Victims of workplace sexual harassment may be able to pursue a claim against their employer or the perpetrator in several different forums, for example, in the courts, at a human rights tribunal, and/or before a labour standards tribunal. Employees should be aware that a decision in one forum could stop them from pursuing their claim, or parts of their claim, in another forum.

In a recent Nova Scotia case involving Acadia University, decided on March 28, 2018, a judge of the Nova Scotia Supreme Court heard an injunction application by a male student, “Student X.” Student X wanted to prevent the University from investigating the complaint of a female student, “Student Y,” filed with the Equity Officer under the University’s Discrimination and Harassment Policy. Student Y claimed that student X had sexually assaulted her.

Student Y had first filed a complaint under the University’s Non-Academic Judicial Policy. A five-person Judicial Board conducted a hearing, and found Student X guilty of sexual assault and recommended that he be dismissed from Acadia, be banned from attendance on campus and have no contact with Student Y.

Student X was successful in overturning that decision in his appeal to the University Disciplinary Appeals Committee (UDAC). The reasons of the Appeals Committee were contained in a three-line statement: “Based on the information presented on May 3rd at the hearing, the UDAC had determined that there was insufficient evidence to confirm guilt. The UDAC therefore finds Student X not guilty.”

Student X argued in court that, because Student Y’s complaint had been heard, determined and dismissed in an appeal under the Non-Academic Judicial Policy, the principles of res judicata and abuse of process prohibited the University from investigating the complaint under the Discrimination and Harassment Policy.

The judge ultimately dismissed Student Y’s application for an injunction. In so doing, the judge explained the principle of res judicata as follows:

[Res judicata] has two branches – issue estoppel and cause of action estoppel. The former precludes in certain circumstances relitigation by a party of an issue clearly decided in a previous proceeding between the same parties. The latter precludes a person from bringing an action when the same cause of action has been (or could have been) adjudicated between the same parties in a previous proceeding.

The judge dismissed Student X’s claim of res judicata for the following reasons:

  1. The issue decided by the first tribunal was not the same as the issue to be decided by the second tribunal: the Judicial Board and Appeals Committee decided the issue on the basis of the criminal standard of proof beyond a reasonable doubt, whereas the Equity Policy deals with complaints of harassment and discrimination on the civil standard of proof on a balance of probabilities.
  2. The purposes of the policies are different: the Judicial Policy’s purpose is to punish for offences, whereas the Equity Policy’s purpose is to provide a learning and work environment free from harassment.
  3. The Appeals Committee decision contained no findings or reasons.
  4. The Appeals Committee failed in its duty of procedural fairness.

The judge explained that “[a]buse of process by relitigation bars a second proceeding where the integrity of the judicial decision-making process will be undermined.” A court may apply abuse of process where the parties in the two proceedings are not the same, but the same question is in issue in the two proceedings.

The judge dismissed Student Y’s argument of abuse of process for the same reasons he dismissed the argument about res judicata: 1. the not-guilty verdict in the quasi-criminal proceeding under the Non-Academic Judicial Policy was not determinative of whether Student X had engaged in sexual harassment under the Discrimination and Harassment Policy, a Policy that has a different purpose and uses a different standard of proof; and 2. because the Appeals Committee provided no reasons, there was no factual foundation to determine whether the complaint under the Equity Policy would constitute relitigation of the same question or facts.

The University was permitted to investigate Student Y’s complaint of sexual assault under the Equity Policy.

Victims of sexual harassment should seek legal advice regarding the complaint mechanisms available to them and which ones they should pursue and in what order, given that they may be bound by the factual or legal findings of the first court or tribunal to make a decision.


For more information about Sexual Harassment Law, contact Gail L. Gatchalian, Q.C.