Gordon v. Simon Fraser University, 2026 BCHRT 101
Date Issued: April 15, 2026
File(s): CS-006608
Indexed as: Gordon v. Simon Fraser University, 2026 BCHRT 101
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Joshua Gordon
COMPLAINANT
AND:
Simon Fraser University
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
APPLICATION FOR FURTHER SUBMISSIONS
Rule 28(5)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Menachem Freedman
Counsel for the Respondent: Jennifer Russell and Sabrina Anis
I INTRODUCTION
[1] Dr. Gordon was a professor in SFU’s School of Public Policy [School] on a series of limited-term appointments between 2014 and 2021. In 2021, he applied for a tenure-track position in the School [the Position]. He says that a group of faculty opposed his application because they perceived that his beliefs around certain issues related to equity, diversity, and inclusion [EDI] were disqualifying. He alleges that, because of this opposition, the hiring process was irregular, and he was not hired for the Position. In this complaint, he alleges that SFU’s decision not to hire him for the Position was discrimination based on his political beliefs, in violation of s. 13 of the Human Rights Code.
[2] SFU denies discriminating. It argues, first, that Dr. Gordon has not identified any political beliefs that are protected by the Code. Second, it says that Dr. Gordon’s political beliefs – real or perceived – were not a factor in the decision not to hire him for the Position. Third, in the alternative, it says that its expectations around EDI were a bona fide occupational requirement. It asks the Tribunal to dismiss the complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). This is the issue I must decide.
[3] The events of this complaint took place in the context of the heightened push for racial justice following the murder of George Floyd in 2020. SFU students and alumni called on the School to address allegations of systemic racism against Black, Indigenous, and racialized students and faculty. In this context, and consistent with its efforts to advance EDI since 2016, SFU required that the successful candidate for the Position demonstrate a “commitment to EDI”. There is evidence that a group of faculty opposed Dr. Gordon’s candidacy, at least in part based on their perception that he did not meet this criterion. Dr. Gordon argues that the views of this group represent “activist EDI”, which he describes as a “promoting politicized forms of social justice that depend upon certain ways of seeing the world”. In contrast, he describes himself as a “classic liberal”, who supports “mild EDI”, meaning “a liberal commitment to eliminating overt forms of discrimination and systemic barriers”.
[4] The evidence in this case could support that one reason Dr. Gordon was not hired for the Position was because his attitudes towards EDI did not align with those of the faculty group that opposed him. However, for the reasons that follow, I am persuaded that Dr. Gordon has no reasonable prospect of proving that a “commitment to activist EDI” is a political belief within the meaning of s. 13 of the Code. The complaint is dismissed.
[5] The parties have submitted a substantial amount of material in this application, including two competing expert reports about the meaning of EDI and its application in the academic context. Subject to my comments below, I have considered all that material. In this decision, I only refer to what is necessary to explain my reasons.
II PRELIMINARY ISSUES
[6] I begin by briefly addressing three preliminary issues: (1) SFU’s request to limit publication of certain information, (2) Dr. Gordon’s application to file further submissions, and (3) SFU’s objections to Dr. Gordon’s evidence and expansion of his complaint.
A. Request to limit publication
[7] SFU asks the Tribunal to anonymize the names of non-participating third parties to the complaint in this decision. It argues that there is no public interest served in publishing their names. Dr. Gordon does not oppose the Tribunal anonymizing the names of other candidates in the job application process. However, he argues there is no basis to anonymize the names of faculty members who he alleges were involved in the decision not to hire him.
[8] In this decision, I have followed my usual practice, which is not to name third parties to a complaint except where necessary: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 7; De Medeiros v. Rovalution Automotive Ltd and another, 2023 BCHRT 182 at paras. 9-10. I do this mindful that this is an interim application, in which I am not making any findings about the merits of the complaint and Dr. Gordon’s allegations against certain individuals have not been proven. The allegations that certain people drove a discriminatory hiring process inherently engage their privacy interests. These people are not participating in this process, meaning they are not named respondents and have not provided affidavit evidence on this application. As a result, I cannot balance Dr. Gordon’s allegations with their version of events. In my view, the public interest in accessing the decision can be served without publishing the names of people who are not involved in this process. I have not named non-participating third parties in this decision.
B. Application to file further submissions
[9] Generally speaking, the Tribunal’s application process involves three submissions: the application, the response, and the reply: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in reply: Tribunal Rules of Practice and Procedure [Rules], Rule 28(5); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201 at para. 21.
[10] Dr. Gordon applies to file a further submission and evidence to respond to new issues that he says were raised in SFU’s reply, namely: (1) its objection to his expert report; (2) evidence in two new affidavits; and (3) an argument that “beliefs that undermine the purposes of the Code are not ‘political beliefs’ which attract the Code’s protections”.
