Meeting 33: Sexual Violence and Gender-based harassment (PART I)

Hale v. University of British Columbia Okanagan and another, 2018 BCHRT 34

Summary

The 2013 incident with Mr. Palmiere

1. Stephanie Hale (the Complainant) began the first year of engineering at the University of British Columbia Okanagan (the University) in the fall of 2012.
2. Ms. Hale declared that Mr. Palmiere sexually assaulted her after a party at the University residence on January 12, 2013.
3. On January 19, 2013, Ms. Hale reported the assault to the University residence advisor. He called the residence life manager on duty, and Ms. Hale was asked to recount the events a second time to the life manager. He directed her to the campus medical facility.
4. A few days later, Ms. Hale attended the campus medical facility and reported the assault a third time to a nurse who directed her to the police. Ms. Hale was not physically examined despite still having bruising at the time.
5. On January 26, 2013, Ms. Hale provided a formal statement to the police. The police decided not to press charges against Mr. Palmiere for the lack of evidence.
6. In January and February 2013, Ms. Hale attended counseling through the University’s medical facility. No one at the facility referred her to applicable University policies or resources after disclosing details of the sexual assault.
7. Ms. Hale and Mr. Palmiere continued to be in the same program. Ms. Hale stated that the continuing contact with Mr. Palmiere, including classroom contact, group assignments, and extra‐curricular activities, was very distressing for her and contributed to her declining mental and physical health.
8. She remained in the program until December 2015, when she went off for mental and physical health reasons.

The incident with the photographer

9. In March 2015, a photographer hired by the University asked Ms. Hale to do an engineering class photoshoot. She was the only female in the lab. He told her that “she was ‘the boobs.’”
10. She raised the incident with the engineering advisor and Dean, and accordingly, an investigation began in which she was asked to go over the allegations many times with different people. She found the process “distressing.”
11. In September 2015, Ms. Hale was informed that the investigation turned inconclusive.
12. In April 2015, having seen the seriousness with which the University took the photoshoot incident, Ms. Hale reported the sexual assault back in 2013 to the dean, who advised her to get a lawyer.

The investigation

13. In February 2016, Ms. Hale was directed to the UBC Vancouver Equity and Inclusion Office, which informed her of the ability to pursue a complaint through the non-academic misconduct process (NAMC).
14. In March 2016, the University informed Ms. Hale that the NAMC would investigate her complaint against Mr. Palmiere. Six months later, Ms. Hale wrote to formally advise the NAMC that the process was unsuitable to address her complaint and that the process was discriminatory for numerous reasons, such as her limited participation and access to evidence. Still, she was not included in most of the process.
15. On March 1, 2017, the NAMC cleared Mr. Palmiere of any engagement in non-academic misconduct.

Human Rights Complaint – Issues

Ms. Hale filed a complaint against the University and Mr. Palmiere alleging discrimination in the area of services based on sex and disability contrary to s. 8 of the Human Rights Code (Code). The issue before the Tribunal was whether or not to accept Ms. Hale’s complaint since it was filed outside the six‐month limitation period under s. 22 of the Code: “A complaint must be filed within six months of the alleged contravention.”

The Tribunal considered the following issues:

1. Was Mr. Palmiere’s maintenance of consent an arguable contravention of the Code, and, if so, was such an allegation together with the events in 2013 a continuing contravention of the Code?
2. Were the University’s various acts and omissions before February 2016 arguable contraventions of the Code, and if so, could it be concluded that they were a continuing contravention of the Code?

Analysis

Complaints alleging continuing contraventions may fall into two broad categories:

1. 1. Allegations of either succession or repetition of separate acts of discrimination of the same character. For example, a poisoned work environment resulted from recurring sexual harassment.
   2. An ongoing state of discriminatory affairs. For example, a public building that is inaccessible to wheelchair users. So long as the building remains inaccessible, the discrimination is ongoing and a continuing contravention.

