Confidentiality and Anonymity
Students bringing forward a concern regarding inappropriate, disrespectful or unprofessional behaviour can initially do so confidentially—without their name or information being shared except with the person with whom they are communicating. Students may simply want a confidential discussion about available resources and options, and clarification of procedural questions. They may also be seeking information about advocacy, and principles such as impartiality and protection from retaliation for bringing a concern forward (see “Student Concerns About Consequences of Bringing a Concern Forward”). If a serious issue of harassment emerges during the initial confidential discussion, the Faculty will not disregard that information even if there is no disclosure of identifying information.
Generally, confidentiality ends in situations where there is a risk of harm to any individual or where the information is subject to subpoena or other legal obligations to disclose. However, disclosure of some information in the confidential process is also often necessary to achieve a meaningful resolution of the concern. This would be limited to the minimum disclosure required to achieve an appropriate resolution.
Confidentiality is not anonymity. Anonymity occurs where there is no disclosure of identity: an individual is not named, nor is any other information disclosed which could identify the individual. It is generally not possible to resolve any complaint anonymously for two main reasons: First, the person responding to the complaint has basic rights of due process and natural justice. Those rights include the right to know the full complaint against them, including the identity of the individual bringing the complaint forward, as well as the ability to make a full answer to the complaint (see “Due Process Protections for those Responding to Concerns/Complaints,” below) Second, the individuals directly involved in managing a complaint need access to the information required to resolve the complaint appropriately.
These confidentiality considerations highlight the importance of both the protection against retaliation for those bringing forward concerns and protection of those who might be subject to a complaint being made against them.
Impartiality and Advocacy
Mediators, investigators, and others who handle concerns and complaints are generally required to maintain impartiality. That means they do not “take sides” or act as an advocate for a complainant, respondent, or any other individual. Rather, they maintain an impartial approach, and only “advocate” in the sense that they support and resource the Faculty’s commitment to a respectful, harassment-free learning and working environment. If an individual bringing or responding to a concern requires an advocate who can actually “take their side,” that can be discussed with the student at the time they bring their concern or complaint forward, and available resources identified.
Reprisal and Retaliation
The Faculty encourages students to bring their legitimate concerns forward, so that they can be addressed, any systemic issues identified, and a respectful working and learning environment maintained. However, the Faculty also recognizes that students may fear negative consequences for bringing a concern forward. In particular, students may feel vulnerable to retaliation due to power differences in their relationships with others. The Faculty is committed to creating and maintaining an environment in which students are able to bring forward concerns about inappropriate, disrespectful or unprofessional behaviour, without experiencing retaliation or negative consequences. The fear of retaliation can result in legitimate concerns going unaddressed and may prevent individuals from exercising their rights. This is contrary to the Faculty’s goal of maintaining a respectful environment. In the context of human rights concerns, retaliatory behaviour may also be considered a form of discrimination.
The Faculty takes the protection from retaliation very seriously. If a student is apprehensive regarding retaliation or other potential negative consequences for bringing a concern or complaint forward, they may wish to include this in the confidential discussion to obtain more information about their specific situation, and how the protection from retaliation applies.
A complaint may be found to be substantiated or unsubstantiated, based on an assessment of the available information. Where a complaint is substantiated, the Faculty will take appropriate steps to correct the situation, which will be determined by the Faculty on a case-by-case basis. Where the complaint is found to be unsubstantiated, this generally means simply that the available information is insufficient to establish that there has been a breach of policy, law, or the Faculty’s expectations generally regarding maintaining a respectful learning and working environment.
A finding that a concern or complaint is unsubstantiated is not a finding that the complaint is dishonest, malicious or brought for an inappropriate purpose. It is simply a finding that it is not possible, on the existing information, to reliably or fairly draw any conclusion regarding whether or not inappropriate, disrespectful or unprofessional conduct has occurred.
A finding that a complaint is unsubstantiated is not grounds for discipline or negative consequences for the student bringing the complaint forward (see: Reprisal and Retaliation).
Where there is, however, compelling evidence that the concern or complaint was false, was known or ought reasonably to have been known to be false, and was brought with malicious intent, the student bringing the concern or complaint forward may be subject to discipline.
Records are kept of concerns, including the steps which may have been taken to appropriately address and resolve them. This is in order to properly document the Faculty’s responses to these situations. These records are confidential (see “Confidentiality” above) and kept in a secure location, separate from other records. Whether the concern is found to be substantiated or unsubstantiated, these records do not form part of the academic (or employment) record of the student bringing forward the concern. Where the concern is found to be substantiated, a record of the concern and the steps taken to address the concern may, where appropriate, form part of the employment or academic record of the individual against whom the concern was brought.
Due Process Protections for those Responding to Concerns/Complaints
A person responding to a concern or complaint has certain rights to be treated fairly and in accordance with basic principles of natural justice. Those protections include the right to know the entirety of the concern or complaint brought against them, including the identity of the person bringing the concern or complaint forward, the right to make a full answer and defence to all of the concern/complaint, the right to an impartial assessment of the complaint and response, and the right to be treated fairly throughout the process. The person responding to the concern or complaint may have additional due process protections under the terms of a collective agreement or other contract governing the working or learning environment, including the right to representation.