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)

CACUSS/ASEUCC

Dan Michaluk

• daniel-michaluk@hicksmorley.com

• http://allaboutinformation.ca

Sexual and Gender Violence in the

Post-Secondary Education Sector –

Case Law Review

Dan Michaluk

12 March 2015