Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 5: Sexual Harassment and Sexual Assault

In September 2010, the Human Rights Legislation Group met with the Sexual Harassment Prevention Coordinator at the Queen's Human Rights Office and the Officer in Charge of the Sexual Assault Unit with the Kingston Police Force. Ms. Coulter presented information on what happens when a member of the University community comes to the Human Rights Office with an issue of sexual assault. Detective Sergeant Bambrick presented information on what happens when a person files a complaint of sexual assault with the Kingston Police Force.

The group was also introduced to a number of legal issues regarding sexual harassment and sexual assault in a University setting.

Recent Cases:

Sexual Harassment

  • When is it NOT appropriate to terminate an unionized employee for posting inappropriate materials in  the workplace? (Waterloo)
  • What are the responsibilities of the University/College in the prevention and resolution of sexual harassment in the classroom? (Marvel College)
  • Can a member of the general public accuse a student of sexual harassment in the provision of services? (Brooker)
  • Can a professor block his former student's application to file a complaint of sexual harassment? (Walker)

Sexual Assault

  • What happened when it was discovered that a tenured professor, who was under police investigation for sexual assault, had used his university laptop to engage in chat room discussion? (CAUT)
  • Can a professor who has been exonerated of charges of sexual assault by the police be found responsible for sexual harassment by his University? (MUN)
  • Is it appropriate for a University to conduct an investigation on allegations of sexual assault under the sexual harassment policy? (Mpega)

Cases

Waterloo v CUPE

University of Waterloo v. CUPE, Local 793 (Quaiser Grievance) [2009] O.L.A.A. No. 165

Facts

The grievor was a carpenter at the University of Waterloo; his workspace was located in a student residence. 

He was disciplined on two occasions for different reasons.  First of all, a residence manager approached the carpenter to express concern about his habit of not locking doors contrary to University policy. The carpenter's response, i.e. "Things are going to change around here!" was found to constitute a threat of violence. The carpenter received a formal warning from the employer.

Days later, a foreman entered the carpenter's work space looking for work orders. He observed a series of postings that were sexual, violent and/or self-deprecating in nature. These included:

  1. An oversize poster of Michael Jorden about to shoot a basket. The wording was "Stop or I'll shoot". In the wake of several shootings in North American universities, this message was considered to be extremely ominous and threatening.
  2. A display of pictures of actor Jennifer Tilley along with the carpenter's desire to stalk "Jennifer" and then "to get the help that [he] so desperately needs". This posting raised fears that the carpenter might be stalking women on campus.
  3. A display of pictures of Karla Holmolka along with a blurb containing sexually violent expressions like "spank me" and "die trying". This posting was particularly threatening given the murder of school girls committed by Homolka and Bernardo.

There were other sexually charged-postings and objects in the carpenter's office, including:

  1. Pictures of women in various states of undress, accompanied by expressions such as "size matters" and "new and improved".
  2. A pink plush toy bearing the sign "Gaylord"
  3. A trophy featuring a man with an erection
  4. Photos of Shania Twain labelled "vibrohore"

For these postings, the carpenter was placed on leave pending investigation and was eventually discharged for representing a threat of workplace violence, and for creating a poisoned environment contrary to the Collective Agreement

Arguments

The Union grieved the dismissal, claiming that the carpenter had been posting offensive material in his various workstations for the past fifteen years without repercussion; had he been asked to take them down, he would have willingly complied. Moreover, other union members had been posting/were still posting sexually inappropriate material in their respective workstations without being subjected to any form of disciplinary action. Neither the Union nor the University monitored their workstations or enforced the respectful environment/offensive materials articles of the Collective Agreement.  Finally, the carpenter's workspace was not accessible to the general public of the university; if fellow employees felt offended by the kinds of materials posted there, they could choose to gather elsewhere. 

The University argued that this man represented a threat of workplace violence and that, according to case law, they had the right to dismiss him without establishing intent (the carpenter claimed it was all a big joke). Alternatively, it claimed that the postings were grossly inappropriate and offended the Collective Agreement article on maintaining a respectful environment in the workplace.

