Case Update #5: My Initial Response to UBC’s Disclosure

This is the regular monthly update for June.

As you’ll recall from my last update, my lawyer Clea Parfitt and I had carefully reviewed the disclosure UBC provided on May 1, as well as its Application to Dismiss. We regard the disclosure as insufficient. Some dates were set for us to respond to the Application to Dismiss, but since Ms. Parfitt let everyone know she was out of the office from May 22 to June 10, the Tribunalmember said he would set aside the deadlines (that is, reschedule them later).

On 21 May 2018, my lawyer sent a letter to UBC and the Tribunalmember giving notice that we believe UBC has chosen simply not to follow the communication plan. Not one member of the Mordvinov class has been informed of this case’s existence. It is tiresome that UBC opted not to inform women of the existence of this case and their rights in the process, but somehow not surprising. (I’m not sure why UBC didn’t bother to inform the women it knows I speak with regularly.) In the letter, we listed the names of Mordvinov class members known to us and requested the Tribunalmember order UBC to provide details about reaching out to them.

UBC did apparently send out one small batch of communications to general class members, but only three women subsequently got in touch with me. We certainly expect a lot more than that. Notably, for example, Stephanie Hale has filed her own case. She is also a general class member. Since UBC has declined to give her the initial communication, she hasn’t been able to reach out to the Tribunal for guidance in whether to withdraw from my general class or not. Potentially, this could create trouble down the road for her. I could foresee a situation where UBC argues her case cannot continue because of something that happened in this one. The initial communication was supposed to prevent such situations from happening, and case progress was delayed for months over it. In the letter, we requested the Tribunalmember order UBC to disclose how it went about surveying staff to send out communications, and how many it sent. In a letter dated 23 May 2018, the Tribunalmember declined to make any orders until UBC gets a chance to respond on its own.

I will not post the 21 May 2018 letter because it has names in it.

Instead of filing the an Application for Documents right away, we decided to advise the Tribunalmember of the general nature of the deficiencies of UBC’s disclosure in a letter dated 22 May 2018. I’ve decided to post this letter in the Documents section of this website*, because it doesn’t into specific description of the evidence, which of course is confidential at this point.

On the same date, we sent a different letter to UBC describing, in specific detail, the ways the disclosure was deficient and requesting both general and specific documents. We did this in the hopes that UBC would take the opportunity to correct its deficiencies without forcing me to go through the expense and delay of a formal Application. (You betcha I’ll ask for costs if it makes me do that!) The 24-page letter to UBC makes it clear that I know exactly what is missing and that I’ll easily be able to use what I have so far to demonstrate that UBC has held back evidence in violation of its disclosure obligations. I last spoke with Ms. Parfitt a few days ago. UBC doesn’t appear to have regarded our letters as anything that required reply.

I’ve decided not to post the 22 May 2018 letter to UBC because it has lots of clearly identifying information and descriptions of the disclosure documents. I am happy to provide the letter to class members who request it, with the understanding that you must keep it confidential, and I will redact some names.

Since disclosure is supposed to be confidential, I won’t describe the specifics of the evidence here. But in general, the deficiencies fall into two categories. First, UBC censored – inexpertly – most names in the documents, for both students and employees. This was true even for the documents provided as evidence in the Application to Dismiss (which is against the rules unless you get permission from the Tribunal to do it – and UBC didn’t ask). I was amused by one particular email, produced several times, in which the redaction choices differed for each copy. I also found that I could copy-paste some pages onto a Word document and read redacted sections, a software bug which has been known for at least a decade. Still, overall the redactions severely affect legibility and prevent me from knowing who said what and when, and who was copied or forwarded emails. On rare occasion, whole lines or paragraphs are redacted.

The second big problem with the disclosure is that it appears that UBC provided partial files from only two employees. One file, from an employee in the Equity Office, appears slightly more complete than the other file, from an employee at Green College. However, I have disclosed evidence that should be in the files of these two employees, and yet UBC did not provide their own copies of evidence. There are abundant internal references to other documents which are not produced. Moreover, there’s plenty of public domain evidence which was not produced. Obviously, more than two employees have relevant documents. In the 22 May 2018 letter to UBC, I named over 30 additional employees known to have relevant documents.

There’s also an interesting aspect to the disclosure in that UBC disclosed evidence related to general class members. So, I presume UBC agrees I’m allowed to see all general class documents and has decided to waive the argument that general class member information isn’t relevant, confidential, or privileged. But this portion of disclosure is also obviously incomplete. First, the volume is far too small for these files to be complete; second, I already disclosed evidence related to some general class members which was not disclosed back by UBC even though it was the same case file; third, it excludes files for class members known to me; fourth, the number of cases is far below the number of complaints UBC has stated it received to the Board of Governors or the media; fifth, the number of cases is far below what would be expected due to the prevalence of sexual misconduct on college campuses or as per the AMS’s recent Academic Experience Survey, 13% of women students self-reported as experiencing sexual assault or misconduct (with a staggering spike of 38% of women in the Greek system. Also noteworthy is that by ethnicity South Asian victims were the highest group, at 19%, and LGBTQ students self-reported misconduct at 17%, or more than double the rate for heterosexual students). I predict UBC will attempt to argue that women just don’t report – to which I would counter, even multiple reports of a range of bad acts by DM were not treated as such. If one defines literally every fact pattern and circumstance (plus all the documents made about what women said) as not a report, it is easy to blame women for not reporting.

Anyway, it remains to be seen whether or not general class member documents will be relevant to official filings either of us make. Certainly, at the very least I will need the copies of what UBC already provided in uncensored form.

Should UBC reply to our queries or the Tribunalmember decides to issue an order, I will update this blog before the July monthly update.

*I will post this letter sometime this weekend and update this post