Sexual and Gender Violence in the Post-Secondary Education Sector – Case Law Review Dan Michaluk 12 March 2015
Jul 21, 2015
Sexual and Gender Violence in the
Post-Secondary Education Sector –
Case Law Review
Dan Michaluk
12 March 2015
CACUSS/ASEUCC
Outline
• Jurisdiction
• Duty to investigate
• Standard of fairness
• Specific issues
• Proof and credibility
• Expert evidence
• Consent
CACUSS/ASEUCC
Jurisdiction
• Compare
• B and W (1985, Ontario HCJ)
• Mpega v Universite de Moncton (2001 NBCA)
CACUSS/ASEUCC
Jurisdiction
• B and W (1985, Ontario HCJ)
• Two law students at Osgoode break up
• Male respondent sends unwanted letters and
telephone calls with threats of suicide
• Student complains, expressed fears about classes
• Expelled and trespassed with proviso for re-applying
• Court dismisses argument that university had no
jurisdiction
CACUSS/ASEUCC
Jurisdiction
• Mpega v Université de Moncton (2001 NBCA)
• Respondent and complainant met at off campus,
assault alleged to occur at off campus apartment
• Record did not demonstrate impact on campus
• Jurisdiction affirmed but single act, off campus did
not constitute "harassment"
• Partly a lesson about framing the charge and partly
a warning about the limits of your jurisdiction
CACUSS/ASEUCC
Duty to investigate
• Duty to provide a safe and harassment free
campus arises out of
• Human rights legislation
• Contract and common law
• Incorporates a duty to investigate and resolve
CACUSS/ASEUCC
Duty to investigate
• M v University of Waterloo (2013 HRTO)
• University considered credibility, found it could not
decide in favour of complainant or respondent
• HRTO later finds in favour of complainant
• But, university did not breach its duty to investigate
• It assessed credibility (per implicit duty) and did not
treat corroborating evidence as a requirement
(which would have been wrong)
CACUSS/ASEUCC
Duty to investigate
• M v University of Waterloo (2013 HRTO)
• Five months was reasonable for a detailed
investigation in light of "mitigating factors"
• Okay for a line manger to make decision based on a
skilled investigator's recommendation
• University did not have a duty to limit all contact
between plaintiff and respondent
CACUSS/ASEUCC
Duty to investigate
• Ford v Nipissing University (2011 HRTO)
• Professor receives threatening e-mail from
anonymous student late in spring term
• P suspects a student but will not name him
• P completes term and resigns for unrelated reasons
• No complaint, therefore no formal conclusion to the
investigation
• Professor becomes critical of response
CACUSS/ASEUCC
Duty to investigate
• Ford v Nipissing University (2011 HRTO)
• Responded promptly and with "genuine concern"
and initially dealt with the matter seriously
• Providing security support outside of class and
declining to provide in-class support was reasonable
• Communications started well but "broke down" (as
did the University's diligence) after the resignation
CACUSS/ASEUCC
Standard of fairness
• Dalla Lana v University of Alberta (2013 ABCA)
• Sexual assault – respondent theory – fabrication by
a "jilted lover"
• Respondent expelled
• High degree of fairness required – "the admin. law
equivalent of sexual assault which is one of the most
serious offences in the criminal law"
• A reminder in light of push for "victim-centric" policy
CACUSS/ASEUCC
Standard of fairness
• There is a very strong argument for an oral
hearing with a right to cross-examine if stories
conflict and must be resolved based on a
credibility assessment
• Khan v University of Ottawa (1997 Ont CA)
• This explains why the Dalla Lana hearing takes the
UofA six days to complete
CACUSS/ASEUCC
Specific issues – proof and credibility
• Groundwork
• Standard of proof = balance of probabilities, which
means the likelihood the fact is true is more
probable than not
• A credible witness - one worthy of belief in respect of
his/her honesty and ability to recall the facts
• "He said/she said" case or "oath against oath" – no
corroborating evidence, turns on credibility
CACUSS/ASEUCC
Specific issues – proof and credibility
• FH v McDougall (2008 SCC)
• Residential school sexual assault case that turned
on credibility
• Inconsistencies in the plaintiff's evidence from
discovery, to pleading, to trial
• Plausibility of complainant's story was also
challenged by "risk of detection"
• Plaintiff had a motive to lie (to save his marriage)
CACUSS/ASEUCC
Specific issues – proof and credibility
• FH v McDougall (2008 SCC)
• Standard of proof
• Only one civil standard of proof regardless of the
seriousness of the offence
• The evidence must be sufficiently "clear, convincing
and cogent" to meet the standard
• Note also the late 2014 finding of the DOE in to
Harvard Law School's grievance procedure and do
not apply a "sliding standard"
CACUSS/ASEUCC
Specific issues – proof and credibility
• FH v McDougall (2008 SCC)
• Credibility assessment
• An art and not a science
• Inconsistencies must be assessed in totality of the
evidence to assess truthfulness and reliability
• TJ demonstrated she was alive to the inconsistencies
and still found complainant credible and therefore
deserves deference
• A judge must make a decision in the absence of
corroborating evidence
CACUSS/ASEUCC
Specific issues – expert testimony
• General principles
• Excluding evidence is associated with risk – it may
invite a breach of fairness, though a tribunal will be
owed deference
• Expert evidence is admissible if relevant, necessary
to the tier of fact, not prohibited by any exclusion
any rules (e.g. oath helping prohibition) and given by
a properly qualified expert (R v Mohan, SCC 1994)
CACUSS/ASEUCC
Specific issues – expert testimony
• Dalla Lana v University of Alberta (2013 ABCA)
• Complainant had some oath helping from the health
centre doctor, who answered a question about lying
• Respondent unsuccessful in calling an expert to say
case "had the hallmarks of a false complaint"
• CA (3-2 majority) – tribunal received articles in lieu
of evidence, evidence close to ultimate decision, no
unfairness
CACUSS/ASEUCC
Specific issues - consent
• Section 273.1(2) of CC. No consent when:
• Expressed by words or conduct of another
• Complainant incapable
• Accused induces the complainant to engage in the
activity by abusing a position of trust…
• Complainant expresses lack of agreement
• Complainant expresses lack of agreement to
continue
CACUSS/ASEUCC
Specific issues - consent
• Section 273.2 of CC. Belief is not a defence
where belief arose from:
• Self-induced intoxication
• Recklessness or wilful blindness
• If the accused did not take reasonable steps, in the
circumstances known to the accused at the time to
ascertain the complainant was consenting
CACUSS/ASEUCC
Specific issues - consent
• R v Matheson (1999 Ont CA)
• Psychologist and two patients
• Authority is broadly defined – not just those with
right to commend and enforce obedience – power to
influence the conduct and action of others
• But status of authority doesn't vitiate on its own
• Must exercise authority for own benefit and interest
and against the interest of the complainant
CACUSS/ASEUCC
Specific issues - consent
• Arbitral caselaw on "consensual" professor-
student relationships
• Dupuis v British Columbia (1993 BCCHR)
• Central Okanagan University College (1997 Lanyon)
• Memorial University (1997 Teplitsky)
• Mahmoodi v UBC (2001 BCSC)
• Lethbridge Community College (2008 ABQB)
Sexual and Gender Violence in the
Post-Secondary Education Sector –
Case Law Review
Dan Michaluk
12 March 2015