[11] SFU opposes the application on the basis that it was filed about four months late, and is not necessary to respond to any new issues raised by its reply.
[12] The application is granted in part. I will waive the time limit, on the bases that: the material in this application is unusually complex, including a 31 page expert report filed in reply, and required some extra time to consider; disclosure was ongoing even after the reply was submitted; Dr. Gordon gave notice to SFU early on that he was considering applying for further submissions; there is no prejudice to the parties or the process; and the novel issues in this complaint are best served by fulsome submissions by the parties.
[13] I agree with Dr. Gordon that fairness requires he be given the opportunity to address SFU’s objection to his expert report, which was naturally raised for the first time in its reply. I have considered his further submissions related to this issue in this decision.
[14] However, I am not persuaded that fairness requires Dr. Gordon be given the opportunity to address SFU’s affidavits filed in reply, or its argument about beliefs that undermine the purposes of the Code. In my view, all of this material was within the proper scope of replying to Dr. Gordon’s evidence and arguments. While it necessarily includes some new information intended to undermine Dr. Gordon’s response, this is proper. A reply argument should not merely repeat what was, or could have been, said in an original submission. It is intended as a narrow response to arguments raised in the opposing party’s submission. By its nature, it gives SFU the last word. In my view, allowing Dr. Gordon to make further submissions, or submit further evidence, about these issues would condone an “endless submission process” that undermines the just and timely resolution of the complaint: Murphy v. VIHA and others (No. 2), 2014 BCHRT 102 at para. 9.
[15] I do not allow Dr. Gordon’s further submissions or evidence intended to respond to SFU’s Affidavits #2 of Nancy Olewiler and Jane Pulkingham, or argument about political beliefs that may be inconsistent with the Code. This includes Affidavit #1 of R. Georges Gardinetti, which could have been filed with Dr. Gordon’s original response, and Affidavit #2 of Dr. Gordon. I have not considered this material in my decision.
[16] Parenthetically, I observe that even if I had considered it, my decision has not turned on any of the issues Dr. Gordon seeks to address with the further material.
C. SFU objections
[17] Here I briefly address two objections raised by SFU to the materials filed by Dr. Gordon. I address its objection to Dr. Gordon’s expert report further below.
[18] First, SFU objects to parts of Dr. Gordon’s affidavit, which it argues contains hearsay, speculation, and opinion. It argues that this type of evidence is “so inherently unreliable as to have little or no probative value” and should be given limited or no weight: MacGillivary v. Parkland Refining (BC Ltd) (No. 2), 2024 BCHRT 233 at para. 25. I acknowledge the basis for this concern, as it relates to Dr. Gordon’s evidence about other people’s motivations, events for which he was not present, and his own opinions and those of others. Notwithstanding these concerns, I have assessed all the information in Dr. Gordon’s affidavit to consider whether he has brought his allegations out of a realm of conjecture. Ultimately, my decision has not turned on any impugned portions of Dr. Gordon’s affidavit.
[19] Second, SFU objects to Dr. Gordon expanding the scope of his complaint in his response submissions, without applying to do so under Rule 24(4)(b). SFU argued in its dismissal application that Dr. Gordon had failed to describe his political beliefs. In response, Dr. Gordon offered a much more fulsome description of his political beliefs, including through expert evidence. SFU argues that this expands the scope of his complaint and unfairly creates a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29.
[20] I do not agree that Dr. Gordon has unfairly expanded the scope of his complaint. Rather, he has further particularized his allegations regarding political belief: Powell v. Morton, 2005 BCHRT 282 at para. 20. This is contemplated in the Tribunal’s process, and permitted under the Tribunal’s rules: Rule 24(1). I have considered all of Dr. Gordon’s evidence and argument regarding his political belief to make my decision.
[21] I turn now to the application before me. To put my decision in context, I begin with a brief background of the events giving rise to the complaint. The background is based on the materials filed by the parties. I make no findings of fact.
III BACKGROUND
[22] Dr. Gordon obtained his PhD in political science in 2012. In 2014, he was hired by SFU as an Assistant Professor in the School on a two-year limited term contract. His contract was subsequently extended two more times, and he received two salary increases. His performance evaluations were all positive. Dr. Gordon taught a high volume of courses and was engaged in high-profile research and policy making about issues related to housing. He is a white man.
[23] The following people are important to the allegations in Dr. Gordon’s complaint:
a. Dr. Jane Pulkingham: the Dean of SFU’s Faculty of Arts and Social Sciences during the period for this complaint. In this decision, I will refer to her as the Dean.
b. Dr. Nancy Olewiler: the founding Director of the School and the Director during the period of the complaint. In this decision, I will refer to her as the Director.
c. The Faculty Group: a group of five faculty who opposed Dr. Gordon’s candidacy for the Position. Dr. Gordon alleges, and there is evidence to support, that Dr. D was the primary organizer against his candidacy.