Issues

  1. Did the University err in dismissing the carpenter for being a threat of workplace violence?
  2. Did the University err in dismissing the carpenter for creating a poisoned environment ?

Rulings

  1. Yes
  2. Yes

Reasons

  1. The carpenter did not represent a threat for the following reasons: 1) The comment "things are going to change around here" referred, most probably, to changes that the carpenter hoped to implement concerning the policy of always keeping doors locked 2) The Michael Jordon poster had been in the office before the carpenter arrived. The words "stop or I'll shoot" were not his. 3) The Karla Holmolka display was more about a sexual fantasy (with elements of bondage) then about a threat of violence. 
  2. Although the postings were inappropriate and did create a poisoned environment (for men and women), and although the Union was mistaken when it claimed that offended workers need not enter the carpenter's workspace, the conduct did not call for dismissal for the following reasons: 1) Both the Union and the University should have taken a more active role in enforcing the collective agreement article on offensive materials;  2) Other employees were posting sexually explicit materials without recrimination; 3) the grievor had been posting his materials for the past 15 years without repercussion and 4) the grievor had been working for the University for 19 years and had a clean disciplinary record.

Order

The Arbitrator ordered the University to reverse the dismissal, to reinstate the grievor. 

The University was not, however, required to compensate the grievor for lost wages for three reasons:

  1. He did not acknowledge the inappropriateness of the materials until the hearing
  2. The Karla Holmolka material was egregiously inappropriate  
  3. It is necessary to "drive home to the grievor in no uncertain terms the inappropriateness of his conduct and the requirement that it never be repeated".
Marvel College

Gary Yurchak and Frank Cairo Enterprises Ltd. o/a Marvel College [2006] Human Rights Panels of Alberta. File # Ns004/03/0407,

Facts

A former student of Marvel College filed a complaint of sexual harassment against Marvel college.

Following his final exam, in which he had an argument with his instructor, a male student in a vocational college quit and requested a full refund. At this time, he filed his complaint of sexual harassment on the basis of gender. He claimed that for the six weeks of his hair-styling class, his instructor, whom he claimed was unprofessional and unprepared, engaged in inappropriate discussions about sex, sexuality, homosexuality, sexual practices and dating with her students. He agreed that he had participated in these discussions.

The College argued that it followed best practices whereas the student failed to use the mechanisms in place to help students.  For example, the college had provided training to all its instructors on how to create and maintain a respectful classroom environment. Furthermore,  it co-signed with all students a copy of the dispute resolution policy and made them aware of their right and responsibility to file complaints either anonymously or directly with their supervisor so that issues could be resolved quickly. As soon as it caught wind of the complaint, it began to work on a sexual harassment policy.

Finally, the College claimed that although its hands were tied concerning the refund, which was subject to the rules of the Alberta Private Vocational Schools Act, it did offer Yurchak a compromise: an offer to refund half the tuition and the price of all unused books and equipment.

Issue

  • Did the inappropriate classroom discussions amount to sexual harassment?

Decision

  • No

Reason

The discussions were inappropriate and unprofessional but did not amount to sexual harassment. This is because the college had done and continues to do everything within its power to provide a harassment-free environment for its students. It could, obviously, improve its training program in creating/maintaining a respectful environment and needs to finish its sexual harassment policy. The student , who participated in the inappropriate class discussions, failed to take responsible measures to inform the college about the nature of his complaint. The Panel believed that the student was mostly disgruntled with the curriculum and teaching and not with alleged sexual harassment.

Order

The Panel dismissed the case.

J.S. v. Brooker (2005)

J.S. v Brooker, 2005 FC 1510 (CAN LII) T-1376-04. 

