Written by Daniel Standing LL.B., Editor, First Reference Inc.
Employers are legislatively prohibited from discriminating against their employees based on their sexual orientation any other listed or similar ground of discrimination. When a university discovered that an academic advisor’s profile on a gay male dating app ran afoul of its conflict of interest policy, it fired him. The employee claimed the dismissal was discriminatory and based on his sexual orientation. He submitted a complaint to the British Columbia Human Rights Tribunal whose decision was later reviewed by the British Columbia Supreme Court. Was Conklin v University of British Columbia,  B.C.J. No. 1748 a case where the employer was legitimately able to prevent an employee in a position of trust from having sexual relationships with students? Or was this discrimination? Read on to find out.
In 2006, the University of British Columbia hired Timothy Conklin as an academic advisor in its Faculty of Arts. Mr. Conklin was gay, and between 2013 and 2016 he maintained public profiles on various apps designed to facilitate connections between gay men. His profiles indicated that he worked for UBC, and they showed his demographic information and sexual preferences, as well as his photograph. Some of the apps were location-based, meaning their users could see other users’ locations. Using these apps, Mr. Conklin met approximately 150 men, including about 20 UBC students.
In August 2016, someone left an anonymous package for the Assistant Dean. Inside were pictures of screenshots of one of Mr. Conklin’s online profiles. One screenshot showed that Mr. Conklin was posting messages from inside one of the UBC residences.
UBC was concerned that Mr. Conklin’s self-identification as a UBC employee on social networks geared toward facilitating romantic liaisons placed him in a direct conflict of interest with UBC. It met with Mr. Conklin and showed him the screenshots. Mr. Conklin explained why one of his posts showed it had come from within a UBC residence, saying that he stayed at the residence while attending a church conference for a week in July 2016 while on vacation from work. UBC felt that Mr. Conklin risked undermining the confidence and trust of its students, their families and the public, so it terminated his employment.
Mr. Conklin responded by challenging his dismissal, alleging that his sexual orientation was a factor in UBC’s decision. He argued that he was treated differently solely because of his sexual orientation and that UBC wrongfully relied on stereotypical views of gay males when dealing with him. UBC replied to the complaint by asking the Human Rights Tribunal to dismiss the complaint on the basis that it had no reasonable prospect of success. It argued that it would have treated any other employee (regardless of their sexual orientation) the same way if they engaged in the same conduct. It said that Mr. Conklin’s allegations of stereotyping were nothing more than speculation.
Emily Ohler was the Tribunal member who initially decided the matter. She agreed with UBC that the evidence was insufficient to take the complaint out of the realm of conjecture and, therefore, dismissed the complaint for lack of a reasonable prospect of success. She acknowledged that pernicious stereotypes about gay men are a very real societal problem, but noted that the university had to balance the freedom and privacy of UBC employees against the vulnerability of UBC students in the context of the power imbalance at play. UBC worried that Mr. Conklin’s connections with students via the apps could have a chilling effect on students seeking advice from Mr. Conklin, which creates a loss of trust and a more direct means for conflicts of interest to arise. While he admitted to having sexual contact with several UBC students, Mr. Conklin showed little appreciation that his online activity could create a conflict of interest. In essence, Mr. Conklin confirmed UBC’s concerns.
The court’s decision
The court began by discussing the applicable standard of review. Under section 59 of the Administrative Tribunals Act, a discretionary decision like the one under review could only be set aside if it is “patently unreasonable.” This would be the result, for example, if discretion is exercised arbitrarily or in bad faith, or is based mainly on irrelevant factors, or if it fails to take the legislation into account. In other words, the question boils down to:
“is the Tribunal’s treatment of the evidence so clearly irrational that it cannot be allowed to stand?”
Before answering this question, the court summarized the Tribunal’s gatekeeping function under s.27(1)(c) of the Human Rights Code. Under that provision, the Tribunal has the discretion to dismiss a complaint prior to a hearing of the merits if it “has no reasonable prospect of success.” The threshold is low and favours the complainant, but complaints must be based on more than conjecture.
Against that background, the court set about answering the question of whether the original decision was patently unreasonable. It did this by systematically examining and rejecting each of Mr. Conklin’s arguments.
First, the court found that there was no merit to the argument that the Tribunal member made a reviewable error in her passing comments about the differences between dating apps, hook-up apps and physical settings where people meet up. These comments did not form part of the decision and could not operate to make it patently unreasonable.
Second, the court found that there was nothing “clearly irrational” in the Tribunal’s decision that the University’s interpretation of certain gay terminology in Mr. Conklin’s profile was not discriminatory. Likewise, it found nothing wrong with the Tribunal’s acceptance of UBC’s characterization of the student residence where Mr. Conklin posted messages. The court also found no reviewable error in the Tribunal’s decision that Mr. Conklin would not be able to refute UBC’s contention that he occupied a position of trust in relation to the students, if the matter proceeded to a full hearing.
Read as a whole, the Tribunal’s decision was not “patently unreasonable.” Because a court is not to assess whether it would have ruled differently, but instead is to assess whether the decision is logical and rational and applies the relevant legal test, it declined to overturn the result.
When someone alleges that their human rights were violated, it is always serious. However, not all complaints of discrimination are founded. For that reason, human rights tribunals serve an important gate-keeping function by weeding out complaints that have no reasonable prospect of success. Where, like here, the complaint is based on nothing more than speculation that an exercise of discretion is tainted by discrimination, it should be dismissed.
Employers can look to this decision as confirmation of the value of a conflict of interest policy. For organizations that employ people to work in positions of authority, such a policy can form the foundation of the employer’s behavioural expectations, which should be clearly communicated to the employees subject to the policy. If an individual is disciplined for breaching the policy, it is an insufficient defence to simply claim discrimination occurred; some proof is required.