B.C.’s Court of Appeal has upheld the firing of a UBC student advisor who hooked up with students using online apps.
Timothy Conklin was appealing a 2018 decision by the B.C. Human Rights Tribunal (BCHRT) that found he was not discriminated against on the basis of sexual orientation in the dismissal.
Events began in August 2016 when an anonymous package was left for the Faculty of Arts assistant dean containing screenshots of Conklin’s profile on a cyber website application that, according to UBC, “advertises itself as a gay app for chat, dating, and social networking for individuals.”
UBC said Conklin had identified himself as a university employee in a student residence in the posting, saying what he was looking for in sexual partners, including students.
Between approximately 2013 and 2016, Conklin used location-based apps such as Scruff, Grinder, Manhunt and Squirt to connect with other gay men, court documents said.
Some of the men he met through these apps were university employees and about 20 were students. Conklin said there was no UBC policy expressly prohibiting relationships between employees and students.
Still, Conklin was called for a meeting with faculty officials and asked about the posting. The assistant dean’s notes said Conklin confirmed he was looking for campus hook-ups.
“When then asked if this would be with students, Mr. Conklin appears to have replied, ‘I presume so, yes,’” the tribunal decision said.
Conklin said he considered the situation part of his private life, one that did not utilize UBC resources.
The university was concerned Conklin’s activities on the app could include the students he was expected to provide services to.
He was placed on administrative leave.
In a second meeting, this time with an advocate from the Association of Administrative and Professional Staff, with Conklin present, UBC officials read from a note saying, “the university is concerned that Mr. Conklin identified himself as a UBC employee on social networks and engaged in romantic and sexual relationships with UBC students through these networks. We are concerned that this may be a conflict of interest.”
Conklin said he had no relationships with students he was advising, all were of age and he would block anyone underage.
He was terminated for cause shortly thereafter.
“By publicly linking your employment at the university to your profiles on social networks specifically geared towards facilitating romantic and/or sexual connections, you have clearly acted in a conflict of interest,” Conklin was advised.
Conklin in turn said UBC intentionally distorted the student residence aspect of the situation “in order to support its discriminatory perversion of me as a sexual predator and/or pedophile, which I find extremely offensive and expressly deny.”
UBC argued it would have treated any other employee — heterosexual or homosexual — in the same way if engaged in the same conduct.
The tribunal dismissed his complaint.
“Pernicious stereotypes about gay males are certainly real,” tribunal member Emily Ohler wrote. “But Mr. Conklin’s argument, in my view, suggests his own blind spot for the very real issues of striking the appropriate balance between protecting the freedom and privacy of UBC employees and the vulnerability of UBC students in the context of the power dynamics in play.”
Ohler said Conklin had no reasonable prospect for establishing that his sexual orientation factored into UBC’s decision to terminate his employment.
Conklin then appealed to B.C. Supreme Court for a judicial review of the tribunal decision.
However, Justice Nitya Iyer said in a Sept. 12, 2021 decision that it was not open to the court to set aside the tribunal’s decision that said Conklin’s claim had no reasonable prospect of success.
“It can only set aside the decision if the tribunal’s conclusion is patently unreasonable,” Iyer said. “Mr. Conklin has not established that it was.”
And so, Conklin appealed to B.C.’s high court, again asking for the tribunal decision to be set aside as unreasonableness.
He contended the tribunal had a duty to determine if UBC had acted from discriminatory beliefs about predatory or pedophilic behaviour in a case where there was no demonstrated harm to students.
He claimed the tribunal's failure to consider that tainted the assessment of the evidence.
Appeal court Justice Joyce DeWitt-Van Oosten said the tribunal had considered those issues.
“I see no principled basis for interfering with the BCHRT’s rulings. Mr. Conklin did not meet his onus of establishing patent unreasonableness.”
