Before: The Honourable Mr. Justice Cullen
Reasons for Judgment
| The plaintiff, Cynthia Maughan |
On her own behalf |
| Counsel for the Defendant the University of British Columbia |
T.A. Roper, Q.C.
|
| Counsel for the Defendant Faculty Members |
J.J. Arvay, Q.C. |
|
Date and Place of Trial/Hearing: |
January 8 – 12; 15 – 19 |
|
|
Vancouver, B.C. |
INTRODUCTION
[1] Universities are institutions formed to pursue education in the higher reaches of learning. The free flow of ideas and information through unimpeded expression is critical to any attempt to comprehend and convey understanding of the enormous complexities that comprise the physical, moral and spiritual world. Controversy and conflict are not infrequent by-products of academic discourse as ideas which are adverse to strongly held beliefs or deeply felt sensibilities sometimes gain currency in the pursuit of education.
[2] Academic freedom: the freedom to express and explore ideas to advance both knowledge and understanding is a critically important value in a free and democratic society.
[3] Religious freedom: the unimpeded ability to pursue and practice spiritual faith in order to achieve inner fulfillment and purpose and to shape social values is equally important in a free and democratic state.
[4] Each of those values has been invoked by the parties in this lawsuit: religious freedom by the plaintiff who claims that the defendant faculty members of the University of British Columbia have deliberately or negligently misused their positions to cause actionable harm to her because of her religious convictions; academic freedom by the defendants who contend the evidence relied on by the plaintiff is capable of establishing no more than that they were fulfilling the roles required of them, to explore and teach ideas no matter how controversial, and to allow a robust exchange of views in pursuit of understanding those ideas.
[5] Following from the defendants’ contention, at the close of the plaintiff’s case, they have brought a motion for dismissal of the action on the footing that there is no evidence to support one or more of the critical elements of the causes of action being advanced, or that the action encompasses issues that the court lacks jurisdiction to hear and resolve.
THE NO EVIDENCE STANDARD
[6] The rules governing an application to dismiss for no evidence are Rule 40(8) and (9) which read as follows:
(8) At the close of the plaintiff's case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff's case.
(9) A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence.
[7] In Roberge v. Huberman, 1999 BCCA 0196, [1999] 172 D.L.R. (4th) 329 the court dealt with an appeal from the dismissal of an action on a no evidence motion. In the course of giving concurring reasons for allowing the appeal and ordering a new trial, Esson J.A. (Prowse J.A. concurring) made observations about the nature and utility of no evidence motions based on Rule 40 (8) and (9) at paras. 62 – 65 of his judgment as follows:
The “no evidence” motion is an established aspect of the procedure in criminal trials. Because of the burden on the Crown to prove each element of the charge, and the absence of any burden on the accused, it is essential that the accused have the opportunity to argue “no evidence” before deciding whether to call evidence.
That consideration does not apply to civil trials in which each side is required to plead its case and has the burden of advancing its case. Historically, the prevailing view has been that the court should not entertain a no evidence motion in a civil trial unless the defendant elects to call no evidence. Where such an election is made, the distinction between “no evidence” and “insufficient evidence” effectively disappears. All the evidence for both parties being before the court, the evidence can be weighed and a conclusion reached as to whether the plaintiff has discharged the ultimate burden. Thus, the court may be spared the arid and often confusing intellectual exercise of having to decide whether the evidence heard to that point is, as a matter of law, “no evidence”. And the parties are spared the risk of a finding of “no evidence” being reversed on appeal and of a new trial being ordered.
Prior to 1990, these disadvantages of non-suit motions resulted in the general rule that a defendant seeking to bring a motion for a non-suit based on no evidence was required to elect whether to call evidence. That had long been the practice in England. But in February 1990 these Rules were enacted in this Province:
40(8) At the close of the plaintiff’s case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff’s case.
(9) A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence.
The discretion to require an election was thus removed. Whether there is a similar rule anywhere else I do not know. As we approach a decade of experience with Rule 40(9) I respectfully raise the question whether the time has come for an analysis of its costs versus its benefits.
[8] In her reasons for judgment, with which Esson J.A. “in general” agreed, Huddart J.A. reviewed the cogent authorities on non-suits after noting at para. 13 that “the task of a trial judge faced with a no evidence motion is not well defined” noting in para. 14 that although the Rules “distinguish clearly between no evidence and insufficient evidence motions … they do not provide guidance as to the test for either.” Justice Huddart acknowledged a historical debate in civil and criminal law of the extent to which a trial judge “can or must consider the sufficiency of evidence before putting it to the trier of fact.” She noted that in the criminal law, the debate was “somewhat resolved in Canada by the decision of the Supreme Court of Canada in Monteleone v. HMTQ, [1987] 2 S.C.R. 154, 41 D.L.R. (4th) 746, confirming Mezzo v. HMTQ, [1986] 1 S.C.R. 802, 30 D.L.R. (4th) 161. Huddart J.A. quoted MacIntyre J. in Monteleone in para. 15 of her reasons:
Where there is before the court any admissible evidence, whether direct or circumstantial, which if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.
[9] Huddart J.A. noted at para. 19 that Rule 40 (8) to (11) reflect the jurisprudence that the principle applicable in the criminal context is apposite to the civil context such that the test to be applied on a no evidence motion is “whether there is no evidence that could reasonably satisfy a jury that the fact sought to be proven is established.” She found that the evidentiary standard necessary to thwart a no evidence motion was greater than that proposed by Romilly J. in Hoole v. Advani (1986), 39 CBR (3d) 122, 29 B.L.R. (2d) 150 (B.C.S.C.) of “any evidence that addresses the legal issues in the claims before the court” suggesting a “scintilla” of evidence was sufficient. Justice Huddart concluded at para. 20 that this was too narrow an approach, preferring a test “consistent with that formulated in Monteleone… for a directed verdict in a criminal case.”
[10] After reviewing authorities from England and Ontario jurisdictions in which no distinction between a no evidence and an insufficient evidence motion is drawn, Justice Huddart observed that the test on a no evidence motion does not equate to “an assessment of the quality of the plaintiff’s case to determine whether she has made out a prima facie case on the law.” (para. 33) She concluded at para. 35 as follows:
Reasonableness is a question for the jury, not the judge, insofar as the weight or quality of the evidence is concerned. It is for the judge to determine whether there is some evidence on each element of the cause of action required to be proved by the plaintiff; it is for the jury to determine whether that evidence is sufficient to justify a verdict for the plaintiff. The judge is not to decide whether the evidence on each of those elements meets a minimum standard unless the motion is one of insufficient evidence under Rule 40(10). That rule provides:
At the close of the plaintiff’s case, the defendant may apply to have the action dismissed on the ground that the evidence is insufficient to make out the plaintiff’s case.
[11] It is apparent that a no evidence motion invokes a question of law as Huddart J.A. noted in para. 36 of her reasons. Although there is no discussion in Roberge of what renders the question one of law as opposed to fact, some assistance on that issue can be found in the criminal context in R v. Yebes, [1987] 2 S.C.R. 168, 43 D.L.R. (4th) 424. In that case, the court was not dealing with a no evidence motion. At issue was whether the appellant’s conviction for murder should be set aside on the ground that it was unreasonable or could not be supported by the evidence, pursuant to s. 613(a)(i) of the Criminal Code. In dismissing the appeal, the court through MacIntyre J. examined the nature and scope of s. 613(1)(a) determining that it raised an issue of law. In arriving at that conclusion, MacIntyre J. reasoned thus at pp. 180 – 181:
As a general proposition, the verdict at trial will stand where there is evidence before the jury going in proof of all elements of the offence and where the trial judge has properly charged the jury on all matters of law which arise in the case and has made such references to the evidence as may be necessary to facilitate the application of the law to the facts. However, s. 613(1)(a)(i) of the Criminal Code provides an additional basis for the challenging of the verdict at trial. A Court of Appeal may allow an appeal against a conviction where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. It may be thought that this subsection does not in a strict sense raise a question of law which would give a right to appeal to this court under s. 618(1)(a) of the Code. Indeed, the respondent Crown asserted in its factum that there was no point of law dividing the minority and the majority of the Court of Appeal in this case. This argument was not, however, strongly pressed on the hearing of the appeal and, in my view, cannot be sustained. It is frequently difficult to draw a clear line between a question of law and a question of fact. While the law can be stated in isolation from the facts, abstract statements of law unconnected to facts are vague and elusive. Even when two judges state the law in precisely the same terms each may actually differ in his understanding of the law and the requirements for its application. Therefore, whether or not an appeal raises a question of law can only be determined after an examination of both the statements of law and the application of the law to the facts in the courts below. Under s. 613(1)(a)(i) of the Code, a court of appeal is required to decide whether the verdict of the jury was unreasonable. While this involves a reconsideration of the facts, it also requires the court to resolve a question of law by giving legal content to the concept of “unreasonable”.
[12] In the context of the application of s. 613(1)(a) by an appellate court, MacIntyre J. concluded as follows at p. 186:
In my view, the majority of the Court of Appeal did not fail to apply the correct principles relating to the treatment of circumstantial evidence. The function of the Court of Appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence. In the Court of Appeal, the majority clearly found that there was sufficient evidence to justify the verdict and both Macdonald and Craig JJ.A. rejected all rational inferences offering an alternative to the conclusion of guilt. It is therefore clear that the law was correctly understood and applied.
[13] Thus, in my view, what renders a ruling on a no evidence motion an issue of law, is the injection of the concept of reasonableness and the need, in context, to give legal content to that word.
[14] Further illumination of the nature and scope of a no evidence motion is illuminated in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. In that case, what was at issue was whether the accused was properly committed for trial on a charge of first degree murder, based on evidence that was entirely circumstantial.
[15] In addressing the issue, the court speaking through McLachlin C.J.C. noted that the question to be asked by the preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “’whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty’: Shephard, supra, at p. 1080; see also R. v. Monteleone, [citation omitted] at p. 160.” (para. 21)
[16] McLachlin C.J.C. went on to note at para. 22 that:
The test is the same whether the evidence is direct or circumstantial: see R. v. Mezzo, [citation omitted] … The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true … .
[17] McLachlin C.J.C. then detailed the judge’s task where one or more elements of the offence rely solely on indirect or circumstantial evidence. She held as follows at para. 23:
The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at 9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence … may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
[18] McLachlin C.J.C. went on to find support for that proposition in the House of Lords case of Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 at p. 197, where Lord Cairns held:
The judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts …[the matter in issue] ought to be inferred. [Emphasis omitted]
[19] In Bingo City Games Inc. v. British Columbia Lottery Corporation, 2004 B.C.S.C. 1496, 34 B.C.L.R. (4th) 327, Rogers J. described the process of determining a no evidence motion under Rule 40(8) as considering whether in light of the evidence adduced, the plaintiff’s claims “have about them an ‘air of reality’”. (para. 19) He reasoned as follows at paras. 15 – 17 of his judgment:
The test is whether the plaintiff has failed to adduce evidence on which a properly instructed jury, acting reasonably, could find for the plaintiff (Roberge v. Huberman, 1999 BCCA 196). Acting reasonably means more than simply speculating, and does not mean relying on a mere scintilla of evidence (Roberge, supra). On the other hand, it is not open to the trial judge to weigh the evidence against contrary evidence, or to asses its reliability.
The parties spent much effort arguing over whether there must be an ‘air of reality’ to the evidence before it passes muster on a no-evidence motion. The phrase ‘air of reality’ comes, of course, from the Supreme Court of Canada’s decision in R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29. In that case the question was whether self-defence ought to have been left with the jury. The Court held that the evidence at trial could have been construed to establish that the accused subjectively believed that he had no alternative but to shoot his victims. However, the Court found that the evidence could not have established that proposition on an objective standard. That is, the Court said that there was no air of reality to the accused’s assertion that a reasonable person in his place would have stayed to shoot the victims rather than simply running away.
In my view, central to the Court’s decision in Cinous is the fact that there was no evidence on which a properly instructed jury could have concluded that the accused had objectively reasonable grounds to believe that shooting his victims was the only way to escape the deadly peril they posed to him. ‘Air of reality’ does not, therefore, require the court to weigh one piece of evidence against another. It merely requires the court to be disciplined in its approach to whether a piece of evidence relates to a particular element of the case.
[20] Rogers J. emphasized that it was not the evidence that must satisfy the air of reality test; rather it was the theory or cause of action which, in light of the evidence adduced, must have an air of reality to it. In Sopinka et al, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworth’s, 1999) at p. 139, the test for a no evidence motion is described thus:
The trial judge, in performing this function, does not decide whether he or she believes the evidence. Rather the judge decides whether there is any evidence, if left uncontradicted, to satisfy a reasonable person. The judge must conclude whether a reasonable trier of fact could find in the plaintiff’s favour if it believed the evidence given in the trial up to that point. The judge does not decide whether the trier of fact should accept the evidence, but whether the inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it.
[21] I conclude therefore that in considering the no evidence motion in this case, I am obliged in the case of elements of the torts being advanced which are supported by direct evidence, not to weigh the evidence, but only to consider whether it meets a threshold of reasonableness such that a properly instructed jury could make the requisite finding. In the case of elements supported solely by circumstantial evidence, on the other hand, I am obliged to engage in a limited weighing of the evidence to ensure that it is reasonably capable of bridging the inferential gap between the evidence proffered and the element to be proved.
THE PLAINTIFF’S CASE – THE EVIDENCE
[22] The plaintiff, Cynthia Maughan is an Anglican Christian. She is 47 years old. At the time of the events giving rise to this action between 2001 and 2005, she was a graduate student in the faculty of graduate studies at the defendant University of British Columbia (“UBC”), seeking a Master of Arts in English.
[23] Although confirmed in the Anglican Church, Ms. Maughan was not at the time of the events in question a regular church-goer, nor was she adverse to doing course work on her studies on Sundays. She attested to a strong personal religious faith and a belief in a living God.
[24] Beginning in January of 2001, Ms. Maughan attended a graduate seminar in English, taught by the defendant Dr. Lorraine Weir, a professor in the Department of English. The course was English 553, titled “The Proper: From Derrida to Delgamuukw”. The course description reads as follows:
For Joyce, names are numbering agents, signs of the anesthetizing process which enables the inscription of the self as property, the entry into the civil order of propriety. For Derrida, this is “le proper,” the proper, naming as entry into Logos, the word of/and the father, the inscription of origin and eventually of the world as book to be read by a Cartesian disembodied mind, a soul in search of its essence.
Living on through Saussure (in Derrida’s critique) and through much poststructuralist theory, this epistemology of the closeted mind in its world of names ill equips us to think the radically different naming traditions of First Nations histories, storytelling and place naming practices. In this seminar we will attempt an interpellation of these radically different cultural understandings by focussing on ‘theory’ production in two modes: first, Derrida’s deconstruction of ‘the proper’ and some of its tributaries, in Of Grammatology, On the Name, and The Ear of the Other, after briefly reviewing Derrida’s debate on speech acts with Austin and Searle (Limited, Inc.); and second, origin and naming stories from Tlingit, Wetsuwet’en and Nla7kapmx texts (in translation). We will conclude the seminar with a discussion of one of the clearest examples in Canadian history of the encounter between ‘the proper’ and aboriginal theories of land and history: the Delgamuukw case (1997), the Supreme Court decision on aboriginal land claims. Texts by Mills and Culhane will serve to contextualize the debate while Bracken’s The Potlatch Papers provides the first extended analysis of many of the issues under discussion in this seminar.
This seminar offers a variety of entry points into comparative and multidisciplinary approaches to theoretical issues. While no previous work in law, anthropology or First Nations Studies is required, a basic foundation in contemporary theory (e.g., an undergraduate survey course or equivalent) is prerequisite.
[25] Along with the course description, Dr. Weir included a warning that read as follows:
Most of the texts we will be thinking about in this seminar are unsettling to some extent, some of them profoundly so. And almost all of the issues to be considered are of urgent political consequence and, by their very nature, controversial and disturbing. Each text poses its own set of challenges to expectations of conventional production of meaning and narrative, throwing us back on our own senses of ‘the proper’ and our own sociocultural locations. My own intention is not to attempt to domesticate these texts and issues but to hope for the possibility of an apprenticeship to them within the living of the seminar. One goal is not ‘astery’ but exploration, not colonization but careful thought and attention to detail, nuance, intricacy, simplicity. Written work in the seminar is designed to offer an initial foray, followed by discussion and feedback on an individual basis, and then a longer and more intensive study. I welcome discussion of works in process at any time during the course. Please note that a grade is not apportioned for seminar participation though attendance and regular participation are required. I am not convinced that participation grades contribute to the health of a seminar. As for paper topics, they are open within the boundaries of seminar readings and I will expect each seminar member to provide me with a brief statement of the focus of each paper at lest two weeks before the due date. This format enables me to provide feedback before the grand finale and you to have a sense of my response during the process, not just at the end of it.
[26] The seminar was scheduled for the spring term from January to April 2001. The academic requirements to complete the course included the following:
· Two papers: a shorter one (1500 words) due at the beginning of February (20/100) and a longer one (3000 words) due at the end of the seminar (60/100).
· One brief (15 min.) oral presentation on same aspect of the text/s of the day (20/100).
· Attendance at and regular participation in all seminar meetings.
[27] The class met regularly on Tuesday afternoons for two hours. On Sunday, March 11, 2001, a day-long colloquium was held to allow each student to present a summary of his or her final paper for the year to gain the experience of an oral presentation, and to obtain feedback from the instructor and other students. The colloquium was held at the home of Drew Mildon, one of the students in the seminar.
[28] The English graduate students at UBC had access through their computers to what is called a “list serv” exchange. It was described as a medium for English graduate students to communicate with one another and provide information relevant to those studies. In November of 2000, during the previous term, a series of emails was posted to the list serv exchange that form some background to the events leading to this lawsuit.
[29] The series of emails began when a graduate student representative on the Alma Mater Society posted an article or essay on the list serv that was highly critical of the Canadian Alliance Party and its then leader, Stockwell Day. Much of the focus of the article was on what the article’s author characterized as “bigoted right wing policies” of the Canadian Alliance Party, its “far right fundamentalist Christian manifesto” and its “sexist homophobic and bigoted policies”.
[30] In the course of the article, the author made various assertions about Mr. Day, the policies he was said to support and statements he was said to have made reflecting a Christian fundamentalist viewpoint. The writer attempted to portray Mr. Day and his party in a way that would provoke strong reaction against them.
[31] A series of responses and reactions to the article ensued, addressing both the issue of the use of the list serv to post political commentary and also addressing the quality and merit of the article itself.
[32] One of the responsive emails was written by Drew Mildon, the person at whose home the March 11, 2001 English 553 colloquium was later to be held. He wrote, after an exchange of several emails concerning the propriety of posting the particular article on the grad list serv, the following email:
I was under the impression that this listserve was meant to foster communication and a sense of community among english grads at this university. I for one am disappointed that more personal exchange does not occur here – I’m sure the extra half a second of bandwidth and the tremendous energy required [sic] to hit delete could possible [sic] be found in peoples busy schedules (if not – you’re drinking too much).
As to the question of how much respect I owe Mr Day? He has repeatedly lied, backpaddled and avoided questions on issues we know to be true. Yes, he really does consider homosexuals to be “deviants.” Yes he really does support [sic] the death penalty? Yes, he really doesn’t believe women should have the right to choose to have abortions. Yes he really does believe that cultural institutions should receive no funding whatsowever [sic] from the government.
How is it that I owe respect to an individual who so obviously so [sic] no respect for huge elements of our society? Screw respect.
He makes me recall fondly a time period when Christians were stoned :).
[33] Mr. Mildon’s email ended with a smiley face icon. Following his email, there were several responses that criticized his expression of recalling “fondly a time period when Christians were stoned.”
[34] After several such emails were sent, on November 21, 2000, Ms. Maughan expressed her view in an email as follows:
I also want to comment on Drew Mildon’s e-mail and the responses that followed. I don’t know Drew Mildon, but I suspect that his intention in his “the ocean of me” e-mail was to get people talking about the election. He probably also intended for all the readers of his e-mail to take his stand against Stockwell Day seriously while being amused at his reference to stoning Christians. What he neglected to understand in his e-mail is that there are a lot of Christians, of which I am one, who cross the political spectrum of Liberal, Conservative, NDP, Reform, Independent and etc who hold their *religious* beliefs sacred. It is not amusing to have the *religious* beliefs you hold sacred mocked in an e-mail regardless of the writer’s intention. In addition, I think he miscalculated the level of discourse that people expect on the gradlist. Rattling off a rant belongs in a chat room somewhere not on a gradlist server. I for one do not want to be associated with a serverlist that allows e-mails like “the ocean of me”. I am guessing though, that it was a momentary error in judgment on Drew Mildon’s part to have sent the e-mail.
[35] Ms. Maughan received a response from one of the English graduate students which said, among other things “I do know Drew and I’m pretty certain that he did not intend to offend anyone in his commentary. His conclusions were perhaps, unfortunate, though they were by no means IMO a rant.”
[36] Ms. Maughan responded on November 21, 2000 with the following email:
Hi Jennifer and Jessica,
I was quite clear that I thought Drew Mildon did not *intend* to offend anyone. I was also clear that I thought it was just a mistake. However, it sounds like your intent is to encourage e-mails that allow for the disparagement of religious beliefs. As I said, I do not want to be associated with a listserv that allows disparagement of any group. I would like to suggest the possibly [sic] of establishing your own web site where you define the rules (is it a rant or a thoughtful argument) and say whatever you like. That way like-minded people like yourselves can communicate at your leisure.
No hard feelings. I am just trying to protect my religious beliefs, and whoever else’s that might come up next, from being trampled on. We live in the luxury of a democracy and I would encourage anyone to voice their views. It is an incredible right that we have. I do not have to participate in something that I find morally unacceptable tough. All the best to you.
[37] Mr. Mildon responded with an email dated November 21, 2000 at 6:23 p.m. as follows:
After considerable thought and months of careful planning… I’ve decided to set up an alternative grad list to which people can feel free to sent [sic] their rants, raves, poems, tales of woe, seedy memoires, scurrilous fantasies etc etc etc…
It’ll take me a week or so to organize – watch this space for details…
Drewpy
[38] Subsequently, an email from one of the participants in the exchange quoted from UBC’s policy concerning academic freedom, a response to which Ms. Maughan emailed the following:
Hi Wendy,
The following passage that continues and concludes the section on Academic Freedom which you did not cite, but which I think is fundamental states:
“Freedom from Harassment and Discrimination
The University of British Columbia is committed to ensuring that all members of the University community – students, faculty, staff, and visitors – are able to study and work in an environment of tolerance and mutual respect that is free from harassment and discrimination”.
That is all anyone can ask for.
[39] The student to whom she directed the email responded as follows:
Hi Cynthia,
Point well taken, I understand everyone’s frustration and concern but I do not believe that Drew’s statement constitutes either harassment or discrimination as per the policy you cite. In fact, in Drew’s initial posting the word “stoned” appeared in quotation marks – he was referring to the smoking of marijuana, actually, which, I suppose may still offend people. At any rate, take care,
Wendy
[40] Ms. Maughan responded:
Hi again Wendy,
Just to clarify, I was thinking more about an “environment of tolerance and mutual respect” as being pertinent to this situation. As I said initially, I hadn’t thought that Drew Mildon really intended to offend anyone in his initial e-mail. I thought he was just trying to be (as I think he usually is in his e-mails) amusing, and had a moment of poor judgment. It seems, however, I may have been wrong to suppose this.
Also, the quotation marks you say that were around “stoned” didn’t “come through” on my copy of the e-mail. (There was a smiley face, but no quotation marks). In any case, I respect and support your citing the section on Academic Freedom. It is incredibly important that it be protected. It is as important as protecting any and all groups of people from disparagement in our Canadian democracy.
Again, no hard feelings.
Cynthia
[41] The following day, Ms. Maughan wrote the following e-mail:
Hi Michelle,
I think the e-mails that you and that others have sent out recently, most importantly the original e-mail from Drew Mildon, have opened up a window of opportunity to correct what I think is a serious misunderstanding, and a blatantly false stereotyping of “Christians”. Just for example, I think that you would have a hard time convincing African-Canadian or African-American “Christians” that they are racists against, well, themselves. If you look at, again, just for example, many of the bands, who are of all races, on the Junos or Grammys who thank Jesus (some seriously others for image sake) actually humorous. (gosh knows what they think “stoned” means). This is just for starters. Do you get the picture? Also for example, I am one of those people who don’t laugh when someone tells a “joke” that is offensive to any group of people. I think these kinds of jokes are an attempt to peck away at targeted groups of people to see how much can be gotten away with, and sometimes this ends up in some of the most horrific events the world has ever seen. I hope this helps to correct what seems to be a seriously misguided, although probably unintentional, attempt to narrow Christians down to Stockwell Day (however accurately or inaccurately he was portrayed in the very one sided comments) supporters. Christians are a vast and varied group of people some or many of whom may be much closer to you on the political spectrum than you think. I don’t expect I have anything else to say on this, and I really would feel more comfortable if this kind of discourse were not on the gradserver, but I felt I should respond. I hope that you can understand my position. I understand an alternate serverlist is being set up.
All the best to you.
Cynthia.
[42] Finally, on November 23, 2000, Ms. Maughan wrote an email in which she said in part, as follows:
I still think, though, as I have been saying all along, that Drew Mildon was initially only trying to be light and get people talking – a very good thing and I respect him for that. The worst thing that could happen is for no one to be able to say anything for fear of saying the wrong thing. (as someone cited from the UBC Academic Freedom section). I also think Alex has a very good point and it is one I was trying to get across subtly. I was trying to give ample room for the senders to back out gracefully by continuously saying that I thought their comments about Christians were just a momentary misjudgement that got thrown into an e-mail. It has been hard to keep that exit door open though as time has passed and it seems that there has actually been an escalation of comments rather than a one-line of “sorry, there was no disrespect of religious beliefs intended”. Maybe that was because my tone was off-putting. (Am I the officious one? The Al Gore of e-mails she asked herself in despair…Nope, sorry I am trying for humour here but it just doesn’t feel right given the seriousness in which I made the above statements … maybe in another forum). I was going for a tone of mutual respect and formality because of what I consider the seriousness of the political statements being made in the same e-mail, and the forum that was being used. I really do wish you well. Cynthia.
[43] In the meantime, according to the minutes of a meeting of the graduate committee, the email exchange was raised by a committee member as an issue to be dealt with but “the committee felt that the issue should be dealt with by the students rather than by an administrative body.”
[44] In her evidence in chief, Ms. Maughan testified that she did not initially read the entire article that provoked the list serv exchange, getting her “sense of it from the responses of the other students” but she “did go back and read it after”.
[45] Of the Drew Mildon November 17 email (the “stoning email”) Ms. Maughan testified she didn’t take it as humorous, but in her email attributed an intention on Mildon’s part to be humorous, rationalizing that he didn’t really mean it and being aware of other humorous emails he had written. She testified she regarded the Mildon stoning email and other emails being dismissive of her concerns and those of others as supporting a stereotypical view of Christians.
[46] Ms. Maughan took no further steps with respect to the list serv exchange or the stoning email until after the end of the spring term in May 2001, following the events in the English 553 seminar which brought Ms. Maughan in conflict with Dr. Weir and which became the genesis of this action.
[47] She testified that she enrolled in English 553 because she had taken an undergraduate course from Dr. Weir and she was interested in the course because she had grown up beside a First Nations reserve and because of its focus on Derrida and theory. She regarded the course as about “First Nations land claims … relying predominantly on Derrida.”
[48] There were between 25 and 30 students in the seminar to begin with on the first day, on January 2, 2001. There was discussion during that session about how to work in an in-class presentation, given the time limits of the classes and the number of students. Ms. Maughan testified she recalled Dr. Weir asking the students to email her with proposals about how to organize the in class (oral) presentation. A number of students, including Ms. Maughan, responded with emails. In her email dated January 4, 2001, Ms. Maughan supported the idea of a symposium in which the students presented drafts of their long papers. She averred in her email that she was ignorant of First Nations culture and suggested getting help from the First Nations House of Learning “on the orchestration of auditory discussion and presentation”.
[49] On the next class on February 9, 2001, fewer students were in attendance. Ms. Maughan testified the consensus of the students appeared to favour a colloquium and the focus was on the day of the week. Ms. Maughan testified that “dates were being eliminated for all kinds of reasons” and “the suggestion was … the conclusion … the deduction was becoming on Sunday.” She did not raise any objection to the class being held on a Sunday. She testified she regarded the process of settling on a Sunday as a sincere attempt to find a workable date. At the next class, Ms. Maughan testified the location was discussed and settled on as well as the day and date and it was decided it would be at Drew Mildon’s home, which he had offered as an accommodation. Ms. Maughan testified that as soon as she heard it was at Drew Mildon’s home, she knew that “definitely was a problem” but she did not raise any objection to it being on a Sunday or at his home in that class.
[50] On the following Monday, January 22, 2001, Ms. Maughan sent an email to Dr. Weir, which she described as asking if people could be asked again if the colloquium had to be on a Sunday. She testified the issue for her was the day of Sunday, not Drew Mildon’s home, although she testified it would be disrespectful to her faith to go on Sunday to a person’s home who is unapologetic for his remark about fondly recalling a period of time when Christians were stoned.
[51] Ms. Maughan’s January 22nd 2001 email outlined three questions that she wished to discuss with Dr. Weir “during (her) office hours tomorrow”. The first question concerned the reading list, the second her paper, and the third was the selection of Sunday for the colloquium.
[52] In relation to the colloquium on Sunday she wrote as follows:
Is it possible to ask people again whether the colloquium we are having has to be on a Sunday. The person for whom Sunday was chosen wasn’t at the seminar last week and I am wondering if she has left it all together. If so, it seemed that Saturday was certainly possible or it may be that even one day during the week is up as a possibility now. I heard you say that once we decided on a day it could not be changed, but signifying “Sunday” (a day in the chain of the days of the week) can be taken out of the chain of signs and come to signify another day … or according to Speech Act I guess your statement should initiate a perlocutionary force of action causing the colloquium to occur on Sunday … (Is this even close to being right? I thought I would take this opportunity to give you an idea of my state of confusion. I usually find that on my second reading of something all the flags that were set on the first reading settle into place and I get some clarity. I am hoping.
Cynthia.
[53] There is no evidence that Ms. Maughan did go to see Dr. Weir during her office hours on January 23rd to discuss the content of her January 22nd email including the Sunday colloquium.
[54] Ms. Maughan testified that Dr. Weir was aware that she was a Christian, a fact that was admitted on behalf of Dr. Weir.
[55] Neither Dr. Weir nor Ms. Maughan raised the issue of the timing or location of the colloquium at the class on January 23, 2001. On January 25th, Ms. Maughan sent another email to Dr. Weir. It read as follows:
Hi,
I guess the day for our mini colloquium was left at Sunday because the student for whom it was chosen was back last week. Still, there are fewer students now in the seminar than there were when Sunday was chosen as the only possibility so it might be worth trying for a different day. I was also thinking about what one student said who participated in the same kind of colloquium last term when it was an all day event, and she described it as a bit of a torturous marathon. So I am wondering if we can even find a contiguous afternoon/morning to have the colloquium. Maybe have the presentation topics divided up into two related panels with one panel presenting on ex. Wed. afternoon and resuming Thursday morning for the second panel? It seems to me this may have been an idea at one point, but was later over looked.
