Four years after complaint, Hale v. UBC Okanagan BC Human Rights Tribunal hearing begins

After three adjournments, the Stephanie Hale v. UBC Okanagan BC Human Rights Tribunal hearing saw its first day in court yesterday.

Back in 2017, former UBCO student Hale filed a human rights complaint against UBC for the alleged mishandling of her sexual assault case. In the hearing, Hale’s legal counsel is arguing that UBCO discriminated against her on the basis of sex, physical disability and mental disability.

Hale alleged that she was sexually assaulted by a friend on UBC Okanagan campus in early 2013 — an allegation the friend denied.

At the time, the university’s standalone sexual assault policy Policy SC17 didn’t exist, meaning sexual assault cases were handled through the general non-academic misconduct policy.

Hale disclosed the incident to several UBC staff following the alleged assault, but she said she wasn’t informed of how to pursue a complaint through the non-academic misconduct (NAM) process until she was directed to the Equity and Inclusion Office in 2016. Hale’s case was eventually seen by the President’s NAM Committee, and the complaint was dismissed for lack of evidence in early 2017.

In 2018, the BC Human Rights Tribunal accepted Hale’s complaint in relation to UBCO’s actions between February 2016 and March 2017 on the grounds of public interest, but did not accept her complaints against the student who allegedly assaulted her and the university’s actions between January 2013 and February 2016.

UBCO petitioned the BC Supreme Court to quash the complaint and applied to adjourn the hearing four times pending the outcome of a judicial review. But the petition was dismissed and the fourth attempt to adjourn the hearing was denied, as the tribunal ruled “a fourth adjournment would be unreasonable and unduly prejudice Ms. Hale.”

In opening remarks yesterday, Hale’s lawyer Clea Parfitt argued that UBCO failed to support Hale throughout the process of reporting her alleged assault. Parfitt spoke of a lack of transparency in the NAM process and a failure of UBC staff to refer Hale to UBC policies and procedures.

The liable section of the hearing began in 2016, when Hale was on medical leave. Hale experienced mental and physical health struggles after the alleged assault and throughout the process.

Parfitt said the NAM process was “deeply flawed,” and that those on the panel were not equipped to make the decision at hand. Hale requested a trained investigator to be involved in the process, but the university denied that request.

Parfitt said Hale was “kept in the dark” and had to ask the university to learn what was happening with her case. She called the complaint that was heard in the committee “fundamentally inaccurate,” arguing that it eliminated a few key details — including that Hale’s alleged assailant agreed to protect her at parties if she was drinking.

A last-minute cancellation of the committee hearing led Hale’s psychologist to recommend she not participate in the committee hearing due to her mental health. The committee met without Hale in November 2016 and dismissed the allegation.

Michael Wagner, counsel for UBCO, said that Hale had “unsubstantiated beliefs'' about the NAM process. He said that it was not intended to be a court process, and its mandate was communicated to Hale. He emphasized that UBCO is not saying this process was perfect, but it aimed for “reasonableness” and intended to be fair to both Hale and her alleged assailant.

Wagner said that the university did provide some accommodations for Hale when she was still involved in the NAM process. As for the cancelled and rescheduled hearing, the university did not have enough committee members to meet quorum on that day.

Parfitt argued that UBC has admitted that its sexual violence policies were unfit to deal with sexual assault allegations — something she said made UBC’s conduct to Hale “egregious.” She said the university should declare that it discriminated against Hale on the basis of sex and ability and pay for Hale’s losses, among other requests.

Wagner denied the process was discriminatory. He argued that Hale never sought accommodation on the basis of disability. He also spoke of the difference between disclosure and report, and said that Hale didn’t file a formal report until 2016.

Wagner said that Hale’s mental health challenges may have emerged from the assault itself or other issues in Hale’s life — not UBC’s handling of the complaint. He argued that for that reason, the remedies proposed by Parfitt were unreasonable.

The hearing is set to continue through to next Friday.