Harassment/Discrimination Complaint Policy and Procedure
Approved by the Senate March 30, 2000
Ratified By the Board of Trustees on May 6, 2000
This document replaces the Harassment/Discrimination Complaint Policy and Procedure (1995)
Table of Contents
- Applicability of Procedure
- Advisers - Appointment and Functions
- Responsibilities of Supervisory Personnel
- Initiation of Informal Procedure
- Informal Settlement
- Initiation of Formal Complaint
- Critical Intervention
- Time Limits
- Holding Complaints in Abeyance
- Establishing Jurisdiction Over Formal Complaints
- Notice Of Complaints
- Facilitation of a resolution to a complaint
- Breach Of Settlement
- Formal Hearing: Make-up of Complaint Board
- Initiation of Hearing
- Striking the Board
- Challenges to the Composition of Board
- Submission of Written Statements and Documentary Evidence
- Withdrawal of Complaint
- Convening the Board
- Processing of Complaint by the Board
- Disposition Of Complaints By Board
- Supplementary Rules
- Procedural Rulings
- Time Limits Dispensations
- Service of Documents
- Legal Advice and Assistance to Board
- Additional Parties
- Privileged Communication
- Appeals From Decisions of the Board
- Review of Procedure
Queen's University believes in the necessity of providing safeguards for its members against harassment and discrimination. This includes harassment and discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, gender identification, sexual orientation, age, marital status, family status and handicap (disability). In addition, the University has the duty to do so under Ontario and Federal law. This duty is also met by special programs designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that are likely to contribute to the elimination of harassment and discrimination. Implicit in the duty not to harass or discriminate is a positive duty to accommodate.
That duty includes a responsibility on the part of all supervisors, both academic and staff, to strive to create an environment free of harassment and discrimination in their area of responsibility. Included within the ambit of that responsibility is an awareness of what constitutes harassment and discrimination based on human rights grounds, a knowledge of the procedures that are in place for dealing with allegations of harassment and discrimination, and cooperation in the processing of complaints made under this procedure.
It also means that supervisors will not condone or ignore activities within their areas of responsibility which violate the rights of students, faculty or staff. It means that they will ensure that all those for whom they have responsibility are aware that any form of harassment and discrimination based on the grounds enumerated above or analogous grounds, in all its manifestations is prohibited. They will ensure that any complaints will be attended to immediately and effectively.
In the fulfilment of these obligations, the University has established a Human Rights Office and provided for the appointment of a Director and Coordinators responsible for issues of human rights. Among the responsibilities of the Office are those of increasing awareness among the University community of the effects of harassment and discrimination, of providing educational programs to all segments of the community, including supervisory personnel, of providing support for individuals and groups who are the targets of harassment and discrimination, and of administering the Procedure established under this document.
This document assumes that a centralized procedure is necessary to ensure uniformity and fairness in dealing with complaints, whether they are made by students, staff or faculty. The Procedure is designed, in part, to prevent harassment and discrimination by educating members of the University community as to what constitutes such behaviour. It is also intended to provide a framework which is accessible to complainants in the sense of protecting their anonymity and ensuring that, as far as possible, the initiation and pursuit of a complaint will not be an intimidating experience.
Thus, the emphasis is on informal resolution, using facilitation/negotiation, save where the nature of the matter necessitates a more formal process. It is intended that the existence of this document should help create the kind of environment which nurtures and supports the work of all faculty, staff and students.
Academic excellence can only be achieved when all members of the community are free to work, teach and learn in an environment which does not exclude or discriminate against them. This policy and procedure have been formulated to ensure the protection of these essential elements of academic freedom.
Queen's University recognizes that all members of the University Community have the right to be free from harassment and discrimination. This includes sexual harassment, harassment based on gender, race, ethnicity, religion, creed and sexual orientation or analogous grounds. Such harassment and discrimination has the purpose or effect of unreasonably interfering with an individual's or a group's work or academic performance, or of creating an intimidating, hostile or offensive working, living or academic environment. Individuals or groups who are not the direct target of the conduct in question may also suffer harassment and discrimination as a result of being present when such conduct takes place.
Any definition of harassment or discrimination may be subject to Article 5 of the QUFA - Queen's University Collective Agreement or other documents related to academic freedom, as well as legal or constitutional documents.
It should be noted that personal/workplace harassment which is not based on one of the grounds enumerated above, is not covered under the following procedure.
Harassment and discrimination are exacerbated where:
submission to such conduct is made or threatened to be made either explicitly or implicitly a term or condition of an individual’s employment, academic status or accreditation.
submission to or rejection of such conduct is used or threatened to be used as a factor in employment, academic status, grade, accreditation or other decisions affecting that individual or as the basis for any other form of advantage or reprisal.