Cynthia
P.S.
Regarding the name cards (are you really preparing them?) I was wondering if we could do something like what Derrida does in _Limited Inc._and_Of Grammatology_ that will elucidate naming conventions and significations associated with “proper names”. (use the Greek and/or European etymologies of our names, use titles maybe, switching names with other people or something at each seminar …
[56] Ms. Maughan testified that she received no response to her email of January 25, 2001. She acknowledged that she was provided with a copy of an email, apparently written by Dr. Weir to her, on January 29, 2001, which read as follows:
Hi Cynthia –
It was hard enough to agree on anything to begin with that I don’t want to reopen the topic! Obviously you have concerns about the daylong meeting but I suspect you’ll enjoy it once we get started.
Cheers-
LW
[57] Ms. Maughan questioned why there were three different versions of the January 29, 2001 email, one from one of Dr. Weir’s email addresses (interchange), with no date shown, one from a second email address (earthlink) with the date shown, and a third with neither the date nor the email address shown. Ms. Maughan testified that she did not receive any copy of the emails until it became an issue when she pursued redress for what occurred in the context of English 553 by way of an appeal to the university Senate in the spring of 2002, even though previously she had received copies of other emails when UBC released its records in response to a request pursuant to the Freedom of Information Act, R.S.B.C. 1996, c. 165.
[58] Ms. Maughan agreed that on March 10, 2001 she sent Dr. Weir an email referencing the problem that Dr. Weir was having with her email where she wrote in part:
I imagine you must have had a resolution to your email problem by now, but just in case, I thought I would mention that I also ran into a problem today in sending out emails, not receiving.
[59] Ms. Maughan testified that at the January 16th class, or possibly January 23rd, a new syllabus was distributed, showing the March 11th colloquium and describing the process as:
Each seminar member will contribute one 15 minute paper which may take up some aspect of the final paper or develop an aspect of the first paper, or approach another aspect of the course. Panels to be arranged. Optional session re: strategies for oral presentation TBA.
[60] Ms. Maughan testified it was her wish to use her presentation as the basis for her final paper, which was worth 60% of the class mark.
[61] Ms. Maughan testified that during the same term as English 553, she was in a course taught by Dr. Patricia Badir. Drew Mildon was also in that seminar. Ms. Maughan and Mr. Mildon picked the same topic to work on and were asked by Dr. Badir to coordinate the topic. Ms. Maughan expressed willingness to divide up the topic with Mr. Mildon or to work on another topic. She testified that her general impression of Drew Mildon “was just kind of a nice guy” and she separated “those two things in her mind”.
[62] The assignment for the English 553 seminar for January 30, 2001 was to read 3 essays comprising a publication called “On the Name”, written by Jacques Derrida. The first of the essays is titled “Passions: An Oblique Offering”. It includes the following passage at pp. 18-19:
Who would be Judas here? What is someone to do who does not want to be and who knows himself not to be (but how can one be sure about these things, and how can one extricate oneself from these matrices?) either an apostle (apostolos, a messenger of God), or Jesus, or Judas? Because it dawned on me a little late, counting the number of participants gathered here, exactly twelve (who is still to come?), then noticing the words “oblique offering” and “passion” in his letter, that David Wood was perhaps the perverse producer [metteur en scene] of a mystery – and that in fact the “oblique offering,” which was no less his than mine, had a flavor that was ironically, sarcastically, Eucharistic (no vegetarian – there are at least two among the guests – will ever be able to break with the sublimity of mystical cannibalism): the “this is my body which is given for you, keep this in remembrance of me,” is this not the most oblique offering [don]? Is this not what I commented on all year long in Glas or in my last seminars on “eating – the other” and the “rhetoric of cannibalism”? All the more reason not to respond. This is no Last Supper [Cene], and the ironic friendship which brings us together consists in knowing this, while peering with a “squinty eye” [English in original – Tr.] toward this cannibalism in mourning.
[63] Ms. Maughan testified that she was interested in focussing her studies on theory, because she was impressed with Derrida’s theories and the quality of his writing and ability to communicate.
[64] When she encountered the passage set out above, which she testified was part of a discussion involving 12 people on how to proceed with production of one of Derrida’s books, she immediately knew that the quotation set out as “This is my body which I give to you. Keep this in remembrance of me.” was not accurate.
[65] She testified the proper quotation was “Do this in remembrance of me” rather than “Keep this …”. Ms. Maughan testified she was “taken aback” because she had never heard the holy Eucharist referred to as cannibalism before and had not heard any joke about it in terms of vegetarianism. She described feeling “alarmed and distressed” because she took her vows at confirmation very seriously and “was wrestling with her personal feelings as a Christian.” Her distress was “compounded by the inaccurate quotation”. She testified she reacted to what she read in light of the “stoning email and the responses to that”.
[66] Ms. Maughan testified she was aware that a university was not the place to address spiritual concerns, so she approached it as an academic question.
[67] After reading the passage she telephoned a professor she had taken an undergraduate class with, Dr. Dennis Danielson, whom she believed to be a Christian. She testified that Dr. Danielson told her that it was a worthy point to raise, but to “keep it academic”.
[68] Ms. Maughan testified that she went to the January 30th class with the intention of keeping the point about the quotation and its context academic, after doing some research on why the word “keep” might have been translated from the word “do” in the original French version of the essay.
[69] Ms. Maughan testified that she “raised the issue of the missed quotation” in the class. She remembered that she took her bible with her, but made no comments about being a Christian or feeling personally insulted. She recalled two students who raised “particular, very specific objection” to her raising the issue. Ms. Maughan testified that she subsequently wrote a paper that “addressed each of the objections that came up in the class”. She testified at the time of a class she felt “really overwhelmed by the intensity of the response from the other students” and was so flustered that she could not find the quotation in the bible that was the subject of the passage from the Derrida essay. She believed she may have described the misquotation as “sloppy” on the part of Derrida. She had a recollection of explaining to the class that the bible said “do” not “keep” in the passage at issue, and a general recollection of people saying “don’t question Derrida” but she could not recall who said it or precisely what was said. She estimated that the discussion lasted “at most” 15 minutes. The only person she could recall being involved in the discussion was a student by the name of Monnina Wittfoth. She had no specific recollection of what Dr. Weir said, but on the same day, she wrote an email to Dr. John Cooper, a professor at UBC who was an informal mentor to her, in which she described Dr. Weir as “rather bored and irritated by her statement and thought maybe it was a mistake …” or that Derrida was chastising a translator of his works by quoting him in a letter where he got the scripture wrong. Mr. Maughan recalled Dr. Weir asked one of her theory students to research the issue with the French department, but Ms. Maughan interjected and told Dr. Weir that she would do it.
[70] The paper that Ms. Maughan subsequently wrote for the course, which was designed as a response to the objections that were made in the January 30th class to the issue she raised was marked as an exhibit as evidence of her past recollection recorded of what was said in the class. In that paper, she set forth an offer to refutation of that which she described as some classmates’ “serious objections and criticism” of her contention in the January 30th class that Derrida bent “the scriptural quotation to suit his argument”. The objections she identified from the class were as follows:
1. It is unimaginable to call Derrida sloppy;
2. Prove that this quote is even from the bible;
3. There must be a translation difference between French and English that accounts for the difference between “keep” and “do” to explain the quotation;
4. Derrida is brilliant. We cannot expect to fully understand what he is saying. He may be knowingly and cleverly bending and twisting the text a little to make a point about rigid presumption to text.
5. Perhaps Derrida was actually chastising his translator, David Wood, for having misquoted the bible by leaving the raw mistake bare.
6. You have a duty to read Derrida in the context of his entire work.
7. It is not essential to his argument and it was simply a mistake. Derrida would laugh at us for focussing on such an insignificant error.
[71] After the class on the 30th, during which Ms. Maughan raised the issue of the mistranslation and encountered the responses she later itemized in her paper, she composed the email which she subsequently sent to Dr. Cooper, describing her experiences in the seminar as “shocking”, the passage from Derrida’s essay as “intense sacrilege” which she could deal with, and her classmates’ reaction to her as “to try and put (her) into a too sensitive, self righteous Christian box.”
[72] Ms. Maughan told Dr. Cooper she would be withdrawing from the seminar, describing the hostility towards her in the class as “palpable” and characterizing some classmates’ reaction to her as “a lazy thoughtless stereotyping of Christians.”
[73] Before she sent her email to Dr. Cooper (at 10:00 p.m.), Ms. Maughan received an email from one of her classmates, Monnina Wittfoth, at about 7:30 p.m. In the email, Ms. Wittfoth wrote, in part, as follows:
I am sorry that you were made so upset by your reading of Derrida, and I know that it is a drag to be upset about something and have no one acknowledge it. It just makes a person get more upset.
I guess I should apologize for getting irritated. I’m sure that didn’t help matters, and it probably just prolonged the whole thing. I understand you were upset because you felt the change in textural quote, and its citation, as though it were an actual biblical quote was very improper both from a scholarly point of view (inaccuracy) and because the inaccuracy is with regard to the bible. I think you are very upset and angry because of the latter issue, and it might have been better if you had been able to express just that. People are sympathetic to the religious feelings that people have, more than an issue of being indignant over sloppy scholarship. … I understand that it is very distressing to have things you hold sacred mistaken from your point of view. … I hope you don’t think your fellow classmates are callous. And I’m sorry if I seem that way, we weren’t communicating very well. I hope you are feeling better now.
[74] Ms. Maughan testified that while she was appreciative of Ms. Wittfoth’s expression of sympathy, she was bothered by what she took as Ms. Wittfoth’s minimizing or dismissing of what was a very valid academic question because of her (Ms. Maughan’s) Christian identity.
[75] Ms. Maughan testified that the next step she took was to call the French department whereupon she was put in touch with Dr. Anne Scott, another of the faculty defendants. Ms. Maughan testified she recalled having a pleasant conversation with Dr. Scott which focussed on the translation issue. She had a vague recollection of an exchange with Dr. Scott about Christianity and that it was the holy Eucharist that was under discussion. She said Dr. Scott referred her to Dr. Lindenberger, at the Vancouver School of Theology, to inquire about the translation from Aramaic to English in case that accounted for the translation from “do” to “keep”.
[76] When she got in touch with Dr. Lindenberger, he responded to her to the effect that the quotation used by Derrida could not be translated from the original text in that fashion. He expressed the opinion that Derrida, or conceivably his English translator, “does seem to have misconstrued the biblical text for his own purposes.”
[77] Ms. Maughan testified that as she read and reread the Derrida paper, she “started to realize … that it was a misquotation … that was used as the foundation for the essay” and she “became eager to write the essay (to) find out the truth of this and what Derrida was doing with this quotation.” Ms. Maughan testified she viewed Derrida’s use of the word “keep” as bending the quotation to support the theme of his essay on the basis that urging another to “keep” something as opposed to “do” something is more in line with that something being an offering.
[78] On February 1st, after her exchange of emails with Dr. Lindenberger, Ms. Maughan received an email from Anne Scott which she regarded as “surprising and perplexing”. The email read as follows:
I think the matter can be brought to rest. I think sacrilegious is a very big word for someone who is, I believe, agnostic (and perhaps of Protestant background) I am sure God and Jesus are big enough to take the joke of this passage. As a Huguenot I was indeed brought up to consider that to say that the wafer was the body of Christ was very much over the top. He is not engaging in this passage in interpreting the Bible. He would not by the way have to tell ANY French speaking person it refers to the New Testament and the last supper, so would not need to put it in quotes, but in this passage we do not have any context (no letter from Wood), so the wisest thing to do is to let it go quickly and concentrate on the rest of what Derrida is saying in his own “name”, there is enough of it to keep us busy.
Knowing just how precise Derrida is with etymology I thought it would be interesting to find out if indeed there was such a connection in Aramaic, but obviously no.
Now, it all seems to split hairs and I hope I did not send you on a wild goose chase because of my ignorance of the whole context. As always in the presence of a text our first duty is to take what the author says at face value and see how it all fits together with the text itself and honour him or her by going to the end of their ideas. So good luck with Derrida’s for they are very serious and he always is interested in showing something we might not notice at first.
[79] Ms. Maughan testified she had no direct recollection of the words used in her discussion with Dr. Scott “there was a general sense of Christian faith as an aside.” She took Dr. Scott’s email as in effect, dismissing the issue she had raised and telling her to “move on, let it go.”
[80] Ms. Maughan subsequently recorded her recollection in an email to Dr. Cooper, that Dr. Weir herself viewed the passage at issue to be an attack by Derrida on the Eucharist “not a jokey kind of passage”.
[81] Ms. Maughan testified that on or by February 2nd, having exchanged emails with Dr. Lindenberger and spoken with and received Anne Scott’s February 1st email, she decided not to go to the colloquium on Sunday the 11th at Drew Mildon’s home, “given everything that has happened”. She accordingly sent Dr. Weir an email on February 2nd, 2001 at 11:09 a.m. It reads as follows:
Dear Prof. Weir,
I would come by to speak to you in person, but unfortunately, the timing is very close on my requests and so I am sending you this e-mail rather than wait until next Tuesday during your office hours. Further to my phone message, my phone number is 913-2202 if you wish to call me to discuss any of the following. I am proposing the following concerning my participation in the 553 seminar:
1) I would like to write my short paper in response to the criticism I received for criticizing Derridan text. I would like to write my paper based on the text of the passage in question (Point 1. beginning on page 18-19 of _On the Name_), and “Signature, Event, Context” in _Limited Inc._.
2) I will not be able to do my seminar presentation at the colloquium on Sunday Mr. 11 at Drew Mildon’s home. I would be happy to discuss other possible suggestions as to when I would do my presentation. If I present to the seminar, I would appreciate the reciprocal privilege of having paper based versions of their presentations to read as well.
3) Most of my comments in the seminar discussion are simply what I hope to be comments that contribute to the overall discussion. They can as easily be left unsaid. I would also like to propose that, if with all I have already said, I have met the requirement to participate in the seminar discussions, I not be required to say anything further. I will of course speak if I have something urgent to say.
I would appreciate it if you could let me know if this agreeable to you as soon as possible.
Thanks very much.
Cynthia.
[82] Ms. Maughan testified that she wanted Dr. Weir’s permission not to speak further in the seminar, because she recalled there was a note about class participation and she felt she had made a contribution in class on the misquotation and she wanted to “separate” herself from the situation. She had considered withdrawing from the seminar, but made inquiries and no longer believed she could switch courses.
[83] Ms. Maughan received a response to her email from Dr. Weir the next day (February 3rd at 12:25 p.m.). It reads as follows:
Cynthia-
A paper focussed on the selected Derrida text/s seems like a fine idea. However, I do not agree that you were “criticized for criticizing Derridian text” by anyone in the seminar. I think the focus of your paper should be on substantive theoretical issues (which may well include issues of translation but French versions of the New testament would have to be consulted since the issue is how French comes into English, whether the French be in the form of Derrida’s text in translation or the French text of the New Testament as Englished via Derrida’s translator). Frankly, I do not see how responsibility for this apparent error may be assessed in any simple way. As I pointed out in class, one would have to access David Wood’s letter to Derrida in order to assess whether the error begins there. Etc. I personally do not think this is a fruitful quest.
Re colloquium: the seminar group as a whole agreed on the colloquium and achieved consensus re time and place. I believe you were present for those discussions and did not object in class to the decision. We took two weeks to make this decision and, as you know, I invited email opinions from everyone in the group. The decision was, I believe, made in a fair way, involving the whole group and emerging out of suggestions initially presented by group members. I am sorry that you will not be able to attend and will miss the learning experience which such an event affords both in terms of learning how to organize and present at a colloquium and in terms of receiving feedback from the other participants. I suggest that we follow the same procedure in this instance as would normally be followed were a participant ill and unable to attend. In that case, I would expect the colloquium paper to be submitted as conventional printed paper would be and I would assess it in the usual way.
Re participation: as a member of this graduate seminar you are entitled to participate whenever you wish. There is no participation grade in this seminar.
Should you wish to discuss any of these matters further, I will be available as usual during office hours or by appointment. I do not believe that email is an appropriate vehicle for resolution of issues of concern to you regarding the seminar. I would remind you also that the course statement clearly alerted participants to the fact that controversial issues would be discussed in the seminar and that some might find such discussion uncomfortable. I regret that Derrida’s text has disturbed you to such an extent but there is little we can to change his language or politics.
LW
[84] Ms. Maughan responded by email the same date at 12:28 p.m. It reads as follows:
Thank you very much for your response. It seems I may have received your e-mail only moments after your sending it. I am always happy to come and talk to you, and prefer it to e-mailing, but I did want to respond briefly by e-mail in the interests of the short paper due on Tues.
In my view, I was very definitely criticized for criticizing Derrida in the seminar. This was later followed by two e-mails which I think were well-intended attempts to assuage what is being boxed up as my wounded feelings as a Christian. My spiritual feelings as a Christian are not at issue here, and it seems my attempts to try and convince people of this are just not being heard. That is why I think it would be a very good idea for me to put what I believe are the substantive theoretical issues you are looking for in my short paper. I would be happy to provide it to those who I felt did not hear the real issues I as raising. I am not saying I am right, but I am saying I have the right to raise an issue that is substantive in my view.
I would like to speak to you about the date and place of the colloquium. Briefly though, the choice of Sunday, and the location at Drew Mildon’s was proposed and decided in about 10 – 15 minutes. I was not sure at that time that I was even going to remain in the seminar and so I was reluctant to object. There are other issues surrounding this that I would like to speak to you about if only to be clear about why I have chosen not to participate in this particular colloquium.
Cynthia
[85] Ms. Maughan testified that she took Dr. Weir’s suggestion to present a conventional printed paper as an accommodation agreement to make up for her decision not to participate at the colloquium, and she took Dr. Weir’s email as confirming that the date would not be changed. She testified she told Dr. Weir in her responding email that she wanted to meet with her to let her know “there were other issues surrounding this” because she had “a tendency to still want to trust Dr. Weir and be respectful of her.”
[86] After receiving Dr. Weir’s email of February 3rd, Ms. Maughan emailed Dr. Lindenberger later on February 3rd, telling him she had approval to write her short paper on the passage by Derrida and asking for and receiving his permission to quote him in the paper. Ms. Maughan completed the paper on February 6, 2001. It was based on the comments she received in the class and “took the position that even Derrida needs to be questioned.”
[87] Ms. Maughan testified that there was no further substantive communication with Dr. Weir until February 8th, except to set up a meeting for which Ms. Maughan had to excuse herself for a time from her class with Dr. Badir.
[88] At the meeting on February 8th, according to Ms. Maughan, she told Dr. Weir about the email that Drew Mildon had sent with the comment concerning “when Christians were stoned”. She testified she did not rail against him, but told Dr. Weir what happened so “she would understand that she couldn’t attend out of respect for her faith”.
[89] When pressed on cross-examination, Ms. Maughan was not entirely clear on what she told Dr. Weir about what Mr. Mildon wrote in her email. She testified at one point as follows:
I can tell you though that it was certainly more than just, by the way, something happened on the listserve that had something to do with Mr. Mildon and something to do with religion. It was far more than that. I would say to the best of my recollection that I stepped Dr. Weir through there was this document came out, there was – students were upset about it. They felt it was talking about Christians in a negative way. And Mr. Mildon came along and he sent an e-mail supporting that, whether I said, and he fondly recalled – if I had to say, I probably would have paraphrased it. I probably would have said something like there was a statement made concerning violence against Christians. And he wouldn’t explain or apologize for it. That all rings true in my being to say that that’s the sense of what I gave to Dr. Weir. It was far more than a general quick snapshot.
[90] At another point she testified:
Q And you have no recollection of what you told her was I the e-mail?
A I know – I don’t know the exact words. I don’t remember the exact words. And I think I have already answered that question earlier this morning that I probably, to the best – I would have paraphrased it. I would have said, you know, some kind of wish of violence against Christians that he didn’t explain, or wouldn’t apologize for something to that effect, is what I – to the best of my recollection.
[91] At another point she testified:
Q And as I understand your evidence earlier was that you told Professor Weir that the particulars of the e-mail exchange was that he was advocating violence against Christians and he wouldn’t apologize for it. Do I have that right?
A No, you are putting words in my mouth, Mr. Arvay.
Q I don’t want to do that. Then what was the – what did you tell her was in the e-mail that was so upsetting to you?
A As I have said possibly ten times now, I don’t remember the word – words, the exact words that were exchanged in that meeting. But I believe I would have paraphrased what we now know as the “stoning e-mail,” and it would have been words to the effect that there was a wish of violence against Christians and he wouldn’t explain, he wouldn’t apologize. There were other students who were upset about it. It would have been along those lines.
[92] At yet another point she testified as follows:
Q And you went to the February 8th meeting wanting to be respectful of Drew Mildon and not get him into any trouble and it was because it was part of your faith not to call out a student for an anti-Christian e-mail even to your professor. In that –
A That’s right. Most – should I say “most” – I worked on the assumption that a graduate student may well be – and I guess because I had it in my mind, I don’t know – wanting to pursue an academic career. And I felt that I didn’t want to make, you know – cause any – I mean, it’s a pretty serious thing that he did. And so I was – you know, like in my mind it was a very serious thing that he did. So I felt it would be quite a serious thing to draw Dr. Weir’s attention to this and at the same time though, I had to communicate to her why I couldn’t go to this Sunday colloquium.
So there is no doubt I had both of those – I was trying to juggle both of those things. And I let her know, I think is the words I used at the time, was the particulars of the grad listserve, but I certainly put it this way, I did not go in there and say, and you know, there is a student in this very class who is sending out anti-Christian e-mails wishing – you know, I think as you were trying to say – that whole advocating violence. You know, I didn’t go down that road. I let Dr. Weir know what was happening’s what had happened on the listserve.
[93] Ms. Maughan testified she could not remember the precise words she used in her discussion with Dr. Weir, but she “would have said” to the effect that the whole Eucharist is sacred to her and because of the discussion about the whole Eucharist she could not attend the colloquium on Sunday morning. She testified she “vividly” recalled that Dr. Weir stood up and came around the front of her desk and looked Ms. Maughan in the eye and said “it will be on Sunday”. Ms. Maughan testified as she got up, Dr. Weir said “I’ll think about the location”.
[94] Ms. Maughan testified she had not asked Dr. Weir to change the location of the colloquium. She then returned to Dr. Badir’s class.
[95] Later that evening, at 11:53 p.m., Dr. Weir sent Ms. Maughan an email after having “read (her) paper carefully”. She offered a critique of the paper which included the comments “… as I said this afternoon I think some of the comments you responded to were not particularly serious and your response gave them more weight than they would otherwise have had”. She also commented “I myself still consider the occasion a tempest in a tea pot, but I do respect the fact that for you, this challenge was a serious one requiring a serious response.”
[96] She concluded as follows:
Reviewing Derrida’s prefatory comments from the French edition (cited on pp. xiv-xv) I note his classification of the essays published as “On the Name” as “fictions” and describes “the more or less fictive repetition of a ‘this is my body’” (p.xiv). He is reinscribing familiar elements of the Christian liturgy in a new, fictive context of his own devising, incorporating elements from the “Timaeus” and from “negative theology” among others. Within that practice of speaking through other texts, JD here speaks through (and alters) a familiar element of the Christian liturgy just as he certainly alters the “Timaeus” through the Khora. I suspect that this parallel will strike you as unacceptable but it is nonetheless clearly articulated in the text. To me this addresses the spirit of the translation process, particularly given the recurrent interest in translation in this book.
I’ll resist the temptation to write an essay of my own at this point but I wanted to give you some sense of how I think through this question. Obviously you’re concerned about the grade for this paper. I’ve decided to reserve a final decision on all of the Engl 553 papers until I’ve read them all and made my comments on all. However, given your concern about tomorrow’s deadline, I can assure you that your grade for this paper will be in the B+/A- range at the least. Annotated papers will be returned to everyone before reading week.
I hope this note will satisfy your concerns and enable you to make the best decision under the circumstances.
All the best-
Lorraine Weir
[97] Ms. Maughan testified she accepted some of Dr. Weir’s comments as valid academic critique and some of the comments as “kind of condescending”.
[98] She testified Dr. Weir’s reference to her potential mark and “tomorrow’s deadline” was the deadline for withdrawing from a course without penalty. She testified that was not important to her, that was not why she met with Dr. Weir. She said after she received Dr. Weir’s comments she was relieved that she was not going to suffer an academic penalty for her ideas. Ms. Maughan testified that with that assurance and the accommodation agreement, she was satisfied she could stay in the course.
[99] Having resolved not to attend the Sunday colloquium, Ms. Maughan then took steps to submit her accommodation paper. She noted that in Dr. Weir’s February 3rd email, no date was set for the paper, but she assumed it was due around the date of the colloquium.
[100] She sent an email to Dr. Weir on March 9th, in which she included the text of an email she intended to send to the class setting out “the general directions of her thoughts about her term paper”. In her covering email to Dr. Weir she wrote as follows:
I was about to send off the following e-mail to the class list and then thought maybe I should actually have a dialogue with you first to hopefully narrow it down a bit. I am not sure if I have widely divergent ideas below and if I should therefore, at this point, just pick one and go for it, or if there is still some room for wandering around a bit at this discussion phase of our final term paper. If I don’t hear from you, (I appreciate you may not have time to answer this today as I have left it short notice), I will just pick one of the two paths below, send it off to the class list, and hand in a discussion paper on Monday.
[101] On Saturday, the 10th, Ms. Maughan sent an email to the class explaining that she would be doing a paper and explaining what the paper would be focussed upon “Property ownership, and the symbolic and literal offering of oneself (one’s body), one’s intellectual property and one’s food in Hua Shuka as it … relates to legal notions of offer and acceptance of property and First Nations Land claims.” She stated “I re-read parts of Derrida and began to realize just how enormous is his investment of linguistic energy on Christianity and the Eucharist. I … think this is not only relevant, but essential, and perhaps aside of the First Nations story that is not being given its due weight.”
[102] On Monday, March 12th, Ms. Maughan emailed Dr. Weir asking to delay submitting her presentation paper until after she read a text called “Potlatch Papers” which was on the course reading list because it was “so relevant to what she was working on”.
[103] She asked if she could “write up such a paper as the presentation substitution and give it to you on say Wednesday or Thursday after I have had a chance to think more about the Bracken book.”
[104] On Wednesday, March 14th at 10:21 Dr. Weir wrote back:
I agree with your plan to submit your presentation paper soon and after you’ve digested Bracken’s book. It does indeed bear directly on your topic. Good luck.
[105] In the meantime, after the 553 class on Tuesday March 13th, Ms. Maughan wrote to her mentor, Dr. Cooper, expressing “the very uneasy sense that there is an ideological agenda that is being pushed forward in the seminars and courses and I am beginning to get more than a little ticked off at the attempt to delude students into a denial of the truth that surrounds us in favour of the imagined atheism of a handful of people. Is there an atheist agenda, or at a minimum, a strong trend towards the promotion of atheism at UBC?”
[106] She went on to write:
In any case, atheists really are a miniscule fraction of society in spite of the mirage that is being attempted by a handful of academics. I really feel compelled to clear up these grossly false claims. Just like the Derridan text that attempted (successfully by the measure of the seminar) to delude people into believing a misrepresentation of the text of the bible, I am insulted that both as a Christian and at the academic sloppiness.
[107] On March 21st, 2001, Ms. Maughan sent Dr. Weir an email with an attachment, containing the presentation paper. The email said:
As discussed. Thanks again for speaking with me yesterday, particularly on such short notice and after such a late afternoon seminar.
[108] The presentation paper included a “brief statement of intention” which read as follows:
I intend to read the Christian Eucharist (in which Christ frontally offers a “gift”: “Take, eat: this is my body which is given for you, do this in remembrance of me”), and feasts such as the Potlatch in the First Nations culture (for the purpose of the distribution of “gifts” as described in Haa Shuka), through Derrida’s conception of the Christian Eucharist in On the Name and Bracken’s conceptions of “gift” in The Potlatch Papers. More specifically, I intend to focus on Bracken’s argument, rooted in Heideggar’s conceptions of temporality, on the question of the “instant” that something becomes a gift.
[109] The presentation paper itself was 2 ½ pages of double spaced type. It introduced a challenge to “Derrida’s rhetoric with regards to the Christian Eucharist … in On the Name … (as) an act of cannibalism. … Bracken’s rather cloaked insinuations in The Potlatch Papers regarding the Eucharist.”
[110] In her presentation paper, Ms. Maughan posed the question among others “is there an underlying assumption that Bracken (and perhaps Derrida) make in arguments that Christianity is the intellectual property solely owned by the Europeans which (as Bracken would put it) was force fed to the First Nations people; is in fact the real issue “Can one say the condemnation of the Potlatch is racially based when pyramid schemes and other similar practices are equally often prohibited or considered culturally offensive.”
[111] She concluded:
Compounding all of this …even if (and I argue it cannot be said) Christianity could be thought to be European “Intellectual property” was the fact that something like 43% of First Nations people identified themselves as Christians at the turn of the century a result of force feeding or a communal spirit of recognition in the gift giving at feasts between two vastly different cultures?
[112] Ms. Maughan agreed that before she emailed her paper to Dr. Weir, she spoke with her on March 20th after the class. What she recalled is that she told Dr. Weir she wanted to do her final paper on a synthesis between the whole Eucharist and First Nations feasts and that Dr. Weir did not want her to do that, but she thought that it was something she should pursue.
[113] She could not remember what Dr. Weir said to her in the meeting of March 20th, but she did not think it was along the same lines as what Dr. Weir eventually (after the end of the course) provided her with by way of a critique.
[114] Dr. Weir did not provide Ms. Maughan with any contemporaneous written feedback on her presentation paper because, she explained, she did not open the attachment sent to her as she was expecting a hard copy of the paper and did not access Ms. Maughan’s attachment until the end of term when she was cleaning up her emails. She, at that time, provided comments to Ms. Maughan and placed the paper with her comments in Ms. Maughan’s file.
[115] In her evidence, Ms. Maughan did not agree that Dr. Weir’s belated comments would have been useful even had she received them in a timely way.
[116] The comments on the presentation paper were as follows:
Third page, left margin, first paragraph:
Are you implying that the potlatch is a pyramid scheme?
Third page, last paragraph, and continuing to fourth page:
You need to look at the history of the missionary endeavours, esp. those churchmen who understood the potlatch as sacrilege & ritual regalia, masks in particular, as graven idols. What methods were used to convert indigenous people? How do those methods (including the religious instruction central to residential schools) differ from accepted practices incontemporary Christian denominations? Consider in particular the apologies offered by both the Anglican & the United Churches of Canada for their involvement in the destruction of traditional cultures – and families. In other words, whatever one’s politics may be, these are extremely complex historical issues any one of which would be adequate to the occasion of researching a grad seminar paper. The imbrication of Christianity in colonization certainly also needs to be considered. In that context, Christianity was indeed part of a Western/European agenda & was deployed as such. So I have major concerns about this whole project. Frankly I don’t think it’s workable as a seminar paper. Simplified to one or two claims & a lot of historical research, it might work.