A. Political and social policy discussions at the School
[24] Throughout his work at the School, Dr. Gordon says that faculty and students frequently talked about politics and social policy. Throughout these discussions, he says he came to understand the political views of his colleagues, and vice versa. He gives examples of interactions with several of his colleagues, in which he was open about his views that (for example): not all issues need be informed by a gender based analysis; he was skeptical about the effectiveness of decriminalizing and destigmatizing drug use; and he did not accept that all negative phenomena in Indigenous communities were the product of colonialism. In one book review he published in 2018, he set out his views of how to mitigate political polarization and dysfunction:
Cease denigrating national symbols and identity. Approach trade deals and economic globalization more cautiously. Expand social programs and insurance tied to work histories to bolster their political resilience; emphasize jobs over handouts. Relent on the strident moralizing and language policing. Stop trying to win arguments by calling people bad names. Take political corruption and lax enforcement of the law seriously – law and order matters. Acknowledge and address legitimate concerns about immigration. Create training opportunities unconnected to university. Emphasize what unites citizens more than what divides them. Focus on economic over cultural spats.
He says that School faculty read this review, including Dr. D and the Director.
[25] The summer of 2020 was marked by heightened activism for racial justice. The immediate impetus was the murder of George Floyd, but the issues being confronted had deep roots in anti-Black and anti-Indigenous racism and colonialism across the US and Canada. In August 2020, a group of SFU alumni and students authored a lengthy letter calling on the School to immediately address systemic racism and white supremacy within the School [the Letter].
[26] The Letter set out examples to highlight “a pattern of systemic racism” within the School, including incidents where classes were encouraged or invited to debate the rights of First Nations and LGBTQ2S+ people, or the effectiveness of the Black Lives Matter movement. It further identified certain statements made by professors or invited speakers, or found in textbooks, as racist and promoting settler-colonial views. It gave examples of microaggressions and discrimination against BIPOC students. The Letter called out white supremacy within the School, evidenced by the prominence of white faculty who present material from colonial perspectives, and the mostly white racial composition of both the faculty and student body. The Letter concluded with recommendations to “create an environment of equity, diversity and cultural safety for BIPOC”, including through policy development, training, proactive efforts to diversify the student body and faculty, and increasing the safety of BIPOC people in discussions that directly impact them.
[27] In his complaint, Dr. Gordon says that some of the allegations in the Letter related to his practice of allowing “conservative political beliefs” to be aired in the classroom. He says that the Letter inaccurately framed this as an example of systemic racism. It appears undisputed that no student expressly complained about Dr. Gordon in connection with the allegations in the Letter.
[28] School faculty met to discuss the Letter in September 2020. During that meeting, Dr. Gordon says he was vocal in his opposition to the “activist EDI agenda of the letter and the proposals made in the letter to advance that agenda”. He argued that “it should not be assumed without evidence that every institution, including the [School], is systemically racist” and expressed his belief that “everyone should be treated equally without regard to race or other grouping”. From his perspective, the Letter was “poorly written and argued” and “advanced extreme positions and demands”. During this meeting, he read out dictionary definitions of racism, and asked the faculty if they were aware of any examples of racism within the School. Dr. D interjected to say that Dr. Gordon seemed to be getting defensive. Dr. Gordon says that he responded to this comment by acknowledging that it was grounded in the theory of “white fragility”. He then asserted that the Letter was “all part of an ideological agenda, and if you don’t agree with them then they’ll call you a bunch of racists”.
[29] The School responded to the Letter on September 3, 2020. In their response, the authors (which included the Director) acknowledged that “racism and other forms of discrimination exist at SFU and within the School of Public Policy”. They expressed their commitment to “delivering a program that acknowledges and counters racism and systemic inequalities in both its content and its practices, and to fostering an inclusive, safe and supportive environment”. It committed to some immediate next steps, including establishing a student-faculty committee, discussing the concerns at the faculty level, and addressing the concerns within the School and across SFU. Dr. Gordon says that he opposed this response from the School, and that his opposition was well known to his colleagues.
B. The Position
[30] In the meantime, in fall 2020, the School was preparing to post for a new tenure track position at the Assistant Professor level. The Dean supported a strong “EDI framing” in the job posting, in light of the “sets of issues the unit is engaging with the students and alumni regarding the experiences of racialized and indigenous students and people”: email dated November 18, 2020 (Gordon Affidavit #1, Ex G). In her affidavit, the Dean explains that this view was based in part on the context at the time, in which discussions were ongoing “at various levels about student activism and the experiences of BIPOC students at the University”: Pulkingham Affidavit #2 at para. 6. It also aligned with ongoing work at SFU to further employment equity, especially since 2016/2017.