Definition of Sexual Harassment
Sexual harassment means engaging in comment or conduct of a sexual nature which is known or ought reasonably to be known to be unwelcome. It includes but is not limited to:
sexual solicitations, advances, remarks, suggestive comments and gestures.
the inappropriate display of sexually suggestive pictures, posters, objects or graffiti.
physical contact of a sexual nature (including sexual assault under the Criminal Code.)
sexual conduct that interferes with an individual’s dignity or privacy such as voyeurism, and exhibitionism.
Definition of Race and Racism
By racism we mean the negative valuing, stereotyping, and discriminatory treatment of individuals and groups on the basis of their race.
Racism directed at any individual or group is unacceptable. In this Procedure, the term race is intended to focus on racial minorities and First Nations peoples.
Racism can be detected by its effects. Racism can be manifested in both personal attacks and insults, and in the structure of social institutions. There is a well-known distinction between personal racism (insults, harassment and discrimination directed at an individual), and institutional or systemic racism (the conventional practices or structures of institutions which have the effect of excluding, or discriminating against individuals or groups, or of creating a hostile environment.) Thus, racism can be present in hostile acts, as well as in apparently neutral arrangements.
Racism may be intentional or unintentional. It can be the result of activity or arrangements that set out to discriminate or harm, or it can result from ignorance or inadvertence.
Racism involves carrying into effect one’s prejudices, resulting in discrimination, inequality or exclusion.
Racism may include, but is not limited to:
behaviour such as the dissemination of hate literature, graffiti, racial slurs and jokes, derogatory remarks and gestures, and physical attacks,
bias in administrative decisions, employment and workplace practices, tenure, promotion, appointment, leave, and salary increases,
bias in academic decisions such as grades, marks, in the choice of scheduling of academic activities, and decisions related to the content of courses and course materials,
behaviour which could reasonably be interpreted as offensive and patronizing, and as undermining self respect or adversely affecting performance or working conditions,
discrimination in the provision of goods and services, or access to premises, accommodation and other facilities.
Definition of Heterosexism
- Heterosexism is the negative valuing, stereotyping, and discriminatory treatment of individuals and groups who are lesbian, gay, bisexual or trans-identified, those perceived to be so, and those affiliated with them.
- The expression of dislike, hate or fear based on heterosexism is known as homophobia. When directed at women it is referred to as lesbophobia. When directed at bisexual women and men it is referred to as biphobia.
- Heterosexism can be detected by its effects. Heterosexism can be manifested in both personal attacks and insults and in the structure of social institutions. There is a distinction between personal heterosexism (insults, harassment and discrimination directed at individuals), and in institutional or systemic heterosexism (the conventional practices which have the effect of excluding or discriminating against lesbians, gay men, bisexuals and trans-identified people as individuals and as groups, and which may create a hostile environment.) Thus, heterosexism can be present in hostile acts or comments, as well as in apparently neutral arrangements.
- Heterosexism may be intentional or unintentional. It can be the result of activity or arrangements that set out to discriminate or harm, or it can result from ignorance or inadvertence.
- Heterosexism involves carrying into effect one’s prejudices, resulting in discrimination, inequality and exclusion.
- Examples of heterosexism include, but are not limited to:
- behaviour such as the dissemination of hate literature, graffiti, name calling, derogatory remarks, jokes and slurs, gestures and physical attacks,
- bias in administrative decisions, employment and workplace practices, promotion, appointment, tenure, leave and salary increases,
- bias in academic decisions such as grades, marks, and in the choice of curriculum and course content,
- behaviour, language or terminology which could reasonably be interpreted as offensive and patronizing and as undermining self respect or adversely affecting performance or working conditions.
Definition of Transphobia
- Transphobia is the negative valuing, stereotyping and discriminatory treatment of individuals who do not conform in appearance and/or identity, to conventional conceptions of gender. Trans-identified (transgendered) individuals, lesbians, gay men, bisexuals and their supporters are typically the targets of transphobia.
- Transphobia can be detected by its effects. Transphobia can be manifested in both personal attacks and insults, and in the structure of social institutions. There is a distinction between personal transphobia (insults, harassment and discrimination directed at individuals) and institutional, or systemic, transphobia (conventional practices which have the effect of excluding or discriminating against individuals or a group). Thus transphobia can be present in hostile acts as well as in apparently neutral arrangements.
- Transphobia may be intentional or unintentional. It can be the result of activity or arrangements that set out to discriminate or harm, or it can result from ignorance or inadvertence.
- Transphobia is more than prejudice; it involves carrying into effect one’s prejudices, resulting in discrimination, inequality and exclusion.