It’s unfortunate that you didn’t have the benefit of colloquium discussion/response to this proposal. Since you chose not to submit this paper in hard copy, I was not aware of its existence until I undertook a year-end filing of email and discovered this attachment. I had understood from your accompanying email that you were sending a draft on short-notice consultation & I deferred the attachment, being overwhelmed with paperwork at the time. Reading it now in the context of your final paper, my impression is that in the end the seminar challenged everything you hold dear – a situation which makes systematic inquiry very difficult.
B-
[117] There is no evidence that Ms. Maughan followed up with Dr. Weir after sending her the email and attachment of March 21st, 2007. She testified she “was extremely tentative to have any contact” with Dr. Weir.
[118] The final papers for the course were due on April 3, 2001. Ms. Maughan testified that she had not been speaking in class since the January 30th session, but that she thought things might have “calmed down” and “there was a potential to have a conversation” so she telephoned Dr. Weir. She found as she worked on completing her papers she was “in deep theoretical water”, and was starting to think she needed more time to complete her final paper. She testified that when she raised the issue of an extension with Dr. Weir, Dr. Weir became very angry and responded with words to the effect “oh, so you want a whole month now” to which Ms. Maughan said she wasn’t looking for a whole month. Ms. Maughan testified that Dr. Weir just continued to express anger and “she started to talk about that the other students were more intelligent than (she) was” although she did not remember the exact words Dr. Weir used. She testified “the notion” was that Dr. Weir attributed her need for an extension to the fact that she “just was not up to the material and the other students were”. Ms. Maughan testified that she ended the call at that point.
[119] On March 29th, following the telephone conversation, Dr. Weir sent a hand-written memo to Susanna Egan, the third faculty defendant. At the time, Dr. Egan was a professor in the Department of English and the Associate Head and Graduate Chair for the Department.
[120] Dr. Weir’s memorandum to Dr. Egan read as follows:
You will (likely) shortly be hearing from Cynthia Maughan who claims that she is “unfamiliar with academic culture”, does not know how other grad students can prepare good papers without having the benefit of the whole seminar behind them, and expects to take a month (!) after each seminar to write her paper. She is not asking for an extension on compassionate grounds and she is aware of the English 553 course contract requiring all papers in on April 3rd. I have referred her to you since she raises issues relevant to the operation of all graduate seminars & since I refuse to deal with her further on this matter.
- but perhaps you won’t hear from Cynthia (a desirable non-event). Perhaps Dennis will (!)
[121] After the telephone call with Dr. Weir, Ms. Maughan decided to make her final paper “responsive to the conversation she had with Dr. Weir” concerning the course deadline. She described the theme of the essay as “… are we there to learn and accept this gift of a seminar or are we just there to get a mark, put it in a transcript, and if you want me to really learn something I have to hear the whole thing … the whole seminar and then I give you something back for the gift of the seminar but I can’t … start giving you something back before you’ve given me the whole gift.”
[122] On the issue of extensions, there was evidence that Dr. Weir granted an extension to one of the students in the seminar, Monnina Wittfoth. That transaction was captured in several emails, the first dated April 16th at 11:00 a.m. from Ms. Wittfoth to Dr. Weir describing difficulties she was having concluding her paper, the second from Dr. Weir to Ms. Wittfoth on April 17th at 12:41 a.m. in response, the third from Ms. Wittfoth to Dr. Weir on April 17th at 9:36 a.m. that she had finished the paper but for some final editing. Ms. Wittfoth wrote in part:
I gather from your email that I do not need to worry if I don’t get this to you today.
[123] Dr. Weir responded on April 17th at 11:47 a.m. as follows:
I can collect the paper any day this week (sigh). I have not responded re: lateness because I do not want to know it’s late. We’ll just agree that you had a bad cold and that I will get the paper this week. All the other papers are being returned to their owners tomorrow.
[124] Ms. Maughan submitted her final paper on April 3rd when it was due. It was assessed and graded by Dr. Weir. Ms. Maughan received a grade of 40.8 out of 60 for her final paper, 13.6 out of 20 for her presentation paper and 17 out of 20 on her first short paper. Her overall grade for the course was 73%. When Ms. Maughan saw her grade online she sent an email to Dr. Weir on May 3rd, 2001. It read as follows:
Dear Lorraine:
I saw my mark for 553 and of course was disappointed as it is the lowest mark in English that I have ever received.
My third year statistics course (for my Psychology degree) was lower, but that was understandable as I have no background in Math and it is quite a difficult course.
I am wondering, did everyone in the seminar hand in their paper on April 3, 2001. After our discussion in which you made it unquestioningly clear that all the papers had to be in or the due date established in the syllabus, I did notice that perhaps five students were not in attendance to hand their papers in on April 3. There was no mention of any exceptions to your requirement that the papers be handed in on April 3, 2001 the last day of the seminar – transit strike or not – and so I took a cab to UBC. I was disappointed that not everyone was present and wondered if perhaps these five or so students had dropped their papers off earlier in the day or something.
Could you please confirm that every one of the students in the seminar handed in their paper on April 3, 2001 without exception? I am also wondering about your comment earlier in the seminar that students could re-write any of the papers in your course. Did I hear you correctly?
Yours truly,
Cynthia Maughan
[125] Dr. Weir responded on the same date by email as follows:
Cynthia-
I trust you’ve seen the paper itself (placed in your file some time ago). If so, you’ll know that I considered the paper and the final grade very carefully indeed. The paper is fully annotated with a very detailed comment at the end. Final grades have now been processed in accord with Dept. and Faculty regulations for all graduate seminars. Obviously, the course has to end and it has done so. All grades have been filed for all seminar members. The comment of mine concerning rewrites pertained to work done during the course of the seminar (in this case, the first paper), not to an infinite deferral of the end of the seminar. No doubt the transit strike inconvenienced many people and I agree that that is most unfortunate. It did not, however, affect the course contract into which we all entered on the first day of the seminar nor, as I am sure you will understand, can any instructor be responsible for whether or not a student is able to organize his/her work and meet deadlines. I regret the fact that apparently from the time of your initial reaction to Derrida to your problems with the colloquium to your concern about meeting the final deadline you were unhappy with the course. I did everything I could to accommodate your concerns during the course. I suggest that any further issues be taken up with Prof. Egan when she returns from her research trip in mid-May.
Lorraine Weir
[126] Ms. Maughan testified that to that point she “just wanted to put (the experience) behind her”. She read in Dr. Weir’s email that her graded and annotated paper was in her file in the English department. She went to the English department to get her papers and then went directly to Dr. Cooper’s office, where she opened the envelope containing her annotated papers. She believed that that was on May 7, 2001. Ms. Maughan testified that upon reading the comments on her papers, particularly the final paper, she was extremely disturbed, saw in them a perversion of the facts and a denial of her religious and academic freedom.
[127] Because the comments on the papers form an important part of this lawsuit and the papers form the context for the comments, I have set them forth as appendices to these reasons. The presentation paper with handwritten comments and statement of intention (Exhibit F, Tab 53, Page 1062 – 1066) is Appendix 1; the transcript of the comments on the presentation paper (Exhibit F, Tab 53, Page 1067) is Appendix 2; the final paper with handwritten comments (Exhibit F, Tab 53, Page 1072 – 1080) is Appendix 3; and the transcription of the notes on the final paper (Exhibit F, Tab 53, pages 1081 – 1083) is Appendix 4.
[128] After receiving and reading the contents of the comments on her papers, Ms. Maughan decided to take her case to the UBC Equity office.
[129] She made initial contact by telephone on May 15, 2001 and spoke to an employee of the Equity office, Ann-Marie Long, who filled out a complaint form which included a summary which read as follows:
Female grad. Student reports disparaging emails (against her religious beliefs) on graduate student email list and negative comments from a professor on a course evaluation which resulted in a low grade/performance evaluation.
[130] A second form entitled “A Complaint Consultation Form” as opposed to “Complaint Form” was subsequently filled out with the same summary and backdated to May 15, 2001. Under the heading “action taken” and “date”, a handwritten note was inserted “none, as per complainant’s request”.
[131] On the following day, May 16, 2001, Ms. Maughan dropped off a binder of documents at the Equity Office which contained the list serv exchange of emails and emails exchanged in the 553 seminar. Along with the binder, Ms. Maughan left a handwritten note and typed letter. In the note, Ms. Maughan asked that the issue of the grad serve list be dealt with separately from the issue of her grade, and asked that no one be contacted until after she spoke with the equity office. She said she wanted the grad list emails to be “completely confidential” and that she hoped “there is a way to communicate to the senders of these emails how devastating their comments were without a full all out investigation”. In her letter, Ms. Maughan sought to give “a brief overview of quite a disturbing and lengthy situation in which I believe I was harassed for my religious beliefs.” She described the events of the list serv emails. She described the email from Drew Mildon (the stoning email) as “particularly inflammatory” and (inaccurately) quoted him as writing “he longed for the days when they stoned Christians”.
[132] In connection with the English 553 seminar, Ms. Maughan asserted Dr. Weir “let her atheism be known in the seminar” and that when she pointed out that Derrida misquoted the bible, her identification of his sloppiness “was met with incredible hostility by some seminar members and Lorraine Weir”. She recounted how Dr. Weir refused to change the date of the colloquium, despite her requests, and how she was refused more time to complete her final paper which she requested “because (she) realized she had taken on too much … to complete in a matter of a few weeks and that (she) had done so because (she) felt compelled to defend Christianity from such abuse in addition to the incredible turmoil over the disparagement of Christianity.”
[133] She wrote that she wanted the email exchanges and the circumstances of the 553 seminar “reviewed in light of some action to raise academic awareness with the graduate students on the importance of religious freedom and the inherent dangers of stereotyping and disparagement of select groups.”
[134] Ms. Maughan indicated she wanted to contest her mark on a separate basis because of Dr. Weir’s “treatment of (her) Christian beliefs which seriously impeded her ability to proceed through the seminar”, including refusing to revisit the Sunday colloquium, refusing her additional time to write her paper on the subject of the Christian Eucharist and for the “false and astounding” reasons she gave her assignment a low grade to the final paper.
[135] Ms. Maughan made no mention of a failure by Dr. Weir to live up to her accommodation agreement.
[136] On May 17th, Ms. Maughan met with Anne-Marie Long. Ms. Maughan testified that Ms. Long seemed less sympathetic than she had on the telephone. She testified she came away from the meeting not feeling that she would get the consultation she read about on the Equity Office website, so after she left the meeting she wrote a 5 page letter to Ms. Long reiterating and expanding on her concerns. Ms. Maughan testified she did not recall much of the meeting, explaining that she tends to remember more “how (she) felt … how (she) perceived … the environment, physical gestures.”
[137] In the letter, she asked “if the Equity Office could offer an opinion (if) the following would have made for a difficult and chilly learning environment for a Christian” citing the colloquium at the house of someone “who longed for the days when they stoned Christians” (sic) and the “hostility (she) has met with … when (she) responded to the Derridian text which alluded to the characterization of Christians who practice the Eucharist as cannibals.”
[138] In the letter, Ms. Maughan contended and explained why she was contending that Dr. Weir “not only disqualified (her) from attending the colloquium based on her faith (her) but then she deducted marks from before it.”
[139] Ms. Maughan further described Drew Mildon as an unapologetic anti-Christian and herself as “stunned and mortified” that the colloquium was not only to be on a Sunday, but at Drew Mildon’s home.
[140] She concluded:
I would like to know if you think, based even only on this issue of the colloquium which is just one aspect of this situation, if this made for a difficult or impossible learning environment.
[141] Ms. Maughan testified she subsequently had a telephone conversation with Ms. Long on May 23rd. She said the message she got from Ms. Long was basically “you were accommodated because you were given the opportunity to write a paper instead of go to the colloquium” and that there was nothing wrong with the stoning email “it was humorous. It might have been offensive to you, but there is nothing wrong with it.” Ms. Maughan did not recall specifically what was said, but she “clearly remembered” they were speaking to her “in legal terms”.
[142] She testified Anne-Marie Long was away after the 23rd and the file was passed to Margaret Sarkissian. Ms. Maughan testified she told Margaret Sarkissian that she was not trying to create a legal situation, she was just trying to raise awareness and she wanted an opinion from the Equity Office that it is not okay to exclude someone from a class by holding it on Sunday and then penalizing for it. Ms. Maughan testified that “the response from the Equity Office was to avoid preparing the communication to the graduate students that (she) had asked for by saying “we can’t do anything that would discriminate against other students in the university”. After the file had been passed over to Ms. Sarkissian and following Ms. Maughan’s telephone call with Ms. Long on May 23rd, Ms. Maughan sent a letter by fax to Margaret Sarkissian expressing concern whether the questions she asked in her May 17th letter were being responded to or whether they “were responding to a legal question (she) did not ask.”
[143] In response, Ms. Sarkissian sent an email dated May 25, 2001 at 3:47 p.m. It read as follows:
Dear Cynthia,
As agreed, I have reviewed your complaint, including the information that you gave me on the phone yesterday. Although I can understand and sympathize that Mr. Mildon’s comment about Christians was distressing and offensive to you, it involved a single unwelcome and offensive comment, rather than a pattern of persistent unwelcome communications denigrating your religious beliefs. Therefore I concur with Anne-Marie Long’s finding that this email is not sufficient to constitute harassment under the University Policy on Discrimination and Harassment.
I understand that you pursued the issue with Mr. Mildon and others by continuing to address it in subsequent emails, hoping to receive an apology from Mr. Mildon. You made the argument to me that Mr. Mildon’s refusal to apologize is evidence of further harassment by him. As I tried to explain to you on the phone, the Policy cannot be interpreted in this way. Mr. Mildon’s refusal to apologize may be very frustrating and disappointing to you but it does not constitute a persistent pattern of harassment.
I know that you may be disappointed with this decision, and therefore remind you that you may bring your concerns to the attention of the BC Human Rights Commission.
[144] In response, Ms. Maughan sent an email on May 25th at 11:45 p.m. that read in part, as follows:
With all due respect, as did Anne-Marie, you refuse to answer the question I asked. I capitalize the following statements for emphasis: I AM NOT LOOKING TO ENGAGE IN LEGAL OR HUMAN RIGHTS PROCEEDINGS OVER THE EMAIL EXCHANGE OR OVER THE COLLOQUIUM .. Most importantly, I SAID MYSELF in an email during the email exchange (which you have a copy of) that I DID NOT BELIEVE HIS EMAIL CONSTITUTED LEGAL HARRASSMENT OR DISCRIMINATION when the legal text of what harassment and discrimination constituted was cited in the exchange ***. …
I shall re-state my original letter accompanying the binder and what I have been saying all along: I am 1) pursuing a way to raise academic awareness that statements of intolerance, disrespect and etc. against religious beliefs hurt and demean just as much as any other of the Rights protected by the Human Rights Act. …
2) With regards to the colloquium and related issues, please, if you could answer the question I have been asking your office repeatedly:
Do you think this was a difficult or impossible – a “chilly” – learning environment for a Christian?
…
Also, three very important corrections to your email:
1) I DID NOT LODGE A “COMPLAINT” WITH YOUR OFFICE. I ASKED A QUESTION. I ASKED FOR “CONSULTATION” ON HOW TO RAISE ACADEMIC AWARENESS ON THE FREEDOM OF RELIGION. THIS IS VERY CLEARLY DELINIATED FROM A “COMPLAINT”. Please see all of the documentation I have sent to your office. In fact, I state in my own email during the exchange that I DID NOT BELIEVE THAT THIS WAS A SITUATION OF HARASSMENT OR DISCRIMINATION although the sender at that time was also trying to make me say I was making a legal case as well. It was and is an utterly false representation of what I have explicitly stated I am trying to do.
Please also acknowledge that I asked a question and did not lodge a complaint with your office.
…
Please respond either by answering *my question* as above, and as I have stated in my initial letter to Anne-Marie Long, and in the fax I sent to you directly which asked you specifically to answer my question and not Anne-Marie Long’s legal question, or simply say that you are refusing to answer my question and I will escalate it to Dr. Cohn. It is very time consuming for me to be re-stating my question continuously. Also, if you do not think that an articulation of the difficult balance between Academic Freedom and Freedom from Harassment and Intolerance is worth the efforts of the Equity Office please also say so now and I will inquire into other avenues. As I said, I will not escalate anything until I know clearly from you that you have refused or are unwilling to either answer my question on the learning environment and/or consult with me on how to give the email exchange a productive and tolerant conclusion.
[145] In response, Ms. Sarkissian sent an email dated May 29, 2001. It read as follows:
Dear Cynthia,
In your fax and your email, you raise three issues:
1) Academic freedom v. freedom from discrimination and harassment
The Equity Office is very interested in raising awareness of the issues of academic freedom as well as the importance of a discrimination and harassment-free learning environment at UBC. These are obviously critical issues for a University to address; and students, faculty and administrators are all part of that dialogue. Academic departments deal with these policies as a normal part of their responsibilities, and the Equity Office offers support and education to assist departments in balancing these highly important obligations. Your comments on the importance of healthy and productive dialogue on these issues is therefore very appropriate.
2) Does the Equity Office think that there was no discrimination or harassment in this situation?
The Equity Office has the responsibility of implementing the University’s Policy on Discrimination and Harassment to ensure that educational activities do not cause a violation of a student’s human rights. The Policy involves, in part, hearing complaints where a student, faculty or staff member believes that his or her human rights have been violated. When a complainant makes an allegation, the burden of proof is on that person to make the argument that discrimination or harassment did occur. Once that burden has been satisfied, the equity advisor normally meets with the person against whom the complaint is lodged, in order to hear the other side of the events and to fully comprehend what may have occurred.
On the basis of the information that you sent us in your binder, and also based upon our Friday conversation, I wrote you that Mr. Mildon’s behaviour did not, in my opinion, constitute harassment. In other words, the situation that you described did not meet that initial burden of proof.
3) Does the Equity Office think that the colloquium constituted a difficult or impossible – a “chilly” learning environment for a Christian?
Vigourous [sic] and challenging debate is a normal part of the University experience, and many academic courses include controversial material that may be uncomfortable for some students, for a variety of reasons. It is possible that a student may find a particular course or part of a course, difficult or even “chilly”. It is obvious that you found several aspects of this course uncomfortable, including the arrangements concerning the colloquium. However, the Equity Office cannot make general comments about a [sic] alleged “chilly” climate without engaging in the process outlined in the Policy. In other words, we cannot generalize from your uncomfortable experience that the colloquium arrangements would be uncomfortable for all Christians.
[146] In her evidence Ms. Maughan referred to Ms. Sarkissian’s description of the mandate of the Equity Office (“the responsibility of implementing the university’s policy on discrimination and harassment to ensure that educational activities do not cause a violation of a student’s human rights”) as the foundation for her testimonial assertion that the Equity Office avoided preparing the communication she had asked for to the graduate students.
[147] On May 29th at 7:13 p.m. Ms. Maughan responded to Ms. Sarkissian’s email in part, as follows:
Thank you for your response. It does, at least address, one of my questions i.e. you say that you cannot comment on or answer my second question.
However, my request still stands: Again, I am writing in capitals for emphasis. PLEASE ACKNOWLEDGE IN WRITING THAT I DID NOT LODGE A COMPLAINT WITH THE EQUITY OFFICE AGAINST MR. MILDON. I MADE AN INQUIRY WITH THE EQUITY OFFICE FOR CONSULTATION. MY OWN EMAIL DURING THE TIME OF THE EXCHANGE – WHICH YOU HAVE IN THE BINDER – STATED CLEARLY THAT I DID NOT THINK THE SITUATION WITH MR. MILDON WAS ONE OF HARASSMENT OR DISCRIMINATION. PLESE ACKNOWLEDGE IN WRITING THAT I MADE A GENERAL INQUIRY, OTHERWISE YOUR COMMENTS FALSELY DEPICT THE REASON I APPROACHED THE EQUITY OFFICE, AND WOULD MAKE ME APPEAR TO HAVE OVER-REACTED TO THE SITUATION – WHICH I DID NOT. I do insist that the Equity Office acknowledge this.
…
Specific to your email:
…
2) I DID NOT ASK THE QUESTION: “Does the Equity Office think that there was no discrimination or harassment in this situation?” THIS IS THE QUESTION THE EQUITY OFFICE ASKED. I ASKED WHAT COULD BE DONE TO BRING ABOUT A TOLERANT AND PRODUCTIVE CONCLUSION TO THE EMAIL EXCHANGE SITUATION. … MY EMAIL AT THE TIME – WHICH YOU HAVE – STATED THAT I DID NOT THINK MR. MILDON’S BEHAVIOR CONSTITUTED HARASSMENT. PLEASE ACKNOWLEDGE THIS IN WRITING I MADE AN INQUIRY AND DID NOT LODGE A COMPLAINT. I do know that both yourself and Anne Marie Long continued to speak *as if* I were inquiring on legal proceedings. This simply was not the case. I made an inquiry and this is evidenced by my documentation to your office. I have RESISTED the question and the associated rhetoric that yourself and Anne Marie Long obviously WANT to answer, and spoke as if you were answering in our conversations. With regards to the email exchange and Mr. Mildon’s email, I made an inquiry with very good intentions to clarify a confusing aspect of academic life with regards to issues of equity. You are NOW misrepresenting my request in exchange for my efforts.
…
In conclusion:
1) Please acknowledge in writing that I never made a complaint against Mr. Mildon. I never contended the email exchange situation was one of harassment or discrimination, and in fact I stated it was not discrimination or harassment in my own email at the time.
2) I gather you are saying that you only consult with departments on a more formal basis, perhaps with the Head or the Associate Head. Is that correct?
3) I am concluding that you are saying that your office does not offer opinions on learning environments without going through a full process.
[148] In response on June 1st, Ms. Sarkissian wrote in an email as follows:
Dear Cynthia:
I confirm that you contacted the Equity Office for consultation purposes, and did not with to bring a complaint. Therefore I have no mandate to take any steps to obtain a fuller picture of your experience in Lorraine Weir’s course. Without that fuller picture, I am unable to make a determination about whether or not the course created a chilly environment for Christians. Accordingly there is nothing more I can say about this matter, and am therefore closing the file.
Best wishes,
Margaret.
[149] On June 7, 2001, Ms. Sarkissian wrote an email to Ms. Long, providing her with an update on Ms. Maughan’s case. She wrote the following:
Hi Anne-Marie,
Here is the update on this rather difficult case. Cynthia called me the day after you left, and wanted to go over the case again. She was adamant that Mr. M’s action were harassment because he had refused to apologize. She felt that his continued refusal constituted a pattern of harassing behaviour, and could not be dissuaded from that perception. In fact I did not see any evidence that she had actually asked him for an apology. Her request for an apology, if it could be called that was very indirect and unclear.
I agreed to look again at the binder she had given you, and did so. It was clear to me that she was contradicting herself about what she wanted the Equity Office to do. In my first conversation with her, she clearly wanted me to agree that Mr. M’s comment about stoning Christians was harassing. However she would not agree to allow me to speak to anyone – the respondent or he [sic] instructor – about this case. She then asked me to agree, in writing, that the course was a “chilly” environment for Christians. I explained repeatedly that I cannot make a finding of fact based on one side only, and that I would need to obtain the other side’s point of view. She seemed unable to understand this. She then informed me that she did not want to bring a complaint against anyone, and that you and I had taken an unnecessarily legalistic approach to this case. I tried to explain to her that human rights work is based on a body of law, and that certain standards have to be met for behaviour to be deemed harassing. She seemed to have trouble understanding why I could not accept her personal interpretations of the law.
Overall she was unsatisfied with our help. She asked that I write and confirm that she did not bring a complaint to the Equity Office. I changed her original contact from a complaint to a consultation, and wrote her confirming that she had not lodged a formal complaint with the EO. She then asked me to return her binder, which I did.
That is the update. The file, which is now a consultation, has all of her emails to me, if you would like to see them.
Marg
[150] On June 13th, Ms. Long responded with an email to Ms. Sarkissian. Her email reads, in part, as follows:
Thank you for the update. It seems like the issues on which CM was most focussed with you were different than those on which she was most focussed with me. While your interactions with her focussed more on the content and context of DM’s original email about “stoned” Christians, my interactions with her focussed more on issues of academic appeal of her grade in LW’s class which she felt was lower as a result of religious discrimination in the scheduling of the colloquium. The way I see it, there are 2 issues (with some degree of overlap):
…
2. seminar class: CM was taking a class from LW in which DM was also a fellow student. CM expressed that, in the beginning of the term, the date for the colloquium was set for a Sunday at DM’s house. LW offered the entire class input into the date over two subsequent classes and the opportunity to give feedback via email within that 2 week period. At that time, Sunday was the only day available to all class members and no one, including CM, expressed that this date would not work for them. A few weeks later, CM asked LW if she would consider changing the date. LW responded that the date was set, and had been unanimously agreed to, but if CM did not wish to attend due to the day and the fact it was at DM’s house, she could write a paper in lieu of attending. CM insisted that LW’s “refusal to ask the question” [about changing the date] constituted harassment against Christians. I expressed that the requirement that CM did not agree with me and insisted that we would not expect, in a paraphrase of her words, “black students to attend colloquiums at the home of neo-nazis”. She did not seem to understand that these two scenarios are not parallel in terms of their severity and potential risks to one’s physical and psychological safety and well-being. At any rate, CM was not required to attend the colloquium and was accommodated for this equitably by writing another paper. CM seemed to have difficulty grasping the concept of equitable, rather than strictly equal treatment. CM also stated that her grade was lower as a result of not attending the colloquium but I could not find support for this in the documentation provided. Again, CM would not let me contact LW or anyone else in the department to do further fact-finding. I encouraged her to pursue the regular academic appeals channels if she was dissatisfied with her grade.
[151] In cross-examination, Ms. Maughan was asked whether she, in conversation with Mr. Long, likened her situation at the colloquium as “a black student attending a colloquium at the home of a neo-nazi” in the following exchange:
A I vaguely recall giving Anne-Marie Long a – I don’t remember saying those exact words, but I have a vague recollection of giving Anne-Marie Long, trying to give her an extreme example to say, don’t you get it? Don’t you understand that this wasn’t an average situation?
Q And it’s fair – therefore I take it you likened your situation to Anne-Marie Long as one where a black student would be asked to attend a colloquium at the home of a neo Nazi. You made that metaphoric analogy?
A I vaguely recall the gist of – I don’t remember the exact words, but I remember the gist of what I was saying was expressing an idea like that.
[152] Ms. Maughan testified that when she was dealing with the Equity Office she was trying to “sort out how to approach the issue that (she) had been assessed negatively because of (her) faith. “ At some point, she telephoned the Faculty of Graduate Studies (“FOGS”) to ask how to proceed and was told that the Associate Dean would review the circumstances. At that time, the Associate Dean of the Faculty of Graduate Studies was Dr. Anne Rose. Ms. Maughan testified she was told it was better to get the support of the graduate student advisor before approaching the Associate Dean. At that time, the graduate student advisor was Dr. Sian Echard. Ms. Maughan testified that Dr. Cooper introduced her to the “notion of expunging a grade”.
[153] On May 28th, Ms. Maughan sent a 20 page document to Dr. Echard. The correspondence included a 2 ½ page memo titled “My Request to have my Grade Expunged from Professor Weir’s 553 Seminar”, a 3 ½ page document headed “Confidential” setting forth the three reasons why she was seeking to have her grade expunged, along with explanations of those reasons; a 4 page document titled “A Refutation of Professor Weir’s Grounds for Establishing the Grade for my ‘Presentation Pager’” and an 8 page document titled “A Refutation of Lorraine Weir’s Grounds for Establishing the Grade for my Term Paper”. Ms. Maughan also sent copies of her papers and the handwritten comments on them, emailed descriptions to the seminar list from other members on their topics, and texts that would be their presentation at the colloquium, and ultimately their final papers, and, as well, copies of her emails to Dr. Weir relating to the Sunday colloquium and its location.
[154] In her covering memorandum to Dr. Echard, Ms. Maughan described Dr. Weir’s “written articulation (of) how she determined (her) grade” as documenting “the erroneous and inequitable terms with which she treated my academic efforts throughout the seminar”. She asserted that Dr. Weir demonstrated disrespect for her and constructed difficulties for her, compared to the other seminar members. She accused Dr. Weir of having “disregard for her faith” and “was biased against (her) academic efforts.” She asserted that Dr. Weir “attempted to construct (her) and her work as something other than that (she) was and (her) academic questions … as other than they were.”
[155] Ms. Maughan indicated in her memorandum that she was not pursuing punitive action against Dr. Weir or anyone. She copied her documents to her mentor, Dr. John Cooper, Dr. Susanna Egan, Professor and Associate Head of Graduate Studies, and Dr. Sherrill Grace, the Head of the Department of English.
[156] In her document identifying the three reasons for seeking to have her grade expunged, Ms. Maughan asserted the following:
1) In her summation of how she determined my grade Prof. Weir negatively reflects on my “refusal to contribute” to a colloquium which I could not attend because it disrespected my religion. I could not ethically attend the colloquium. Beginning two months prior to the colloquium, I repeatedly asked Prof. Weir to at least attempt to alter at least one of the aspects of the colloquium which disrespected (if not discriminated against) my religion. Both aspects of the colloquium in question were well within her control to alter, or at least attempt to alter, which would have made it possible for me to attend. Prof. Weir refused to even open up the possibility for me to attend.
…
2) My academic freedom to pursue questions of synthesis rather than divisiveness between First Nations Christians and “European” Christians was discouraged. More tangibly, Prof. Weir negatively reflected on my mark based on her own construction of a thesis for my presentation paper which did not exist, but which imagined that I was writing a paper which attempts to historically invalidate the “missionary endeavour” (she cites) to convert First Nations people.
…
3) Prof. Weir held me to a different set of rules than the other students.
[157] After Dr. Echard received Ms. Maughan’s materials, she contacted Dr. Weir. Dr. Weir sent a series of emails to Dr. Echard, the first on June 11, 2001, with a copy to Dr. Grace, (subject: C.M.), the second on June 15 attaching an unsent email dated June 13th, (subject: Cynthia Maughan’s proposal), the third, June 15th, (subject: February 9th memo to C. Maughan), the fourth, June 17th, (subject: English 553 schedule, etc.) with a copy to Susanna Egan.
[158] Ms. Maughan contends that the contents of the emails were all a continuation of the actionable wrongs visited upon her by Dr. Weir.
[159] In the first email, Dr. Weir primarily addressed her view of the difficulties inherent in allowing a grade to be expunged as opposed to reviewed and altered. In the course of the email, she described the plaintiff as deciding that Derrida was a “blasphemous and unscholarly character” and asserted she made it “her mission in the seminar to prove that over and over again.” Dr. Weir wrote:
Finally, I should tell you in confidence that I have on several occasions considered making an official harassment complaint against this student. (I do believe I have grounds) but life is too short and energy too limited.