[31] School faculty also had input into job posting and criteria. While the posting was being developed, Dr. D expressed that she was “adamant to do all we can do advance EDI in our School with these hires” and, to that end, was “focusing on strategies to influence the content of the postings”: email dated October 16, 2020 (Gordon Affidavit #1, Ex F). She told the Director that she felt “very strongly that new hires are a critical time to demonstrate our commitment to EDI, as well as shape the direction and future of our School”: email dated November 17, 2020 (Gordon Affidavit #1, Ex K). She made “repeated requests” to be on the search committee for the Position, which were denied: email dated February 21, 2021 (Gordon Affidavit #1, Ex GG). Dr. Gordon says that this is notable and argues that it is evidence that the Director was aware of Dr. D’s bias against his candidacy. The Director disputes this, and says she simply had a different assignment for Dr. D. Nothing turns on this.
[32] When Dr. Gordon became aware that the Dean was considering exercising a preference for Indigenous and racialized candidates, he says that he expressed concern to the Director that the Position was being drafted to exclude him as a white man. Dr. Gordon says that the Director told him, “I wouldn’t disagree”. The Director agrees that she acknowledged to Dr. Gordon that a decision to exercise a preference could render him ineligible. She opposed exercising a preference for the Position. However, the Director says she did not share Dr. Gordon’s view that the Position was being drafted to specifically exclude him. She says she explained that “the University as a whole was updating language in job postings to incorporate more EDI language”. Ultimately, SFU did not indicate or exercise any preference that would exclude Dr. Gordon based on his race or gender.
[33] In December 2020, SFU published the job posting for the Position. The job posting required candidates to “demonstrate evidence of a commitment to values of equity, diversity, and inclusion in their service, teaching, and scholarly research activities” and “demonstrate an appreciation for and an ability to centre diverse perspectives and experiences and what that entails”. It said, “The ideal candidate will demonstrate an ability to show educational leadership in the application of political science to public policy issues including as they relate to equity, diversity, and inclusion and issues of Indigenous rights and title”.
[34] SFU developed assessment criteria for the Position, which weighted research productivity (40%), teaching and supervision skills (40%), respectfulness and collegiality (10%), and commitment to EDI (10%). The assessment criteria described “committed to EDI” as:
integrates values of EDI into teaching, service, and research (as applicable) including by taking a self-reflective approach to dealing with students, colleagues, and community members; willingness to help students develop skills and knowledge in diversity, self reflection and critical perspectives; addressing critical perspectives on equity and diversity dimensions within their discipline as applicable
[35] Dr. Gordon submitted his application in January 2021. It included a written statement, which Dr. Gordon titled “Contributions to an inclusive community”. In his statement, Dr. Gordon set out his ethos of grounding academic work in real-world social problems, with an aim of effecting positive change. As a professor, he explained that he takes his responsibility for “inclusive pedagogy” seriously, by always including diverse voices and ensuring everyone can participate. He explained:
In discussions around gender, race and class I have sought to center voices from underrepresented groups. At the same time, in general I strive to make sure that everyone is treated equally, without regard to race or gender or sexual orientation …
This statement was later assessed by the School as Dr. Gordon’s “EDI statement”.
[36] The process of hiring for the Position was guided by a governance structure developed by the Director, with input from the Dean and faculty. This structure was designed to comply with the requirements of the collective agreement between the SFU Faculty Association and the University. Among other things, the collective agreement requires that: the job search process be transparent to members of the academic unit; members have the opportunity to give input on shortlisted candidates; and the search committee “will not make a formal recommendation for appointment to the Dean without the demonstrated support of the unit”: Article 23.15.
[37] There is a significant amount of evidence before me in this application about the governance structure and hiring process. The parties disagree about whether SFU complied with the governance structure or – as Dr. Gordon alleges – allowed the process to be hijacked by the Faculty Group, who opposed his candidacy. I do not need to delve deeply into that evidence for this decision. Rather, it is sufficient to say:
a. The School established a Search Committee, comprising faculty representatives from the School and the Department of Political Science, and one student.
b. School faculty gave input on the job posting, hiring criteria, and candidates.
c. Out of 45 applications, the Search Committee shortlisted three candidates for interviews, including Dr. Gordon. In response to this shortlist, the Faculty Group wrote to the Director separately and then together to “express our collective concerns about the hiring process” for the Position and object to the shortlist: email dated February 22, 2021 (Gordon Affidavit #1 Ex NN). There is evidence to support that the Faculty Group’s primary concern related to Dr. Gordon. One member of the Search Committee opined that the Faculty Group’s concern was driven by “attitudes toward Josh Gordon: whether he is a credible candidate for the short list or whether he is insufficiently sensitive to identity issues to be credible”: March 5, 2021 email (Gordon Affidavit #1, Ex DDD).
d. The candidates on the shortlist, including Dr. Gordon, participated in an interview process which included a sample lecture, and interviews with faculty members, staff, students, and the Director.[1]
e. Candidates were ranked by nine faculty members in a secret ballot vote, including the Faculty Group. Five faculty ranked Dr. Gordon as their last choice. This eliminated him from the running.