Facts

A civilian filed a complaint of sexual harassment against a corporal from the Canadian Armed Forces. Both had attended a Jiu-Jitsui class offered by the RMC over a six month period in 2000-2001. The civilian, a female, was one hierarchical level junior to the corporal. According to the rules of the dojo, which were posted on the class's website, senior students were expected to help train junior students and junior students were expected to obey senior students. As such, the civilian woman was often trained by the male corporal, who allegedly sexually harassed her by persistently speaking about women in derogatory terms and by repeatedly touching her sexually. The civilian quit the class and filed a complaint with the OHRC. The commission's investigator found that there was no employment or provision of service relationship between the complainant and the respondent, who were fellow students, and recommended that the complaint not go forward. As a result, the civilian brought the decision to Federal Court for review.

Arguments

The respondent said that dojo rules did not make him a service provider. The CAF agreed. It said that it would be absurd to think that dojo rules made all students with any more than a white belt level of competency service providers. It welcomed the student to file a complaint against RMC and to file civil charges against the corporal.

The applicant argued that it was not plain and obvious that she and the respondent were not in a service provision relationship. According to the Supreme Court of Canada, in Canada Post Corporation vs. Canada, Commissions must use the "plain and obvious test" to determine whether or not to deal with a complaint.

A decision by the Commission under s.41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with a complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases (Canada Post Corporation v. Canada)

Because it was debatable whether or not the respondent and the complainant were in a service provision relationship, the commission had an obligation to take the case. She also referred to a principle highlighted in Berg, according to which "in determining what constitutes a provision of services, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service of facility.

Issue

Is it plain and obvious that the complainant and the respondent were NOT in a service provision relationship?

Decision

No

Reasons

The judge agreed with the complainant. By taking a principled approach to look at the relationship that the dojo created between the corporal and the civilian, it becomes debatable whether or not the two parties were in a service provision relationship. Because it is debatable, it is not plainly and obviously outside the jurisdiction of the Commission.

Order

The Court set aside the commission's decision and referred the case back to the commission.

Apedaile v. Walker (2006)

Apedaile v. Walker [2006] B.C.H.R.T.D. No. 165.

Facts

Willo Walker is a professor of traditional Chinese medicine.   He works at Oshio College and for the National Acupuncture Detox Association (NADA). Apedaile was his student at Oshio and attended one of his NADA workshops where she did some volunteer work to reduce her fees by $100. Following the workshop, she claims that Walker offered her an apprenticeship. He denies this. Both agree that he gave her an acupuncture treatment, that they had lunch, that one of them made sexual overtures and that there was a kiss. Apedaile claims that she was still his student at the time of the sexual activity and that she did not provide consent. He says that this is not true.

Following the incident, Apedaile sent him a no-contact letter through a third party and complained to the dean.  When she filed an application to file the present complaint with the Tribunal, Walker filed an application to block her. This is the record of his application to block her complaint from being filed.

Arguments

Walker argued that Apedaile's application should be blocked for four reasons:

  • The case is not within the jurisdiction of the Tribunal because the Code does not cover volunteer employment, student-professor relationships or educational institutions. There was no contract therefore there was no employment relationship. Moreover, Apedaile was not even his student at the time of the alleged incident, and the sexual contact was consensual.
  • It is not in the public interest to purse the complaint for the reasons stated in argument one.
  • Apedaile filled her complaint four months late; however she was able to write the respondent a no-contact letter soon after the incident. This proves that she could have/should have filed the complaint within the 6-month time period.
  • Walker would suffer substantial prejudice if the Tribunal heard this case;  not only would his professional reputation be tarnished but also he had thrown out evidence (a letter sent to him by Apedaile) that could exonerate him. Moreover, the evidence submitted by the Dean and Apedaile contained many contradictions and therefore determined no facts.