[160] In an email dated June 13th from Sian Echard to Lorraine Weir, Dr. Echard informed Dr. Weir that she met with Cynthia Maughan who told her she was not seeking a standard reassessment, but to have her grade expunged because she was “working in a “poisoned atmosphere”. She wanted an improved grade and an affirmation she was treated with bias because of her religious beliefs. Dr. Echard summarized the available avenues in her email to Dr. Weir as follows:
1. You would have to acknowledge that you failed to recognize/validate Cynthia’s concerns. She would also be permitted to write another final paper, which would be graded by someone other than yourself.
2. If you are unwilling to accommodate the first proposal, Cynthia will make her case for religious bias to the departmental Equity Committee.
[161] Following the June 13th meeting, in which Sian Echard met with Ms. Maughan and Dr. Cooper regarding Ms. Maughan’s request to have her English 553 grade expunged, Dr. Echard wrote a memorandum summarizing the meeting. According to her notes, she told Ms. Maughan she had received some material from Dr. Weir concerning Ms. Maughan’s request to have her grade expunged. She noted that both she and Dr. Cooper explained that Ms. Maughan’s charge that Dr. Weir discriminated against her was very serious. Ms. Maughan repeatedly responded according to Dr. Echard’s notes that she was not pursuing any kind of charge against Dr. Weir, but Dr. Echard pointed out it was necessary to do so, so long as she sought to have the grade expunged. Dr. Echard noted:
I told Cynthia I would send a message to Lorraine, outlining the situation and that I would, if Lorraine responded in the negative to the first suggestion, fill in Susanna and Dennis Danielson and set up a meeting with the Equity Committee.
[162] In response, rejecting the expunging route and accepting the Equity Committee route, in her June 13th email sent June 15th, (which responded to the June 13th email sent from Sian Echard to her) Dr. Weir offered a further account of her dealings with Ms. Maughan, in giving her a pre-evaluation of her first paper, along with comments in an email, meeting with her at length after class, discussing the issue by telephone and in emails, and by accepting her “extraordinary” decision not to further participate in the seminar.
[163] Dr. Weir described Ms. Maughan’s withdrawal from participation as “dramatic silences that profoundly undermined morale … inhibited free and open discussion and effectively prevented the group from coalescing.”
[164] Dr. Weir also characterized the plaintiff’s attitude towards the colloquium as divisive. She asserted the plaintiff refused to go to the colloquium because she had an argument with Drew Mildon over religious matters and wouldn’t go until he apologized.
[165] Dr. Weir noted that she told Ms. Maughan that if she objected on religious grounds, the event would be rescheduled, but Ms. Maughan told her religion was not the issue. She often did work related things on Sunday. According to Dr. Weir’s email, Ms. Maughan sought “special status” in her requests around the colloquium.
[166] Dr. Weir also asserted that the plaintiff objected to the date for the final paper because “other students got ahead of her in the readings” and she “demanded an extension until the end of May” in a heated telephone conversation initiated by the plaintiff. Dr. Weir described the phone call as upsetting, and that she “considered consulting the Equity Office (herself)”. She described “waiting apprehensively (in the seminar) for another explosion from Cynthia”.
[167] In the June 15th memo (re: February memo to C. Maughan), Dr. Weir described her view of the context of the plaintiff’s first paper and her comments on it, maintained that “the serious spirit in which she interprets Derrida’s remarks does not … correspond to the playful, witty, ironic and sometimes dismissive comments of Derrida’s, which are the occasion of her outrage.”
[168] She wrote that the plaintiff “rejected the notion that her attempted refutation of Derrida was grounded in her own religious faith and angrily insisted that she was personally offended and outraged that such a famous scholar would commit the kind of error of misquotation for which students are routinely chastised.”
[169] She described Ms. Maughan’s participation in the January 30th session as an outburst which lasted 1 – 1 ½ hours, and was disruptive, preventing a discussion of other aspects of the text.
[170] She wrote:
…I think the only occasion on which we relaxed and enjoyed our discussion as a group was at the colloquium which Cynthia refused to attend.
[171] She described the plaintiff as sitting “in towering enraged silence with red face and angry eyes, visibly outraged at Derrida’s thinking”.
[172] Dr. Weir described Ms. Maughan’s final paper as “yet another outrage and outrageous paper in which she resorts even to personal insults at me”. Dr. Weir asserted that the plaintiff was “deeply offended to read of abuses of aboriginal peoples by Christian missionaries and felt sure such claims were wrong …”
[173] In her final, June 17th, 2001 email, Dr. Weir revealed to Dr. Echard that Dr. Judy Segal, a professor in the Department of English from whom the plaintiff had taken a course the previous year “was kind enough to share with me (in confidence) her email file re Cynthia …”.
[174] She went on to note:
Disturbing, but not altogether surprising similarities re endless niggling questions, determined attempts to have deadlines postponed and assignments modified to suit special demands, a refusal to speak to (a co-teacher of the course) … and most noticeably, Cynthia’s tendency to back herself firmly into a corner and then fight with great vigour to extricate herself.
[175] Dr. Weir suggested that Ms. Maughan rejected the negative impact of Christian run residential schools, and regarded negative characterizations of them as religious bias.
[176] She described Ms. Maughan’s final paper as a “diatribe”, much of it personally insulting to her.
[177] She concluded:
Most of the students had no previous acquaintance with ‘First Nations’ cultures and histories. Most had at best a rudimentary knowledge of some clichés of contemporary theory. This was another difficult conjunction. I regret that Cynthia was unable to sustain herself through this process and that her experience of backlash is taking the present form. I was indeed the messenger of historical and theoretical and literary bad news from Cynthia’s point of view, but not the inventor of it.
THE SEGAL FILE
[178] Dr. Judy Segal is the fourth faculty defendant in this action. In the 1999/2000 academic year, she co-taught a year long English seminar with Dr. Alan Richardson, which the plaintiff was enrolled in. The email file referred to by Dr. Weir in her June 17th email, relates to a series of email exchanges between Ms. Maughan and Dr. Segal, commencing in late March 2000 concerning the course and assignments.
[179] The initiating email from the plaintiff to Dr. Segal was on March 28th and in it, the plaintiff described Dr. Segal’s comments on Ms. Maughan’s discussion paper on which she got a bad mark as “curious” and asked “I just need to be sure about understanding the idea of expanding previous work and to any comments you can offer me on how to approach it will be appreciated”.
[180] A series of communications ensued, which included a telephone message left by Ms. Maughan for Dr. Segal, responded to by an email in which Dr. Segal wrote:
I have your phone message but I can perhaps be more clear in writing … and then you will have a record too, of my response.
[181] She concluded the email after acknowledging “difficulty” in answering Ms. Maughan’s questions, as follows:
I hope this helps. You’ve asked some unanswerable questions – both too general and too specific at the same time. Anyway, the question for an excellent paper is seldom what does the professor want? More often it’s what might count as a good answer to this good question.
[182] In response, Ms. Maughan wrote in part, as follows:
Well, because our e-mail exchanges are obviously not serving answer what I believe are valid and answerable questions, I would have appreciated it if my phone call was returned in order to have an interactive discussion. (I am not sure why you thought a record of your response would be of value instead.)
…
I think my questions … are valid and, as the Prof. for this particular seminar, it would be yourself who would answer any particular questions with regards to it. However, because we cannot make progress on this, could you suggest someone else who might be able to answer my questions on your behalf?
[183] Dr. Segal emailed back:
In the world generally at the moment, it is not unheard of to have a phonecall answered with an email message. The email I sent to you yesterday was my best attempt, within a couple of hours of getting your three-minute voice message, on an extremely busy day, out of office hours, to respond to your concerns.
Of course, Alan is available for discussion if you now prefer not to talk to me (although I understood before you preferred not to talk to him). And, of course, you are welcome to stop by my office, as you have before, during office hours – or to make an appointment to see me.
[184] Ms. Maughan responded as follows:
With all due respect, I am very distressed and concerned with how you are characterizing me in your e-mails. I am a very professional and responsible person, and I do not like the insinuation that I am volatile or flaky in my academic relations. For example, I am not sure why you would want to create the suggestion that I at anytime “preferred not to talk to (Prof. Richardson)”, and now don’t want to talk to you. I have never indicated (or even thought) that I didn’t want to speak to Prof. Richardson, and I don’t know on what grounds you could possibly suggest it.
The situation as I see it is: I asked you some valid questions regarding the term paper to which I don’t have clear answers. I am obviously not questioning your ability to answer them – you are clearly a very capable Professor and rhetorican; I don’t, however, understand your seeming unwillingness to give my direct questions unclouded/unqualified responses. Considering the complete misunderstanding we had over the discussion paper which resulted in a very poor grade for myself (at that time, you said your computer had broken down and that is why you couldn’t answer my questions regarding your expectations for the discussion paper), I am not willing to simply give up on requesting a clear understanding of your requirements for the term paper.
Because I simply want to get on with my academic work, I would like to respectfully request your suggesting someone who can answer my questions on your behalf. Because you have now created this suggestion regarding Prof. Richardson, I think that it is no longer an option for me to speak to him. I would like to respectfully request that you suggest someone who can answer questions on your behalf with a fresh perspective.
[185] Dr. Segal responded with the following:
I have, to the best of my ability, answered your questions. If you believed, at any point, that I was not answering them, you had the option of consulting Alan – an option you, obviously, chose not to take. No one can speak “on my behalf” about this paper. But I will tomorrow turn your file, with copies of all of our messages, over to Prof. Egan, who, as Graduate Chair, is the appropriate authority in this matter. I very much hope you will also ask her (or her designate) to read your discussion paper. It is, in fact, not the view of your English 509 professors that the weaknesses in that paper are explained by a misunderstanding of genre expectations.
[186] Ms. Maughan sent Dr. Segal an email thanking her for referring her to Dr. Egan and saying in part, as follows:
That you would keep a record of all of our emails speaks a great deal of your view towards me, and my sense of your reluctance for whatever your reasons to speak directly to my concerns as a student in your seminar. I have no idea why this has been the case.
[187] Ms. Maughan then wrote an email to Dr. Egan and Dr. Echard, referring to a “distressing situation in one of her seminars” in which she and Dr. Segal have had “a terrible time communicating”. She asked to be permitted to withdraw from the course asserting:
I am not sure that Professor Segal has any idea how hard it is on the self esteem and identity of a student, to be treated as suspicious and a nuisance – especially with no cause.
[188] On the same day, April 5, 2000, Dr. Segal sent a letter to Dr. Egan along with copies of the series of emails between the plaintiff and her. The letter summarized the dealings between Dr. Segal and the plaintiff throughout the course.
[189] Dr. Segal summarized the nature and extent of her contact with the plaintiff throughout the course and explained how and why the plaintiff received a “B” on her discussion paper in January, which left her “unhappy in the course” and “very anxious about the requirements of the term paper.”
[190] Of the lead-up to the breakdown in communication, Dr. Segal noted as follows:
Her question to me, I think, was whether she could import material from her other two assignments into this one. I answered (already had answered when the question was posed) as clearly as I could, but she seemed to think I had not answered, and asked me again. I answered again, but again, she said I had not answered, and asked me again. All of this conversation took place on email, so you will have the relevant messages in front of you. But on Monday (3 April), some time between 2:30 and 3:30 p.m., she left me a 3-minute voice message in which she, I think, asked her question again. And I answered again, but on email, and this seemed to make her angry …
[191] Subsequently, Dr. Egan, having reviewed the plaintiff’s email, Dr. Segal’s letter and the series of emails, wrote Ms. Maughan, Drs. Segal and Richardson and Dr. Echard, setting out her decision to not permit Ms. Maughan to drop the course, but to establish a process to have Drs. Segal and Richardson grade Ms. Maughan’s final paper and have the final paper and the earlier discussion paper reviewed by a panel of the graduate committee.
[192] In her letter, Dr. Egan noted that she was “puzzled by Cynthia’s repeated questions because Judy’s answers always seemed clear to me and are repeated several times.”
[193] She ended up by asserting:
Either way, the review committee will serve the best interests of a professor who has clearly gone out of her way to provide guidance and of a student who remains unhappy and confused.
[194] Dr. Egan’s email prompted two responses from Ms. Maughan on April 5th. In the first, she reiterated her complaints about Dr. Segal’s responses to her as vague and contradictory and described Dr. Egan’s characterization of her as “unhappy and confused” as “deeply insulting and unwarranted”. She referred to Dr. Egan’s rapid fire response as “stunning” and implied her reading of the situation was hasty and superficial. She concluded “your false characterization of me has radically altered my perception of the process.”
[195] In a second email, Ms. Maughan outlined her working experience in a Fortune 500 company for 12 years to off-set the suggestion that she required intensive guidance. She characterized Dr. Segal’s answers to her questions as “cloudy and qualified … to the point of contradiction”, asserted that she works well independently and has as a strength “persistence, especially when there is a truth that is not being heard.”
[196] Ms. Maughan wrote another email the following day to Dr. Egan, titled “A very important correction to your memo of April 5, 2000 that I now realize”. In the email, Ms. Maughan emphasized that it was Dr. Segal who “escalated (her) question to you” and questioned whether the appeal process was “in (her) best interests”. She asserted that she would “have someone I trust read my other work in light of an appeal. Something I do not do lightly”.
[197] In light of the plaintiff’s expressed concerns and difficulties, Drs. Segal and Richardson agreed to give her a two week extension for the due date of her paper. Ms. Maughan confirmed that her paper would be submitted on the due date.
[198] Ms. Maughan submitted in evidence an undated handwritten note which appears to refer to what Dr. Weir described in her June 17th email as Dr. Segal’s “file” regarding the plaintiff. It reads as follows:
Lorraine, here’s a copy of the letter I wrote to Susanna on CM matters last April – and copies of emails, the ones (the interaction) that came at the end of the course as things heated up. All looks pretty tame to me now. Hope this helps. Judy.
THE MEETING WITH THE EQUITY COMMITTEE
[199] On June 15th, after further communication with Dr. Weir and following receipt of Dr. Weir’s email opting for “route 2”, (the departmental equity committee) Dr. Echard wrote to Ms. Maughan informing her that as Dr. Weir was not wiling to accede to her proposal, “the next step is the department’s equity committee” and asking her to contact Dr. Egan and Dr. Dennis Danielson of that committee to set up an initial meeting.
[200] There was some ongoing communication between the plaintiff and Dr. Echard concerning whether the appropriate next step was to the Department of English Equity Committee, or to the Faculty of Graduate Studies Associate Dean. Ms. Maughan agreed to meet with the Equity Committee but asked if Drs. Egan and Danielson alone “could review the situation”. It was agreed that Drs. Egan and Danielson could act for the English Department Equity Committee.
[201] On June 16th, Ms. Maughan sent an email to Drs. Egan and Danielson in relation to her concerns. She explained “the core of her contention is that Professor Weir’s statements document that she treated me differently than other students in the seminar for reasons that were ideological and religious.” She indicated that she would have Dr. Echard forward her documents and supporting material and expressed some concern at the confidentiality.
[202] Dr. Egan informed Ms. Maughan that “Sian Echard has passed on to me the documents that you gave to her, so we do not need to ask for any materials. We will not be sharing these materials with anyone else …”
[203] Ms. Maughan requested to have Dr. Cooper present and Sian Echard as her graduate advisor. Dr. Egan responded that it was not necessary to have them present. She wrote:
What seems most useful … is that you should meet with Dennis and me tomorrow for an hour, as planned. We will then listen carefully but we will not respond in terms of arriving at conclusions or giving you advice. We will deliberate after the meeting and may well want to consult Sian Echard and John Cooper at that point. We would like, then, to follow this meeting tomorrow with a second meeting with you (possibly but not necessarily including Professors Echard and Cooper at that point) in order to respond to your concerns.
[204] Ms. Maughan responded, reiterating her desire to have Dr. Cooper present outlining the reasons for her wish, for his presence and assuring Dr. Egan he would not do other than listen.
[205] Dr. Egan responded on June 19th, at 2:32 p.m. that although understanding why Ms. Maughan wanted Dr. Cooper present … tomorrow’s (meeting) is just an informational meeting in order to bring Dennis and me up to speed and the simpler/smaller we keep it the better … for our follow-up meeting when we try to arrive at our best advice to you, I think John and Sian would be helpful.”
[206] Ms. Maughan replied by email on June 20th at 8:40 a.m. explaining that she regarded the process as resting on “the substantial and available documentation written at the time of occurrence” and was concerned that Dr. Egan’s approach was to rely on “verbal interviews” to gather “hindsight recollections”. She wondered “if this explains your declining John Cooper’s attendance at the meeting.”
[207] In the result, Ms. Maughan agreed to meeting with Drs. Egan and Danielson without Dr. Cooper being present. She sent them an email dated June 16th in which she offered to send to each of them, hard copies of the documents which she had earlier sent to Professor Echard on May 28th.
[208] In response, Dr. Egan sent an email to Ms. Maughan, with a copy to Dr. Danielson, in which she said as follows:
Dennis Danielson and I both have an hour at 2:15 p.m. this Wednesday the 20th if you would like to meet with us then. Sian Echard has passed on to me the documents that you gave her, so we do not need to ask for any materials. We will not be sharing those materials with anyone else because no one else has been or needs to be concerned with the issues you raise.
[209] It appears that in addition to Ms. Maughan’s materials, Dr. Echard sent to Dr. Egan the emails and materials sent to her and relied on by Dr. Weir in resisting the notion of expunging the English 553 grade, and as well, Dr. Egan had received a copy of Dr. Weir’s email to Dr. Echard, dated June 17, 2001. On June 14th, Dr. Echard also sent Dr. Weir and Dr. Egan a copy of her memorandum, summarizing her meeting with Ms. Maughan and Dr. Cooper on June 13, 2001.
[210] The meeting between Drs. Egan, Danielson and Ms. Maughan took place on June 20, 2001. Ms. Maughan testified the meeting took place in the English department’s boardroom. She said Dr. Danielson told her it was a quasi judicial situation and it was in camera. She told them what happened, but had no clear recollection of the words she used. They asked her a few questions and the meeting ended in about 45 minutes. Ms. Maughan testified she was satisfied with the meeting because she was aware they had all her documents and she emphasized they were the foundation for her complaint.
[211] Drs. Egan and Danielson also met with Dr. Weir following their meeting with Ms. Maughan. The meeting with Dr. Weir was held on June 25, 2001 and its purpose was to hear from her in relation to Ms. Maughan’s complaints.
[212] Dr. Danielson kept notes of the meeting which appear to reference Dr. Weir telling him and Dr. Egan that she did not know about the “prehistory” of the colloquium relating to the email posted by Drew Mildon on the list serv exchange. The notes also indicate that Dr. Weir told Drs. Egan and Danielson that her deadlines were explicit in the course schedule, referred to Ms. Maughan taking a vow of silence and showing “blatant disrespect for the material” of the course. In addition, Dr. Danielson’s note reflects that Dr. Weir, who is a lesbian, asserted her belief that “sexuality is a dimension of this context.”
[213] Dr. Danielson who testified for the plaintiff, said that Dr. Weir’s remark to him and to Dr. Egan about believing Ms. Maughan was reacting to her sexuality, did not link that belief to Ms. Maughan’s Christianity. Dr. Danielson testified that Dr. Weir did not express the view that because someone was Christian, they were therefore homophobic. Dr. Danielson testified that he was a Christian and identified himself as such among his colleagues and students.
[214] Dr. Danielson also testified that to his recollection, the Equity Committee decision was based entirely on the oral information received from Ms. Maughan and Dr. Weir during their respective interviews. He denied receiving or being aware of the 23 pages of written documents sent by Dr. Echard to Dr. Egan regarding Ms. Maughan’s request to have her grade expunged (the May 28th appeal document). Dr. Danielson testified that expunging of grades and grade appeals were “academic matters relating to issues within the graduate program” and he would not have expected those documents to be included on the discussion of the equity matters. He acknowledged that he recalled Ms. Maughan wanted to ensure that the matter was dealt with on the basis of “the documentation” but he thought the reference to documentation was the paper written by Ms. Maughan and Dr. Weir’s comments on it. He did not remember if he had received copies of Dr. Weir’s June emails.
[215] Dr. Danielson remembered there having been “a fair bit of documentation” and the documentation he thought was relevant to the issue of equity was the paper that Ms. Maughan had written and the comments made on that. He said the rest of the decision was based principally on the oral comments Ms. Maughan made and the oral response made by Dr. Weir.
[216] Dr. Danielson testified that the paper he recalled seeing was Ms. Maughan’s final paper. Dr. Danielson testified that he did not recall and did not believe that he had the emails from Ms. Maughan, recording her “request to have the date changed from Sunday”.
[217] Ms. Maughan testified that the next thing that happened was that she got an email from Dr. Egan to meet over the decision. Dr. Cooper attended with her. At the subsequent meeting she was given a letter setting forth their decision and their conclusions. She said at the outset that Dr. Danielson sat down across from her, Dr. Egan at the head of the table and Dr. Danielson read the letter. After the letter was read, Dr. Danielson asked if she had any questions. She was “devastated and shocked” and said “no”. She just wanted to leave and left. Dr. Cooper remained and she later met with him in his office. The letter referred to by Ms. Maughan was dated June 28, 2001 and it read as follows:
Dear Cynthia:
In response to your request (by email, 16 June 2001) that we meet with you and review the file regarding your experience in ENGL 553 this past winter term with Professor Lorraine Weir, we have done the following:
· Studied the file of written material with which you provided us.
· Formally met in camera with you (as you know) for one hour to hear your oral comments concerning your situation with respect to ENGL 553.
· Formally met in camera with Professor Weir for one hour to hear her oral comments concerning your situation with respect to ENGL 553.
· At each stage, deliberated at length with one another concerning your case, including matters of correct procedure.
Our conclusions are as follows:
Although there were clearly regrettable tensions related to issues of religion that preceded the start of the ENGL 553 seminar in January 2001 (for which Professor Weir bore no responsibility), and although there may have been a certain amount of religious tension connected with the legitimately controversial nature of some of the material studied and discussed in ENGL 553, and although these tensions may have understandably caused you some discomfort, we do not believe there are grounds for alleging that Professor Weir treated you differently from other students in the seminar for reasons of religion or ideology. Indeed, we conclude from the evidence that Professor Weir devoted much time and energy to ensuring that you were not disadvantaged and that your rights were protected. We therefore do not believe that either you or we have grounds for proceeding further with your contention that you were “treated differently.” We also do not see grounds that would suggest your work was evaluated unfairly.
Accordingly, your options at this point, as we see them, are as follows.
1. To accept our judgement, as expressed above, and to refrain from further complaint or appeal. (This is, perhaps obviously, the option we strongly recommend, though the recommendation is advice only.)
2. To take your case to the Equity Office.
3. To take your case either directly or indirectly to the Senate Appeals Committee.
Whichever option you choose, we offer you our best wishes for the future, and we now consider this case closed at the departmental level.
[218] Dr. Egan prepared notes of the meeting which indicated that Ms. Maughan responded that the committee had not addressed her itemized concerns and requested something be added to the letter about the differences she felt had been made between herself and other students leading to her grade. According to Dr. Egan’s notes, Ms. Maughan ultimately accepted the letter “was the final verdict from this committee”.
[219] Ms. Maughan testified she felt frustrated that the committee had not responded to her May 28th document and there was no response to the basis upon which she had put forward the appeal. She faxed a letter dated June 29th to Drs. Egan and Danielson with a copy to Dr. Cooper, Dr. Echard and Dr. Sherrill Grace, the head of the Department of English. She acknowledged that she had asked them to add one or two sentences to the letter “to acknowledge at least two aspects of the matter as I had brought it forward”. She then restated briefly the reasons why she “brought the matter forward” as outlined in her letter of May 28th “being held to a different standard, having her academic freedom discouraged and being penalized for refusing to participate in a colloquium which she could not attend”.
[220] She concluded:
Your letter also opens a new aspect to this situation. Your letter over-rides and minimizes how I stated I felt during situations in which my faith was being deeply disrespected, with your own characterization of what you feel I, by your measure, would understandable fee: “tensions (in this situation) may have understandable caused (me) some discomfort.” As I stated in my documentation, I was deeply distressed at times about the statements being made about Christianity – not merely “discomforted”. I hasten to add that I always proceeded in the seminar on an academic basis in spite of suggestions at the time to characterize me otherwise, and I did not articulate my deep distress about matters of faith to seminar members except in a very professional way when I met with the instructor privately as indicated above.
[221] Following that, Ms. Maughan sent a letter dated July 3, 2001 to Dr. Anne Rose, the Associate Dean of the Faculty of Graduate Studies, to ask for her assistance in “obtaining clear answers and acknowledgements … to the issue that (she) raised”. She referred to policies she thought might be implicated: #85 “Scholarly Integrity” and #97 “Conflict of Interest”.
[222] In response, Dr. Rose invited the plaintiff to meet with her and a meeting was arranged for and held on July 6th. Ms. Maughan testified she gave Dr. Rose a sense of what happened and described her as “very pleasant” and wanting to help. Following the meeting on July 6th Ms. Maughan sent two emails to Dr. Rose. In the first email she explained she hoped to discuss some questions she formulated in relation to university policy and practices “to help (her) get (her) bearings” before making a decision as to what to do next. Ms. Maughan then went on to pose some 21 questions in the two emails, all apparently directed at the circumstances giving rise to her complaint as she saw it.
[223] She testified she got no response that she could recall from Dr. Rose.
[224] In the meantime, Dr. Sherrill Grace, the Head of the English Department wrote the plaintiff on July 4th, concurring with the decision of Drs. Egan and Danielson, explaining that because Ms. Maughan met with both associated heads, it was not necessary for her to see Ms. Maughan, but would be pleased to if she wished.
[225] On July 18th, Ms. Maughan emailed back to Dr. Grace advising her that she “now applied specific policies and rules to the appeal” and asking if Dr. Grace would like to meet with her and Dr. Cooper. Dr. Grace agreed to meet and did so with the plaintiff and Dr. Cooper on July 24th, 2001.
[226] Ms. Maughan testified that before meeting with Dr. Grace, she gave some thought to what a solution to the issue would be, and came up with her getting 23 days to re-write her paper, to put her on an equitable footing with others in the class. She described the meeting with Dr. Grace as a formality, and regarded her as “inhospitable”. She brought up the idea of having 23 days to rewrite the paper “and the meeting ended quite abruptly”. After the meeting, she sent Dr. Grace a letter reiterating her request for “23 days to incorporate Professor Weir’s feedback, which she provided on (my) colloquium paper” only after I had written my final paper, thereby defeating the purpose and precluding me from the benefit of the feedback in the formulation of my final paper.
[227] Ms. Maughan asked Dr. Grace to make a decision before Dr. Grace went on vacation and noted that she wanted “some very specific items (she) would want written assurance of in coming to this agreement”.
[228] Dr. Grace responded via an email from her secretary that she “does not decide on the 23 days”. It could only be decided by Dr. Weir at a joint meeting, “as she has clearly explained to you”.
[229] Ms. Maughan did not subsequently seek a follow-up meeting with Dr. Grace and Dr. Weir to pursue with them the 23 day solution. She did, however, pursue and appeal through the Faculty of Graduate Studies by writing a letter on August 7th to the attention of Dean Granot, the Dean of the Faculty of Graduate Studies. Ms. Maughan testified that at that point, she had become aware of policy #65 and she believed, in effect, that it clarified the case and was the proper foundation on which to proceed.
[230] Policy 65 titled “Religious Holidays” reads as follows:
Recognizing the religious diversity of the UBC community, UBC permits students who are scheduled to attend classes or write examinations on holy days of their religions to notify their instructors in advance of the holy day of their wish to observe it by absenting themselves from class or examination. Instructors provide opportunity for such students to make up work or examinations missed without penalty. …
[231] The purpose of Policy #65 was “to enable students and members of faculty and staff to observe the holy days of their religion.”
[232] Ms. Maughan testified that she wanted to try and come to a solution and so her appeal to the Faculty of Graduate Studies was very much an olive branch to Dr. Weir to say … “I’ll just chalk this up to a misunderstanding.”
[233] In her letter to Dean Granot, Ms. Maughan identified the basis of her appeal of her 553 grade as being “Policy #65, the pedagogical process outlined in the seminar’s syllabus and written documentation by and between Dr. Weir and (herself).” She pointed out that she gave more notice than required under Policy #65, and that the syllabus provided that feedback on work submitted will be given “during the process” of the seminar, not just at the end. She described Dr. Weir’s failure to comment on her presentation paper as “due to an inadvertent error” and explained that she did not follow up with Dr. Weir because she “knew from the earlier experience that she would receive communications and simply not respond until she was ready and (Ms. Maughan) could not risk annoying her further.”
[234] She requested approval to re-write the paper with the same 23 days as the other students. She said she “did not believe that Professor Weir would knowingly breach a university policy by penalizing her academically for her religion”. She described Professor Weir as someone she knew “to be fair and respectful of her religion in spite of (their) religious differences which surfaced previously in an undergraduate course.” She argued that although her initial tacit agreement of the Sunday class might in some cases disentitle her to subsequently complain in the human rights context involving employers and employees, it was different in the academic context and she was ultimately penalized for her religious beliefs.
[235] Ms. Maughan included a 4 page document titled “Policy #65 and Seminar Syllabus” in which she expanded upon the contentions she made in her covering memorandum.
[236] Ms. Maughan subsequently received two contradictory letters from Dr. Rose, the Associate Dean of the Faculty of Graduate Studies. The first one was dated August 13, 2001. It read in part as follows:
In a discussion with Dr. Susanna Egan in the Department of English, I am informed that you have the opportunity to re-write your final paper. Since you state in your letter that … I hope my appeal will find a resolution that both allows me to write a final paper as close as possible to the circumstances under which the other students wrote and contributes to clarifying … I am hopeful that you will accept this opportunity as a satisfactory resolution to the problem.
[237] The letter was evidently sent on September 12th. A second letter from Associate Dean Rose dated August 31st read as follows:
I have been in communication with the Department of English. In light of the work that Dr. Weir did to accommodate you during the course, and in light of the decision of the department’s Equity Committee, which confirmed that Dr. Weir and the department have taken all possible steps, it is not possible for a new paper to be written for this course.
[238] Dr. Rose informed Ms. Maughan of her right to pursue an Appeal of Assigned Standing in the second letter. That letter was apparently sent on September 13th and was received by Ms. Maughan the day after she received the first letter.
[239] Between the two letters, Dr. Rose received a letter from Dr. Egan dated August 21st, “sending you a copy of our file on Cynthia Maughan’s difficulties with English 553 (January 2001)” with points in the conversation pertaining to the colloquium being held on a Sunday being flagged.