[38] On May 21, 2021, the Director wrote to the Dean to recommend the appointment of another candidate to the position. The Director outlined in detail the process that had been followed, and the reasons behind the recommendation. Regarding Dr. Gordon’s candidacy, the Director acknowledged that “Dr Gordon clearly has significantly more teaching experience than the other candidates and has taught the courses in the areas [the School] needs in this position”. She noted that his teaching evaluations rated him highly, comparable to other candidates. The critiques of his application related in large part to EDI:
Dr. Gordon’s EDI statement focused on his research that has links to social justice and equality. He noted his PhD dissertation examined the role of labour unions in building a robust welfare state and his housing research flows from his concern about the lack of affordable housing for working people. He noted his community engagement on housing issues and the role his research played in moving the provincial and federal housing policy agendas and initiatives. Dr. Gordon noted he was inclusive of diverse voices in his classes and treated everyone equally, but his statement did not have a level of detail comparable to that of other candidates on how they promoted inclusivity in the classroom and how they incorporated EDI topics in their teaching… The CFL faculty did not support making an offer to Dr. Gordon if offers to the top three candidates did not proceed. His research output weighted by the nine years since receiving his PhD was below that of the top ranked candidates, his EDI statement and answers to EDI-related questions during his interviews were deemed less fulsome and detailed than those of the other candidates. Dr. Gordon has taught the core courses the department requires, and his teaching evaluations provided in his application package are very good, but they are not superior to those provided by the other candidates. [emphasis added]
[39] In contrast, the Director noted that the successful candidate had exceptional references, and a stronger publication record, “adjusted for time since PhD was conferred”. (Dr. Gordon disputes the assessment of their respective publication records). Though the candidate had less teaching experience, and room for improvement in her teaching, the Director noted that she was enthusiastic about taking on more teaching responsibility and had excellent skills in the subject areas she would be required to teach. The candidate ultimately had the support of all participating faculty members.
IV DECISION
[40] The issue I must decide is whether Dr. Gordon’s complaint has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on SFU to prove that it does not.
[41] To decide this issue, I do not make findings of fact. Rather, I consider all the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. I base my decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[42] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. Dr. Gordon does not have to prove his complaint or show the Tribunal all the evidence he may introduce at a hearing. He only has to show that the evidence takes his complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[43] To prove his complaint at a hearing, Dr. Gordon would have to prove that one of the reasons he was not hired for the Position was that he held, or was perceived to hold, political beliefs protected under the Code: Moore v. BC Education, 2012 SCC 61 at para. 33. If he did that, then the burden would shift to SFU to justify its decision as a bona fide occupational requirement. This defence requires SFU to prove that it was applying a standard rationally connection to the purpose of the Position, in good faith, and that the standard was reasonably necessary: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC) [Meiorin].
[44] SFU does not dispute that Dr. Gordon’s “responses with respect to EDI” were a factor in its decision not to hire him: reply at para. 33. This is apparent in the Director’s report to the Dean. In addition, Dr. Gordon has pointed to evidence capable of proving that the Faculty Group was active and instrumental in opposing his candidacy. It appears undisputed at this stage that this group voted Dr. Gordon out of contention in the secret ballot vote, disqualifying him from further consideration. None of the Faculty Group have given evidence in this application about why they were opposed to Dr. Gordon’s candidacy, but there is evidence to support – and it does not appear to be disputed – that their primary concern was that Dr. Gordon did not meet the qualifications related to “commitment to EDI”. For example, in her notes on Dr. Gordon’s application, Dr. D rated him “poor”, writing:
-statement concentrates on work on housing, doesn’t link explicitly to EDI
-Notes that they take their responsibility for inclusive pedagogy seriously but no substantial information on how that is achieved
-Noted that their approach is to treat all students equally ‘without regard to race or gender or sexual orientation’ – this signals a potential lack of regard for diversity and what is required to make spaces feel inclusive
[45] Students involved in evaluating Dr. Gordon also commented on his perceived commitment to EDI. One student wrote:
I know that some students feel that Josh does not believe in EDI principles. I fundamentally disagree with students who hold this view. As a student of colour, I have talked to Josh about some of my experiences in the program, and he has always been kind and treated me with dignity and respect. Whenever discussing these topics, I believe that he treats it with the necessary attention these issues deserve. [Gordon Affidavit, Ex HHH]
Another student commented, “I think the only concern I have with Josh is that he is not at the level of anti-racism/anti-colonialism learning/knowledge that I would expect of a professor in this program” (Gordon Affidavit, Ex HHH).