 Issues

  1. Is the complaint within the jurisdiction of the Tribunal
  2. Is it in the public interest to pursue the issue
  3. Did Apedaile have an acceptable reason for not filing her complaint on time?
  4. Would the respondent suffer substantial prejudice as a result of the 4 month delay

Ruling

  1. Yes
  2. Yes
  3. Yes
  4. No

Reasons

  1. The Tribunal ruled that Walker's arguments were misplaced or impossible to determine without first hearing the case.  Walkers argument about the absence of a contract was misplaced; under the code, the terms "employ" and "employment" have a broad meaning. Neither need involve the offering/accepting of a contract. For example the code protects job applicants from discrimination. His argument about volunteer positions was undecidable without a hearing; case law reveals that at least some volunteer positions fall under the scope of employment. His argument about educational facilities and student-professor relationships was misplaced; both are covered by the code, according to case law. Finally, his argument about the nature of the sexual encounter (consensual vs harassment) is undecidable without a hearing
  2. For the reasons outlined in #1, the Tribunal ruled that it was in the public interest to hear the case.
  3. The complainant submitted documentation from a counsellor who claimed that Apedaile was traumatized by the alleged incident and unable to deal with the complaint in the six months following the incident. The no-contact letter, which was sent by a third party, not the complainant, would appear to support the analysis of the counsellor, not that of the respondent.
  4. Social stigma attached to being a respondent in a sexual harassment case is not considered to be "substantial prejudice" under the Code. The professor became the author of his own prejudice when he threw out the no-contact letter written by the complainant; however, the latter has supplied him with a fresh copy which should served to refresh his memory. Finally, the Tribunal saw no inconsistencies between the evidence of the dean and the complainant; even if inconsistencies did exist, they could be sorted out at the hearing

Order

The student may file her complaint 

CAUT re. Wightman(2008)

Report of the Canadian Association of University Teachers Ad Hoc Investigatory Committee Regarding the Termination of Dr. Colin Wightman by Acadia University (2008)

The University has no place in the personal sex life, cyberspace or private affairs of its professoriate. Its right to regulate the workplace does not extend to the home.

Facts

Dr. Wightman was hired in September 2006 by Acadia to fill a tenured position at the rank of Full Professor as well as the directorship of the University's School of Computing.

In April 2007, he engaged in a one-time sexual encounter with a woman who was not associated with Acadia.

In May 2007, he was appointed Acting Dean of Pure and Applied Sciences

In June 2007, he was detained by police responding to accusations of sexual assault made by the woman he had met in April. During his detention, the police seized his home computer, blackberry and memory keys. Upon his release from custody, the Acting Dean informed the University that he was being investigated by the police and requested (and was granted) a leave of absence as well as access to a mental health specialist.

In August 2007, the police informed Wightman that he had been exonerated. He informed the University and requested access to the University laptop and facilities.  They were denied; Acadia had decided to conduct its own investigation into his conduct and had seized the laptop.

In September 2007, Wightman was summoned to the Office of the VP Academic where he was handed a letter of termination. Just cause, as related in the letter, included two breaches: inappropriate use of the University laptop and facilities and aberrant behaviour.

We have discovered from our analysis of your University laptop that you have been using our computer and facilities during working hours to engage in highly inappropriate communications of a sexual nature on chat rooms. Such conduct is a serious violation of the University's policy on computing services

The conduct giving rise to the Police's ongoing investigation is utterly incompatible with the purpose, principles and operating imperatives of Acadia University.

When he attempted to grieve this termination, the arbitrator ruled that directors are not covered by the Collective Agreement, and that Wightman had no recourse to union representation or to the grievance/arbitration process. It was at this point that CAUT formed its own investigatory committee.  The University administration refused to cooperate with the CAUT investigators, who therefore had to rely exclusively on the letter of dismissal, Acadia policies, procedures and practices as well as testimony from two witnesses: Wightman and the former director of Computing Services.

 Issues

  1. Did the University err when it dismissed Wightman for "aberrant behaviour"?
  2. Did the University err when it dismissed Wightman for engaging in chat room banter on his University laptop?
  3. Did the University afford Wightman due process?
  4. Did the University adhere to the tenets of CAUT's policy statement on Tenure?