[240] Later on, on August 30th, Dr. Grace, Head of the English Department, wrote to Dr. Rose in relation to her “draft letter to Ms. Maughan” considering the possibility of telling her re-writing is an option, and advising that after discussions with Dr. Weir, “this will not in fact be possible … in light of the work Dr. Weir did for the student during the course and in light of the department’s Equity Committee … which confirmed all possible steps had been taken …”
[241] On September 17th, Ms. Maughan sent an email to Dr. Rose reviewing aspects of her appeal, which he thought may have been confused or not addressed in the Faculty of Graduate Studies’ response and asking that Dr. Rose clarify the two inconsistent letters to her and to “let (her) know what work the instructor did to accommodate (her) without her knowledge.”
[242] On the same day, Dr. Rose emailed back to Ms. Maughan to the effect that the second letter August 31st was applicable and asserting:
In your specific situation, the instructor provided you with a substitute exercise to replace the feedback you would have received at the colloquium.
[243] On September 20th, Dr. Granot emailed Ms. Maughan, evidently in response to telephone messages left, saying as follows:
I concur with Ann’s decision as conveyed to you in her email of Monday, September 17th. If you do not accept our decision, I would advise you to proceed with a final appeal process.
[244] On the same day, Ms. Maughan sent a responding email in which she requested that Dr. Granot print off the email correspondence between Dr. Rose and herself and sign it “as recognition that this is the decision and the explanation for it that (she) was supporting for the sake of clarity.” Ms. Maughan attached her email to Dr. Rose, on September 17th and Dr. Rose’s responding email of the same date.
[245] On September 21st, Dean Granot wrote back and said:
Cynthia, I have read the attached and the most recent correspondence from Dr. Rose and stand by my decision.
Frieda
[246] Ms. Maughan responded by email, asserting that Dean Granot responded to only one-half of her request, making it clear that she supported Dr. Rose’s decision, but did not answer whether she had anything to add to it. She again requested Dean Granot to print off the email and sign it.
[247] In the meantime, on September 19th, Ms. Maughan began corresponding to Dr. Barry McBride, the UBC Vice-President, Academic Affairs and Provost, reviewing the circumstances of her appeal and the FOGS response, indicating she would like to amend her appeal request from being permitted to re-write her paper to receiving a replacement grade of 79% instead of the 73% she was awarded.
[248] She asked in conclusion:
Could you please decipher the response from FOGS and/or encourage a response from FOGS on my amended appeal request.
[249] She received a telephone message from the office of the Vice President Academic on September 21st, indicating the Vice President might have an hour the following week and suggesting that she speak to the Ombudsperson. Ms. Maughan responded to the effect that she thought Dr. McBride might be more effective in encouraging a response from the Faculty of Graduate Studies.
[250] On September 25th, Dr. McBride wrote Ms. Maughan, informing her that he was unable to intervene in individual cases regarding academic studies, and recommended she pursue her appeal to the Senate Committee. He also indicated that by copy of his letter to Dean Granot, he would ask her to respond to Ms. Maughan’s question regarding the rationale for the decision.
[251] On October 4th, Dean Granot sent Ms. Maughan a letter which reads as follows:
In response to your email of September 21, 2001 requesting that I confirm Dr. Rose’s decision of August 31, 2001 stating that “it is not possible for a new paper to be written” for English 553. In response to your appeal to the Faculty of Graduate Studies, we have done the following:
Dr. Rose met with you on July 6 to discuss your appeal based on Policy #65. At that time she discussed a number of options with you including your right to take this case to the Senate Appeals Committee. This meeting was followed with phone conversations restating this possibility.
Dr. Rose has reviewed the appeal process conducted by the Department of English and concluded that the process was properly undertaken and that your concerns were fully investigated.
I have personally reviewed the written correspondence and spoken with you.
I can assure you that there are no other reasons for my decision other than the fact that I am satisfied that your case was thoroughly investigated by the Department. The words “inadvertent administrative error” came from your letter dated August 7, 2001. The Department has concluded based on their investigation that “Professor Weir devoted much time and energy to ensuring that you were not disadvantaged and that your rights were protected” as stated in their letter of June 28 to you.
[252] On October 10th, Ms. Maughan informed Dean Granot that the next day she “would like to come by and look at the information you have on me in my appeal file, including a copy of the results of the investigation that you have stated was conducted on my appeal request.”
[253] Dean Granot emailed back asking her to contact Dr. Rose, who was not in that day and then emailed Dr. Rose asking if she could come in the next day (October 12).
[254] Dr. Rose emailed Ms. Maughan, telling her she had to make application through the Freedom of Information Act to have her filed released.
[255] On the same date, October 15, 2001, Ms. Maughan sent a letter to Dean Granot with a copy to Dr. McBride seeking to see her file to see a copy of “the thorough investigation” and the rationale for the decision. She wrote that she understood a letter had been sent to Dr. McBride explaining the rationale and wanted to see it or “piece it together” herself.
[256] On October 22nd, Ms. Maughan again wrote to Dr. McBride to seek his assistance in obtaining a rationale for the Faculty of Graduate Studies’ disposition of her appeal and posing questions about the propriety of declining her access to see what was on her file and to permit her to find out what the “thorough investigation” consisted of. She expressed concern that a Senate appeal would involve “unknown legal manoeuvrings that could damage (her) and (her) academic work beyond repair.”
[257] Ms. Maughan continued email correspondence with Dr. Rose seeking a “rationale” for the Faculty of Graduate Studies’ decision.
[258] In the meantime, beginning on September 20th, Ms. Maughan had some correspondence with Dr. David Holm, the Acting Registrar and Director of Enrolment Services to institute an appeal to the Senate. Ms. Maughan sought an extension of time for filing the necessary documents while she sought and waited for the rationale from the Faculty of Graduate Studies. She was granted an extension to November 15, 2001.
[259] On October 31st, Ms. Maughan received a formal decision on her appeal to the Faculty of Graduate Studies. It was entitled “Appeal Decision”. It stated the issues as:
1. Was Ms. Maughan academically penalized for not attending the Sunday, March 11th colloquium? And
2. Have correct university procedures been followed in the department’s investigation of Ms. Maughan’s request for a review?
[260] In addition to articulating the issues, the decision set out an introduction background in evidence and a conclusion. The conclusion read as follows:
On behalf of the Faculty of Graduate Studies, Associate Dean Rose concluded that the correct university procedure had been followed in examining Ms. Maughan’s request for a review of the circumstances surrounding her treatment in English 553. The issue of whether or not Ms. Maughan was academically penalized for not attending the Sunday March 11th colloquium was investigated by the Equity Committee and they concluded that she was not disadvantaged.
[261] Ms. Maughan testified that in her mind, the answers to the questions identified as issues “never materialized” and there were statements in the decision that she “strenuously objected to”.
[262] Accordingly, she emailed Dean Rose asking “when will you be sending me the rationale for your decision” and identified “a few odd errors in the commentary surrounding the chronology of the appeal” and asserting that the evidence referred to in the decision that she told Dr. Weir “she often did work related things on Sundays and that religion was not an issue” in the colloquium, was a large error. She asserted in her email “the clear and only reason I did not attend the colloquium on a Sunday was because it conflicted with my religion.”
[263] In response, Dean Rose wrote on November 2nd:
My understanding is that you did not invoke Policy #65 as the reason for not attending the Sunday colloquium and thus, the policy does not apply. In the departmental review, no evidence was found that you were academically penalized for not attending.
[264] Ms. Maughan responded with an email disputing and questioning Dr. Rose’s understanding of the issue and pointing out that Dr. Weir, in her comments on the plaintiff’s final paper, noted she “did not have the benefit of the colloquium” and that she did not receive the benefit of Dr. Weir’s feedback until after the end of the seminar. Ms. Maughan again requested Dr. Rose’s response to the question whether she was academically penalized for not attending the Sunday colloquium on the basis that she was a graduate student and “her appeal belongs with the Faculty of Graduate Studies”.
[265] On the same day, (November 2nd) Ms. Maughan emailed Dr. Holm to “update him on (her) appeal”, expressing hope of a resolution with FOGS, referring to the possibility of a mediation taking place and indicating she was going to make an FOI request to illuminate the “investigation that took place”. She wrote that she was trying to resolve the matter short of a Senate appeal.
[266] On November 14th, Ms. Maughan wrote Dr. Holm again, seeking a further extension to December 31st, in order to obtain and consider materials through a freedom of information (“FOI”) request and because of irregularities in the processing of her appeal, which she wished to remedy.
[267] Dr. Holm wrote back to the plaintiff on November 14th, granting an extension to November 23rd only to allow her sufficient time to accommodate the information provided through her discussions with Dr. Rose and “those who provide you with counsel”.
[268] On November 15th, Ms. Maughan sent two emails to Dr. Holm repeating her reasons for wanting an extension and her desire to avoid a Senate appeal. She indicated that she was attempting to arrange a meeting with FOGS to present her case with the assistance of Annike Gauthier, the President of the Graduate Student Society.
[269] Between November 14th and 20th, Ms. Gauthier attempted on behalf of Ms. Maughan to arrange a meeting with representatives of the Department of English and FOGS for Ms. Maughan to make her case.
[270] On November 19th, Ms. Gauthier wrote to Dr. Grace, in part, as follows:
While I understand you have met with (Ms. Maughan) on several occasions to discuss your complaint, Cynthia does not seem to be satisfied.
While she could appeal to the senate, it would be preferential if an amicable resolution could be obtained at a lower level first.
Cynthia would like to be able to present to a representative from the department from FOGS for 15 minutes, uninterrupted, with 45 minutes of discussion period, with her supervisor and me in attendance. I would bring a timer to ensure that time commitments are kept.
Dr. Anne Rose in FOGS has agreed to attend this meeting.
Would you be willing to attend?
[271] Dr. Grace asked Dr. Egan for her thoughts. Dr. Egan responded as follows:
Oh dear oh dear –
My thoughts: 1. Cynthia has been through due process in the department. She has not met with you several times but she has met with your assoc heads for two formal meetings, and with you once, for a total of three meetings in which her concerns were well aired. She received our carefully considered responses in writing. (We also know that she went to Equity, but withdrew her concerns from their file when she understood that they, like us, did not see that she really had a case.) 2. Then, instead of going to Senate, she went to Anne Rose and to Barry McBride and, clearly, to the GSS.
My questions are these: 1. what does Cynthia hope to achieve with the meeting she proposes that has not been achieved by all of these earlier conversations? What does she want to have happen as a result of this meeting? What is its purpose? 2. Who is involved in this meeting? A representative from the department = you? The Head? With Anne Rose from FOGS? With John Cooper (who may be her supervisor, but I’m not aware that he has seen a thesis proposal)? And with the President of the GSS? If Cynthia is devising some “amicable” solution to her problems, I suggest she needs to spell out just why all these people who have heard her and who have told her what they think should come together to hear her again. I am of course, prepared to be the dept rep should this meeting go forward, but my first take is that Cynthia would have less time on her hands if she were writing a thesis and has used up more than her fair share of time and process on a question that has repeatedly been answered. As I say, oh dear oh dear!
[272] Following that, Dr. Grace wrote to Ms. Gauthier as follows:
I have met once with Cynthia about this and have given her my best and only advice. She has had two lengthy meetings with my Associate Head, Graduate Studies, Dr. Susanna Egan, and there has been considerable correspondence. All in effort to understand her perspective and to advise her on what to do. I regret that I cannot now see anything to be gained from yet more meetings. I would suggest that you consult with Dr. Egan, who I have copied on this message, in case there is something truly new about the case. Without something truly new, there cannot be any change in the advice already given, by many people, on several occasions to date.
[273] Ms. Gauthier responded with a further request to Drs. Grace and Egan for a meeting to which Dr. Grace responded with a request that Ms. Gauthier contact Dr. Egan, remaking that “unless Dr. Egan is convinced that there is truly something new here, I do not see what could be achieved.”
[274] Dr. Egan responded, pointing out that the plaintiff had a full hearing with the English Department and could either accept the ruling or appeal to the Senate, but instead engaged in “very contentious communication with (the Dean and Associate Dean of FOGS)” and as well, going to other offices on campus and talking to Ms. Gauthier. Dr. Egan noted that the university administration has been working with the plaintiff’s concerns for 6 weeks and she did not think “that one more meeting would yield happier results”.
[275] At that point, Ms. Gauthier notified Ms. Maughan that there would not be such a meeting and referred her to the Senate appeal process.
[276] In the meantime, on November 19th, the plaintiff sent an email to Dr. Rose, with copies to Ms. Gauthier, Dean Granot and several others, including Debra Robinson of the Registrar’s office.
[277] The email was a response to an email Dr. Rose sent to Ms. Robinson on November 5, 2001 relating to Ms. Maughan’s appeal in offering a synopsis of what had transpired and what had been determined in Dr. Rose’s handling of the matter.
[278] Ms. Maughan wrote, in part, in response:
Dear Dr. Rose:
I must clarify some quite significant confusion in your email sent to Deborah Robinson in the Senate office on Nov. 5/01 which I have recently become aware of. I appreciate that you are extremely busy (and must deal with many students), and confusion is certainly understandable. However, there were so many points which are quite confused in the email (and readily evidence as such) I felt compelled to clarify the matter so as to avoid any false conclusions or premises on which others may proceed as well. I hope that this email serves to re-fresh you on the issues of my particular appeal (which perhaps you have conflated with that of another student), and/or correct confused information given to you on which you have proceeded. I have inserted below each of the lines of your text (preceded by >>) a correction to the confusion. I am also copying Dr. Cooper as my Supervisor, Ms. Gauthier as GSS President, Dr. McBride’s Assistant for continuity, and Dr. Holm because I have been corresponding and requesting his assistance in sorting out some of the pre-Senate issues that your email raises.
[279] Ms. Maughan went on to contest much of what Dr. Rose set forth in her letter.
[280] Subsequently, Ms. Maughan spoke with Ms. Gauthier who told her she thought Ms. Maughan’s email to Dr. Rose was “confrontational”. Ms. Maughan emailed to Dr. Cooper on November 21st as follows:
Just fyi..
I called Ms. Gauthier this morning to find out if Dr. Rose was going to have a meeting this week. Ms. Gauthier commented that she believed that my email to her below was “confrontational”. I am quite perplexed by that but it does suggest that any statement that articulates rights to due process will be considered “confrontational”. She went on to say that Dr. Rose is very busy and suggested words to the effect that I must not be so demanding. When I began to say that I have been dealing with meetings that would be on and off/appeal decisions that granted my appeal and then denied it, etc she interrupted me to say that, she really had to go and that “she was hanging up now”. I informed Ms. Gauthier that I am a mature women (sic) and I do expect to be treated with some degree of respect.
It was a very odd and disappointing (sic). I hope to find someone who will help me obtain due process for being penalized for observing my Holy Day.
Cynthia.
[281] On the same day (November 21st) Ms. Maughan emailed Dr. Holm whom she had been corresponding with about extensions for her Senate appeal, which read as follows:
Dear Dr. Holm
Your assistant Karen Black informed me that you would no longer speak to me on the phone nor meet with me and that she had been instructed only to tell me your correspondance (sic) to me would by (sic) way of letter. I therefore, have formulated my communication to you in the attached document. I have been trying to fax this letter to the Senate office but the line is busy. I did want to ensure that you received it today and so I am emailing it in the attached. . I will continue to try and send the document to the Senate fax number this afternoon.
Yours sincerely,
Cynthia Maughan.
[282] The attached document Ms. Maughan referred to was a letter with the subject line “a fair Senate process on my appeal to observe my holy day without penalty has been made unavailable to me by FOGS.” The upshot of her letter was that Ms. Maughan’s contention that she had no opportunity “to provide evidence in dispute of the inaccuracies on which FOGS may have relied in their decision to date”. After putting forth the basis for her assertion, Ms. Maughan asked Dr. Holm “to do something to correct the … situation and ensure her appeal is given due process”. She suggested perhaps someone else could even make a fresh decision on her appeal after she has an opportunity to present it and respond with evidence to the objections.
[283] Ms. Maughan received a response from Lisa Collins of the Registrar’s office on November 22nd, informing her the office “would not interfere with the FOGS regarding the process to this point”. Ms. Colllins wrote in part:
Your most recent extended deadline is tomorrow at 4:00 p.m. Dr. Holm is hesitant, but willing to grant you another extension until December 14, 2001 at 4:00 p.m. to file your statement of appeal. Should documents from FOI requests arrive after that date you may forward them and request they be added.
[284] In relation to both Ms. Gauthier and Dr. Holm, Ms. Maughan testified that she was surprised by what seemed to be their “about face”. She explained that they seemed to be helpful and neutral and then at some point they seemed unwilling to engage with her, or follow through with helping her.
[285] On December 3rd, Ms. Maughan sent Dr. Holm an email expressing concern that she had not received the documents pursuant to her FOI request and suggesting that the solution was either for Dr. Rose “to confirm in writing there is nothing in her file at FOGS or the department that they have not already stated in writing and sent to me and/or there is nothing … which they will be … relying on (at the Senate appeal) or to delay the Senate process”.
[286] Ms. Maughan testified that before receiving the extension for her Senate appeal on November 22nd, she launched a complaint to the Ombudsman’s office, expressing the issue that the Senate office was not properly considering her concerns about due process. When she received the extension she notified the Ombudsman’s office, which declined to become involved because Ms. Maughan had an alternate available remedy through the Senate appeal process.
[287] Ultimately, Ms. Maughan received the records pursuant to her FOI request on January 24, 2002. In the meantime, she had received a further extension of time to file her statement of appeal. She emailed Dr. Holm on January 30th as follows:
I will submit my statement of appeal within 10 working days … which is the period you granted me to consider the records resulting from the FOI request, and addressing any new resulting information in my statement of appeal.
[288] In the course of processing the plaintiff’s FOI request, the FOI coordinator wrote Dr. Egan on January 16th to determine what information/documents the Equity Committee reviewed before preparing the June 28, 2001 letter to the plaintiff.
[289] The coordinator identified from the letter, information provided by Ms. Maughan, and written notes from the meetings with Ms. Maughan and Dr. Weir as requiring confirmation and asked if “any emails such as the June 18, 2000 email from Sian Echard were considered.” Dr. Egan responded on January 16th as follows:
Dear Christina:
I am not sure how fully or helpfully I can answer your questions.
First, I do not think the Equity Committee in English used any documentation for our meeting with Cynthia Maughan for the letter we wrote on June 28th. We were already familiar with the file and based our meeting and the letter that followed entirely on Cynthia’s spoken concerns. Second, I have considered that my handwritten notes of our meeting might help Cynthia to understand that we did indeed hear all her concerns.
However, I have on consideration also decided we should, please, pull three pages of handwritten notes that follow the meeting with Cynthia: p. 1 begins with “Procedure” and continues to the meeting with Lorraine Weir on 25 June. The second page continues re that meeting. The third page reverts to procedures and concludes by listing problems: French program; Judy/Alan course/LW course.” These pages contain no information that is problematic in itself. However, they do record, in ways that could well be misconstrued, conversations among people who have not been consulted. In particular, I do not think Lorraine’s meeting with the Equity Cttee should be available to Cynthia, and I do not think the reference to the Judy/Alan course is a good idea either. Could you therefore pull these three pages?
Many thanks for your work on this file.
Susanna
[290] The coordinator wrote back to Dr. Egan on January 17th advising her that “given the committee was familiar with Ms. Maughan’s file, I have to include all the material in the file as a responsive to the FOI request … if a record exists on a file it cannot be removed once a request has been received.”
[291] Dr. Egan wrote back on January 17th:
Dear Christina:
My concern with the three pages of handwritten notes that I have suggested be pulled is that they actually outline a meeting between Dr. Lorraine Weir and the Equity Cttee at which Cynthia Maughan was not present. I regret my failure to notice this aspect of the material when I left them in the file and suggest, if they must indeed remain (and I hope you can remove them), that it would be absolutely necessary to consult with Lorraine Weir. They report what she said when she had no notion at all of Cynthia listening in, so to speak. I am entirely happy that Cynthia see my handwritten notes of the meeting between the Equity Cttee and herself.
With thanks, Susanna
[292] The notes at issue were in due course forwarded to Ms. Maughan pursuant to her FOI request and comprise what is referred to in the statement of claim as the June 25 Weir statement to the Equity Committee.
[293] Ms. Maughan proceeded with her appeal to the Senate Committee on appeals on academic standing on April 18th, 2002. In the result, the Senate Committee dismissed Ms. Maughan’s appeal. Although Ms. Maughan originally had pleaded that communications filed in connection with the Senate appeal constituted ongoing actionable harm to her, I earlier ruled that the Senate appeal proceedings were quasi judicial in nature, and subject to an immunity resulting in the exclusion of the evidence and statement of witnesses or potential witnesses used on that appeal.
THE SEGAL LETTER
[294] An issue for consideration on this no evidence motion is whether a letter written by Dr. Segal, dated February 28, 2002 in support of Dr. Weir’s submission with respect to the Senate appeal launched by Ms. Maughan is admissible and open to consideration. Because of my earlier ruling, the letter is presumptively inadmissible, however, the plaintiff relies on evidence which she argues establishes a foundation for the admissibility of the letter on the basis that it was originally composed before the Senate appeal was either contemplated or undertaken. She asserts there is an evidentiary foundation to conclude that it was composed for other purposes and is therefore not covered by the immunity which cloaks the Senate appeal process.
[295] The date on the letter, February 28, 2002, was the same date as two other letters sent in resistance to Ms. Maughan’s appeal and submitted to the Senate. The other letters were sent by Dr. Scott and Kathleen Mell, a participant in the English 553 seminar.
[296] In an Interrogatory, Dr. Segal was asked, and answered, the following question:
Q How did you become aware of the plaintiff’s appeal to the Senate?
[297] Her response was:
Lorraine Weir and I ran into one another at the faculty mailboxes in February of 2002. Professor Weir told me that a student had made a complaint against her. I recognized the name of the student and asked if there was anything I could do to help.
[298] On her examination for discovery held on August 4, 2006, Dr. Segal was asked about the timing of the letter dated February 28, 2002 in relation to the handwritten note to Dr. Weir, along with the copy of a letter she had written to Susanna (Egan) on “CM matters last April and copies of emails” in which she commented “it all looks pretty tame to me now”. She was asked:
Q Were you at the same time that you were writing this note to the Assistant Dean of the Faculty of Graduate Studies (sic) a letter saying that ‘I believe without reservation that Ms. Maughan is unstable’, you were also writing to Dr. Weir that ‘this all looks pretty tame to me now?’
[299] Dr. Segal responded:
I don’t think I can answer that question without repeating what I’ve said, which is that I’m not sure what I meant by “it all looks pretty tame to me now”. And I may have meant this looks tame compared to what you are going through. It does seem that those – since I would have had no reason ever to talk to Lorraine about you, except in the context of the events of 2002, they must have been written around the same time. Yeah.
[300] Other portions of Dr. Segal’s examination for discovery admitted to complete her evidence on the subject repeated her assertion that the letter was written in 2002 for the Senate appeal process, and her assertion that the handwritten comment to the effect that “it all looks pretty tame to (her) now” may have been in comparison to the events as they were in 2002 when the Senate appeal was looming.
[301] In the course of her discovery, Dr. Segal was asked and answered the following:
Q Were you aware that the plaintiff was making an appeal for holy day observance when you submitted your letter?
A The term holy day observance and that as the crux of the case was not the basis of my understanding of what was going on when I wrote that letter.
Q What did – what did Dr. Weir tell you was the basis?
A Dr. Weir and I had a rather fraught conversation that was started simply in passing at the mailboxes in room 397 in the English department. She was upset. She was distraught. She told me that she was having a difficult encounter with a student. She said it had something to do with a grade. She said it had something to do with a Sunday class, but then followed with that it seemed at first that the Sunday class wasn’t a problem. But most of what I took from her conversation was that she was having a difficult time, that she was very stressed out, and that an encounter with a student had become kind of personal.
[302] She was also asked and answered the following:
Q Okay. So when you first met with Dr. Weir, I think you said you met at the English mail boxes and Dr. Weir recounted – described a situation to you, did you offer to write the letter at that time?
A She was distraught. I identified with the distress having felt it myself two years before, and said in a collegial spirit, let me know if there is anything I can do to help.
Q So my question was: Did you offer to write the letter at that time?
A I don’t think so, but I don’t remember. I know I offered to help. I know that my help was not solicited but that it was offered. But exactly the – you know, what went where and what conversation, I can’t recall.
Q Do you recall going back to your office and putting it on a list to do, I must write the letter, or does it seem unlikely to you that there was a request to write the letter at that time or you would have – you would have begun?
A It seemed like an ongoing problem and it would be addressed. I didn’t – I didn’t likely walk away from that conversation and sit down to write a letter, but again, I don’t remember the sequence of things.
Q Okay. So did – did Dr. Weir contact you after that initial discussion and ask you to write a letter?
A There may have been an e-mail that you have and I don’t. You know, in this – can you appear before the senate appeal or – there would be a letter. Again, my memory is not very clear on the sequence of events. I thought that the – you know, that the spirit of the thing was that I offered to do what I could to help. And if my help took the form of a letter, then I was willing to write a letter. If my help took the form of appearing before the senate appeals committee, I would have done that. When it became clear what was what, I don’t remember.
THE COMMENCEMENT OF THE LAWSUIT AND ITS AFTERMATH
[303] On October 23, 2002, Ms. Maughan instituted this lawsuit against UBC and the four faculty defendants. At the time, she was represented by a lawyer named Gerald Chipeur. In the course of the plaintiff’s case, I admitted into evidence a document identified as a hard copy of an electronic posting on a website identified as Mr. Chipeur’s. It is titled “UBC Sued for Discrimination” and dated October 24, 2002. In admitting the document, I found “sufficient threshold evidence of its authenticity”. Ms. Maughan did not call any evidence to contradict the implication that it was a press release issued by her lawyer at the time when the lawsuit was launched.
[304] The press release reads as follows:
October 24, 2002 – VANCOUVER – An English student seeking her M.A. degree has filed a civil rights lawsuit against the University of British Columbia and four U.B.C. professors and lecturers under the province’s Civil Rights Protection Act.
Cynthia Maughan filed the Statement of Claim in B.C.’s Supreme Court yesterday, describing a year-long pattern of religious and ethnic discrimination against her. Under B.C. law, victims of discrimination may sue for “exemplary damages”, to set a public example that will deter further discrimination. Gerald Chipeur, Cynthia’s lawyer, will ask the Court to set the damages at an amount equal to two percent of U.B.C.’s annual budget.
“After Cynthia identified herself as a Christian, certain U.B.C. professors started to discriminate against her, “ said Chipeur, an experienced constitutional lawyer, based in Calgary. “Cynthia’s professor, Lorraine Weir, led the charge, insulting Cynthia’s religious and ethnic heritage and actually encouraging other professors to join in, too.”
Weir is well known as an antagonist of Christian morality. She recently testified in court on behalf of John Robin Sharpe, the B.C. pedophile and pornographer.
“In April, a U.B.C. Senate Committee unanimously judged that Weir and the English Department ‘mounted an irrelevant and unseemly attack’ on Cynthia’s character and religion,” said Chipeur. “The U.B.C. Senate said that their English Department ‘embarrassed the university, and descended well beneath the current standards of Charter values.’ But they haven’t done anything to clean up the culture that spawned this religious discrimination,” Chipeur said.
“Nobody should be allowed to discriminate against someone because of their religion or ethnicity – U.B.C., of all places, should be aware that this conduct has a traumatic impact on vulnerable students,” concluded Chipeur.
[305] Since October of 2002, the plaintiff’s statement of claim has been subject to a number of amendments. At the time of the press release, the statement of claim included a paragraph asserting that Dr. Weir inappropriately discussed her “political views particularly including subjects such lesbian pornography and pedophile pornography” in responding to Ms. Maughan’s attempts at redress.
[306] The statement of claim was subsequently amended to delete the reference to Dr. Weir’s “political views including … subjects such as lesbian pornography and pedophile pornography”. It substituted the following:
An unrelated discussion of Weir’s approach interfacing academic and social activist concerns, including Weir’s:
Work as an expert witness in three of the major trials concerning censorship in the past decade (Little Sisters, Surrey School Board, Sharp).
Work in “seminars theorizing pornography, the discourses of censorship and First Nations land claims; and her work in Canadian law cases relevant to pornography, obscenity, community values, the legal concept of harm and the construction of the artistic merit defence.”
[307] Eventually, because those allegations specifically related to the appeal to the Senate, when in the course of the trial I ruled that the Senate proceedings were subject to an immunity and excluded evidence related to them, Ms. Maughan further amended her statement of claim deleting those allegations altogether.
[308] In the wake of the launch of the lawsuit, and the issue of the press release, there were articles and news reports published in newspapers, magazines, and journals. Some of those publications were admitted in evidence. Ms. Maughan was interviewed by a reporter for the National Post, which carried her picture and ran a story about the events giving rise to the lawsuit. Similarly, Ms. Maughan was interviewed by a reporter for the (Alberta) Report. A number of the publications reporting on the lawsuit linked the events giving rise to the lawsuit to the fact that Dr. Weir had testified at the trial of John Sharpe, who had been charged with a number of child pornography related crimes. In one publication, Dr. Weir was described as “a standard issue radical lesbian deconstructionist feminist … who testified in court that John Robin Sharpe’s pedophile fantasies constituted literature.”
[309] Dr. Weir was also interviewed for some publications. In one she was quoted as saying that the Maughan lawsuit “could be particularly damaging to queer students and teachers”. The article reported that Dr. Weir “believes (the Maughan law suit) is part of a concerted attack against her by the religious right as a result of the … Sharpe case …” and is “concerned about some religious groups’ attempts to link her testimony in the Sharpe case to what she teaches at UBC.”
[310] In a publication of the Ubyssey, the UBC student newspaper published on March 24, 2003, reporting on the defendant’s application to dismiss this lawsuit, the article quoted Dr. Weir as follows:
Weir tells a different story. The course, which dealt with some highly controversial texts about the impact of Christian missionaries on First Nations communities, was personally upsetting for Maughan, Weir said. This is understandable, she added, and noted that the material was meant to be personally challenging.
But there is a line between personal opinion and academic analysis, she said, and according to Weir, it was personal opinion that Maughan’s paper was filled with. She also says that Maughan repeatedly objected to the material the class was studying and, part way through the class of 11 students, refused to talk for the rest of the semester. “This was very disruptive to the class” Weir said.
Weir said her comments on Maughan’s paper reveal Weir’s sympathetic acknowledgment that the course material had been challenging for Maughan, and in the context of the entire assessment, are not discriminatory.
[311] In a Canadian Association of University Teachers (“CAUT”) bulletin published in September 2003, it was asserted that:
The law suit has drawn wide spread media attention including coverage in the National Post “Christian Exposed to Contempt”, the (Alberta) Report “Let’s Hope Cynthia Maughan Meets the Christian Bashers at UBC”, the U.S. Midwest Conservative Journal and Liberty: A Magazine of Religious Freedom and was highlighted on the Koo Klux Klan’s website under “International News Affecting White Christians World Wide.”
[312] According to the bulletin article, the executive director of CAUT asserted that “the unfounded allegations of discrimination in this case raise fundamental issues of academic freedom that have potential implications for every faculty member in the country.”