- Examples of transphobia include, but are not limited to:
- behaviour such as name-calling, slurs and jokes, derogatory remarks, gestures and physical attack.
- bias in administrative decisions, employment and workplace practices, promotion, appointment, tenure, leave and salary increases.
- bias in academic decisions such as grades, marks, and in the choice of curriculum and course content.
- behaviour, language or terminology which could reasonably be interpreted as patronizing and as undermining self-respect or adversely affecting performance or working conditions.
I. APPLICABILITY OF PROCEDURE
Who may utilize the Procedure
This Procedure may be utilized by groups as well as individuals and may involve complaints against one or more individuals as well as the University and its various operating units.
The conduct in question may constitute harassment, and a complaint may be brought under this Procedure, whether the conduct occurs on or off campus, and whether it occurs during or outside of working hours.
Members of the community for the purposes of making a complaint under this Procedure, includes former members complaining of any harassment or discrimination suffered while still members of the Community.
Non-community members may also make a complaint against a member of the Queen’s community under this policy when the alleged conduct occurred on the Queen’s campus, or at any Queen’s University sanctioned event, whether this event takes place on or off-campus.
As per Article 36.3 of the Collective Agreement, Faculty Members are bound by the provision of this policy, until the conclusion of a formal hearing.
- Cases dealt with under this Procedure may involve one or more forms of harassment or discrimination on the grounds enumerated in the Policy.
Involvement of external agencies
There may be cases in which the use of external agencies will be more appropriate, such as the police for example, if assault is alleged to be involved, or the Ontario Human Rights Commission.
The Ontario Human Rights Commission generally follows its policy of not pursuing an investigation until internal remedies have been sought. However, should the Commission begin an investigation with respect to the subject matter of a complaint being dealt with under this Procedure, action under this Procedure will cease at least until the complaint before the Commission is discontinued or brought to a conclusion.
Commencement of proceedings in the courts under criminal or civil law with respect to the subject matter being dealt with under this procedure will not necessarily affect the processing of complaints under this procedure.
- Any reprisal, or expressed or implied threat of reprisal, for making and pursuing a complaint under this Procedure is itself considered a breach of this policy.
When a complaint involving a breach of the Policy is made in a residence setting, those in authority are responsible for advising the complainant of her or his entitlements under this Procedure and for ensuring a liaison between the Human Rights Office and the Residence system in the resolution of such a case.
In matters of security, this does not preclude the appropriate Officer of the University from taking action, as per Item 8 below. Notification of such action will be sent to SONAD for ratification.
- This Procedure is without prejudice to the entitlement of the University to suspend any faculty member, student, or member of staff, (where it is decided that the ongoing security of members of the community requires such action), through the appropriate officers (VP Operations and Finance.)
Third Party Complaints
- Although most complaints made under this Procedure will be made by persons who are the direct recipients of harassment or discrimination, persons who are not the direct recipient, but whose living, working or learning environment is adversely affected by the conduct may also make a complaint under this Procedure.
II. ADVISERS - APPOINTMENT AND FUNCTIONS
- The Principal will maintain a roster of volunteer Human Rights Advisers, appointing a minimum of four such Advisers on the recommendation of the Human Rights Office. This roster will include at least one male and one female faculty member/librarian/archivist, and one male and one female staff member. Volunteer Advisers (named as Advisers for the purposes of this procedure) will ordinarily be appointed for a term of two years. Their appointment may be renewed. The Principal will make every effort to appoint one of these Advisers with special responsibility for the residence system.
Role of Advisers and Coordinator/Advisers
- The primary duty of Advisers and Coordinator/Advisers is to address complaints of discrimination and harassment using this prescribed policy and procedure.
- Should the need arise, Advisers may, either generally, or within the context of a specific complaint, and with the permission of the appropriate Coordinator/Adviser, seek legal assistance on the meaning and operation of this Procedure and their role and obligations under it.
Relations with the media
- In the event that, at any stage of the complaint process, a complaint attracts media attention, the appropriate Adviser or Coordinator/Adviser shall inform the media that the policies of confidentiality preclude us from confirming or denying the existence of a complaint.
- The Principal will endeavour to have full representation of Respondent Advisers to assist respondents named in a complaint made under this Policy. Such an Adviser reports to the University Secretariat, and is empowered to act on behalf of a respondent. A Respondent Adviser may, with the permission of the University Secretariat, seek legal advice on the meaning and operation of this Procedure and the role and obligations of a Respondent Adviser under it.
Responsibilities of Respondent Advisers
- Respondent Advisers will be responsible for advising the respondent concerning their rights and responsibilities under the Policy and Procedure, for assisting the respondent in understanding the complaint, and supporting the respondent through this process when requested to do so by the respondent.
