This document summarizes key case law related to addressing sexual and gender violence at post-secondary institutions. It discusses jurisdiction, the duty to investigate, standards of fairness, and issues like proof/credibility, expert testimony, and consent. On jurisdiction, institutions must demonstrate impact on campus. The duty to investigate requires a fair process and assessing credibility without treating corroboration as mandatory. High standards of fairness are required given the seriousness of sexual assault allegations. Expert testimony and beliefs about consent can also impact these cases.

1. Sexual and Gender Violence in the
Post-Secondary Education Sector –
Case Law Review
Dan Michaluk
12 March 2015

2. CACUSS/ASEUCC
Outline
• Jurisdiction
• Duty to investigate
• Standard of fairness
• Specific issues
• Proof and credibility
• Expert evidence
• Consent

3. CACUSS/ASEUCC
Jurisdiction
• Compare
• B and W (1985, Ontario HCJ)
• Mpega v Universite de Moncton (2001 NBCA)

4. 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

5. 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

6. 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

7. 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)

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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)

15. 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"

16. 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

17. 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)

18. 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

19. 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

20. 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

21. 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

22. 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)

23. CACUSS/ASEUCC
Dan Michaluk
• daniel-michaluk@hicksmorley.com
• http://allaboutinformation.ca

24. Sexual and Gender Violence in the
Post-Secondary Education Sector –
Case Law Review
Dan Michaluk
12 March 2015