[313] In a presentation made at a conference on October 25 and 26, 2004, co-sponsored by the UBC Faculty Association and the CAUT titled “What Price Freedom: Academic Freedom and the Corporate University”, Dr. Weir and Stephen Petrina touched on the Maughan versus UBC lawsuit “explaining the implications” of it and a separate lawsuit “which have wide ranging consequences for university students and teachers across Canada.”
[314] The presentation was subsequently published in an articled titled “Transferring Academic Freedom and Intellectual Property” in November 2004 in the newsletter of the UBC Faculty Association.
[315] The portion of the article that related to the present lawsuit reads as follows:
What have Canadian courts said about the “literary”? Understandably, not much, and chiefly in the context of obscenity and pornography trials where the “artistic merit” defence is mounted and where an ongoing debate has redirected moral panic from alleged violations of the Criminal Code to poststructuralist theory and to theorists working as expert witnesses (see the Globe and Mail editorial on John Robin Sharpe, Oct. 14/04, for a recent example).
Maughan v. UBC enacts a version of this scenario by associating child pornographer Sharpe with philosopher and theorist Jacques Derrida.
The Linchpin of this unlikely duo is Weir’s work as an expert witness for the defence in Sharpe (2002) and her graduate seminar on Derrida, which was the occasion of the Plaintiff’s allegations. By positioning academic work on Derrida and poststructuralist theory in the context of a literal and uncritical version of Christian fundamentalism, the Maughan case reproduced the moral panic associated in some circles with the very mention of deconstruction as well as the bizarre logic at the heart of the prosecution’s case against Sharpe’s collection of short stories. On this argument, fictive characters ‘guilty’ of violations of the Criminal Code as aspects of the plot of a work of fiction are indeed claimed to have committed criminal acts and, absent the ‘real’ fictive character, the author must serve in his stead (This logic is not uncommon in trials where works of art are, in a sense, being cross-examined as in the Langer case in 1995). In Maughan, the expert witness mutates into the author whose texts she analyzes for the court and in this game of role reversal, the expert witness is assigned the guilt which the Judge does not attribute to the accused. The media campaign around the Maughan case has also drawn on the post-9-11 return in America to an anti-deconstruction, anti-gay, pro-family values agenda reanimating a two-decade-old battle in American universities against radical critique in the Humanities. In the Maughan context, then, the “literary” looks even more suspect as a place of scholarly refuge, prone to eruptions of moral panic and censorship. The “literary” and copyright protection is nonetheless vulnerable to other strategies of corporate appropriation. Indeed, Margaret Wilkinson documents trends in university policies to capitalize on copyrights as well as other forms of IP.
[316] A subsequent amended version of the article was published in the November 2005 edition of “Workplace: A Journal for Academic Labour”.
[317] The amended version of the article that relates to the present lawsuit reads as follows:
What have Canadian courts said about the “literary”? Understandably, not much, and chiefly in the context of obscenity and pornography trials where the “artistic merit” defense is mounted and where an ongoing debate has redirected moral panic from alleged violations of the Criminal Code to poststructuralist theory and to theorists working as expert witnesses (Weir, 1999). At least partially in reaction to the curriculum of a graduate level literary theory course in 2001, a student enrolled in the course launched an $18 million lawsuit against UBC and four faculty members. Among others was a claim that the curriculum and professor discriminated against certain religious freedoms. The media campaign around this case (Maughan v. UBC) in 2002 and 2003, drew on the post-9-11 return in America to an anti-deconstruction, anti-gay, pro-family values agenda reanimating a two-decade-old battle in American universities against radical critique in the Humanities. In this context, then, the “literary” looks even more suspect as a place of scholarly refuge, prone to eruptions of moral panic. In a somewhat surprising turn of events, the student filed a complaint with the BC Human Rights Tribunal in May 2005, alleging that an analysis of the case, ironically at the UBC Faculty Association’s What Price Freedom? Academic Freedom and the Corporate University conference, and briefly within an article (i.e., Petrina & Weir, 1984), constituted continued discrimination. Here, the scholar’s ability to explore the intellectual implications of the case is attenuated by demands for censorship.
Upon ruling on the student’s appeal to the BC Human Rights Tribunal, Tribunal Member Judy Parrack (2006) provided an extremely significant decision for academic freedom and rights of scholars to speak about an analyze allegations brought against them and cases in which they were involved. The Tribunal Member follows the logic that the complainant brings forward but disagrees that academic analysis is “discriminatory.” If this logic were correct, she noted “it would mean that no respondent could defend or speak about allegations made against him or her in a public document” (p. 18). She continued:
Ms. Maughan alleges that UBC and UBCFA discriminated against her because of her religion when they published the Weir-Petrina Article. She also suggests that CAUT discriminated on this basis when they circulated the Article at the October conference. The Weir-Petrina Article was prepared, and provided to, those who attended the October conference. It was also published in the November issue of the Faculty Focus the newsletter published by the UBCFA. According to Ms. Maughan, it also appears on various websites that are linked to UBC. (p. 27)
The conclusion, again, is a victory for academic freedom. She reasons: “I accept that Ms. Maughan did not like the fact that her legal action was discussed in this publication but that is a consequence of filing an action that is in the public domain. That consequence, although difficult for Ms. Maughan, does not indicate that the Article was intended to discriminate against her or would likely expose her to hatred or contempt because of her religion” (p. 27). In this case, one could not order a more concise decision on academic freedom. We can easily extend this defense of academic freedom to cases involving corporate sponsorship (i.e., Olivieri) and whistle blowing. At this moment, the “literary” and copyright protection are nonetheless vulnerable to strategies of corporate appropriation.
[318] Some context to the articles, described in evidence as the “Weir Petrina articles was provided in Dr. Weir’s examination for discovery, read in by Ms. Maughan, from question 380 to 390, which read as follows:
Q Now, where does the Maughan v. UBC associate child pornographer Sharpe and the philosopher and theorist Jacques Derrida?
A As I have already said, the media campaign which, of course, started with Mr. Sharpe’s web site and proliferated in many different directions, as I am sure you know. There were some articles, which are still available by a Google, I believe, where there were quite specific associations made. And you remember, of course, that when – at the inception of the lawsuit the decision in the Sharpe trial in B.C. Supreme Court had only recently been handed down. And there was much controversy surrounding that decision. So the media campaign that inaugurated through the lawsuit known as Maughan v. UBC spiralled back into the controversy around my name in the context of my contribution to the defence and the trial of Robin Sharpe and made connections, as reporter are, of course, wont (sic) to do. They were, after all, seeking what was newsworthy and reporters are in that business.
Q So if I am understanding you now, you are saying Maughan v. UBC didn’t enact a version of the scenario by associating the child pornographer Sharpe with Derrida. It was the media?
A The lawsuit does this. The initial web site media bulletin in the web site and many of the media arms that followed from that associated from the beginning before very many people had had an opportunity to look at the statement of claim, associated Sharpe. And of course as I say, journalists naturally look for what is controversial. Associated the very controversial contribution that was made and the very controversial Sharpe trial with the lawsuit. The lawsuit became a media occasion. And around the lawsuit as a media occasion swirled moral panic, what people had to say about controversy concerning the Sharpe trial and certainly the linkages that were made right across media coverage I Sharpe and some of the media coverage around Maughan v. UBC in the first year or so between poststructuralist theory and Sharpe and allegations about me as a poststructural theorist and as a “lesbian pornographer” at one point.
Q So you don’t think anyone reading the statement “What have Canadian courts said about the literary,” and then discussing the Maughan v. UBC, that suggests the Maughan v. UBC case made allegations against you because of Sharpe and Derrida?
A I would suggest that if you follow that paragraph to its conclusion on page 10 you might find something useful in response to your question. “In Maughan” at the top of page 10. “In Maughan, the expert witness mutates into the author whose texts she analyzes for the court …”, and so on. That section of the paragraph that moves then down to the conclusion of the ‘literary’ and copyright protection is nonetheless vulnerable to other strategies of corporate appropriation. So the beginning of the segue. You can tell, incidentally, that this paragraph was a collaborative effort. You know, written very very quickly. That last couple of sentences in that paragraph segue into the section of the paper that Steven wrote. And the segue from the end of just above the paragraph that you have pointed to, um, that transition into this paragraph, u, is Steven’s writing meeting mine.
Q But I was referring to what we were just speaking about which was what have the Canadian courts said about the literary and then you talk about the Maughan v. UBC case. So I appreciate later on you are talking about the media.
A You have also asked a question, though, about the first paragraph of the article and the ways in which transitions – essentially, transitions operate all the way throughout the article. It’s collaborative academic journalism. And it happens that the paragraph that you have focused your concern on was largely written by me since the two authors collaborating on this I was the one who, obviously had some familiarity with Maughan v. UBC.
Q And you saw yourself as the linchpin of the unlikely duo of Sharpe and Derrida?
A The media campaign swirling around me in the context of Sharpe and in the context early on for Maughan v. UBC made associations of that sort. Here I am doing a contextual analysis very swiftly very quickly and cryptically enabling any faculty member who has an interest in this particular set of issues to get a big picture analysis.
Q And so when you say her graduate seminar, referring to yourself, graduate seminar and Derrida which was the occasion of the plaintiff’s allegations, are you talking –
A I have lost your sentence here. Oh, I see. Okay. Yes?
MS. MAUGHAN:
Q So you say, “The linchpin of this unlikely duo is Weir’s work as an expert witness for the defence in Sharpe and her graduate seminar in Derrida …” –
A Um-hmm.
Q -“…which was the occasion of the plaintiff’s allegations.”?
A Yes, precisely.
Q So you are referring there to the plaintiff’s allegations and not the media?
A Well, the plaintiff’s allegations constitute the basis of the statement of claim. The statement of claim was the occasion of the media campaign that was initiated by the web site and proliferated across many media sources. One is related to the other.
Q Do you recall why you didn’t make clear that you are not talking about the plaintiff’s allegations but you are talking about the media? Do you recall why you didn’t make that clear?
A Oh, no. No. No. Excuse me. I think you misunderstood what I just said. The plaintiff’s allegations constitute a major part of the substance of the statement of claim. The statement of claim is Maughan v. UBC et al.
Q The question was, do you recall why you didn’t make it clear in your article that the plaintiff’s allegations are not to associate Sharpe with Derrida? The plaintiff’s allegations didn’t make that connection. It was the media. Do you recall why you didn’t make that clearer in the article?
A I think we need to consult the statement of claim. Paragraph 41 subheading (c) of the further further amended statement of claim includes the following “…and related discussion of Weir’s political views particularly including subjects such as lesbian pornography and pedophile pornography.” The reference is back – or the section refers back to the report that I prepared for the faculty of graduate studies and that was included in the senate appeals documentation. Of course this is a distortion. And the reference to lesbian pornography, whatever that may mean, has nothing whatsoever to do with me, um, my career, my publications. Pedophile pornography would seem to be obvious allusion to the Sharpe trial. So it would seem to me that’s one instance in the further further amended statement of claim of an attempt to implicate my involvement as an expert witness for the defence on artistic merit in the Sharpe trial with the allegations made against Robin Sharpe of pedophile pornography and thus to reposition me in terms of what most people in our society, myself included in terms of pedophile pornography, would certainly regard as criminal activity and salacious activity. So, in fact, I see this network or this web of associations between my work and in the context of the Sharpe trial and this document, which is Maughan v. UBC, very clearly implicated in that paragraph.
THE COLLECTIVE INTERROGATORIES
[319] In the second further amended statement of defence of the faculty defendants, the defendants plead as follows:
The Defendant Faculty Members say that the Plaintiff’s claim has been brought by the Plaintiff solely for the purposes of:
a. attempting to stifle or constrain in academic discourse the expression of opinions that are inconsistent with opinions held by the Plaintiff;
b. attempting to stifle or constrain in private and public speech the expression of opinions that are inconsistent with opinions held by the Plaintiff;
c. attempting, in contravention of the Academic Regulations of the Defendant University (“Academic Regulations”), to stifle or constrain full and unrestricted consideration of any opinion;
d. attempting, in contravention of the Academic Regulations, to obstruct free and full discussion of ideas; and
e. seeking to publicly impugn the Defendant Weir’s reputation and/or sexuality through the Plaintiff’s allegations of promoting hatred and contempt.
[320] On June 30, 2006, Ms. Maughan sent the following Interrogatories, styled “The Group Interrogatory to the Defendant Faculty Members Among Others”:
Interrogatories
Interrogatories on behalf of Cynthia Maughan, Plaintiff, for the examination of The University of British Columbia: Dr. Stephen Toope (succeeding Dr. Piper as of June 30, 2006, or Dr. Martha C. Piper), President of The U.B.C.; Vice President Academic and Provost of The U.B.C., Dr. Lorne A. Whitehead; Tom Patch, Associate Vice-President Equity of The U.B.C., and, the Defendants Lorraine Weir, Susanna Egan, Anne Scott, and Judy Segal.
To be answered by Dr. Stephen Toope (succeeding Dr. Piper as of June 30, 2006, or Dr. Martha C. Piper), President of The U.B.C.; Vice President Academic and Provost of The U.B.C., Dr. Lorne A. Whitehead; Tom Patch, Associate Vice-President Equity of The U.B.C., and, the Defendants Lorraine Weir, Susanna Egan, Anne Scott, and Judy Segal:
1. What reasons, and particulars, do you have for your statements that the Plaintiff brought her claim “solely for the purposes of:”
a. attempting to stifle or constrain in academic discourse the expression of opinions that are inconsistent with opinions held by the Plaintiff
b. attempting to stifle or constrain in private and public speech the expression of opinions that are inconsistent with opinions held by the Plaintiff
c. attempting, in contravention of the Academic Regulations of the Defendant University (“Academic Regulations”), to stile or constrain full and unrestrained consideration of any opinion;
d. attempting, in contravention of the Academic Regulations, to obstruct free and full discussion of ideas; and
e. seeking to publicly impugn the Defendant Weir’s reputation and/or sexuality through the Plaintiff’s allegations of promoting hatred and contempt;
f. that the Plaintiff’s claim directly attacks the principle of academic freedom.
Dated June 30, 2006 Cynthia Maughan, Plaintiff
[321] The faculty defendants responded in a document entitled “Response to Interrogatories” signed by counsel for the faculty defendants. It was not in affidavit form as required by the Rules, because a deadline had been imposed and the defendants were not all available to sign an affidavit before the deadline expired. The Response to Interrogatories reads as follows:
The allegation that any of the Defendant Faculty Members intended to promote hatred or contempt against Christians, or of the Plaintiff on the basis of her Christianity, is so completely and utterly without any merit whatsoever that the only reasonable explanation is that the proceedings are brought for ulterior purposes.
The origin of the Plaintiff’s outrageous allegations is clearly Derrida’s characterization of the Holy Eucharist as cannibalism, which the Plaintiff experienced as disrespectful to her religion. The Plaintiff’s complaints all follow from her perception that Professors Weir and Scott did not validate this experience sufficiently, and did not agree with her interpretation of the passage in issue.
Following her experience in English 553, the Plaintiff sought redress for her perceived wrongs through numerous offices and faculty members, culminating in her appeal to the Senate Committee. In every step of the way, the Plaintiff refused to acknowledge the legitimacy of any response which did not accord with her view of the matter.
The core of the Plaintiff’s case is that the Defendant Faculty Members did not protect her from words and thoughts which she found hurtful. The Plaintiff asks the Court to award damages against the Defendants for this perceived failure, and for words that they spoke or wrote about the Plaintiff and her opinions. In short, she seeks, through the coercive and punitive processes of the Court to impose her views on the faculty members.
It is clear to these Defendants, therefore, that the Plaintiff’s objective is to stifle or constrain academic teaching and discourse, and to have the Court censure the Defendants for their failure to agree with the Plaintiff’s point of view. As against Professor Weir, who is the subject of most of the Plaintiff’s allegations, it must also be that the Plaintiff seeks to destroy her reputation because she is offended by the Defendant’s sexual orientation.
Dated at Vancouver, in the Province of British Columbia, this 19th day of July, 2006.
Counsel for the Defendant Faculty Members
[322] In the second set of interrogatories, the plaintiff asked the following question of Dr. Weir and received the following answer:
90. What led you to conclude that the Plaintiff must have brought this proceeding because she was offended by your sexuality?
In paragraph 32(c) of the Statement of Claim (now paragraph 41(c ) of the Further Further Amended Statement of Claim), the Plaintiff alleges that, in my response to her Senate appeal, I discussed my views on “subjects such as lesbian pornography and pedophile pornography.” There is no such discussion in my response to the Senate.
Further, the media campaign launched by the Plaintiff and her legal counsel targeted me, in particular, as an immoral antagonist of Christian values.
The connection the Plaintiff seems to have drawn, in her pleadings and her publicity of this case, between my work as an academic and “lesbian pornography and pedophile pornography” suggests to me that she is offended by my sexuality.
See also the Defendant Faculty Members’ collective response to the Plaintiff’s original Interrogatory on this question.
[323] In her examination for discovery, Dr. Scott acknowledged that the collective response represented her position on the issue.
DISCUSSION AND CONCLUSION
[324] This lawsuit arises out of an antagonistic relationship which developed between the plaintiff and the defendant, Lorraine Weir beginning in the English 553 graduate student seminar entitled The Proper: From Derrida to Delgamuukw. As matters progressed, others became enmeshed in the conflict, some voluntarily, others by virtue of the responsibilities they held and were required to perform.
[325] At the heart of the plaintiff’s case is her claim that the antagonism that developed was a by-product of the fact that she was and is a practicing Christian and that her Christianity became the source of attempts by Dr. Weir and others to promote either hatred of her, contempt for her, or her inferiority in comparison with others so as to breach the proscriptions of the Civil Rights Protection Act, R.S.B.C. 1996, c. 49 (“CRPA”) and commit an actionable wrong.
[326] The essence of the plaintiff’s alternative argument is that the faculty defendants and other university representatives’ dealings with her constituted negligent actions inspired by oblique or bad faith motives, connected to the fact of her Christian religion and/or to the fact that she challenged what she considered to be adverse or discriminatory treatment.
[327] As this is a no evidence motion, it is not open to me to do more than consider whether there is any evidence upon which a properly instructed jury, acting reasonably, could return a verdict favourable to the plaintiff on any one of the various actionable wrongs she asserts.
[328] Insofar as such a verdict may rest on circumstantial evidence, my task is to undertake a limited weighing of the evidence to determine if it is sufficient to bridge the inferential gap necessary to support a factual finding upon which liability may be based.
[329] I propose first to deal with the case against Dr. Weir on the claim under the CRPA and then move to the other defendants and the university defendant on the basis of the claim under the CRPA. I will then deal with the claim based on negligence.
THE CRPA CLAIM AGAINST DR. WEIR
[330] Insofar as Dr. Weir is concerned, the claims against her under the CRPA can be broken down into various periods and events. The first is the seminar itself, which occurred between January and May, 2001. The second are the June emails, sent by Dr. Weir to Dr. Echard in June 2001 in response to Ms. Maughan’s attempt to have her grade expunged. The third are comprised of Dr. Weir’s statements to Drs. Egan and Danielson that she made in response to Ms. Maughan’s complaint to the Equity Committee of the English Department on June 25, 2001. The next category are Dr. Weir’s public comments to the Ubyssey student newspaper and the newspaper/magazine XtraWest after this lawsuit was launched in October 2002. The final category of conduct and communications identified by Ms. Maughan as an infringement of the CRPA are the publication of the Weir/Petrina articles in November 2004 and November 2005.
[331] The CRPA reads in its entirety as follows:
1. In this Act, "prohibited act" means any conduct or communication by a person that has as its purpose interference with the civil rights of a person or class of persons by promoting
(a) hatred or contempt of a person or class of persons, or
(b) the superiority or inferiority of a person or class of persons in comparison with another or others,
on the basis of colour, race, religion, ethnic origin or place of origin.
2. (1) A prohibited act is a tort actionable without proof of damage,
(a) by any person against whom the prohibited act was directed, or
(b) if the prohibited act was directed against a class of persons, by any member of that class.
(2) If a corporation or society engages in a prohibited act, every director or officer of the corporation or society who authorized, permitted or acquiesced in the commission of the prohibited act may be sued by the persons referred to in subsection (1) and is liable in the same manner as the corporation or society.
(3) In an action brought under this section, the commission of a prohibited act by any director or officer of a corporation or society must be presumed, unless the contrary is shown, to be done, authorized or concurred in by the corporation or society.
(4) An action under this section must be commenced in the Supreme Court.
3. (1) The Attorney General may intervene in an action commenced under section 2.
(2) If the Attorney General intervenes, the Attorney General becomes a party to the proceedings.
(3) If a person commences an action under section 2, the person must serve the Attorney General with a copy of the writ of summons within 30 days after commencing the action.
4. (1) A party to an action brought under section 2 may be awarded damages or exemplary damages.
(2) If the court awards damages or exemplary damages in an action brought by a member of a class of persons under section 2, the court may order payment of the damages to any person, organization or society that, in the court's opinion, represents the interests of the class of persons.
(3) In an action brought under section 2, the court may, in addition to any other relief, grant an injunction.
5. (1) A person who engages in a prohibited act commits an offence and is liable to a fine of not more than $2 000 or to imprisonment for not more than 6 months, or to both.
(2) A corporation or society that commits an offence under subsection (1) is liable to a fine of not more than $10 000.
(3) If a corporation or society commits an offence under subsection (1), every director or officer of the corporation or society who authorized, permitted or acquiesced in the commission of the prohibited act commits an offence and is liable to the penalties under subsection (1).
[332] At issue in this case is whether the CRPA simply created a tort of discrimination in the wake of the Supreme Court of Canada decision in Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology, [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193 which held that discrimination does not give rise to a common-law tort in view of the relief provided by the provincial (Ontario) Human Rights Code for such conduct, or whether the CRPA was enacted to address what the defendants describe as “grave instances of interferences with civil rights.”
[333] Although the CRPA was enacted in 1981 shortly after the Supreme Court of Canada’s judgment in Bhadauria, supra, I do not find in that fact any guidance as to its purpose or intent. Rather, I accept the submissions of the defendants that the CRPA was enacted following and in response to a report authored by John D. MacAlpine titled “Report Arising out of the Activities of the Koo Klux Klan in British Columbia”. Mr. MacAlpine’s report was concerned with the threat posed by activities of the KKK in British Columbia involving the publication of hate speech against racial minorities. Mr. MacAlpine recommended an amendment to the Human Rights Code, R.S.B.C. 1979 c. 186 to address the need to create “an environment in which messages of racial supremacy and hatred on the ground of race, religion and ethnic origin will not find a receptive audience.”
[334] In the result, the legislature did not amend the Human Rights Code, but instead enacted the CRPA. As to the nature and extent of the proscriptions of the CRPA founding a cause of action, I am satisfied that in interpreting it I am entitled to take judicial notice of extracts of the dates in the provincial legislature to provide context. See Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381 where the court noted as follows at para. 57:
The purpose of judicial notice is not only to dispense with unnecessary proof but to avoid a situation where a court, on the evidence, reaches a factual conclusion which contradicts “readily accessible sources of indisputable accuracy” and which would therefore bring into question the accuracy of the court’s own fact-finding process.
[335] In introducing second reading of the CRPA on June 29, 1981, the then Attorney General, the Honourable Allan Williams said in part, as follows:
This legislation addresses itself to that problem. It does so by proscribing conduct or communications – which is certainly one aspect of conduct – which has as its purpose the violation of the civil rights of others, and in a particular way, conduct for such purpose and to achieve such purpose as would hold citizens or classes of citizens in our community up to hatred and contempt, and the other side of hatred and contempt, the attempt to establish that one is somehow or other superior or inferior all because of race, colour, creed, ethnic origin or place of origin.
[336] A distinction between the provisions of the CRPA and s. 7(1)(b) of the Human Rights Code, R.S.B.C. 1996 c. 210 (“HRC”), was drawn in Canadian Jewish Congress v. North Shore Free Press Ltd., [1997] BCHRTD No. 23. Section 7(1)(b) reads as follows:
7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
…
(b) is likely to expose a person or a group or class of persons to hatred or contempt …
[337] The tribunal member in Canadian Jewish Congress observed in differentiating s. 7(1) from the CRPA that:
Quite apart from the significant procedural and remedial differences between the two approaches, it is evident from the face of the [CRPA] that it is concerned with a different aspect of the problem of hate speech than s. 7(1)(b) of the Code. The statutory cause of action is concerned with the purposes of the author of the communication which promotes hatred; s. 7(1)(b) is concerned with the effects of exposure to hateful expression on the targets of such speech. (para. 222)
[338] The language used in the CRPA is resonant with the language used in other statutes, including the Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 319(2) which reads as follows:
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[339] In R. v. Keegstra, [1990] 3 S.C.R. 697 at pp. 776-777, 61 C.C.C. (3d) the meaning of the word “promote” was addressed:
[T]he word “promotes” indicates active support or instigation. Indeed, the French version of the offence uses the word “fomenter” which in English means to foment or stir up. In “promotes” we thus have a word that indicates more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group.
[340] Similarly, the words “hatred” and “contempt” have received judicial interpretation. In Keegstra, supra, Dickson C.J.C. defined hatred in the context of s. 319 (2) as follows in p. 777:
The meaning of “hatred” remains to be elucidated. Just as “wilfully” must be interpreted in the setting of s. 319(2), so must the word “hatred” be defined according to the context in which it is found. A dictionary definition may be of limited aid to such an exercise, for by its nature a dictionary seeks to offer a panoply of possible usages, rather than the correct meaning of a word as contemplated by Parliament. Noting the purpose of s. 319(2), in my opinion the term “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews, supra, at p. 179:
Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].
Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.
[341] Dickson C.J.C. elucidated on the meaning of contempt in Canada (Human Rights Commissioner) v. Taylor, [1990] 3 S.C.R. 892 at p. 932, 75 D.L.R. (4th) 577 as follows:
“Contempt” appears to be viewed as similarly extreme, though (it) is felt by the Tribunal to describe more appropriately circumstances where the object of one’s feelings is looked down upon … s. 13(1) thus refers to unusually strong and deep-felt emotions of detestation, calumny and vilification…
[342] In Owens v. Saskatchewan (Human Rights Commission), 2006 SKCA 41, 267 D.L.R. (4th) 733 at issue was the scope of s. 14(1)(b) of the Saskatchewan Human Rights Code which reads as follows:
No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:
(a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under law; or
(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.
(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.
[343] The court held that s. 14(1)(b) could only operate as a reasonable limit on free expression under the Charter if the speech at issue ascended to the level of hatred and contempt. The court noted as follows in para. 53:
No other result, of course, could be justifiable. Much speech which is self-evidently constitutionally protected involves some measure of ridicule, belittlement or an affront to dignity grounded in characteristics like race, religion and so forth. I have in mind, by way of general illustration, the editorial cartoon which satirizes people from a particular country, the magazine piece which criticizes the social policy agenda of a religious group and so forth. Freedom of speech in a healthy and robust democracy must make space for that kind of discourse and the Code should not be read as being inconsistent with that imperative. Section 14(1)(b) is concerned only with speech which is genuinely extreme in the sense contemplated by the Taylor and Bell decisions.
[344] In Owens, the court also addressed the value of context in considering the purpose and intent behind impugned communications, noting at para. 67 and 68 as follows:
This does not mean that a newly won right to be free from discrimination should be accorded less vigorous protection than similar rights based on more historically established grounds such as race and religion. But, for purposes of applying a provision like s. 14(1)(b) of the Code, it is important to consider Mr. Owens’ advertisement in the context of the time and circumstances in which it was published. That environment featured an active debate and discussion about the place of sexual identity in Canadian society. Indeed, the advertisement at issue here was published in connection with gay pride week – an event promoted by the gay community as a celebration of diversity and used in part as a platform for the advancement of gay rights.
Seen in this broader context, Mr. Owens’ advertisement tends to take on the character of a position advanced in a continuing public policy debate rather than the character of a message of hatred or ill will in the sense contemplated by Bell. Both the Board of Inquiry and the Chambers judge erred by failing to give any consideration to this wider context.
[345] Finally in Owens the court noted that the test for prohibited expression was objective, not subjective, concluding that “the question of how a particular individual or particular individuals understand a message cannot determine whether it should be found to involve hate, belittlement, ridicule or is an affront to dignity.”
[346] I conclude that the meaning attributed to the words “hatred” and “contempt”, in similar statutory contexts, as provoking strong and deeply held emotions apply to the CRPA. Further, I conclude the meaning attaching to the words “superiority” and “inferiority” in the CRPA imports an equally strong connotation of promoting profound emotional antipathy based on notions of physical moral or intellectual inferiority or superiority.
[347] I also conclude that there must be evidence under the CRPA that the person whose communication or conduct is impugned, must intend to create the consequence prohibited by the Act. In other words, there must be evidence that the person accused of infringing the Act intended to promote hatred, contempt, inferiority or superiority on a prohibited ground and intended to interfere thereby with the civil rights of the person or class of persons against whom the promotion of hatred, contempt or inferiority was directed.
[348] I will now apply the provisions of the CRPA to the conduct and communications alleged by the plaintiff to bring Dr. Weir within its scope.
[349] It is Ms. Maughan’s contention that Dr. Weir’s conduct towards her and communications with her, during the currency of the English 553 seminar comprise activity prohibited by the CRPA. In particular, Ms. Maughan cites Dr. Weir’s refusal to change the date or place of the Sunday colloquium, her failure to accommodate Ms. Maughan’s objection to attend the seminar by providing feedback on a presentation paper, her refusal to grant Ms. Maughan an extension of time to conclude her final paper, and finally, the nature of the comments made by Dr. Weir on her final paper as evidence individually and collectively of prohibited conduct under the CRPA.
[350] I see no evidence at all from which it could be inferred that anything Dr. Weir did or said during the case of the English 553 seminar was intended to promote hatred or contempt for Ms. Maughan or her inferiority in the sense contemplated by the CRPA.
[351] In the first place, nothing alleged to have been done by Dr. Weir was done publicly. Her refusal to change the colloquium date, her failure to provide feedback on Ms. Maughan’s presentation paper, her refusal to grant Ms. Maughan an extension and her comments on Ms. Maughan’s final paper were all matters between Ms. Maughan and Dr. Weir and were simply not capable of promoting, in the sense of instigating or fomenting, hatred or contempt for Ms. Maughan or her inferiority in comparison with others.
[352] In the second place, there is no evidence that Dr. Weir intended by any of her conduct or communications, to interfere with Ms. Maughan’s civil rights. At its highest, the evidence may establish that the effect of her refusal to change the colloquium affected Ms. Maughan’s opportunity to participate in an aspect of the seminar because of her religious scruples, but that does not convert into evidence that Dr. Weir’s action was done for that purpose.
[353] Similarly, Dr. Weir’s refusal to grant Ms. Maughan an extension was no more than the exercise of discretion for which there was a rationale provided in the June emails. The refusal was not tied to Ms. Maughan’s religion but was tied to her apparent desire not to turn in a paper until after she had the benefit of the whole course. That was not an accommodation Dr. Weir was willing to make. It was clearly a contentious issue for Ms. Maughan because she referenced it in her final paper as an apparent example of the shortcomings of the seminar, but that does not convert it into an actionable wrong under the CRPA.