[46] Following the hiring process, one member of the Search Committee reflected that “Josh suffered from an ideological animus toward him among the majority”: April 28, 2021 statement (Gordon Affidavit #1, Ex III). This person opined:
My interpretation of Josh’s rejection is that, almost entirely, it was based on his qualified (as opposed to enthusiastic) support for Indigenous reconciliation as defined by First Nation advocates. At the time he presented his research and teaching lectures to faculty and students, several departmental colleagues challenged him – with considerable animus – on his interpretation of Indigenous policy. He responded to questions by describing his devoting each year one of thirteen lectures in the basic politics course he taught on various aspects of treaty rights and First Nation governance, and his introduction of a debate on First Nation governance capacity. [Gordon Affidavit, Ex III]
This person also expressed a view that seven of the nine faculty who participated in the job search process “decided primarily on grounds of identity politics”: March 26, 2021 email (Gordon Affidavit Ex KKK).
[47] At a hearing, this evidence could prove that at least one reason Dr. Gordon was not hired for the Position was because of a perception – primarily advanced by the Faculty Group – that he was not sufficiently committed or aligned with them in issues related to EDI, including on issues relating (variously) to anti-racism, anti-colonialism, “identity politics”, substantive equality, and reconciliation.
[48] This application turns on whether Dr. Gordon has no reasonable prospect of proving that his rejection of activist EDI (as he defines it) is a political belief protected under s. 13 of the Code. In my view, he does not.
A. Political belief
[49] The legal principles are not in dispute.
[50] The protection from discrimination in employment based on political belief furthers the Code’s purposes of fostering full and free participation in the economic and political life of the province: s. 3(a). The Tribunal interprets political belief liberally to achieve these purposes. However, its scope is not unlimited: Prokopetz and Talkkari v. Burnaby Firefighters’ Union and City of Burnaby, 2006 BCHRT 462 at para. 31. The exercise of interpreting and applying political belief is fact-specific and contextual: Bratzer v. Victoria Police Dept (No. 3), 2016 BCHRT 50 at para. 270.
[51] As a preliminary matter, protection based on political belief only extends to beliefs that are:
a. genuinely held,
b. broader than a person’s own personal interests,
c. “reasonably cogent and cohesive” – meaning “reasonably clear, logical, consistent, and integrated”: Pozsar v. City of Maple Ridge, 2018 BCHRT 107 at para. 34; Maatz at para. 52. This does not include beliefs grounded in unfounded conspiracy theories: Maatz.
[52] When these criteria are met, the Tribunal has interpreted the scope of “political belief” to extend broadly to beliefs about the form and functions of government(s), and a person’s participation in partisan politics. It is worth noting that, when the ground was first included in BC’s human rights legislation in 1973, then-Premier Barrett explained that its purpose was to ensure that a person’s politics would not be a barrier to their employment. He grounded this in his personal experience of being fired from a job because he was a socialist, recounting:
Now, I never forgot that whole experience, Mr. Speaker, where I was denied the right to speak out freely in a society about what I believed in in terms of politics. I was threatened with my job, and when I didn’t withdraw I was actually fired. The records show, Mr. Speaker, that there was nothing against my performance on the job, nothing against my professional commitment to that job, and at no time was there any complaint on the performance of my job. The only thing that was wrong with me was that I thought for myself and I thought socialist. And I was fired.
British Columbia, Legislative Assembly, British Columbia Hansard, 3rd Session, 30th Parliament, (November 5, 1973), pages 1265-66 (Hon. Mr. Barrett).
[53] Building on this purpose, the Tribunal’s early attempts to define political belief drew from the dictionary definition of “political”:
political a. 1. of or affecting the State or its government; of public affairs; of politics. 2. (Of person) engaged in civil administration. 3. having an organized form of society or government. 4. belonging to, or taking, a side in politics; relating to a person’s or organization’s status or influence…
Jamieson v. Victoria Native Friendship Centre, 1994 CanLII 18447
[54] Though the Tribunal’s case law has continued to evolve and expand on those circumstances which engage political belief, the broad parameters of this definition still apply to the areas where the Tribunal has recognized the protection:
a. participation in partisan politics. For example, association with a political party (Trevana v. Citizens’ Assembly on Electoral Reform, 2004 BCHRT 24)or perceived affiliation with a political rival (Siemens v. Vanderhoof (District), 2015 BCHRT 172).
b. beliefs that are “core to a person’s concept of social cooperation”, meaning beliefs that are “core to a person’s concept of how society should operate”: Croxall v. West Fraser Timber, 2009 BCHRT 436; Maatz v. Interior Health Authority, 2026 BCHRT 27at para. 52. Though the concept of “social cooperation” may be broad, its application to political belief is grounded in beliefs about governance. For example, beliefs about “the organization and governance of First Nations Communities” (Jamieson), and the regulation of professions within a legislative framework (Wali v. Jace Holdings, 2012 BCHRT 389; Fraser v. BC Ministry of Forests, Lands and Natural Resource Operations (No. 4), 2019 BCHRT 140).
c. “public discourse on matters of public interest which involve or would require action at a governmental level”: Bratzer at para. 272. For example, beliefs about drug laws (Bratzer), or possibly government COVID-19 vaccine policies (Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120).
