MUN vs MUNFA

Memorial University of Newfoundland v. Memorial University of Newfoundland Faculty Assn. (Collective Agreement Grievance) RE: MUN and MUNFA [2007] N.L.L.A.A. No.4 169 L.A.C. (4th) 185 92 C.L.A.S. 344 Newfoundland and Labrador Labour Arbitration.

Facts

At the end of the semester, following the final performance of a stage production, an instructor in stage craft in the Fine Arts Program at MUN (Grenville College) invited a female student to his home for supper and a sleepover. The female student was part of a closely knit group of fine arts students who worked under the instructor on productions at the College.  The student did not find this invitation to be inappropriate because the instructor often invited the group back to his house for sleepovers in order to debrief shows. This time, however, it was Christmas vacation and all the other members of the group had gone home to be with their families.

The evening went without incident until the professor's wife and children went to bed. At this point, the instructor, who had consumed several glasses of wine, made sexual advances. The student protested,  but only expressed concern about having sex in such close proximity to the professor's wife and children. The professor was persistent and they ended up having sex. The student later filed a complaint of sexual assault with the police and a complaint of sexual harassment with the University.  

At a preliminary hearing following the police investigation, the instructor was cleared of charges of sexual assault because although the crown had evidence of all three elements of actus rea:

• Touching
• Sexual nature of the contact
• Absence of consent

...it could only establish the first of two elements of mens rea:

• Intention to touch
• Knowledge of a lack of consent or reckless/willing blindness to a lack of consent

The University conducted its own internal investigation, found the instructor guilty of sexual harassment and dimissed him.

Arguments

The Union argued that the University had contradicted the finding of a provincial judge who had cleared the professor of sexual assault when it found the latter guilty of sexual harassment. This, it maintained, was an abuse of process. Even if it was not, this incident was a consensual act between adults that did not occur within a professor-student relationship.   

Issues

1. Did the university engage in an abuse of process when it found the professor guilty of harassment after the provincial judge found him innocent of assault?
2. Did this off-campus incident fall within the scope of the University's Policy on Sexual Harassment?

Decisions

1. No
2. Yes

Reasons

1. "Having regard to the differences between the offence of sexual assault under the Criminal Code of Canada and the complaint of sexual harassment contrary to the Employer's Sexual Harassment Policy, there would be no inconsistency between the findings made by the Provincial Court Judge when he discharged RHR at the preliminary inquiry and a finding by the Arbitrator that sexual harassment occured contrary to the policy. A finding of sexual harassment occurred would not cast doubt over the findings at the preliminary inquiry. There would be no abuse of process or re-litigation"
2. There were four factors taken into consideration: the relationship between the parties (he was her professor and she considered him to be a father-figure/mentor);  the setting in time of the event at the end of the semester;  the purpose of the event from the student's perspective (she thought they were going to debrief the theatrical production they had just finished); and the nature of the discussions that occured at the event (they talked about stagecraft class, fourth-year angst, discussions which occured "within the context of a professor/student relationship and a mentoring relationship). The arbitrator concluded "Having regard to the factors discussed [...] the Arbitrator finds that the event was study-related and occured in the course of study for the purpose of paragraph 4 of the policy. Therefore, the event was within the scope of the policy".

Order

The matter is within the jurisdiction of the Arbitrator, who will proceed to hear the merits of the grievance.

 

Note

No ruling has been published of the grievance decision)