A one hour presentation on sexual violence law policy for Canadian higher education institutions.

1. Presented By
SEXUAL ASSAULT ON CAMPUS
Institutional
Policy and
Liability
Emily Baron, Student
Dan Michaluk, Lawyer
February 22, 2022

2. Institutional Policy and Liability
o Key policy issues
▸ Confidentiality and control
▸ Non-disclosure agreements
▸ Running fair yet low impact hearings
▸ Off-campus investigations
→Resources
Agenda
2
o Legislation
• The current cross-Canada view
• The new Ontario regulation
o Case law
• University of Manitoba
• University of Windsor
• Ryerson University

3. Legislation

4. The current cross-Canada view
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5. o A complainant acting in good faith, who discloses
or reports sexual violence, would not be subject
to actions for violations of the institution's policies
related to drug and alcohol use at the time the
alleged sexual violence took place.
o During the institution's investigative process,
students who share their experience of sexual
violence through disclosing, accessing support,
and/or reporting to the institution, would not be
asked irrelevant questions by the institution's
staff or investigators. E.g., those relating to past
sexual history or sexual expression.
Ontario addresses “Our Turn” recommendations
The new Ontario regulation
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6. Case law

7. University of Manitoba – July 2021
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o Undergraduate medical student expelled for unprofessional conduct after making misogynistic
and hateful postings on Facebook
o Allegations brought, conduct admitted, five apologies received prior to a Progress Committee
recommendation to expel
o Student brings multi-pronged judicial review application – two of four grounds succeed
• No connection, no jurisdiction – reasonable to conclude there was a connection
• Failure to identify 18 anonymous complainants and a full account of complaints – providing number
and a summary was fair in circumstances (which didn’t involve factual dispute)
 Reasonable apprehension of bias – Associate Dean acted as investigator, prosecutor and judge (as
a member of the Progress Committee), which poisoned the appeal hearing. Bias was raised but not
addressed and appeal body adopted the submissions of the Associate Dean
 Breach of Charter – Charter applies to University of Manitoba, acting as an agent in implementing
government sexual violence policy, but the appeal committee did not balance Charter rights.
,

8. University of Manitoba – July 2021
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o Policy points from this case
• Policies should shield decision-maker from early and ongoing involvement with disciplinary matters
to protect against appearances of bias
o Practice points from this case
• Affirmation of jurisdiction is not a surprise – don’t fear or shirk jurisdiction to address online harms
• You can keep complainant identities anonymous in some circumstances, arguably, when it goes to
the broader impact on the community
• Charter finding is significant – if your cases raise the respondent’s expressive interests, you must
expressly balance that interest in (a) your finding of misconduct and (b) your penalty assessment
,

9. University of Windsor – April 2021
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o Acquaintance sexual assault – respondent’s defence is consent
o Survivor applies for review of decision to dismiss complaint
o Facts
• Respondent charged criminally
• Respondent, despite having burden, does not participate or seek adjournment
• Investigator nonetheless dismisses complaint based on credibility analysis
• AVP accepts, and then changes view on appeal to Provost
• Provost sympathetic to complaint, but says they can’t contradict the investigator
• Provost adjourns and says University will follow the outcome of the criminal trial

10. University of Windsor – April 2021
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o Application allowed – improper delegation of decision-making authority
o Policy points from this case
• Complainants can apply for review if you give them standing by policy (non-traditional)
• Giving investigators the power to draw conclusions can cause problems
- Do you have your investigators gather evidence and comment on witness credibility only?
• Decision makers must decide, and must be confident in making a decision
- Does your policy expressly provide for obtaining confidential legal advice?
o Practice points from this case
• If a respondent doesn’t seek and obtain an adjournment and doesn’t participate, you can and should
consider that in rendering a proper decision, including by drawing an adverse inference

11. Purdue University – June 2019
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o Acquaintance sexual assault case – former romantic relationship
o Court draws on political narrative – Obama Title IX changes and Facebook post by campus
group – “Alcohol isn’t cause of campus sexual assault. Men are.”
o Dean of Students uses two investigators to prepare a report to committee, but respondent
gets redacted report “moments before”
o Survivor (who did not complain) does not appear, and respondent denied witnesses
o Two of three members state they did not read the report
o They recommend punishment to Dean, also the investigator
o Dean writes cursory findings, including a finding in favour of complainant’s credibility (yet she
had never met with the complainant)
o Affirmed on appeal

12. Purdue University – June 2019
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o Procedural Fairness
 Dean’s role as investigator and decision-maker okay under US law
X Failure to produce report was itself “fundamentally unfair”
X Bias – Dean found Jane was credible without ever meeting her and panel member failed to read
report
X Failure to examine Jane’s credibility (by asking her questions)
X Failure to hear from John’s witness, who claims to have been present
o John makes a prima facie case of discrimination
• “Strongest fact” – the Dean’s “perplexing” credibility finding
• Weight – Institution motivated by Title IX to punish
• Weight – Facebook post by campus group

13. Purdue University – June 2019
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o This case is about how a conservative judge’s mind works, but there are conservative judges
on our Canadian benches
o Policy points from this case
• Policies should shield decision-maker from early and ongoing involvement with disciplinary matters
to protect against appearances of bias
• Production is at the core of fairness when there is a factual dispute – balance, but be wary of
withholding facts and evidence based on privacy and access to justice interests
o Practice points
• Shows the risks in proceeding with a credibility case without a complainant
• Court doesn’t say cross-examination was necessary, notably, but does say that there needed to be
some questioning from the panel