[354] So far as Dr. Weir’s comments upon Ms. Maughan’s final paper are concerned, while they may reflect Dr. Weir’s view (right or wrong) that Ms. Maughan’s religious convictions impaired her willingness to fully participate in the seminar, that view does not equate to evidence of an intention to interfere with Ms. Maughan’s civil rights by promoting hatred or contempt for her, or by promoting her inferiority in comparison with others.
[355] Apart from the fact that Dr. Weir’s comments were directed to Ms. Maughan and to no one else, and thus could not be construed as promoting instigating or fomenting anything, the only evidence of the foundation of Dr. Weir’s state of mind in making these comments was Ms. Maughan’s conduct in the seminar in relation to Derrida’s portrayal of the holy Eucharist as cannibalism, her withdrawal from further participation in the seminar and the disparaging tone of her final paper towards both Dr. Weir and the seminar. In those circumstances, there is no evidentiary basis to infer that Dr. Weir’s comments were a product of an intent to interfere with Ms. Maughan’s civil rights.
THE JUNE EMAILS
[356] The June emails are on a different footing from Dr. Weir’s communications and conduct in the seminar, as they were directed to third parties, however the context in which they were written is an important consideration in determining whether they provide any evidence of the proscribed activity under the CRPA.
[357] The June emails were written to Professor Echard with one copied to Dr. Egan and one copied to Dr. Grace. They were written in response to Ms. Maughan’s request to have her grade expunged on the basis that:
(a) Professor Weir reflected negatively in her determination of her grade on her failure to attend a colloquium which she could not attend because it disrespected her religion;
(b) Professor Weir discouraged Ms. Maughan’s academic freedom to pursue questions of synthesis rather than divisiveness between First Nations Christians and European Christians; and
(c) Professor Weir held Ms. Maughan to a different set of rules than other students, based on her religion.
[358] In effect, Ms. Maughan was asserting that Dr. Weir had treated her in a biased or discriminatory way on the basis of her religion.
[359] The June emails were Dr. Weir’s response to that allegation against her. They were written to Dr. Echard to whom Ms. Maughan had sent a 23 page memorandum expanding on her allegations against Dr. Weir and with whom Ms. Maughan had met in furtherance of her complaint against Dr. Weir.
[360] So far as the June emails themselves are concerned, they involve the assertion that Ms. Maughan rejected the negative impact of Christian run residential schools and regarded negative characterizations of them as religious bias, and as well, the assertion that Ms. Maughan was experiencing “backlash” in learning about the First Nations cultures and histories and “was unable to sustain herself throughout that process”. Dr. Weir’s descriptions of Ms. Maughan’s performance in the course and course work was not complimentary, describing her final paper as “another outraged and outrageous paper” and a “diatribe”. Dr. Weir described Ms. Maughan as explosive, in a towering rage, with “a red face and angry eyes” and referred to her previous dealings with Dr. Segal as having “disturbing but not surprising similarities”.
[361] I do not see in either the content of the June emails or in context in which they were made, any evidence from which it could be inferred that Dr. Weir intended to interfere with Ms. Maughan’s civil rights by promoting hatred of her, contempt for her, or her inferiority compared with others based on her religion. There is clearly evidence from which it could be inferred that Dr. Weir was attempting to resist Ms. Maughan’s complaints against her by characterizing her and her conduct in the way that she did. It may be that a properly instructed jury acting reasonably could find that Dr. Weir’s description of Ms. Maughan was exaggerated, on one hand, or essentially accurate on the other.
[362] Whether Dr. Weir’s description of Ms. Maughan and her conduct was a exaggeration or not, the question is whether there is evidence she had a purpose in writing the June emails that went beyond an attempt to answer Ms. Maughan’s allegations about her, and to argue the case for not expunging her final grade, by promoting religion based hatred, contempt, or inferiority. The essence of what is proscribed by the CRPA is conduct or communications tailored to secure a specific end, by specific means – interference with a person’s civil rights, by promoting hatred, contempt or inferiority based on a prohibited ground, in this case asserted to be religion.
[363] A properly instructed jury, acting reasonably could find that Dr. Weir’s words in the June emails exposed Ms. Maughan to some degree of animosity or antipathy, but could it find Dr. Weir’s purpose in writing those words was to interfere with Ms. Maughan’s civil rights by instigating feelings of hatred, contempt or inferiority, based on her religion? I see no evidence capable of bridging that inferential gap. There is no evidence that Dr. Weir is anti-Christian. There is no evidence that she has taken at other times a public stance against Christians or an individual Christian or sought to foment deep emotional antipathy to them in order to interfere with their right to respect and dignity.
[364] None of the flashpoints in the June emails evidences bias against Ms. Maughan as a Christian. Rather, the flashpoints relate to Ms. Maughan’s conduct in the seminar, her attitudes towards Derrida and his writing, her views on the early experience of Christians with First Nations people, her relations with her classmates and her undiplomatic assessment of Dr. Weir’s course and Dr. Weir in her final paper. There is no evidence that Dr. Weir regarded the shortcomings she ascribed to Ms. Maughan as intrinsic to her Christian religion. Rather, she likened Ms. Maughan to other students in characterizing her resistance to accepting the role of Christianity in dealing First Nations cultures and histories and otherwise confined herself to describing Ms. Maughan’s conduct and apparent attitudes unconnected to her religiosity.
[365] In short, while a trier of fact could find there to be disparaging comments about Ms. Maughan in the June emails, I do not see that the impugned comments or the context in which they were written, could justify an inference that Dr. Weir’s purpose in writing the emails was to interfere with her civil rights by promoting deep emotional antipathy to her because of her religion. I thus find no evidence that Dr. Weir was in breach of the CRPA in the June emails.
DR. WEIR’S STATEMENT TO DR. EGAN AND DR. DANIELSON
[366] In her meeting with Drs. Egan and Danielson, acting as the Department of English Equity Committee, on June 25, 2001, Dr. Weir raised the issue of her own sexuality with the suggestion that it was “a dimension of (the) context” of the antagonism that had developed between Ms. Maughan and herself. Dr. Danielson, who testified that he took her remarks as asserting that Ms. Maughan was reacting to Dr. Weir’s sexuality, said that Dr. Weir did not link that belief to Ms. Maughan’s Christianity.
[367] There was no evidence, at least as of June 25, 2001, that Ms. Maughan knew or cared that Dr. Weir was a lesbian. Beyond the fact that Ms. Maughan was vigorously pursuing complaints of bias against Dr. Weir based on her experiences in the Derrida seminar, there was nothing to ground the suggestion that she had an oblique motive in relation to Dr. Weir’s sexual orientation. In my view, a properly instructed jury, acting reasonably, could find as a fact that Dr. Weir injected her sexuality into the issue without any reasonable grounds.
[368] The question then becomes whether there is any evidence that in so characterizing Ms. Maughan’s motive, Dr. Weir’s purpose was to interfere with her civil rights by promoting hatred of her contempt for her or her inferiority in relation to others, based on the fact that she was Christian. In determining whether there was any such evidence capable of supporting an inference that Dr. Weir had such a state of mind, at the relevant time, it is important to consider the circumstantial context including the controversy surrounding the colloquium, Dr. Weir’s interaction with Ms. Maughan throughout the seminar as well as the content of the June emails and the mindset which they reveal.
[369] There is no evidence that Dr. Weir either read or was aware of the specific contents of the postings on the list serv including the original article associating the then leader of the Canadian Alliance party with “a far right fundamentalist Christian manifesto” and among other things, “homophobia”. There is no evidence that she read or was specifically aware of the email written by Drew Milden in response to the ensuing controversy about the appropriateness of posting the anti-Alliance article on the list serv, supporting the assertion that the party, or its leader, was anti-homosexual, among other things, and fondly recalling “a time when Christians were stoned”. There was no evidence she read or was specifically aware of Ms. Maughan’s response to the Milden email and others addressing the issue. Although Ms. Maughan testified that she informed Dr. Weir of her reasons for objecting to attending the colloquium at Drew Milden’s on a Sunday, she was unable to recall with any precision what she said to Dr. Weir. In her statement to Dr. Danielson and Dr. Egan, Dr. Weir said she did not know the “pre-history” of the colloquium relating to the Milden email and in her June email she described it as “an argument with Drew Milden over religious matters”.
[370] During the course of this seminar and, particularly in her comments on Ms. Maughan’s final paper, Dr. Weir did refer to Ms. Maughan’s religiosity in effect asserting that Ms. Maughan allowed matters of faith to impair her academic analysis and judgment. It could not be said that there was no basis in the evidence justifying that conclusion.
[371] It is in that context that the question of whether there is any evidence from which it reasonably could be inferred that Dr. Weir’s purpose in making the groundless speculation about her sexuality being “a dimension of the context” was congruent with that proscribed by the CRPA. In making that determination, a limited weighing of the evidence is necessary.
[372] As I see it, there is nothing in the statement itself that impugns Ms. Maughan on the basis of her religion. It does not presuppose Ms. Maughan’s alleged discomfort with Dr. Weir’s sexuality flowed from her religion. In her answers to interrogatories, Dr. Weir did not connect her belief that Ms. Maughan was offended by her sexuality with Ms. Maughan’s Christianity, rather she inferred it from the evident ardour with which Ms. Maughan pursued her complaint against her and subsequently with the characterization of her in the lawsuit as having political views of “lesbian pornography” and “pedophile pornography.”.
[373] As I see it, then, as Dr. Weir’s expression to Dr. Egan and Dr. Danielson could not on its face be taken as an attempt to instigate hatred or contempt for Ms. Maughan or to promote her inferiority because of her Christian religion, in order to interfere with her civil rights, there must be some evidence to permit an inference that she had that purpose in making that statement. I do not see in the context of the statement, evidence that is capable of bridging that inferential gap. There is simply no evidence that Dr. Weir was either actively anti-Christian or antagonistic to Ms. Maughan because of her religion, as opposed to her attitude and conduct in the seminar, which may have been, in part, fuelled by her religious scruples.
[374] There is no evidence that Dr. Weir took issue with Ms. Maughan’s religion, only that she took issue with how she perceived Ms. Maughan to be reacting to course material and to her classmates because of her religion. In fact, as Ms. Maughan pointed out, in a previous course, when the subject of her religion came up, Dr. Weir acted respectfully towards it. I therefore conclude that there is no evidentiary basis upon which a reasonable jury could conclude that Dr. Weir’s assertion to Dr. Egan and Dr. Danielson, although groundless, was predicated upon an intention to invoke Ms. Maughan’s religion as a means of promoting hatred, contempt or inferiority in order to interfere with her civil rights.
THE REPETITION OF THE ANTI-HOMOSEXUAL COMMENTS IN XTRAWEST
[375] In my view, the reported public comments made by Dr. Weir in XtraWest to the effect that Ms. Maughan’s lawsuit could be damaging to “queer students and teachers” and that she “believes (the lawsuit) is part of a concerted attack against her by the religious right as a result of the … Sharpe case …” and that she “is concerned about some religious group’s attempts to link her testimony in the Sharpe case to what she teaches at UBC”, must also be viewed in context. What is at issue is Dr. Weir’s state of mind when she made the statements. It is evident from her examination for discovery evidence that in making those statements she was responding to the media coverage of the launch of the lawsuit against her and the other defendants, apparently influenced in part by Ms. Maughan’s former counsel’s press release referring to Dr. Weir’s testimony on behalf of Sharpe, who was charged with possessing child pornography, describing her as “well known as an antagonist of Christian morality.” As well, the statement of claim, which referred to Dr. Weir inappropriately discussing “her political views including subjects such as lesbian pornography and pedophile pornography” in responding to Ms. Maughan’s attempts at obtaining redress, appeared to Dr. Weir to influence the media coverage and incite negative reaction to her.
[376] Another part of the context is the content of the so called group interrogatory which Dr. Weir participated in and which the plaintiff relied on as evidence of Dr. Weir’s state of mind in making public statements connecting the lawsuit to the religious right and to anti-homosexual expressions.
[377] As I see it, Dr. Weir’s statements in XtraWest could only be viewed as a response to the public allegation linking her sexuality, her testimony on behalf of Sharpe, and her alleged antagonism to Christian values and to Christians. I do not see in her response anything that could be construed as instigating contempt of, hatred for, or the inferiority of Ms. Maughan or Christians in general, based on their religion. What Dr. Weir was responding to was the potential effect of how both she and the lawsuit against her were being characterized by Ms. Maughan’s former counsel and in various media outlets, some of which were Christian. I do not see any evidence that in doing so, Dr. Weir had the purpose of interfering with Ms. Maughan’s civil rights or anyone else’s. It was Ms. Maughan’s lawsuit and her former lawyer who brought the issues raised by the lawsuit into the public forum. Dr. Weir was doing no more than commenting on the association thus made between her sexuality and the issues raised in the lawsuit.
[378] Similarly, in the Ubyssey publication of March 25, 2003, Dr. Weir was doing no more than making public comment on matters already made public by the lawsuit and Ms. Maughan’s former counsel. Nothing in the comments could be construed as interfering with Ms. Maughan’s civil rights or promoting hatred of contempt for or her inferiority in comparison to others. The statements do not aver racism, even inferentially against Ms. Maughan, they assert that “understandably” Ms. Maughan became upset with the controversial course material.
[379] The statements thus made are not capable of instigating the deep antagonism contemplated by the CRPA, and do not therefore provide the basis for an inference that Dr. Weir had the proscribed purpose in making them.
[380] The plaintiff relies on Dr. Weir’s publication along with Stephen Petrina of the Weir/Petrina articles in November 2004 and November 2005 as communications prohibited by the CRPA. The essence of the plaintiff’s position was set forth in para. 88 of her Second Second Second Further Further Amended Statement of Claim, filed June 15, 2007, in which it was asserted:
The Weir/Petrina faculty communications demonstrates the ongoing intention of Weir to lead others to hold the plaintiff in contempt or to be inferior because of her religion after she sought relief from the judicial system.
[381] As I see it, the context of the so-called Weir/Petrina articles is dominated by the evidence that, spurred on by Ms. Maughan’s former counsel’s press release, some media outlets and other organizations appropriated or interpreted the lawsuit as addressing a clash of values typified on the one hand by those who embrace Christian morality and on the other by those who countenance deconstructionist ideas and lesbian and pedophile pornography. What the Weir/Petrina articles were addressing, in part, was that view of what the lawsuit represented and the tendency of some of the commentary on it to conflate those issues in a way that was essentially a diversion from the claim being advanced and the defence to it.
[382] I see no evidentiary basis on which it could be concluded that the Weir/Petrina articles were in breach of a quasi criminal statute or support the cause of action as framed.
[383] The plaintiff also complains in her statement of claim and submissions that the publication in the CAUT bulletin of the reference to the KKK website as media attention to the lawsuit and its failure to publish the plaintiff’s repudiation of the KKK support of the lawsuit represents conduct and communications that would arouse contempt for her.
[384] As I read the bulletin, the thrust of what it was addressing was the issue whether the lawsuit and the media attention it spawned represented a threat to academic freedom. There is no reference to Ms. Maughan in the piece complained of, and no attempt to associate her with the KKK in the article. While it is clear that the precepts of the KKK are, in fact, repugnant to Ms. Maughan, the fact that the lawsuit and the issues it was presented as raising, attracted that kind of attention, is the legitimate subject of public commentary and concern. There is simply no evidence of quasi criminal wrongdoing in such a communication.
[385] The plaintiff also advances claims under the CRPA against the other faculty defendants and the defendant UBC acting through its representatives. As I see it, her claims are essentially founded on the submission that the CRPA creates a tort of discrimination and is not a quasi criminal statute which I have found it to be, requiring evidence of purposive conduct or communications intending to incite deep feelings of antipathy towards Ms. Maughan based on her religion.
[386] I can see no evidence at all of any communication that Dr. Scott had with anyone but the plaintiff, so as to incite animosity of any sort towards her. At worst, Dr. Scott’s unsolicited email to Ms. Maughan prejudged the academic quality of her investigation into the Derrida quotation. There is simply no basis to find a breach of the CRPA in relation to Dr. Scott’s conduct or communications.
[387] The plaintiff’s claim is against Dr. Egan, so far as they rely on the CRPA must similarly fail. The plaintiff’s claim is that in various ways, Dr. Egan “demonstrated an antipathy towards the plaintiff throughout” the process by which she appealed her grade in the seminar.
[388] The plaintiff particularized being barred from bringing an advocate to a meeting with the equity committee, misstating the nature of the meaning, strongly recommending that she not appeal the decision, being “in charge” of the email list serv in which the original so called stoning email was posted, releasing confidential information to Dr. Weir about the plaintiff’s appeal and not disclosing the June emails to her. As well, the plaintiff asserted that Dr. Egan interfered with Dr. Rose’s disposition of her appeal to the faculty of graduate studies forwarding her file to the Dean of the faculty of graduate studies and interfering with the attempts of the president of the Graduate Student Society to assist Ms. Maughan in her appeals.
[389] While Dr. Egan was dealing with Ms. Maughan with respect to her dissatisfaction with how she was treated by Dr. Weir in the seminar and Ms. Maughan was alleging Dr. Weir’s bias on the basis of her religion, there is nothing in Dr. Egan’s conduct or communications with Ms. Maughan that could be construed as based on antipathy to her religion or an intention to hold her up to hatred or contempt or promote her inferiority because of her religion. Ms. Maughan essentially asserts that Dr. Egan dealt with her complaints against Dr. Weir inadequately and inappropriately. Whether that is so or not, it does not equate to conduct or communications prohibited under the CRPA which requires an active elicitation of other’s deeply felt antagonism towards Ms. Maughan based on her religion. I can see no evidence capable of supporting such a conclusion.
[390] Insofar as Dr. Segal is concerned, the dealings that she had with Ms. Maughan that provoked her to forward her “file” to Dr. Weir and to offer to write a letter of support on behalf of Dr. Weir predated Dr. Weir’s seminar and had nothing to do with Ms. Maughan’s religion.
[391] The evidence of Dr. Segal’s knowledge of what the issue between Dr. Weir and the plaintiff involved was scant and nothing said or done by Dr. Segal could be construed as invoking Ms. Maughan’s religion as a basis for stirring up deeply felt feelings of hatred or contempt for her or promoting her inferiority on the basis of her religion in comparison with others.
[392] Insofar as the Equity Office and Ms. Long and Ms. Sarkissian are concerned, nothing what they did or said could possibly be construed as a violation of the CRPA. Their dealings were exclusively with Ms. Maughan and one another, and nothing they said could be construed as an attempt to inflame deep feelings of antipathy towards Ms. Maughan. Ms. Maughan claims against Ms. Long and Ms. Sarkissian in para. 13 of her Statement of Claim, which reads as follows:
The plaintiff repeatedly brought this stoning email to the attention of UBC and in particular, Margaret Sarkissian and Ann-Marie Long of UBC’s equity office. UBC refused or neglected to address and correct the discrimination caused by the stoning email.
[393] Of the stoning email she averred in para. 12 of her Statement of Claim as follows:
This stoning email exposed Christians to “discrimination” or a “prohibited act”. It had as its purpose, the degradation of Christians as individuals and as a class of persons and promoted the moral inferiority of Christians. It stated that Christians are not worthy of respect and that anti-Christian violence is to be admired.
[394] The essence of Ms. Maughan’s complaint against Ms. Long and Ms. Sarkissian was that they discriminated against her based on her religion by advising her that the “stoning email” was not actionable under UBC’s equity policies, thereby misleading her and causing her “to abandon courses of action and redress which ought to have been available to her.”
[395] The plaintiff also asserted that Ms. Sarkissian and Ms. Long “ought properly to have discerned” that Ms. Maughan had been subject to a pattern of discrimination both overt and systemic in violation of other sections of UBC’s policy on discrimination and harassment and other applicable standards.
[396] In her own correspondence with the Equity Office, Ms. Maughan confirmed that she did not believe that the Milden email constituted legal harassment. She also told the Equity Office she did not want her allegations concerning Dr. Weir to be investigated, preferring it to be dealt with in her appeal to the faculty of graduate studies.
[397] Those circumstances simply do not permit an inference that UBC, acting through Ms. Long or Ms. Sarkissian, were acting or communicating in a manner contravening the CRPA, or that they were condoning or endorsing the Milden email. They agreed with Ms. Maughan’s assertion that it was not harassment, and they informed her they would not venture a further opinion without launching an investigation which she asked them not to do.
[398] It is of some significance that in her correspondence with the Equity Office, Ms. Maughan described the Milden email as referring to “stoning Christians” whereas in fact it referred to when Christians “were stoned”. Ms. Maughan presented it in a way that could not be interpreted as an attempt at humour. The equity office had to deal with it on the very realistic possibility that it was an attempt at humour.
[399] Similarly, so far as Dr. Weir’s conduct was concerned, Ms. Maughan essentially foreclosed the equity office from conducting any investigation. In those circumstances there is no basis in the evidence to assert any sort of discrimination by failure to act or perpetuation of any breach of the CRPA. I thus find no evidence of a breach of the CRPA and the conduct or communications of Ms. Long or Ms. Sarkissian acting on behalf of the defendant UBC.
[400] So far as the Milden email itself is concerned, although it forms a significant element of this lawsuit, serving as part of the issue between Dr. Weir and Ms. Maughan over the colloquium and serving as the basis for part of Ms. Maughan’s claim against UBC, Mr. Milden himself was not made a party to this lawsuit. He was therefore not examined for discovery and no evidence of what his state of mind was in writing the impugned email was put before the court.
[401] The court is in some respects in the same situation as the Equity Office at this stage in attempting to infer some level of hate mongering or assertions of inferiority in the publication of the Milden email from its content alone.
[402] Bearing in mind that context is important, it is significant to note that the Milden email was part of a discussion about the appropriateness of publishing an attack on the politics of the leader of a national political party vying for the right to form the next federal government, on the grad student list serv. The article at issue was focussed on controversial issues of the death penalty, abortion, and the rights of gay people in society, negatively associating those issues with a Christian fundamentalist point of view allegedly held by the leader of the Alliance Party, Mr. Day.
[403] In defending the view that posting the article on the website was appropriate, Mr. Milden cited the need to foster more personal communications and develop a sense of community among English graduate students. He emphasized that point by adding his criticism of Mr. Day’s alleged views before making the comment about “when Christians were stoned”.
[404] There is no evidence on which a reasonable jury could conclude that Mr. Milden’s comments sought to counsel violence against Christians. The concept of Christians literally being stoned is simply too anachronistic to have any resonance in modern-day Canada.
[405] The overall context of the Milden email, the structure of the offending sentence, and the smiley face icon at its end, all convey an attempt (however clumsy) to strike a sardonic tone rather than one that was hate-mongering or promoting contempt or inferiority in comparison with others. Although apparently referring to Christians indiscriminately, it is clear that the real target of Mr. Milden’s jibe were those who, he alleged, held the ideas he objected to.
[406] In those circumstances, without more evidence, it could not be inferred that his purpose in writing the email was as the plaintiff now contents, consonant with prohibited conduct or communications under the CRPA, although a person in the position of Ms. Maughan could hardly be faulted for finding the email offensive.
[407] Thus I conclude that there is no evidentiary basis for the plaintiff’s claim against any of the defendants under the CRPA which addresses significantly more serious conduct and communications than that which may give rise to a claim of discrimination under the Human Rights Code.
THE CLAIM IN NEGLIGENCE
[408] To establish a claim in negligence simpliciter, a plaintiff must establish the existence of a duty of care, the standard of care which must be met, a breach of the standard of care, and evidence that the breach of the standard of care caused foreseeable damages.
[409] It is an issue in this lawsuit whether the plaintiff could in any event succeed in an action for negligence simpliciter against UBC, its officers or employees in light of the provisions of s. 69(1) of the University Act, R.S.B.C. 1996, c. 468 which reads as follows:
An action or proceeding must not be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of the person's duties on behalf of the university.
[410] It is also an issue in this lawsuit whether there is jurisdiction in the court to entertain claims rooted in academic issues outside of the process of judicial review on the footing that such matters are “exclusively a matter to be dealt with by the school’s own procedures, provided that the school does not breach the principles of natural justice.” See Dawson v. University of Toronto, [2007] O.J. No. 591 (QL) (Ont. S.C.J.).
[411] It is also an issue whether there is a recognized tort of educational negligence even if the University Act or the academic nature of the action did not preclude the claim in negligence simpliciter.
[412] Finally, it is an issue whether, assuming an action in negligence simpliciter to lie, the elements are made out on the evidence in light of the policy reasons which may limit or negate the duty of care between a professor or university and a student.
[413] I conclude that the effect of s. 69(1) of the University Act is to preclude the successful prosecution of the claim in negligence against the faculty defendants and UBC in the absence of evidence of bad faith.
[414] The plaintiff’s claim in negligence is pleaded compendiously in para. 101 of her Second Second Second Further Further Statement of Claim as follows:
The plaintiff claims that Weir’s conduct as a professor was negligent, and that insofar as the other defendants instigated, authorized, permitted, committed, conspired or acquiesced to Weir’s conduct, they were negligent in their duties as officers, employees and agents of UBC.
[415] The plaintiff further pleaded that as she was a student at UBC, the defendants had a duty to take reasonable care to avoid acts or omissions “which they could reasonably foresee would be likely to injure the plaintiff … and which would foreclose (her) equal opportunity for a future academic career”.
[416] In paras. 104 and 105 the plaintiff pleaded as follows:
As a result, the Defendants had a duty of care to take reasonable steps to protect the Plaintiff against activity that threatened the psychological well-being of the Plaintiff by subjecting the Plaintiff to “discrimination” or a “prohibited act”.
The Defendants, by their communication and their conduct as stated in this Statement of Claim, breached the duty of care they owed to the Plaintiff and were negligent, particulars of which negligence are as follows:
(a) censuring the Plaintiff for writing an academic paper or for her academic ideas that questioned the linguistic accuracy of a biblical quotation in Weir’s class material;
(b) failing to censure the conduct of Drew Mildon for circulating the Stoning E-Mail;
(c) neglecting or refusing to address and correct the discrimination caused by the Stoning E-Mail;
(d) failing to take reasonable steps to protect the Plaintiff against activity that threatened the psychological well-being of the Plaintiff and her equal opportunity for a future academic career, by subjecting the Plaintiff to “discrimination” or “prohibited acts”;
(e) failing to monitor or supervise the conduct of Weir to ensure that Weir met the high standards expected of her as a professor;
(f) failing to provide an educational environment free of bias, prejudice and intolerance;
(g) failing to promote and respect the Plaintiff’s civil rights; and,
(h) such further and other particulars of negligence as may be disclosed by the evidence.
[417] The plaintiff went on to particularize her allegations of negligence against the defendant UBC, the defendant Weir, the defendant Scott, the defendant Segal and the defendant Egan, arising out of the events at issue in paras. 105 through 111 of the Second Second Second Further Further Amended Statement of Claim.
(i) The Claim Against Dr. Weir
[418] The plaintiff’s claims against Dr. Weir are contained in paras. 106 and 106.1 of the Second Second Second Further Further Amended Statement of Claim. In para. 106, she avers as follows:
The Weir Statements set in motion a series of events that would forever shape the course of the Plaintiff’s future by affecting the Plaintiff’s reputation in the academic community, her ability to complete her education, and emotional harm, based on conjectures and speculation about the Plaintiff because of the Plaintiff’s religion.
[419] In para. 106.1 (a) to (m), the plaintiff particularized the negligence of Dr. Weir as follows:
Further particulars of which negligence are as follows:
(a) censuring the Plaintiff for writing an academic paper or for her academic ideas that questioned the linguistic accuracy of a biblical quotation in Weir’s class material;
(b) failing to censure the conduct of Drew Mildon for circulating the Stoning E-Mail;
(c) failing to take reasonable steps to protect the Plaintiff against activity that threatened her psychological well-being and her equal opportunity for a future academic career, by subjecting the Plaintiff to “discrimination” or “prohibited acts”;
(d) making false or negligent statements in the June Emails to attack the Plaintiff in spite of the 553 Student Evaluations that contradicted the June Email statements.
(e) conducting seminars at the residence of Drew Mildon when Weir knew or ought to have known that attendance at the residence of the author of the Stoning E-Mail would cause the Plaintiff emotional and psychological injury or distress;
(f) failing to respect the religious beliefs of the Plaintiff by conducting seminars on the Plaintiff’s Sabbath day, thereby denying her the right of full participation in her class and exposing the Plaintiff to “discrimination” or “prohibited acts”;
(g) failing to actively accommodate the Plaintiff by failing to respond to the Plaintiff’s request for alternative feedback in lieu of attending the Sunday class;
(h) mounting an irrelevant attack upon the Plaintiff’s character [text stricken as a result of voir dire ruling on immunity dated January 16, 2007];
(i) taking a sustained, hostile approach towards the Plaintiff because of the Plaintiff’s religious beliefs and thereby subjecting her to “discrimination” or “prohibited acts”;
(j) [text stricken as a result of voir dire ruling on immunity dated January 16, 2007];
(k) breaching the high standards expected of teachers by circulating e-mails (including The June Emails); or, e-mails (including the June Emails) and letter(s) in or with the Segal File, attacking the Plaintiff’s religious views and promoting through conduct and communications “discrimination” or “prohibited acts”; and,
(l) such further and other particulars of negligence as may be disclosed by the evidence. Further particulars of which negligence are as follows:
(m) Weir was negligent in dealing with a student in a power-imbalanced relationship with faculty by:
i) refusing the Plaintiff’s attempts to resolve the matter as close to the source as possible;
ii) breaching UBC Policy, which Weir knew or ought to have known, prohibits retaliation.
[420] The claim being advanced by the plaintiff against Dr. Weir, is, of course, at the core of this lawsuit. A successful resistance of the defendant’s no evidence motion respecting the plaintiff’s claim in negligence requires an evidentiary basis to support the proposition that not only is there a duty of care and a standard of care to be met, a breach of the standard of care and causation of foreseeable damages, but also that the conduct of Dr. Weir and others facilitating her conduct was done in bad faith.
[421] Bad faith was defined in Simensen v. Metchosin (District) (1989), 48 M.P.L.R. 220 at p. 224:
The term ‘bad faith’ is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence and contemplates a state of mind affirmatively operating with furtive design or ill will.
[422] Many, if not all, of the plaintiff’s claims against Dr. Weir are predicated on the basis that Dr. Weir was actuated in her dealings with the plaintiff by malice against her on the basis of her religion. I see no such evidence. While it is obvious that Ms. Maughan’s religious views and scruples were implicated in the genesis of the events that have led so regrettably to the extraordinary number and nature of allegations of this lawsuit, there is no evidence that Dr. Weir was reacting to anything other than Ms. Maughan’s conduct and attitudes within the seminar and towards the controversial material it addressed. As to what Ms. Maughan’s precise conduct and attitudes were, there is indisputable evidence that she refused to actively participate in the seminar after the January 30th class, and there is indisputable evidence of her final paper that she wrote in a way that appeared to disparage both the seminar and Dr. Weir as a teacher, implying that she had sold the students in the course “a bill of goods”. As to what precisely happened in the January 30th class, there is some countervailing evidence as to the length and nature of the plaintiff’s involvement in it, but there is indisputable evidence that she responded emotionally being “upset” and, by her own evidence of trying not to cry, and was angered at what she regarded as the other students’ dismissal of her academic point.
