Arbitrator Larry Steinberg has denied Lakehead University’s request to stay the grievance proceedings of a tenured professor accused of sexual misconduct, allowing the case to continue as planned.
The case centres on the dismissal of the professor, referred to as CD, following allegations by a student, known as AB, of sexual assault and harassment in early 2021. The allegations led to CD’s termination in September 2021 after an investigation by the Thunder Bay, Ont,-based university’s Sexual and Gender-Based Violence Appeal Board (SGVB) concluded that misconduct had occurred.
CD, who has vehemently denied any wrongdoing, also filed a civil defamation lawsuit against AB, arguing that her accusations were false and defamatory. The criminal charges against CD were dropped in May 2023 after the Crown Attorney found that there was no reasonable prospect of conviction due to inconsistencies in AB’s statements during cross-examination.
Lakehead University sought to halt the arbitration, arguing that allowing both the grievance and the civil lawsuit to proceed simultaneously would constitute an abuse of process.
The Lakehead University Faculty Association, the union representing CD, opposed the motion, asserting that the grievor had a right to a timely hearing and that further delays would cause significant prejudice. The union highlighted that the grievance proceedings had already been postponed due to the criminal case and emphasized the differences between the arbitration and the civil lawsuit.
Steinberg’s decision hinged on the principles underlying the doctrine of abuse of process, which aim to prevent the misuse of the adjudicative system by avoiding inconsistent results, duplicative proceedings, and unnecessary expenditure of resources. However, he found that these principles were not applicable in this case.
“None of the underlying principles for the application of the doctrine of abuse of process… are present,” Steinberg stated. “There has not yet been a decision of any tribunal so the principle of reliance on the finality of a decision is not engaged.”
The arbitrator noted that while there is a significant overlap in the evidence to be presented in both proceedings, the legal issues and parties involved are different. The grievance seeks CD’s reinstatement and compensation, while the civil lawsuit aims to secure damages for defamation from AB.
Steinberg also addressed the timing of the defamation lawsuit, which was filed just before the limitation period for such actions was set to expire. He rejected the university’s characterization of the lawsuit as an attempt to undermine the arbitration process, stating, “In view of the uncontested assertion that the timing was in response to the imminent expiry of the time limit for commencing the action I do not accept that characterization.”
The ruling ensures that the arbitration will proceed on the previously scheduled dates, enabling CD to challenge his termination without further delay.
For more information. see Lakehead University v Lakehead University Faculty Association, 2024 CanLII 55721 (ON LA)
