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Queen's University
 

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 

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000