Newsletter

April 2008

BC Student Discrimination Lawsuit Dismissed

A
six-year battle in which a student’s lawsuit threatened academic freedom has
come to a victorious end for four faculty members at the University of British
Columbia.

In
January, the B.C. Supreme Court dismissed a civil action filed in 2002 by
Cynthia Maughan, a graduate student at UBC who alleged she had been
discriminated against on the basis of her Christian faith by her English seminar
teacher, Lorraine Weir. The court concluded there was no evidence on which a
reasonably instructed jury could find in favour of the student. CAUT has since
learned Maughan is appealing the decision.

Maughan initially appealed the final grade she received in Weir’s course to the
UBC senate after having exhausted other internal complaints procedures. When
the internal complaints and appeals proved unsuccessful, she launched her civil
action in the B.C. Supreme Court.

In
2003 she filed a human rights complaint against Weir and three other UBC
professors, the university, UBC Faculty Association and CAUT.

In
January 2006 the B.C. Human Rights Tribunal summarily dismissed Maughan’s
complaint. Two months later, Maughan filed for a judicial review of the
tribunal’s dismissal, but has not yet pursued that appeal.

Maughan’s civil action was novel as the legislation which she relied on had not
been fully tested in B.C., says CAUT senior legal counsel Rosemary Morgan.

Maughan alleged the four professors and UBC had promoted hatred against her
because of her religion, contrary to the Civil Rights Protection Act of British
Columbia. No other province has similar legislation.

Unlike the Human Rights Code, this legislation is quasi-criminal and makes it an
offense to promote hatred against individuals because of their religion or other
protected characteristics such as sex and disability. It is similar to the
Human Rights Code, but in contrast to the Code, the Act requires proof of an
intention to promote hatred. It is distinguishable from the Criminal Code
because it does not require proof of an intention to promote violence.

“In
Maughan’s case, there was not only no evidence of promotion of hatred against
her, but no evidence of an intention to promote hatred on the ground of
religion,” Morgan said.

The
most significant aspect of the decision to dismiss Maughan’s case was the
court’s appreciation of the perceptible risk to academic freedom of expression
in Maughan’s claim: “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.”

Maughan had alleged in part that Weir, as well as the three colleagues who
supported her after Maughan complained to the administration, had discriminated
against her on the basis of religion because, knowing she was a Christian, Weir
allowed a class to be held on a Sunday.

Maughan had participated in the class that set the course schedule, and did not
object formally to the Sunday class for some time. Later when she did object,
in accordance with UBC policy, Weir accommodated her request for an alternative
assignment, but Maughan claimed the failure to change the schedule constituted
promotion of hatred.

She
further claimed Weir’s critique of her written work constituted promotion of
hatred against her on the basis of her religion.

Not
only did the court find this claim could not constitute promotion of hatred
since the discussions or communications all occurred between Weir and Maughan
alone, with no one else privy to such critique, but also the court pointed out
that critique of academic work is the role of academics.

The
court argued that while critique may cause discomfort for students at times,
especially when dealing with challenging subject matter, and that the discomfort
may arise from their religious beliefs, it is not the role of the courts to
supervise that dialogue or academic critique and academic process in the absence
of some clear evidence of promotion of hatred on the basis of religion.

The
court ruled Weir’s response to Maughan’s internal university complaints and to
Maughan’s later civil action and human rights complaint were reasonable in the
circumstances: “… 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. Maugahn, they assert that ‘understandably’ Ms. Maugahn became upset
with the controversial course material.”

Justice A.F. Cullen concluded: “this is a case that failed because it relied
upon speculation, innuendo and conjecture.”

The
court noted that evidentiary thresholds, requiring proof of intention to incite
or promote hatred against someone because of their religion, are standards
which, “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.”

On
behalf of the UBC Faculty Association, CAUT has provided legal representation to
Weir and her colleagues throughout this case.

The full decision can be viewed at:

http://www.courts.gov.bc.ca/jdbtxt/sc/08/00/2008bcsc0014errlatt.htm

CAUT Bulletin, February 2008, pp A2; A5.