Training of Advisers
- The Office of the Secretary of the University and the Human Rights Office will be jointly responsible for the training of Advisers under this procedure.
III. COMPLAINT PROCEDURE
Responsibilities of Supervisory Personnel
While every member of Queen's has a responsibility to be aware of human rights policies at Queen's, administrators and supervisors have the responsibility to advise persons whom they believe may have been harassed, of the assistance available through the Human Rights Office. "Administrators and supervisors" may include, but are not limited to, the following: AMS and SGPS officers, academic staff, medical and counselling personnel, campus security staff, residence staff, lab demonstrators, and coaches.
Such personnel may, without revealing the identity of the persons involved, also seek advice from any of the Advisers as to how to proceed in those instances where a person alleging to have been subject to harassment is unwilling to take the matter to an Adviser.
In cases of apparent systemic harassment, such personnel may themselves take a complaint to an Adviser on behalf of those allegedly harassed.
In situations where the interests of the University and the protection of the members of the community require it, such personnel may, with the consent of the appropriate Coordinator/adviser, take a complaint as far as a formal hearing notwithstanding the absence of consent of the person or persons allegedly harassed.
Such personnel must cooperate with and facilitate initiatives taken under Item 9.
Initiation of Informal Procedure
- Any member of the University community may seek informal assistance or advice from an Adviser, who shall as a first step, ensure that this person receives written information regarding the Procedure and a copy of this Procedure. The Adviser will attempt to, at this time, make a determination as to the nature of the complaint. All such consultations will be confidential unless otherwise provided by law. Members of the University community may also, simultaneously, seek advice from their professional associations or certified unions.
With the consent of the complainant, and in consultation with the appropriate Coordinator/Adviser, an Adviser may take any steps deemed appropriate in order to effect a resolution at this time, and keeping in mind the principles of natural justice at all times.
Respondents will be notified that they will normally be entitled to at least 2 working days to seek advice before any meeting to discuss the allegations with any University officer. In the case of situations where respondents and complainants are living communally in a residential setting, the time allowed for seeking advice may be shortened.
Initiation of Formal Complaint
- If a complainant wishes to make a formal complaint, it shall be initiated by filing with an appropriate Adviser, written details of the alleged harassment including dates, times, places, names of individuals involved as well as an indication of any specific remedy being sought. Where necessary, the Adviser shall assist the complainant in the preparation of this document and, in particular, shall ensure that the complainant has identified the appropriate respondent or respondents. In the case of complaints against the University, the respondent will be the Principal as representative of the University, while in complaints against one of the University's operating units or any group or society, it will be the Dean, Head, Director, Chair or President as the case may be, as representative of the operating unit, group or society. The Adviser will also ensure that the complainant has a copy of this Procedure and respond to requests for information about the process. Complainants may also, simultaneously, seek advice from their professional associations or certified unions.
At this time, or at any time prior to the hearing, the Adviser may attempt to resolve the complaint, with the agreement of the complainant, and with the assistance of the appropriate supervisor, unit head or senior administrator.
An Adviser who chooses to undertake critical intervention shall notify the Coordinator/adviser of this fact. The Coordinator/adviser will choose an appropriate time frame for the intervention to take place and will notify the appropriate supervisor, unit head or senior administrator of any resolution achieved. All time limits pertaining to formal board proceedings will be suspended until such time as critical intervention has proven to be unsuccessful.
A settlement of a complaint under Items 9 - 10 may provide for the disposition of the written complaint itself and any other written material accumulated in association with the complaint. If the settlement does not so provide, the written complaint and any other material accumulated in association with the complaint will be retained in confidence by the appropriate Coordinator/adviser and, if informed under Items 9 - 10, by the appropriate officer for a period of two years from the date of settlement. After that period, the appropriate Coordinator/adviser and, in applicable cases, the appropriate officer will either destroy the material or arrange for its deposit in the University Archives with names deleted under the appropriate section of the Freedom of Information and Protection of Privacy Guidelines.
If no settlement of the complaint is reached under Item 9, and if the complaint is not proceeded with within the time limits set out in the formal procedure, the complaint will be deemed to have lapsed. In such a case, the written complaint and any other documents related to the complaint will be retained in confidence by the appropriate Coordinator/adviser and, in applicable cases, the appropriate officer for a period of six months from the lapse of the complaint at which time the complaint and record will be destroyed.
Normally a written complaint must be filed within six months of the incident complained of, or where the matter complained of consists of a series of related incidents, within six months of the most recent incident.
In the case of complaints filed outside the normal six month period, the Coordinator/Adviser, will advise the complainant whether the complaint should be allowed to proceed. A final and binding decision will be made by the Board. Cases in which extensions will be favourably considered include but are not restricted to those in which there has been a continuing academic, professional or employment connection between the complainant and the respondent.
