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. Maughan, they assert that ‘understandably’ Ms. Maughan 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/jdb-txt/sc/08/00/2008bcsc0014err1att.htm