14. Key policy issues

15. Risk management view
→ A sense of control is central to recovery
and healing after sexual trauma
→ Faculty should be free to employ
biographical writing, self-reflection and
other teaching methods that run a risk of
disclosure
→ Faculty should be trained and required to
help instead of being required to report
(“mandatory supporting, not mandatory
reporting”)
Survivor agency view
Confidentiality and control
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o Sexual violence is a threat to community
members
o We have a duty to respond reasonably
when there is knowledge of threats
o This duty supersedes the rights of the
survivor
o Survivors can exercise agency in
deciding who to turn to for support
o It is not the role of a faculty member to
counsel, nor are faculty capable of it

16. o Even if balancing is hard, you can’t let that
difficulty result in a lack of policy clarity
o The only true path to agency is informed
decision-making by survivors
o Clarity is the key to informed consent and
effective risk management
o Current policies are very unclear because they
signal disclosures are confidential
o That is not the reality, so there should be a
warning (that is framed as a warning)
o Question is – do you trust (and burden) your
faculty members to conduct a risk analysis?
Institutions are failing to set clear expectations
Confidentiality and control
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17. NDAs a feature of justice system
→ A sense of control is central to recovery
and healing after sexual trauma
→ NDAs have been abused and used to
silence survivors
→ There is a limited basis to trust the justice
system and its safeguards
▸ Survivors are pressured to settle
▸ The alterative to settle is an abusive legal
process
▸ The protections (counsel, court review) are
also inadequate
NDAs = systemic oppression
Non-disclosure agreements
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o There is a strong public interest in the
settlement of legal disputes
o Settlements are a way to gain resolution
without the costs and burdens of
litigation, which can be heavy on
survivors
o Defendants will not enter settlements
without the closure secured by an NDA
o Settlements should be fair, and unfair
settlements are not enforceable because
our courts have supervisory jurisdiction

18. o Applies to harassment and discrimination
allegations
o Presumptive ban on “concealing the details
relating to a complaint of harassment or
discrimination”
o Except “if such an agreement is the
expressed wish and preference of the
relevant person concerned”
o AND if certain conditions are met (including
ILA, a waiver opportunity, and a time limit)
o AND a carve out, including a carve out that
permits reporting to law enforcement and
limited disclosures to a prospective
employer
Prince Edward Island law
Non disclosure agreements
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19. Running fair and low impact hearings
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o Judges live procedure and are going to judge your practices from that perspective
o The fairness case law is not survivor-centric
o The challenge:
• If you want to strike a different balance, say so in your policy very clearly
• The balance must be struck in the unique circumstances of every case
• This is onerous for laypersons, who need more training – they need to live and breathe fairness
much like lawyers and judges, even without legal training

20. Running fair and low impact hearings
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o You cannot do without:
1. The burden to prove misconduct based on facts and evidence
- “One who alleges must prove” – you simply cannot assume guilt
- The standard is the balance of probabilities
- If the survivor is the only witness, there is a burden on them that is hard to avoid
- Works both ways – consent is an affirmative defence that must be spoken to by the respondent
2. Fair disclosure of facts and evidence
- You are not helping survivors by promising them you will keep their evidence confidential
- You can withhold and redact at times, but it’s a very case specific analysis

21. Running fair and low impact hearings
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You can control your hearing to minimize abuse
o Survivor written statements of evidence will help
o The survivor may need to attend and submit to questioning when the statement or part of the
statement is being questioned
• The first question – when is that “necessary” to a fair hearing?
• The second question – how do we achieve fairness?
- Consider having the decision-maker question based on input from the respondent
- Consider screening aids

22. o The University of Windsor case reveals a
hesitancy that policy thinkers have written
about
o If you can’t find the evidence, you may not
be able to pursue discipline, but your duty is
to try
o You do have a power over non-community
members
• Placement agreements
• The power to draw an inference
You have the power and must exercise it
Off-campus investigations
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23. Questions?
Questions?

24. Reading list
o Tara N Richards et al., “Walking the Tightrope:
Navigating Faculty Status as a Mandatory Reporter
in the #MeToo Era” (2021) 32:3 Journal of Criminal
Justice Education 375.
o Kathryn J. Holland et al., “Reporting is not
Supporting: Why mandatory supporting, not
mandatory reporting, must guide university sexual
misconduct policies” (2021) 118:52 Proceedings of
the National Academy of Sciences 1.
o Lynn M Daggett, “Student Privacy in the New Title
IX Sexual Misconduct Formal Complaint Process”
(2021) 65 Journal of Law & Education 64.
o Ryerson Centre for Free Expression, Does
Confidentiality Work Against Justice? April, 28,
2021 panel debate.
o Emma Phillips, We cannot insist that sexual assault
survivors ‘go public’ September 25, 2019 Globe
and Mail op ed.
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o Zaki v University of Manitoba, 2021 MBQB 178
(CanLII), https://canlii.ca/t/jhx7v.
o Doe v the University of Windsor, 2021 ONSC 2990
(CanLII), https://canlii.ca/t/jfjc1.
o Doe v Purdue University, No. 17-3565 (7th Cir.
2019).

25. For more information, contact:
The information contained herein is of a general nature and is not intended to constitute legal advice, a complete statement of the law, or an opinion on
any subject. No one should act upon it or refrain from acting without a thorough examination of the law after the facts of a specific situation are considered.
You are urged to consult your legal adviser in cases of specific questions or concerns. BLG does not warrant or guarantee the accuracy, currency or
completeness of this presentation. No part of this presentation may be reproduced without prior written permission of Borden Ladner Gervais LLP.
© 2022 Borden Ladner Gervais LLP. Borden Ladner Gervais is an Ontario Limited Liability Partnership.
Thank You
Dan Michaluk
Partner
416.367.6097
dmichaluk@blg.com
Emily Baron
Student
416.367.7268
ebaron@blg.com