Holding complaints in abeyance
A written complaint may be held in abeyance for up to three months after filing at the request of the complainant, and, in the case of a student complainant, may be held for three months after filing or up to one month after the end of the academic session in which the student is enrolled, whichever is later.
While a written complaint is held in abeyance, it will be retained in complete confidence by the adviser and will be treated for all purposes as if no written complaint had been filed.
If the complainant does not direct that a written complaint held in abeyance be proceeded with within the time limits specified in Item 15 above, the complaint will be destroyed and will be treated for all purposes as if it had never been filed.
Establishing jurisdiction over formal complaints
An Adviser who has received a written complaint will disclose the complaint to the appropriate Coordinator/adviser, who will ensure that the same complaint is not being proceeded with by another Adviser. The Adviser may also consult the appropriate Coordinator/adviser, and with their consent, may consult other Advisers or seek legal advice, as to whether the incident complained of constitutes harassment or discrimination covered by this procedure.
If a complaint is not considered to involve an allegation of harassment or discrimination covered by this procedure, the Adviser will inform the complainant in writing. That communication will also advise the complainant of the right to seek a ruling on the matter from the Chair of the Harassment/Complaint Board (as detailed in Item 20 below). It will also outline any alternative University Grievance routes. In these situations, the time for initiating a complaint in any alternative forum will run from the date on which the complainant is notified by the Adviser and/or the Board that the complaint is not considered to be one of harassment and/or discrimination covered by this procedure.
Any request for a ruling by the Chair of the Harassment/Discrimination Complaint Board, on whether a matter involves an allegation of harassment or discrimination covered by this procedure, must be made within one week of receiving the opinion of the Adviser under Item 19 above. The Chair will make a ruling within one week of such a request being received. The running of time limits for further steps under this Procedure will be suspended until the issuance of a ruling by the Chair.
Notice of Complaints
Within ten days of the receipt of the written complaint, or if the complaint has been held in abeyance under Item 15, within ten days of the complainant notifying the Adviser to proceed with the complaint, the Adviser will send the respondent a copy of the complaint and, if not already provided, this Procedure and the names and contact numbers of the Respondent Advisers.
On filing a written complaint, a complainant may request that communications concerning the complaint from the respondent to the complainant be made only through their respective Advisers, or to the complainant in the presence of their Advisers. The respondent will be informed of such a request in writing at the time the respondent first receives the written complaint from the Adviser.
Facilitation of a resolution to a complaint
- The complainant may choose to attempt to have the matter dealt with through a process of alternative dispute resolution. In such a case, the Respondent Adviser will provide the respondent with the list of individuals knowledgeable in the area of human rights (as designated under Item 24) and ask the respondent to indicate within ten days of receipt of the complaint whether he or she is willing to consider alternative dispute resolution. The respondent will also be informed that a failure to so indicate may lead to the matter proceeding directly to a formal hearing as provided in Item 29.
Any attempt at critical intervention shall be held in abeyance during any alternative dispute resolution process.
To assist the parties in appointing a facilitator, the Principal will ensure that a list of individuals knowledgeable in human rights selected from the Kingston community is maintained. Both parties must agree to the choice of the facilitator who may be selected from this list or who may be any other member of the university community upon whom the parties can agree, and who agrees to serve.
Within four weeks from the date of the agreement on a particular facilitator, the process will be concluded and the facilitator will provide a written report to the Adviser, to the parties and, in cases where the appropriate Senior administrator has been informed under Item 9, to that person.
If a resolution has been achieved as a result of facilitation, a written copy of the resolution will be signed by the complainant, the respondent and the facilitator. A copy of the written complaint, the facilitator’s report and the resolution will be retained by the appropriate Coordinator and, in applicable cases, by the appropriate Senior administrator for as long as both parties are at the University, or for a period of two years from the conclusion of the process, whichever is longer. They must then be destroyed or deposited in the University Archives with all personal indicators deleted as per relevant sections of the University’s "Freedom of Information and Protection of Privacy Guidelines (FOIPP)."
Breach of settlement
Should the respondent breach the terms of an informal agreement or of an alternative dispute settlement, the complainant may revive the complaint by giving notice to the relevant Adviser and the respondent. The complaint shall then proceed to a formal hearing as though the alternative dispute resolution process had failed. Should the respondent contest the occurrence of the breach, that issue will be determined as a preliminary matter by the Harassment/Discrimination Board and, if the Board finds that there is no breach, the complaint shall be dismissed. Actions on the part of the complainant that lead to a breach will be taken into consideration in any subsequent actions.
