Security transmitted its findings promptly and effectively, Security Services and Administration "should have maintained closer contact with the applicant, and [...] remained vigilant in close proximity to the applicant." (para 63).  In the first few days, communications were effective and prompt; after which they "slowed to the point where the applicant was not being adequately informed on the investigation and measures taken to respond to the harassment." (63).  The tribunal stated that the following facts proved that communications between the university and the applicant broke down: 1) "The University Administration often communicated with the applicant's husband rather than with the applicant directly. While the applicant's husband attended the intial meeting at Security Services with her and participated in group emails, there is no indication that she made him her representative. In considering whether the respondents adequately communicated their actions to the applicant, I cannot find that communicating information about the investigation to the applicant's husband was reasonable in the circumstances" (64) 2) The University Administration should have also updated the applicant as to their findings or whether the file was closed when she requested this in her exit interview submissions"  (65)

  • Was the respondent prompt in dealing with the harassment complaint? YES

Administration dealt promptly in the days following the notification: on Saturday (following the notification of the harassment), on Sunday (in response to emails from the applicant) and on  Monday (following the Security Services meeting). The tribunal decision mentioned several times that the immediate response of administration was both prompt and that it showed concern.

Was the issue dealt with seriously? YES and NO

Dr. Chase's comments immediately upon reception of the complaint show that he acknowledged the seriousness of the issue. However, neither Security Services nor Senior Administration failed to show much concern about the issue as communications broke down after the first few days of the investigation. Was there an awareness by the employer that sexual harassment is prohibited conduct?

  • Was there an awareness by the employer that sexual harassment is prohibited conduct? YES and NO

While the employer was aware that sexual harassment was prohibited conduct, it fell short of meeting this standard because "awareness and training of how to respond with empathy to the issue of on campus harassment and intimidation was lakcing. As noted, Campus Security Services attempted to responded with sensitivity to the circumstances, but failed.  There had been no training given by the employer in how to respond to the potential emotional outcomes of sexual harassment and/or threats of sexual assault. There was also no indication of a comprehensive plan or protocol for invesitgation in such circumstances."69  

  • Did the employer demonstrate that there is a complaint mechanism in place? YES, however...

Yes, but it was inadequate because the complaint procedure could only be triggered once a respondent was identified. As the university could not identify the respondent in this case (the sender of the email), the "complaint procedure remained dormant". (71) The consequences were 1) this closed a potential investigation to the applicant and 2) it also precluded policy review that may have been able to precipitate changes that could have benefited men and women who may have encourntered similarly vexatious comments in the future.

Remedy

Nipissing was required to

  1. pay to the applicant $8000.00 as monetary compensation for the loss arising out of the infringement of the Code;
  2. pay to the applicant $1950,000 for ongoing counselling and psychotherapy;
  3. pre-judgement interest and post-judgement interest
  4. review its policies and procedures related to sexual harassment and ensure that they are in full compliance with human rights principles and Code provisions.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000