[423] There is no evidence that Dr. Weir’s refusal to change the colloquium or failure to provide feedback on her paper were malicious or morally oblique actions. There is no clear evidence of what Dr. Weir knew the basis of Ms. Maughan’s objection to the colloquium to be, given that she did not initially object to it being held on a Sunday, was indirect in raising the prospect of changing it in her two emails to Dr. Weir, and was unclear in her evidence as to what she told Dr. Weir on February 8, 2001 concerning her previous interaction with Mr. Milden. It would in my view be impossible to conclude on the state of the evidence before me that Dr. Weir’s refusal to change the colloquium had “ill will” or “furtive design” towards Ms. Maughan based on her religion as its animating force as opposed to the difficulty of rearranging the colloquium to another date, given the difficulty with which the first date was settled upon.
[424] Similarly, Dr. Weir’s failure to provide feedback on Ms. Maughan’s presentation paper was explained as a misunderstanding of the form the paper would be submitted in. Ms. Maughan had every opportunity to remind Dr. Weir of her presentation paper and did not do so. Had she done so and been rebuffed by Dr. Weir, that may have provided some evidence of Dr. Weir’s state of mind towards Ms. Maughan cogent to an allegation of bad faith. However, without that evidence or something similar, there is simply no basis to draw the inference that Dr. Weir’s state of mind embraced moral obliquity or active ill will towards Ms. Maughan because of her religion or otherwise.
[425] Similarly, Dr. Weir’s refusal to grant Ms. Maughan an extension was given a rational explanation. In the absence of affirmative evidence that it placed Ms. Maughan in a different position than the majority of the class it could not be inferred that it was the product of, as Ms. Maughan claims, ill will towards her because she was a Christian.
[426] As to Dr. Weir’s comments on Ms. Maughan’s final paper, they must of course be judged in light of the content of the paper itself, which could quite reasonably be interpreted by Dr. Weir as disparaging of her and of the quality of the seminar. It is possible to infer from that fact that Dr. Weir may have been exasperated with Ms. Maughan, but I do not see in her comments, any evidence of a state of mind beyond an attempt to identify what Dr. Weir saw, rightly or wrongly, as deficiencies in Ms. Maughan’s approach to and understanding of the subject matter of the seminar.
[427] Insofar as the various claims against Dr. Weir arising from her conduct in the communications in the June emails to Dr. Egan and Danielson on the Equity Committee, to the UBC and XtraWest and in writing the Weir/Petrina articles, it is on a different footing from that which happened during the course of the seminar when Ms. Maughan and Dr. Weir were in a professor/student relationship.
[428] In Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R.108, which was heavily relied on by the plaintiff in urging the finding of negligence in this case, the court addressed the elements of the tort of negligence. In dealing with the element of a duty of care, the court said the following at para. 28:
The court recently affirmed in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79, at para. 24, and Martel Building Ltd. v. Canada [2000] 2 S.C.R. 860, 2000 SCC 60, at para. 46, that the “duty” analysis proceeds in two stages:
(a) Is there a sufficiently close relationship of proximity between the parties such that, in the reasonable contemplation of the defendant, carelessness on its part might cause damage to the plaintiff?
(b) If so, are there any considerations which ought to negative or limit:
a) the scope of the duty;
b) the class of persons to whom it is owed; or
c) the damages to which a breach of it may give rise.
[429] In Young v. Bella, which involved one of the plaintiff’s professors making a groundless report against her under s. 38 of the provincial Child Welfare Act to report suspicions of child abuse based on an unfootnoted case study the plaintiff included in an essay she submitted to the professor, it was argued that the duty to report suspected child abuse should as a matter of policy, negate any duty of care which otherwise arose.
[430] The court noted that the plaintiff in her statement of claim (as the plaintiff has here) scribed a broad claim in negligence encompassing not only the report made to CPS but the university’s dealings with the appellant generally in a pleading closely followed by the plaintiff in para. 106.
[431] The court went on to note in Young v. Bella at paras. 30 and 32 as follows:
In support of this broader claim the appellant led evidence of failure to mentor, failure to properly advise her on her future and negligent publication within the faculty, through means other than the report to CPS, of the suggestion that the plaintiff may have abused children.
In short, in the present case, proximity was not simply grounded on a misguided report to CPS, but was rooted in the broader relationship between the professors at Memorial University and their students … [t]he relationship between the appellant and the university had a contractual foundation, giving rise to duties that sound in both contract in tort: Central Trust v. Rafuse, [1986] 2 S.C.R. 147.
[432] The court went on to conclude in Young v. Bella that in the circumstances before it, there was no need to prove the absence of good faith in making the report under the CPA. It was sufficient if it was made without reasonable cause.
[433] Thus, in Young v. Bella, because the negligence alleged and the evidence relied on went beyond the making of the report as required to the CPS, the court was unable to find that policy reasons for reporting suspected child abuse negatived the duty of care element of a negligence claim. Further, the court held that absence of good faith was not, in the circumstances, intrinsic to finding a breach of the duty of care.
[434] In the present case, the circumstances are markedly different. After concluding Dr. Weir’s course and obtaining her final paper, her grade, and reading the comments on her paper, Ms. Maughan took steps to launch a complaint against Dr. Weir which led to her request to have her grade expunged on the basis of allegations of religious bias, which I conclude lack any evidentiary basis.
[435] Eventually, of course, the complaints against Dr. Weir morphed into this lawsuit which has alleged quasi criminal wrongdoing and bad faith, not only against Dr. Weir, but also against the other faculty defendants and representatives of UBC.
[436] Thus in this case, unlike the circumstances in Young v. Bella, the relationship said to found a duty and standard of care was an adversarial one framed by the plaintiff’s serious allegations against the defendant Weir and requiring proof of bad faith, or quasi criminal conduct. In these circumstances I conclude that the proximity that might otherwise be found to exist in the professor student relationship is vitiated.
[437] Moreover, it is my view that the policy reasons implicit in permitting a person accused of serious misconduct to mount a forceful, robust and even antagonistic defence against such allegations negate or significantly limit any duty of care imposed on her. To hold that in such a case of duty of care is negated or limited would not preclude a remedy in the event that the process of defending against allegations went too far, as an action in defamation may nonetheless be available.
[438] In this case, however, I am persuaded that whatever duty and standard of care may have governed Dr. Weir’s relationship with Ms. Maughan before Ms. Maughan launched her allegations of religious bias did not prevail thereafter, as a person in the position of Dr. Weir has the right and the duty to address allegations made against her in a way quite different from addressing issues arising in a non-adversarial professor/student relationship.
[439] I thus am unable to find a duty of care that existed in the circumstances of this case which conditioned the relationship of the plaintiff with the defendant Weir after the plaintiff launched her allegations of religious bias against Dr. Weir.
[440] If I am wrong in that conclusion, I would nevertheless find no positive evidence of moral obliquity in Dr. Weir’s responses to Ms. Maughan’s allegations. The June emails do not provide evidence of religious bias against Ms. Maughan, at most they question whether Ms. Maughan’s religious beliefs interfered with her willingness to fully engage in academic discourse in the seminar. Given Ms. Maughan’s withdrawal from active participation in the seminar, and the tenor of her final paper that can hardly be viewed as a groundless observation. Nor do the June emails accuse Ms. Maughan of racial intolerance. In them, Dr. Weir simply surmised that Ms. Maughan, like other students, may have difficulty accepting the view that the historical contact between European Christians and First Nations was destructive of the First Nations identity and culture.
[441] Insofar as Dr. Weir’s statement to Drs. Egan and Danielson concerning her “sexuality being a dimension of the context” is concerned, it is more problematic, because, as I have indicated, there was no foundation for that assertion and it was careless conjecture, perhaps amplified by the content of the subsequent group answer to the interrogatory.
[442] It seems to me however, to find that the necessary degree of malice, ill will or moral obliquity requires more than evidence of the lack of a reasonable basis for the remark.
[443] In Young v. Bella, the Supreme Court of Canada dealt with the interpretation of s. 38(6) of the Child Welfare Act, which protected persons making reports of suspected child abuse from action “unless the making of the report is done maliciously or without reasonable cause”. The Newfoundland Court of Appeal found that the words “without reasonable cause” meant the same as “in the absence of good faith”. In overturning the Court of Appeal, the Supreme Court of Canada held at para. 47 as follows:
In our view, such an interpretation does not give effect to the legislator’s specification of both a subjective element (“maliciously”) and an objective element (“reasonable cause”) to determine whether the report of “information” is to be protected from all legal consequences.
[444] Thus, in the present case, while there is evidence that Dr. Weir lacked reasonable cause to believe that her sexuality was a dimension of the context at the time she made that remark to Drs. Egan and Danielson, that does not equate to lack of good faith. That evidence alone is not capable of bridging the inferential gap to find the necessary subjective element required by s. 69(1) of the University Act, because, in context, there is no evidence that Dr. Weir’s asserted belief was though wrongly held, not honestly held.
[445] So far as Dr. Weir’s reported statements to the Ubyssey and XtraWest are concerned, and her comments concerning the lawsuit on the Weir/Petrina articles, they clearly do not issue from the context of a professor/student relationship implicating a proximity giving rise to a duty of care. Ms. Maughan had, by the time of these statements launched a lawsuit against Dr. Weir alleging religious bias and quasi criminal wrongdoing. As well, she or her counsel had made public statements concerning Dr. Weir’s conduct said to give rise to the lawsuit. In those circumstances, no duty of care arises either through want of a sufficiently proximate relationship, or alternatively, because any duty arising from such a relationship should be negatived to avoid stifling a defendant’s right and duty to respond robustly to allegations made against her in the public forum.
[446] I thus find no evidentiary basis upon which a claim in negligence could be found against Dr. Weir.
(ii) The Claim in Negligence against Dr. Scott
[447] The plaintiff’s claim against the defendant Scott was set out in para. 107 (a) to (d) of her Second Second Second Further Further Statement of Claim which reads as follows:
(a) censuring the Plaintiff for writing an academic paper or for her academic ideas that questioned a biblical quotation in Weir’s class material;
(b) failing to take reasonable steps to protect the Plaintiff against activity that threatened her psychological well-being and her equal opportunity for a future academic career, by subjecting the Plaintiff to “discrimination” or a “prohibited act”;
(c) taking a sustained, hostile approach towards the Plaintiff because of the Plaintiff’s religious beliefs and thereby subjecting her to “discrimination” or a “prohibited act”.
(d) breaching the high standards expected of teachers by attacking the Plaintiff’s religious views and promoting through conduct and communications “discrimination” or a “prohibited act”; and,
(e) such further and other particulars of negligence as may be disclosed by the evidence. Further particulars of which negligence are as follows:
(f) sending the Plaintiff what Scott knew or ought to have known was an uninvited email ridiculing and attacking the dignity of the Plaintiff’s practice of Holy Communion.
[448] I do not find any evidence of bad faith in relation to Dr. Scott’s dealings with the plaintiff. There is no way to infer from the limited evidence of their interactions that Dr. Scott, even though providing Ms. Maughan with unsolicited advice, had some oblique anti-Christian motive in giving the advice. There is simply no basis to infer that Dr. Scott was doing anything other than offering advice that she thought would help Ms. Maughan to address the course material she apparently found problematic. Ms. Maughan’s “evidence” as to Dr. Scott’s motives – that she took strong exception to Ms. Maughan questioning Derrida and responded to Ms. Maughan “as if” Ms. Maughan found it sacreligious in order to “shut her down” is entirely speculation. On her own evidence, Ms. Maughan could not recall what she said to Dr. Scott and she conceded that it “made sense” from reading the Scott email that she had referred to the Derrida passage as being “sacreligious”.
[449] Thus, the court has before it, Dr. Scott’s explanation in her examination for discovery that her advice to Ms. Maughan flowed from Ms. Maughan’s description of the passage as blasphemy or sacrilege and in response, she was advising her to concentrate on the text rather than the feelings it invoked in her.
[450] There is simply no basis from which to infer that Dr. Scott’s email to Ms. Maughan had the motive attributed to it by Ms. Maughan or was the product of anything other than good faith.
(iii) The Claim of Negligence against Dr. Segal
[451] Ms. Maughan’s claims of negligence against Dr. Segal are set out in para. 108 of her Statement of Claim, which focuses upon the evidence that Dr. Segal gave Dr. Weir a copy of the emails she had, reflecting her interaction with Ms. Maughan in the spring of 2000, in June 2001 and evidence which Ms. Maughan contends is suggestive that the letter she wrote in relation to Ms. Maughan dated February 28, 2002 was given to Dr. Weir in June 2001. It is the plaintiff’s contention that Dr. Segal was hostile towards her because of her religion and that motivated her to wrongfully turn over her file on Ms. Maughan to Dr. Weir and to write the letter dated January 28, 2002.
[452] It was Ms. Maughan’s further contention that there was evidence arising out of Dr. Segal’s examination for discovery that in fact the letter of February 28, 2002 was written earlier and for a purpose other than the senate appeal and hence was not covered by the immunity. Ms. Maughan asks the court to draw the inference based on Dr. Segal’s examination for discovery evidence that she believed she wrote the note referring to her file around the same time as she wrote the letter in February 2002, but in fact, the letter was written earlier. As there is evidence from Dr. Weir’s June emails that she received the Segal file in June 2001, Ms. Maughan submits there is an inference to be drawn that the letter was written at the same time – in June 2001, long before the Senate hearing.
[453] As this is a matter of indirect evidence, some limited weighing of the evidence is necessary to determine if it is capable of bridging the inferential gap to establish what Ms. Maughan contends. I conclude it does not. Dr. Segal’s evidence on her discovery is that she wrote the letter for the Senate appeal in February 2002. The date on the letter is consistent with that evidence. There is no evidence that the letter existed, was seen, was used, was requested, or was needed in any earlier process or at any earlier time. The only reasonable inference from all of the evidence is that Dr. Segal is wrong in her recollection of the sequence of events and she did not turn over her file when she wrote the letter. The only reasonable inference is that Dr. Segal encountered Dr. Weir and turned over her file considerably earlier than she wrote the letter dated February 28, 2002.
[454] There is similarly no reasonable evidentiary basis to conclude that anything Dr. Segal did was motivated by antipathy to Ms. Maughan’s religion. Dr. Segal’s own dealings with Ms. Maughan had nothing to do with her religion and, at most, there is some evidence that she had a limited knowledge that Ms. Maughan’s complaints against Dr. Weir involved an issue of religion. That provides no foundation for a conclusion that Dr. Segal was anti-Christian or reacted against Ms. Maughan because of her religion. The evidence is plain that Dr. Segal had an experience with Ms. Maughan that she considered germane to the issue whether Ms. Maughan’s complaints against Dr. Weir were reasonable or not. There was nothing in the correspondence between Ms. Maughan and Dr. Segal that was inherently confidential or personal, such that its disclosure represented an act of moral obliquity or ill will. Essentially, Dr. Segal provided a series of emails that spoke for themselves and that reflected on the nature of Ms. Maughan’s interaction with her in the context of dealing with course material.
[455] In her pleadings, Ms. Maughan also avers that Dr. Segal’s emails contain false and negligent statements and induced Dr. Egan to refer to her as “unhappy and confused”.
[456] The emails in question reflect ongoing communications between Ms. Maughan and Dr. Segal. On inspection, they do not provide evidence of false or negligent statements and it is clear that it was Ms. Maughan who provoked Dr. Segal’s decision to involve Dr. Egan, who subsequently provided her interpretation of the character of the interaction between Dr. Segal and Ms. Maughan.
[457] I find no evidentiary basis for a claim of bad faith against Dr. Segal on the admissible evidence.
(iv) The Claim in Negligence against Dr. Egan
[458] The plaintiff’s claim in negligence against Dr. Egan is set out in para. 109 (a) to (g) of her Second Second Second Further Further Statement of Claim, which reads as follows:
(a) failing to take reasonable steps to protect the Plaintiff against activity that threatened her psychological well-being and her equal opportunity for a future academic career, by subjecting the Plaintiff to “discrimination” or a “prohibited act”;
(b) taking a sustained, hostile approach towards the Plaintiff because of the Plaintiff’s religious beliefs and thereby subjecting her to “discrimination” or a “prohibited act”;
(c) breaching the high standards expected of teachers by denying her independent representation and procedural fairness in the Appeal process, and by promoting through conduct and communications “discrimination” or a “prohibited act” in her Holy Day Observance Appeal; and,
(d) such further and other particulars of negligence as may be disclosed by the evidence. Further particulars of which negligence are as follows:
(e) neglecting or refusing to resolve the matter as close to the source as possible in a power-imbalanced relationship;
(f) forwarding the Egan File to the Faculty of graduate Studies where it was read by the Associate Dean and/or the Dean of the Faculty of Graduate Studies;
(g) failing to consider or address the 553 Student Evaluations which contradicted Weir’s June Emails.
[459] Insofar as the claim in negligence against Dr. Egan rest on a failure to protect her from “discrimination or a prohibited act”, it must fail, as I have concluded that there is no evidence that the plaintiff was subjected to any prohibited acts under the CRPA. Insofar as the failure to protect from discrimination is concerned, I have found no evidence that conduct towards or communications with Ms. Maughan was animated by religious bias, or otherwise by bad faith.
[460] I further see no evidence upon which a properly instructed jury, acting reasonably, could conclude that anything said or done by Dr. Egan amounted to promoting “discrimination” or a “prohibited act” in the course of Ms. Maughan’s “Holy Day Observance Appeal”.
[461] Although Ms. Maughan invoked Dr. Egan’s participation in the Equity Committee’s consultation with her as a foundation for her claim in negligence, on the footing she was denied procedural fairness in the appeal process, it is clear from the evidence that the Equity Committee was not a step in the appeal process, but was an attempt through consultation to resolve the issue without the necessity of engaging the appeal process. In the 2001 handbook for graduate students in the Department of English, para. 7.4 describes the Equity Committee as follows:
The Equity Committee is an independent departmental committee consisting of four faculty members, a graduate student representative and an under graduate student representative. Individually or collectively, members of the Equity Committee are available to consult with students concerning matters of discrimination or harassment. All meetings are confidential. The Equity Committee serves when necessary as a liaison between the English Department and the UBC Equity Office.
[462] The plaintiff’s claim that Dr. Egan was negligent by neglecting or refusing to resolve the matter as close to the source as possible is unsupported by any evidence as the ultimate resolution sought by the plaintiff was not found appropriate at any stage in the appeal process and no judicial review was sought.
[463] In her submissions (sur-reply p. 23) the plaintiff asserted the Equity Committee consisting of Drs. Egan and Danielson did not consider the plaintiff’s case on its merits because it conducted an unauthorized formal investigation outside of its jurisdiction, because Dr. Egan concealed the plaintiff’s appeal documents from her co-chair, because Dr. Egan concealed Weir’s June 25th statement from the plaintiff, and because Dr. Egan barred the plaintiff from having a representative with her.
[464] The plaintiff also submitted that she was diverted from the “proper appeal path” that she was on to the faculty of graduate studies to “an unauthorized equity committee.” She asserted that Dr. Egan only provided the equity committee file to the faculty of graduate studies after she learned that Dr. Rose was granting the plaintiff’s appeal.
[465] I conclude that there was no evidence that Dr. Egan’s conduct or communications in connection with the equity committee were in bad faith or were, in any event, causative of foreseeable damages.
[466] Fundamentally what was at issue before the equity committee was whether Ms. Maughan had been treated unfairly by Dr. Weir because of religious bias, leading to her unsatisfactory grade. That is of course what was at issue in Ms. Maughan’s subsequent appeals to the faculty of graduate studies and to the senate appeals committee.
[467] In that appeal process, Ms. Maughan was unsuccessful. This case is not a review of the fairness or reasonableness of the appeals process or its result. Thus there is no evidentiary basis to conclude that the conduct of the equity committee or Dr. Egan in particular, caused any foreseeable damage to Ms. Maughan.
[468] In addition, there is no evidence that Dr. Egan was, as Ms. Maughan asserts, acting out of bad faith related to her religious faith. Whether Dr. Egan gave Dr. Danielson the documents supplied to Dr. Egan or not, there was a reference to them in Ms. Maughan’s email to Dr. Egan and Dr. Danielson and there was reference to them in Dr. Egan’s email to Ms. Maughan, copied to Dr. Danielson. There was thus no evidence of an attempt by Dr. Egan to keep the existence of the documents hidden from Dr. Danielson and there is no evidence that in reaching the conclusions they did or offering the advice that they did, that either Dr. Egan or Dr. Danielson had an oblique purpose such as religious bias. The conclusion which they reached was vindicated in the subsequent appeal processes engaged by Ms. Maughan and hence, whatever flaws may have beset the Equity Committee process are rendered nugatory and cannot be regarded as causative of any actionable harm to Ms. Maughan.
[469] That being the case, I find no liability on the part of the defendant UBC for any of the acts or omissions of the individual faculty defendants.
(v) The Claims in Negligence against the Defendant UBC
[470] The claims in negligence against the defendant UBC that exist independently of the claims against the individual faculty members are set out first in paras. 105 (a) to (d) in which Ms. Maughan alleges UBC “censured” her for writing an academic paper questioning the linguistic accuracy of a biblical quotation, failed to censure Drew Milden for what she referred to as the “stoning email”, failed to “address and correct the discrimination caused by the stoning email” and by failing to take reasonable steps to protect her against activity that threatened her psychological well-being and her equal opportunity for a future academic career by subjecting her to discrimination or prohibited acts.
[471] In paras. 105 (e) to (g), the plaintiff pleaded that UBC failed to monitor Dr. Weir’s conduct to ensure it met the high standard of a professor, failed to ensure an educational environment free of bias, prejudice and intolerance, and failed to promote and respect the plaintiff’s civil rights.
[472] The plaintiff further particularized the defendant UBC’s negligence in para. 105.1 (i) to (p) as failing to inform the plaintiff that there had been a formal investigation in 2001, failing to require the faculty of graduate studies to render a decision independent of Dr. Weir or the English department on the plaintiff’s appeal, failing to protect the plaintiff from Drs. Weir, Segal Scott and Egan, failing to meet with the plaintiff, communicating matters concerning the plaintiff between departments and offices without the plaintiff’s knowledge or permission, failing to inform the plaintiff of the legal resources that UBC was applying to her appeal, failing to inform the plaintiff of the legal stature and nature of UBC’s appeal procedures, and breaching the plaintiff’s confidentiality by providing Weir with the notes of a confidential meeting between the plaintiff, the department advisor, and the plaintiff’s mentor.
[473] The plaintiff led no evidence capable of establishing that she was “censured” for writing an academic paper questioning the linguistic accuracy of a biblical quotation.
[474] Insofar as what the plaintiff has described as the “stoning email” is concerned, the plaintiff relies on evidence that the issue of the debate on the grad student list serv was raised in a graduate student committee meeting chaired by Dr. Egan, however, there is no evidence that the precise content of the email or emails at issue were revealed and there is no evidence that the graduate committee had any sort of mandate or duty to deal with the issue.
[475] Although Ms. Maughan did bring the content of the email to the attention of the Equity Office, she made it clear that she did not believe the email to be harassment or discrimination, and she did not wish there to be an investigation as she was not lodging a complaint, but rather was asking for a consultation on “how to raise academic awareness on the issue of freedom of religion.”
[476] In that context, it cannot be said that there was any failure of the Equity Office through negligence to fail to censure Drew Mildon or address and correct the circumstances caused by the email as that is not what they were being asked to do, except in the most general and non-specific way.
[477] There is simply no evidence of negligence or bad faith on the part of Ms. Long or Ms. Sarkissian of the Equity Office in those circumstances in dealing with the plaintiff, particularly in view of the evidence that she did not want an investigation conducted and that she first raised the issue of the offending email nearly six months after the event took place.
[478] Insofar as the dealings of the Equity Office with the circumstances of the seminar are concerned, at the heart of its response was a refusal to deal with Ms. Maughan’s question as to whether the course constituted a chilly learning environment for a Christian without a complaint justifying an investigation. There is no evidence, however, that Ms. Maughan either brought a complaint against Dr. Weir, or sought or even permitted an investigation by the Equity Office. In fact, the evidence is that Ms. Maughan would not permit the equity office to conduct an investigation or even contact Dr. Weir.
[479] In the circumstances, there is thus no evidence of negligence or bad faith on the part of the Equity Office in connection with the conduct of the seminar, even if Dr. Weir’s conduct could have been considered biased against Ms. Maughan as a result of her religion.
[480] I conclude therefore, particularly in view of my conclusion that there is no evidence that Dr. Weir was biased against the plaintiff because of her religion, that the plaintiff’s claims in para. 105 (e) to (g) lack any evidentiary basis.
[481] The particulars of negligence alleged in para. 105.1 of the statement of claim, deal with the conduct of the UBC representatives charged with the responsibility of considering and resolving Ms. Maughan’s grade appeal, in the context of her allegations of religious bias. In para. 105.1(k) the plaintiff alleges a failure to protect her in a power imbalanced teacher/student relationship with Drs. Weir, Segal, Scott and Egan. The plaintiff relied on para. 77 of UBC’s policy on discrimination and harassment, which states:
When power differentials exist amongst or between faculty staff and students, those holding positions of authority shall not abuse, nor seem to abuse the power with which they are entrusted. Such relationships include, but are not limited to those between an instructor, professor … and his or her … student.
[482] As I found no evidence that any of the faculty defendants were animated in their conduct towards or communications with Ms. Maughan by religious bias, which is the essence of her complaint of an abuse of a power imbalanced relationship, there is similarly no evidence of a failure to protect her in such a relationship. UBC’s representatives were dealing with a relationship between Dr. Weir and Ms. Maughan that was antagonistic and manifestly not one-sided. I can see no evidence from which it could be inferred that there was any bad faith failure to protect Ms. Maughan from any of the faculty defendants as she alleges.
[483] Similarly, the plaintiff relied on para. 65 of UBC’s policy on discrimination and harassment in support of her claim that UBC’s representatives transferred communications between departments and offices and breached the plaintiff’s confidentiality by providing Professor Weir with the notes of a confidential meeting between the plaintiff, the department advisor, and the plaintiff’s mentor.
[484] Para. 65 reads as follows:
All members of the university community involved in a case are expected to maintain confidentiality, particularly within the work or study area in question and in shared professional or social circles. Those members include equity advisors, support staff, administrative heads of unit and witnesses as well as the respondent and the complainant. Although at times difficult to avoid, the breach of confidentiality undermines the provision of due process and thus provides a disservice to both the complainant and the respondent.
[485] As I read para. 65, it proscribes communications about a discrimination or harassment complaint to others outside the process, not within the process, to facilitate understanding of, response to, or resolution of a complaint or appeal based on a complaint.
[486] Insofar as the disclosure by Dr. Echard to Dr. Weir of her notes of the discussion with Ms. Maughan, the evidence is that it was in aid of seeking a resolution to the question whether Dr. Weir would agree to Ms. Maughan’s grade being expunged or whether a consultation with the Equity Committee was necessary. As such, Dr. Echard’s decision to disclose her notes to Dr. Weir would not fall within the proscription of para. 65 or attract any inference of bad faith. I note the evidence that Dr. Echard told Ms. Maughan after the meeting with her that she would “outline” the situation to Dr. Weir. Clearly, it was anticipated that there would be some communication from Dr. Echard to Dr. Weir concerning the content of the meeting with Ms. Maughan.
[487] Insofar as the disclosure by Dr. Egan of the file she had complied in the Equity Committee process to the faculty of graduate studies, it was done to address the ongoing issue raised by Ms. Maughan’s appeal to the Dean as to whether she should be permitted to rewrite her English 553 paper. I do not see in the evidence of that disclosure any reasonable inference that Dr. Egan had an oblique motive or ill will towards Ms. Maughan because of her religion or otherwise.
[488] The issue of the propriety of Ms. Maughan’s treatment at the hands of Dr. Weir insofar as it affected her grade in the English 553 course was ultimately dealt with by the Senate Appeals Committee. This lawsuit does not engage a review of that finding or of the process by which it was achieved.
[489] The question for determination is not whether the process led to a right or wrong conclusion, it is whether anything done in the course of the process by UBC’s representatives through a combination of negligence and bad faith caused the plaintiff foreseeable damages.
[490] In the circumstances, which include my conclusion that there is no evidence Dr. Weir was motivated in her communications with or conduct towards the plaintiff by religious bias, which was the foundation of the plaintiff’s grade appeal, finding bad faith or negligence or foreseeable harm in a process which came to essentially the same conclusion is problematic.
[491] I conclude there is no evidence upon which a properly instructed jury acting reasonably could find liability against UBC arising from its representatives’ conduct of the appeal process.
[492] This is a case which in the final analysis fails because it relies on speculation, innuendo and conjecture, rather than inferences based on the evidence, of the respective states of mind of the various defendants necessary to establish liability; in the case of the CRPA, the intention to interfere with the plaintiff’s civil rights by promoting hatred, contempt or her inferiority in comparison to others based on her religion; in the case of bad faith negligence, malice or ill will arising out of religious bias, or otherwise.
[493] The law must be restrained in intervening in the conduct of affairs in any circumstances where what are at issue are expressions and communications made in the context of an exploration of ideas, no matter how controversial or provocative those ideas may be. It is for that reason that the CRPA requires evidence that an alleged tortfeasor not only engaged in communications which had the effect of an interference with a person’s civil rights by inciting religious based hatred or contempt of her or by inciting a sense of her inferiority, but also that the tortfeasor intended that result. It is also for that reason that, in the specific context of the academic exploration of ideas, the University Act prevents actions against the defendant UBC or its representatives unless there is evidence of bad faith.
[494] Those evidentiary thresholds, while not depriving those subjected to harm of the right to a remedy for malicious or morally oblique behaviour, are nevertheless necessary to further academic freedom, which is vital to the function of a university and the community it serves, and freedom of expression, which is crucial to the operation of a free and democratic society.
[495] In this case, the asserted foundation for the court’s intervention in the conduct of the university’s academic affairs lacks any evidence of these essential elements of the torts alleged under the CRPA and of negligence as pleaded against any of the defendants. Accordingly, the plaintiff’s claim is dismissed with costs to the defendants.
“A.F. Cullen J.”
The Honourable Mr. Justice A.F. Cullen
January 9, 2008 – Revised Judgment
The attached Reasons for Judgment of Mr. Justice A.F. Cullen dated January 4, 2008 have been edited.
· On the front page, J.S. Russell has been added as Counsel for Defendant, University of British Columbia.
APPENDIX 1
APPENDIX 2
APPENDIX 3(a)
Appendix 3(b)
Appendix 4