If the board determines that there has been a breach, the complaint will be determined on its merits. For the purposes of deciding whether the terms of any resolution have been breached and in any subsequent assessment of penalty, the documented formal complaint, a copy of the final settlement agreement itself and the circumstances of the alleged breach will be admissible as evidence in making such a decision.
Make-up of Complaint Board
The Principal will nominate a Chair and Vice-Chair of the Harassment/Discrimination Complaint Board and Senate will ratify these nominations. The appointed Chair (who shall usually be a member of the Faculty of law) and Vice-Chair (who shall not usually be from the same Faculty as the Chair) will have experience sufficient to advise the Harassment and Discrimination Complaint Board on matters of human rights law and procedure. The term of office for the Chair and Vice-Chair will ordinarily be three years. The appointments may be renewed.
Appointees to the Harassment and Discrimination Board will be selected from the Senate. Specific care will be taken to ensure gender balance and diverse representation on the Board. The member groups from which members of the Board may be chosen will be staff, student, and faculty. The Board, save and except the Chair, will be empanelled afresh for each complaint.
Initiation of Hearing
The complainant may initiate a hearing before the Harassment/Discrimination Complaint Board by a written request delivered to the Secretary of the University.
Such a request must be made within two weeks of the receipt of the written complaint by the respondent, unless the complainant wishes to consider alternative dispute resolution, or in the case where critical intervention has taken place.
Where alternative dispute resolution fails or is deemed to have failed because the complainant and the respondent do not agree on a facilitator, such a request must be made within two weeks of the facilitator's report to the Adviser and the parties that alternative dispute resolution has failed, or in the case of a failure to agree on a facilitator, within two weeks of the date of that failure.
Upon receipt of a written request for a hearing, the Secretary of the University will send copies of the request to the Chair of the Board, and to the respondent.
Striking the Board
The hearing will be before a three member Board. The Chair of the Board or Vice-Chair will preside. The two other members will come from the member groups listed in Item 29 above. The complainant and the respondent will each designate a group from which a Board member is to be appointed.
The complainant must indicate in writing to the Secretary of the University at the time of filing a request for a hearing, under Item 30 from which group a Board member is to be appointed.
The respondent must indicate in writing to the Secretary of the University within one week of the receipt of the copy of the request for a hearing, from which group a Board member is to be appointed.
Should a party fail to designate a group from which a member is to be appointed or, in the case of multiple complainants or respondents, should there be an absence of agreement among either the complainants or the respondents regarding the relevant group, the Chair shall make a designation on the basis of what appears to be the most appropriate group.
In the event that all members of a designated group are either unavailable or disqualified, the party or parties affected will be provided with a further opportunity to select an alternative member who has been nominated by Senate to a Senate committee or as an incoming Senator.
Once the membership of the Board has been established, the Chair will immediately inform the parties of the names of the members of the Board.
The Chair shall in all cases inform the Human Rights Office, the complainant's Adviser, the respondent's Adviser, and any appropriate Senior administrator who has been informed previously under Item 9.
Challenges to the Composition of the Board
The Chair of the Board may, both before and after receiving representations from the complainant, or the respondent, require any member to withdraw from sitting on the Board where the member has an actual or potential conflict of interest, or has a bias or may reasonably be perceived by the complainant or respondent to have a bias. Where there is a challenge to the participation of the Chair, the Vice-Chair will decide whether the Chair should withdraw and, if the Vice-Chair is also challenged, disqualified or otherwise unavailable, the matter will be resolved by the Dean of the Faculty of Law. Where the Dean has a conflict of interest, the assistance of the Chair of the Committee of Ontario Law Deans will be requested.
When a member of the Board has been required to withdraw, that member will be replaced by another member of the designated group.
Submission of Written Statements and Documentary Evidence
The complainant will submit a full written statement to the Chair of the Board within two weeks of filing the written request for a hearing with the Secretary of the University. This statement, which will include a copy of the initial formal written complaint, will set forth all the facts relied upon and will identify all persons who, in the knowledge of the complainant, may support or verify these facts. It will be accompanied by all relevant documentation in the possession of the complainant
The Chair of the Board will immediately send a copy of the complainant's statement and accompanying documentation to the respondent and advise the respondent of Item 45 and 47.
The respondent will have two weeks from receipt of the complainant's statement within which to submit to the Chair of the Board a written statement of response. This response should set forth all the facts relied upon and identify all persons who in the knowledge of the respondent may support or verify these facts. The response should be accompanied by copies of all relevant documentation in the possession or control of the respondent.
On receipt of the response and any accompanying documentation, the Chair of the Board will immediately send copies to the complainant.
If the respondent fails to file a statement of response as required in Item 45, above, the Board may proceed with the hearing of the complaint without further notice.