Regarding the allegations against Mr. Palmer, on the one hand, the Tribunal found that Mr. Palmiere’s alleged conduct in January 2013 was an arguable contravention of the Code. On the other hand, the Tribunal concluded that Mr. Palmiere’s stance regarding the presence of consent during the alleged assault was not an arguable contravention of the Code. In reaching this conclusion, the Tribunal acknowledged that the denial of oppressive and abusive conduct may worsen the harm of that wrongful conduct and may amount to discrimination. However, the assertion of defense by Mr. Palmiere could not properly stand alone as an arguable contravention of the Code.

The Tribunal found arguable contraventions concerning the failure of the University’s system to respond to Ms. Hale’s concerns, the EIO and the resulting processes, and the NAMC process due to alleged problems with the University’s internal policies, structures, procedures, and practices for responding to reports of complaints of sexual violence, sexual harassment and sex discrimination as related to that incident. Additionally, the Tribunal found the University’s EIO and NAMC processes a continuing contravention of the Code from February 2016 to March 2017. In the Tribunal’s view, the internal mechanism for complaining about the alleged sexual assault at the start of 2016 led to an ongoing state of discriminatory affairs about how that process was conducted. The ongoing state of discriminatory affairs was dotted by discrete discrimination allegations throughout, such as the University’s decision to proceed with the NAMC hearing without Ms. Hale’s participation, despite her counselor’s opinion that the process was unsuitable for her complaint.

Decision

The complaint against the University was accepted for filing for a continuing contravention from February 2016 until March 2017 regarding the processes dealing with Ms. Hale’s complaint against Mr. Palmiere. The other portions of the complaint against the University were rejected for filing, as was the entire complaint against Mr. Palmiere.

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University of British Columbia Okanagan v Hale (2021)

Summary

1. In 2017, Ms. Hale filed a human rights complaint against Mr. Palmiere and the University of British Columbia Okanagan (UBCO). Ms. Hale alleged that UBCO discriminated against her in relation to the prohibited grounds of sex and mental disability.
2. In February 2018, the British Columbia Human Rights Tribunal (the “Tribunal”) accepted Ms. Hale’s complaint for filing against UBCO only in relation to a continuing contravention from February 2016 until March 2017 regarding the processes dealing with Ms. Hale’s sexual harassment complaint.
3. In June 2018, UBCO filed an application to dismiss the complaint. The Tribunal can dismiss the complaint if it would not further the purposes of the Code. Such reasons include: where a complaint has been settled, where the complainant has engaged in misconduct, where it duplicates the substance of an existing complaint by the same complainant, or where a respondent has responded appropriately to the complaint.
4. On January 31, 2019, the Tribunal dismissed the University’s application.

Issues

The University wanted the British Columbia Supreme Court to quash the 2019  decision of the Tribunal and dismiss Ms. Hale’s human rights complaint. The University submits that the Tribunal erred in relying on irrelevant factors in reaching its decision. The University also complained about the Tribunal’s consideration of its revised processes for addressing allegations of sexual violence in the context of the duty to accommodate. UBCO put forward evidence of its revised processes as part of its argument that it would not further the purposes of the Code to proceed with Ms. Hale’s complaint, since UBC and UBCO have since changed many of the policies Ms. Hale complains about.

Analysis

Before the Court of Appeal, the primary question was whether the Tribunal had erred in concluding there was not a nexus between the prohibited grounds of discrimination and the adverse treatment experienced by members of the class represented by the complainant. The court concluded that the Tribunal did not err.

The Court revealed that evidence of disproportionate representation among a group, through judicial notice, or statistical evidence, can be a relevant consideration when assessing the nexus requirement under a case of prima facie discrimination. Therefore, the Court concluded that even to the extent that the Tribunal’s references to “the gendered dynamics of sexual assault” can be appropriately read as referring to the disproportionate representation of women among sexual assault survivors, it could not say that this was an entirely irrelevant consideration to Ms. Hale’s complaint of alleged prima facie discrimination, since disproportionate representation among a group may help draw an inference of prima facie discrimination.