Decisions

  1. Yes
  2. Yes
  3. No
  4. No

Reasons

  1. CAUT found that there was no nexus between Wightman's conduct and Acadia University. Moreover, the committee could find no existing policy that explicitly stated the purposes, principles and operating principles that Wightman had allegedly violated.
  2. "Acadia [appeared] to accuse Dr. Wightman on the basis of circumstantial evidence and moral disapproval, without providing detail or soliciting explanation". In doing so, it failed to follow its own policy and practices on computer services; it investigated an employee in the absence of any complaint, it offered the respondent no warning, no progressive disciplinary action  and no appeal process.  Finally, according to the former director of computer services, it was very unlikely that the University had recovered any content from Wightman's University laptop; due to limited time and resources, it probably found, at most, a simple log of connections between Acadia server and a chatroom. 
  3. "The University has over-reacted, jumped the protocols of due process and dismissed an employee without the standard burdens or proof it applies in other employment contexts".  The university, in terminating Wightman, followed neither the process for faculty (which calls for a formal meeting with the union and allows for arbitration), nor the process for Directors (which calls for the striking of a review committee to advise the VP Academic when a request is made for a review of performance by the Board).
  4. The CAUT policy states: "The word tenure and its derivatives mean that such an appointment can only be terminated for just and sufficient reasons, which are limited to the areas of financial exigency or of grave misconduct, and which must be provided through procedures that ensure fairness before a properly constituted and independent tribunal". Acadia fired a tenured professor who was honest enough to bring the problem to the attention of the University and who was cleared by the Police, who engaged in a lengthy investigation.  Finally, there appears to be no residual impact on Acadia.

Recommendations

To Acadia:

  • Restore Wightman to his position as tenured faculty member including his directorship
  • Compensate him for lost salary and benefits, including stipend for acting deanship
  • Compensate his legal costs
  • Remove all references to this termination from his official files and employment record

To CAUT:

Consider censure in the event that the University does not implement the four preceding recommendations.

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 dismissed 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 occurred 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 occurred at the event (they talked about stagecraft class, fourth-year angst, discussions which occurred "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 occurred 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)

Mpega v. Universite de Moncton (2001)

Mpega v. Universite de Moncton 2001 New Brunswick Court of Appeal (No. 50/99/CA)

Facts

A student filed a complaint of sexual assault against a fellow student with both the police and the university. Both bodies conducted investigations. However, whereas the police decided not to press charges, the university found the student guilty of sexual assault. 

A investigatory report, submitted to the President,  made a series of recommendations, including the imposition of a no-contact order, an obligation upon the respondent to write a research paper on sexual harassment and to promote anti-harassment across campus. The President, instead, expelled the student. His decision was supported by the Senate Appeal Committee and by the Court.

Issues

  1. Does the sexual harassment policy include off-campus incidents of sexual harassment?
  2. Does a single act of sexual assault amount to sexual harassment ?
  3. Did the University have the jurisdiction to investigate a case of sexual assault that had been dismissed by the police?

Decisions

  1. Yes
  2. No
  3. No

Reasoning

  1. Although the university policy on sexual harassment did not explicitly include off-campus harassment, it did not explicitly exclude it either. It stated that its goal was to provide a harassment-free working/living/learning environment for its community members. Off-campus harassment negatively by one community member towards another negatively affects the on-campus environment of the offended party and thereby constitutes a violation of sexual harassment policy.
  2. The judge agreed that a single act of sexual assault does not constitute sexual harassment in so much as the latter is defined, in part, by its repetitive and persistent nature. He distinguished between sexual harassment between equals (fellow students or coworkers), which was, by nature, repetitive and persistent in nature and sexual harassment involving a power imbalance (supervisor/supervisee or professor/student) which could be limited to a single incident if it results in discriminatory or harmful effects
  3. Sexual assault is a federal offense. By investigating this case, and imposing a penalty based on the investigative report, the University trenched on the federal legislative jurisdiction in matters of criminal law. This resulted in harm to the appellant, because the university used the balance of probabilities approach rather that the rules of evidence (proof beyond a reasonable doubt) to condemn a person who had been cleared by the police 

Order

The judge ordered the University to quash its decision to expel the student