Withdrawal of Complaint
- If the complainant withdraws a complaint after initiating a hearing, the Board shall formally dismiss the complaint and give notice of that in writing to the respondent, the Adviser, and to the appropriate senior administrator informed previously of the proceedings under Item 40.
Convening the Board
The Chair of the Board will convene the Board within three weeks after the filing of the complainant's statement or as soon thereafter as is possible to examine the statement and the response, if any, and to determine whether any additional information may be required in order to evaluate the statement or the response or to clarify apparently contradictory facts. If additional information is required, the Board may request the parties to supplement their original statements. If necessary the Board may:
interview any person believed to have information which is relevant to the complaint or
request any person to submit a written statement in lieu of the oral interview or in addition to such interview.
Where a complainant requests that a matter involving a breach of the Policy which has occurred in a residence setting be dealt with formally in accordance with this Procedure, the Chair of the Board, or a Board after it has been struck, will make every effort to adhere to the formal procedure timelines defined in this document.
Processing of Complaint by the Board
The Board will record all interviews and will make such records and any written statements available to the parties together with copies of all further documentation obtained by the Board during its investigation. The parties may seek clarification of any additional information supplied to the Board, including statements from third parties, through the Chair of the Board and at the discretion of the Chair in consultation with the Board members.
Once the evidence is gathered, the Chair of the Board will convene a meeting of the Board and invite the parties to address the Board if they wish. The time allowed each party will be determined by the Board taking into consideration the nature of the complaint. The meeting of the Board will be closed to the public.
Either party, or their representative, may cross examine the parties in order to seek clarification of matters relevant to the determination of the dispute. All cross examination will be directed through the Chair of the Board. Members of the Board may also question the parties to seek clarification. Persons able to provide additional information, as specified under Item 49, will not normally be present at the meeting of the Board. In exceptional circumstances, and where it is considered critical to the determination of the case, the Chair, in consultation with the panel, may allow persons to be present who may provide information relevant to the complaint.
If, during the course of any meeting of the Board, it becomes apparent that additional information is required in order to resolve the dispute, the Chair may adjourn the meeting to permit the parties to produce such additional information or facts or to permit the Board to obtain such additional information.
Throughout the proceedings before the Board, the complainant and the respondent may be represented by her or his Adviser or by a lawyer or other representative or her or his choosing.
Disposition of Complaints by Board
After hearing the parties, the Board shall, normally within one week, decide whether there has been harassment and/or discrimination and shall inform the parties, the Advisers, the person(s) given notice under Item 39, and the Principal in writing.
Normally within a further week, the Board will produce a written statement of its findings including the reasons therefor and supply a copy of the statement to the parties and the Principal.
Where the Board has found the respondent responsible for any harassment and/or discrimination as defined under this procedure, it will reconvene within two weeks, or as soon thereafter as is possible to enable the complainant, the respondent, their respective Advisers, as well as counsel to the University to make oral or written submissions as to remedial action or sanction if they so wish. In the case where a breach of a facilitated/negotiated settlement has occurred, the Board may take this into consideration when deciding appropriate remedial action or sanction.
Following the reconvened hearing, the Board will normally within seven days decide on the appropriate sanction or remedial action and provide the parties with written notice of that sanction/remedy and the reasons therefor. In circumstances where a sanction decided upon is considered a disciplinary measure, the Board will provide the appropriate body (i.e. the Principal's Office or Senate) with a written recommendation that such a sanction be imposed. Sanctions may include reprimand, notation on personnel records, a public report of the findings and sanctions imposed (including, in appropriate cases, the name of the respondent), loss of salary, suspension, dismissal, or expulsion from the University as well as mandated submission by units of the university to educational, monitoring, and reporting programmes. Disciplinary sanctions will only be imposed within the parameters of relevant union-University collective agreements. The Board may also decide that the complainant is entitled to recompense such as adjustment of grade, salary adjustment, reinstatement, or promotion where appropriate. For the purposes of this, the Board is not limited by any remedy designated by the complainant under Item 58.
Whether or not anyone or any unit of the University has been found responsible for harassment and/or discrimination, the Board may make recommendations to the administrative officers of the University or, if appropriate, the Senate and the Board of Trustees for purposes such as preventing incidents or reoccurrences of certain types of harassing or discriminatory behaviour. Such directions may be given whether or not the University or any of its units or officials have been a respondent at the formal hearing but, in such cases, before issuing such a direction or making such a recommendation, the Board shall inform the Principal of the fact that it is contemplating such a step and provide the University with an opportunity to respond either orally or in writing as seems appropriate.
In a case where anyone or any unit of the University has been found responsible for harassment and/or discrimination, the question of whether such a recommendation (as set out in Item 58) is to be made should, if possible, be dealt with at the same time as the sanctions hearing. However, the Board shall deal with such matters separately where it is unreasonable to require a response to a request for submissions within the time limits established for the sanctions hearing or in cases where there has been no finding of responsibility for harassment.