Finally, UBCO submitted that the Tribunal erred in declining to dismiss any part of the complaint despite acknowledging that UBC’s changes and review of its sexual assault policies could “address one element of the complaint.” In this regard, the Court affirmed that UBCO’s revisions of its policies and procedures might resolve the need for the Tribunal to order such revisions. However, the Tribunal held that the revision of the procedures did not address the alleged harm that Ms. Hale said the previous procedures had caused her. Based on the alleged harm caused by the previous procedures and the need to describe such harm, the Tribunal could not dismiss the complaint. Therefore, the Tribunal’s decision to decline to dismiss the complaint was not patently unreasonable.

Decision

The petition of the University was dismissed.

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The Stephanie Hale v. UBC Okanagan case hearings finally began on May 10, 2021. The case is still before the Tribunal.

The Employee v. The University and another (No. 2), 2020 BCHRT 12

Summary

1. Background

1. The complainant (Employee) was newly hired at the BC University on an eight-month probationary period. She worked in a professional capacity and had two supervisors: Ms. A and the individual responded (Faculty Member). The Employee regarded the Faculty Member as her primary supervisor.
2. The Employee and the Faculty Member had an excellent working relationship. She was central to the success of the Faculty Member’s efforts that year, who needed to rehabilitate one program and ensure that it was sustainable for years to come. The Employee excelled in this position and became a trusted advisor to the Faculty Member.
3. The Employee’s position involved frequent meetings and out‐of‐town travel. Ms. A testified that persons in positions like that of the Employee typically travel out of town with persons performing the role of the Faculty Member, stay at the same hotel, meet in hotel rooms between meetings, and have meals together.

2. Before the incident

4. The Employee and the Faculty Member enjoyed working together. She admired the Faculty Member, trusted him, and appreciated his positive feedback on her work. The Faculty Member described working extraordinarily well with the Employee. They freely discussed their values, shared interests, past work experiences, and future aspirations.

3. Day of the incident (March 3^rd).

5. The major incident occurred during a business trip after a successful workday. The Faculty Member testified that one meeting with that many participants and projects on the line takes months of preparation. From his perspective, they succeeded with two meetings in one day was remarkable.
6. After a great day, they had a celebratory dinner which lasted approximately three hours. They shared sparkling wine before dinner, 1⁄2 litre of wine with dinner, and finished with liqueur. The Employee testified that she was not drunk. The Faculty Member testified that he was feeling the effects of the alcohol he had consumed.
7. Following dinner, while walking down the street, the Faculty Member told the Employee, “you will have to let me know if this is a misstep, but I am crazy about you.”
8. The Faculty Member testified that the comment was not planned, and in retrospect, he would not have said it. The Employee remembered saying words to the effect that he is her boss and married, and she would never think of him that way.

9. When they arrived at the hotel, they agreed to speak about what had happened. They talked for over one hour. The Faculty Member acknowledged that his comment had stepped over a line and was inappropriate. The Employee expressed that she would be withdrawn and distant for a while. The Faculty Member replied to the effect, “okay” and “I just hope that you will still smile.” The Employee felt that he was putting immense pressure on her to “make it okay what he has done.”

4. After the incident

10. The Faculty Member was out of the province for work until March 8. The Employee hoped that he would not stop in her office. The Faculty Member knocked on her office door and walked into her office. Although they had a work-related conversation, the Employee testified she felt violated after seeing him and crying in the safety of her car after work.
11. At the end of the meeting on April 5, the Faculty Member decided to check in with the Employee generally. The Employee suggested that he was a sexual predator. She told him that universities could be where sexual predators can get away with things. He denied being a sexual predator and said to her that he had just a momentary lapse in judgment.

5. The investigation

12. The Employee successfully passed her probation on May 16, 2016. She reported the “crazy about you” comment to Ms. A on June 6, 2016. The Employee also told Ms. A that her union had advised her not to disclose the incident until she passed her probation.
13. The University hired external investigators to investigate her allegations against the Faculty Member. The University chose a male investigator after she had requested the appointment of a female investigator. When the Employee raised her concern about the appointment, a woman was added to the investigation team.
14. The investigation took approximately six months. It concluded that the Faculty Member’s conduct did not amount to sexual harassment under the policy. She felt that the investigators did not consider the context of what happened to her, that they neglected the severity of the power imbalance between her and the Faculty Member.

