Scholarship harassment: Legal issues

Below please find definitions of frequently used legal terms relevant to scholarship harassment and an explanation of the University’s Office of the Counsel.

Definitions

See: Article 10, collective agreement between York University and the York University Faculty Association, excerpt below:

“Academic freedom includes the freedom of an employee to examine, question, teach, and learn; to disseminate their opinion(s) on any questions related to their teaching, professional activities, and research both inside and outside the classroom; to pursue without interference or reprisal, and consistent with the time constraints imposed by their other University duties, their research, creative or professional activities, and to freely publish and make public the results thereof; to criticize the University or society at large; and to be free from institutional censorship. Academic freedom does not require neutrality on the part of the individual, nor does it preclude commitment on the part of the individual. Rather, academic freedom makes such commitment possible.”

See: https://www.yorku.ca/secretariat/policies/policies/free-speech-statement-of-policy/

A range of York policies reflect the right of all community members and invited guests to express their views within the law without fear of intimidation or harassment. To guarantee this right, it is recognized that community members may be exposed to ideas or opinions they find disagreeable or offensive. Freedom of speech is not absolute and does not protect expression that constitutes hate speech, harassment, threats, discrimination or otherwise violates the law. Consequently, the University will not tolerate members of our community or guests engaging in threatening speech or actions which violates York’s commitments to ensure the safety of community members, as noted in various policies such as Disruptive and/or Harassing Behaviour in Academic Situations, Racism, Sexual Violence which address the priority of community safety and the harm that can arise from some forms of expression. These policies also provide recourse for those affected by such speech.

Defamation is proven when the plaintiff shows on a balance of probabilities that the defendant’s words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person, and that the words were published or communicated to at least one person other than the plaintiff.

The parties who can be held liable for defamation include the author or speaker of the defamatory communication and the publisher or broadcaster. Neither academic freedom nor artistic freedom can shield against such liability.

Justification (truth), qualified privileged and fair comment are defences to defamation. However, these terms have specialised legal meanings.

Like all litigation, defamation litigation is full of uncertainty and often turns out in ways the parties did not anticipate.

Hate propaganda is the public promotion or incitement of hatred against an identifiable group. Hate propaganda targets persons and/or property, based on such factors as colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability. (Section 319 (1) of the Criminal Code of Canada).

Engaging in a course of vexatious comment or conduct against a person that is known or ought reasonably to be known to be unwelcome.

Role of the Office of the Counsel

The Office of the Counsel provides advice and representation to the University. The Office of the Counsel is a resource to guide the University’s response to incidents of harassment including on the basis of research and/or teaching.

Responding to harassment:

If the source of harassment is a York University community member, there are various university policies and procedures for addressing those behaviours, such as: the Code of Student Rights and Responsibilities, Human Rights Policy, and the Workplace Harassment prevention policy. The Office of the Counsel provides advice, normally to Deans and Associate Deans on applicable complaint procedures.

If the source of harassment is not a York University community member, the Office of the Counsel provides advice, normally to Deans and Associate Deans, on potential avenues for addressing the harassment, such as:
- Reporting violations of acceptable use policies applicable to social media platforms and domain hosts
- Any applicable policies or codes of conduct at the institution to which the harasser belongs
- Police in the event of conduct which appears to contravene the Criminal Code of Canada or causes the individual to fear for their safety.
- Liaising with external service providers and resources to leverage available tools to support the faculty member.

Taking proactive legal action against a harassment

As is the case at most universities, the institution’s defense of academic freedom does not include commencing legal proceedings against third parties on behalf of individual employees such as on behalf of an individual faculty member who wishes to demand a retraction or sue a harasser for defamation.

To explore these and other legal remedies, a faculty member may consult with independent legal counsel. The Law Society of Ontario operates a Lawyer Referral Service which may include a free initial consultation with a lawyer.

See: https://lsrs.lso.ca/lsrs/welcome