In cases where a sanction is imposed, the Board will as soon as is reasonably possible send a copy of its decision on sanction(s) and the reasons therefor to the Principal and to the Adviser as well as the person to whom notice has been given under Item 40, for implementation."
- The Chair of the Board may issue supplementary general rules of procedure to govern the conduct of Board proceedings. Such rules will not conflict with this Procedure and will be filed with the Secretary of the University and the Senate Office and be published in the "Queen's Gazette."
- If during the course of a formal proceeding any procedural issue arises, the Chair of the Board or a Board, once a Board has been struck, is empowered to resolve that issue by making a ruling.
Time Limits Dispensations
- Where any time limits are established by this Procedure with respect to the formal hearing of a complaint, the Chair of the Board or a Board, if it has been struck, may extend those time limits if the failure to comply is beyond the control of the person seeking the extension, or the members of the Board, or whether it is otherwise necessary having regard to the interest of the parties.
Service of Documents
- For the purposes of this Procedure, a document is deemed to have been received when it has been delivered personally to the person concerned or within five days of it being mailed to the residential address of that person as designated in the University's records. In the case of any person with two or more such addresses, any such document will be sent to each address. Documents sent will be clearly marked "To be Opened by Addressee Only."
Legal Advice and Assistance to Board
- At any time after receipt of the request for a hearing, the Chair of the Board or a Board, after it has been struck, may seek legal advice.
If at any time after the initiation of a hearing under Item 30 it becomes apparent to the Chair or a Board, after it has been struck, that:
all the appropriate respondents have not been named, the chair or a Board, if it has been struck, may name additional respondents. (All such additional respondents are entitled to the full protection afforded under this Procedure and all other rules will be modified accordingly.)
there are interests of the University at issue in the dispute which might not be addressed by the parties, the Chair or a Board, if it has been struck, shall notify the Principal with a request that the University instruct either its lawyers or in-house counsel to represent those interests in the process. (In such a case, the University is entitled to all the protection afforded by these rules to parties and all other rules will be modified accordingly.)
- All discussions and other forms of communication forming part of any facilitation/negotiation under this Procedure other than the terms of any resolution, are privileged for the purposes of this Procedure and shall not be relevant or admissible evidence in the hearing of a complaint by the Harassment/Discrimination Complaint Board or a subsequent appeal by way of arbitration. Further, all discussions and other forms of communication between an Adviser and a complainant or respondent and communications as part of an attempt to resolve a matter informally as contemplated by this Procedure shall similarly become privileged and protected from subsequent use.
Appeals from Decisions of the Board
The complainant or respondent may appeal the decision of the Board as to responsibility and/or sanction to a legally trained independent outside arbitrator to be agreed upon by the complainant and respondent. Such an appeal may also be based on issues of procedure, law and jurisdiction pertaining to the processes of the Board. Complainants and respondents are advised to consult with their union or Senate grievance procedures to ascertain whether they can access alternate routes of appeal.
Either party may exercise this right of appeal by filing written notice of appeal with the Secretary of the University within two weeks of the final disposition of the matter by the Board. For these purposes, where a respondent has been found responsible for harassment or discrimination, no appeal shall be launched until the imposition of a sanction by the Board and time will run from the date on which the respondent receives notice of the sanction imposed and the reasons therefor.
The launching of an appeal may act as a stay on the implementation by the Principal of any sanctions imposed by the Board until such time as the appeal has been disposed of. This, however, may not preclude the appropriate Officer of the University from taking action where deemed necessary for the protection of the University community. Notification of such action will be sent to SONAD for ratification.
If the complainant and respondent are unable to agree on an arbitrator within two weeks of the filing of the written notice of appeal, the Chair of the Committee of Ontario Law Deans will be requested to make the choice from among those legally trained people in the Province who have experience as Human Rights Inquiry Commissioners or labour arbitrators. If the Chair of Law Deans is the Dean of Law at Queen's University, the immediate past-Chair will be requested to make the choice.
Arbitrators will be responsible for apportioning the costs of the appeal as they deem appropriate.
In hearing an appeal, the arbitrator will, save where the appeal is confined to issues of procedure, law and/or jurisdiction, hold a full hearing in accordance with the rules of natural justice, but the hearing will not be open to the public.
This right of appeal is in lieu of any entitlement to pursue a grievance under the Senate Statement on Grievance, Discipline or Related Matters.
IV. Review of Procedure
- Five years from the coming into force of this Procedure, the Senate shall appoint a working group for the purposes of reviewing the content of this Procedure and its operation and reporting to Senate with any recommendations for change.