Human Rights Complaint – Issues

The complainant affirmed that the Faculty Member and the University discriminated against her in her employment on the basis of her sex contrary to s. 13 of the Human Rights Code.

1. The Employee alleged that the Faculty Member’s behaviour was sexual harassment and, even if not, discrimination on the basis of sex. She argued that the facts warranted a finding of sex discrimination because the enormous adverse impact in her employment that she experienced was related to her sex.

2. The employee also alleged that the University was liable for that sexual harassment and discrimination in responding to her allegations. She believed that the University condoned and defended the Faculty Member’s bad behaviour rather than taking an open stance against the sexualized violence she experienced because he was a man in a position of power.

1. Was the conduct of the Faculty Member sexual harassment or discrimination on the basis of sex?
2. Was the University accountable for the Employee’s experience of sexualized violence in the workplace?

Analysis

1. Complaint against the Faculty Member

The Tribunal reaffirmed that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice that constitutes a profound affront to the dignity of the employees forced to endure it. There are three elements to the sexual harassment test. The conduct at issue must:

1. be of a sexual nature;
2. be unwelcome, and
3. result in adverse consequences for the complainant.

The Tribunal asserted that a single statement about being crazy about the Employee amounts to the conduct of a sexual nature. The Faculty Member expressed a romantic interest in the Employee, which was not reciprocated. The awkwardness of their subsequent interactions bolstered the finding that the Faculty Member made a pass at the Employee that failed. Given this context, the Tribunal found that the conduct was of a sexual nature.

Regarding the second element, the Tribunal rejected the argument that evidence of protest is required to establish the unwelcomeness of conduct. That the Employee and the Faculty Member continued to work together productively for another three months after the incident or that the Employee did not tell the Faculty Member that she did not want to continue working with him is not determinative. It is not necessary for a complainant to expressly object to the conduct, and the law recognizes that a person’s behaviour “may be tolerated and yet unwelcome at the same time.” The Tribunal found that the comment was unwelcome.

Adverse consequences may include endangering continued employment, negatively affecting work performance, or undermining personal dignity. Depending on the facts, a single event may be sufficient to constitute discriminatory conduct. However, not every negative incident connected to sex will be discriminatory harassment contrary to the Code. In this case, the issue was whether the subjective negative feelings that the Employee experienced could constitute “adverse impact” within the meaning of human rights law. In the Tribunal’s view, they were not, “Subjective feelings are not enough to prove that harassment has occurred.”

The Tribunal sustained that there is a large gap between a comment that is inappropriate and deserving of an apology and one that is inherently such an affront to the person’s dignity that it rises to the level of sexual harassment as defined by the Code. The decision was that the unwelcome conduct of a sexual nature did not rise to the level of harm protected under the Code.

2. Complaint against the University

At issue was whether the University discriminated against the Employee on the basis of her sex through deficiencies in its investigation into her allegations of sexual harassment against the Faculty Member.

The Tribunal reaffirmed that the failure to investigate a complaint of discrimination could independently cause harm, and therefore, can alone be a discriminatory breach under the Code. For these reasons, a complaint of failure to respond can proceed on its own merits even if the underlying complaint which gave rise to the duty is found to be unproven.

The Tribunal found that the University did not discriminate against the Employee on the basis of her sex through deficiencies in its investigation into her allegations of sexual harassment against the Faculty Member. It found that the University’s response as a whole was not deficient. First, as soon as the Employee reported the incident to Ms. A, all appropriate steps were taken by Ms. A to advance her concerns. Secondly, there was no reliable evidence that the University subverted the investigation by overly narrow mandates or through the appointment of a male investigator. Third, the University made a mistake in appointing a male investigator to the investigation; however, it remedied its mistake by appointing a female investigator. Finally, the delays in the investigation were due to several legitimate reasons.

Decision

The complaint was not justified and dismissed in its entirety.