[55] In contrast, the Tribunal has not extended the protection of political belief to areas which do not engage partisan politics, governance, or some form of government-related action, including beliefs about:
a. union activity (Manning v. Sooke Teachers’ Association and others, 2004 BCHRT 281).
b. labour relations, human resources, and business decisions. For example, beliefs about contracting out work (Williams v. City of North Vancouver, 2004 BCHRT 441), discrimination and harassment in the workplace (Propopetz), and running a low-cost veterinary clinic (Brar and others v. BC Veterinary Medical Association and Osborne, 2015 BCHRT 151).
Political belief also does not extend to violence or threats of violence (Chrysanthous v. Engineers and Geoscientists BC, 2020 BCHRT 88)or a person’s refusal to follow a law they disagree with (Maatz).
[56] Turning to the facts here, Dr. Gordon argues that his case is somewhat unique because “it deals as much or more with the political beliefs [he] did not have as it deals with the political beliefs he did ascribe to” (emphasis in original). He alleges that he was not hired for the Position because he did not ascribe to a belief system which he calls “activist EDI”. For the purpose of this application, I accept that a hiring decision based on a person’s perceived disagreement with the political beliefs of the employer could engage the protection of the Code. I focus then on whether belief (or non-belief) in “activist EDI” could be a political belief under s. 13 of the Code.
[57] The phrase and definition of “activist EDI” comes from an expert report submitted by Dr. Gordon. The report is authored by Christopher Dummitt, a history professor at Trent University. Dr. Dummitt is presented as an expert in “questions of academic freedom and viewpoint diversity at Canadian universities”. He is a member of the Heterodox Academy, an “organization of professors and university administrators created to promote viewpoint diversity within higher education” and has testified on that subject before the House of Commons’ Standing Committee on Science and Research. His expert report answers questions related to “political litmus tests in academic hiring”, definitions of EDI in academia and academic hiring, public discourse and public interest in EDI, how EDI engages government action, and the relative effectiveness of different approaches to EDI. He is also asked to opine on the circumstances giving rise to Dr. Gordon’s complaint.
[58] SFU objects to the admissibility of Dr. Dummitt’s report on the bases that it contains opinions outside the scope of his expertise, sets out his interpretations and findings of fact that are not necessary or appropriate, contains irrelevant information, and contains opinions on the ultimate issue for the Tribunal. I agree that there are aspects of Dr. Dummitt’s report which a Tribunal Member may conclude are neither necessary nor appropriate, and not admissible at a hearing: Code, s. 27.2. This is particularly the case where he purports to make findings of fact about what happened in this case and draw inferences from those findings. At a hearing, the Tribunal could not rely on Dr. Dummitt’s factual findings – made without the benefit of all the evidence or cross-examination – and would not need to. The Tribunal is equally, if not better, situated to that task. Similarly, Dr. Dummitt’s opinion about the ultimate issue is not necessary and may be prejudicial: RR v. Vancouver Aboriginal Child and Family Services Society (No. 5), 2020 BCHRT 37 at para. 4.
[59] Notwithstanding some concerns, I do not find Dr. Dummitt’s report inadmissible in this application. Rather, I have considered it as part of my assessment of whether Dr. Gordon has taken his allegations out of the realm of conjecture. Dr. Gordon has relied on Dr. Dummitt’s report to frame his political beliefs in relation to its definitions of “mild, moderate, and activist EDI”. The report is useful to understand that framework and whether it presents a basis on which the Tribunal could find a protected political belief is engaged by the complaint.
[60] Because I have decided to consider Dr. Dummitt’s report, I have also considered SFU’s responsive expert report by Carl James, a professor in the Faculty of Education at York University and Equity Advisor to the Dean. Among other qualifications, Dr. James is a co-author of The Equity Myth – Racialization and Indigeneity at Canadian Universities (2017). In his report, Dr. James identifies limitations and concerns about Dr. Dummitt’s sources, methods, and analysis. A primary critique is that Dr. Dummitt’s report misses “much of the historical and social context” of issues relating to equity, diversity, inclusion, decolonization, and social justice in Canadian universities. Dr. James addresses that context in his report. He argues that the “mild, moderate, and activist framework” relied upon by Dr. Dummitt is not well founded and should be understood as part of a current backlash to EDI. Among other things, Dr. James observes that this framework positions EDI as a “threat to excellence”, is not “informed by existing scholarship; mischaracterizes EDI initiatives as unrelated to operationalizing equity, diversity, and inclusion; and seems to intentionally disconnect equity, diversity, and inclusion from the goal of creating a just society and institutions”.
[61] At a hearing, Dr. James’ report could be a compelling rebuttal to many of the ideas presented by Dr. Dummitt. However, for the purpose of this application, I have considered whether Dr. Dummitt’s analysis could, if accepted, support a finding that the ground of political belief is engaged. In my respectful view, it could not.
[62] Dr. Gordon describes activist EDI as “an entire ‘worldview’ with strong opinions on the ways different groups should be treated in society, the role of privilege in social structures, the pervasiveness of systemic discrimination in society, and the role and limits of free speech and academic freedom”. Dr. Dummitt says that it is marked by the following “types of beliefs”, which Dr. Gordon does not subscribe to:
a. “embracing equity over equality”
b. “rejecting the ‘colour-blind’ approach that insists on treating all individuals in favour of promoting ‘racial separation’ and ‘affirmation’”
c. “‘centering’ the voices of those considered to be ‘equity-deserving’”
d. “there are those who are ‘privileged’ and … this privilege requires them to step back, listen, and learn”
e. an assumption that “differences in representation from various social group are a result of discrimination either in the present or past… To even question whether discrimination is a causal factor can itself… be evidence of discriminatory attitudes”
f. an approach to “teaching and research where certain topics could be considered off-limits to discussion”
g. expanded notions of harm, for example focusing on “things like ‘micro-aggressions’ and ‘cultural appropriation’”
[63] Dr. Gordon and Dr. Dummitt argue that these ideas of activist EDI are represented in the “ideological worldview which formed the basis of the [Letter]”. Dr. Dummitt says that the Letter is “almost a classic statement containing many of the assumptions of ‘activist EDI’, with [its] focus [on] systemic discrimination, unconscious bias, microaggressions and the desire to protect certain groups of students (Black, First Nations, immigrants) from potentially harmful language (even in unclear/ambiguous instances) and protect them from political/intellectual debate on matters related to their group identity”.
[64] Dr. Dummitt contrasts this worldview with a “more traditional liberal approach”, which Dr. Gordon says he supports. This approach, says Dr. Dummitt, “is based on the belief that minimizing group differences is best done by focusing on a common humanity”, “regardless of identity differences”. These were the beliefs that Dr. Gordon says that he expressed to his colleagues in response to the Letter.
[65] Taking Dr. Gordon’s evidence at its highest, I acknowledge that his allegations touch on issues that may be described as “political” in the broad and colloquial sense of the word. I also accept that, theoretically, these issues could touch on “government action”, in the sense that they relate to the goals of “the public university and higher education itself” and can affect “the granting of public funds from major public granting institutions that sustain a large portion of university research” (as Dr. Gordon argues). However, the Tribunal’s observation in Brar is apt:
… many issues within our society are the subject of public debate, such as income inequality, the method of providing health care services and access to justice, to name but a few. Although these issues, and the manner in which a person expresses their views regarding such issues, may be related to their “political belief”, for example through their affiliation with a political party, the discussion of any particular issue does not necessarily relate to a separate political belief contemplated by the Code. [para. 809]
[66] The difficulty in this case is that Dr. Gordon’s proposed “political belief” encompasses a collection of ideas and beliefs across a range of issues ranging from formal vs. substantive equality, systemic discrimination, social privilege, colonialism, “identity politics”, pedagogical approaches, and free expression in an academic context. It is, in his description, not a specific belief but an entire worldview. It is not apparent to me that the various ideas within this worldview, taken separately or together, relate to a core belief about systems of social cooperation through governance, or issues that engage the form or functions of government. For example, it is not apparent to me how Dr. Gordon’s views about systemic racism (or a lack thereof) at SFU relate to politics, laws, or other government action. His disagreement with the School’s response to the Letter, on its face, is more akin to a belief about his employer’s business decisions – which is not protected – than a political issue within the meaning of the Code. On the other hand, while Dr. Gordon’s views about First Nations governance could constitute a political belief, he has not focused in any substantive way on that or any other specific political issue. Similarly, though he references public funding decisions, there is no evidence to support that any specific funding decision was at issue here.
[67] Ultimately, I agree with SFU that Dr. Gordon’s description of his proposed political belief lacks the both the necessary cohesion and cogency, and connection to some kind of government action or mode of social cooperation through governance, required to trigger the protection of political belief under s. 13 of the Code. It invites the Tribunal to stretch the scope of the protection beyond what its plain meaning and purpose can bear, extending in a potentially unlimited way to beliefs and opinions across a range of social issues. Though such beliefs or worldviews may be “political” in the everyday sense of the word, they are not political within the specific meaning of s. 13 of the Code.
V CONCLUSION
[68] I am persuaded that this complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.
Devyn Cousineau
Vice Chair
[1] One candidate declined to be interviewed, because they were in the process of accepting another offer.