UBC provided its response to my Application for Documents and Costs and its response to the Application for Documents from a Third Party – Paula Butler (from Paula Butler) on August 9 as agreed. I filed my own Glynnis Kirchmeier’s Response to UBC’s Submissions on Documents to its response on August 30. In the past the Tribunalmember has taken several weeks or months to consider our submissions, so I do not expect him to make a decision before the next scheduled update mid-September. I will next update the blog mid-October, unless of course we learn of his decision sooner.
All the submissions are now up on the Documents page.
UBC took a few interesting positions in its submissions which I will summarize here, slightly out of order. First, it opposed my application for costs, saying basically that I’m complaining about normal litigation costs. I take the position that its document disclosure is inadequate to the point of disrupting the normal litigation process and causing me harm, so UBC must be sanctioned with the award of costs.
Second, UBC did consent to the production of Paula Butler’s documents, with some caveats – it wants to continue redacting the names and identifying details of individuals. Butler herself did not make any submissions to the Tribunal, and with UBC’s consent obtained there should be no obstacle to the production of them immediately. However, I don’t have any great hope of this happening absent an order from the Tribunal. It is interesting that UBC chose not to defend itself, instead putting me to the delay and effort of filing an application for Butler’s documents.
Third, UBC stated in its submissions that it consents to disclosing “certain requested documents.” Which ones? I don’t know, as UBC did not choose to provide the documents themselves or a list of them, neither in the submission nor in private communication with my counsel. As it has been nearly a month since its submission without additional communication, I doubt UBC intends to provide anything at all without an order, despite its representations to the Tribunal.
Fourth, UBC argued that document disclosure should follow the principle of proportionality, and claimed my extensive request was a fishing expedition rather than a legitimate request under the rules. In reply, my counsel and I argued that document disclosure in the Tribunal process (rather than in civil court) followed the “arguably relevant” standard – that is, I’m entitled to see things which are arguably relevant, in part because this process very rarely includes the right to cross examine witnesses prior to the Hearing itself, even though my case faces dismissal.
Fifth, UBC argued “this is not a case where the Respondent has refused to provide disclosure.” In reply, we attached a number of key documents obtained from other sources which UBC did not disclose, including emails from a class member describing herself as a complainant, a self-incriminating email from Mordvinov, evidence related to a general class member from a science department, and emails from Student B. We also attached emails UBC DID provide, which refer to Facebook messages it claimed to have from Mordvinov, but never produced.
Sixth, UBC argued that it should maintain its redactions of the names of class members, basically on the grounds of personal privacy and that at the time of disclosure they did not expect me, a stranger, to later learn about their experiences or reports. It claims that the initial communication to class members did not seek consent to “disclose” their identities and records to me, which UBC claims would “contradict” the initial communication’s message to class members. In reply, my counsel and I argued that I have a legitimate right to information per my accepted role as the class representative, and that the process already balances privacy rights with the greater value to the public of the litigation (basically I cannot use or share information received from UBC unless it is entered into evidence, or with UBC’s consent, or by Tribunal order). We also pointed out that UBC twisted the purpose of the initial communication in its argument, that it could have chosen to raise this issue when it edited the communication (but it didn’t), that UBC failed to recognize when the class members have chosen to share their disclosures already, and that UBC had no compunction about violating class member privacy when it gave their information to Butler or staff within UBC, without asking their consent. I also reached out to class members on this issue, and on short notice a number of them were kindly able to reply and give explicit permission to me to see their information. (We attached these emails and others expressing consent from these class members to our submission, but I excluded it from the copy of the filing on the Documents page.) We pointed out that UBC had also redacted names of employees or persons who were not class members, and stated we believed this objection about consent is a pretext, and the point of the redactions is to limit my ability to litigate the case effectively.
Seventh, UBC argued my document request was out of scope, and that I am only entitled to documents from January 8, 2014 to November 16, 2015. It argues that I seek to improperly expand my complaint with out of time requests as well as for specific topics, specifically the “peeping tom” incidents at Green College, documents related to parties at Green College 2011-2014, and meetings held at Green College in the summer of 2013. It later also objected to documents related to Paul Krause, David Eby, Sally Campbell, the “School of Secrets” documentary by CBC’s fifth estate, and the contract with Peak Resilience. We replied that this is only the period of liability for UBC, but that the university was not a blank slate before that time and the earlier documents provide key context. We also explain the basis for all specific requests noted by UBC as objectionable. I also attached David Eby’s letter to Martha Piper in November 2015, which UBC claimed to be irrelevant. He wrote the letter after I complained to him immediately after the Mordvinov Hearing. It was previously disclosed to UBC, and does not contain private information, so I uploaded it on the Documents page. I don’t believe the intervention by Eby has yet become widely known, although I did include it in the original complaint.
Eighth, UBC argued we asked for documents not in its possession or control, specifically related to the Green Lantern program at Green College, documents related to the GUTS magazine articles where Green residents described how Mordvinov’s and other men’s unchecked behavior created an unwelcome environment for them, and documents created by former employees, including Arvind Gupta, Martha Piper, Louise Cowin, and Monica Kay. We responded by clarifying what we wanted from each request, and how we thought UBC possessed it – pointing out especially that they continue to control documents by former employees, as proven by the fact they produced some from Monica Kay.
We continued throughout the filing to seek orders from the Tribunal laying out specific terms we want the university to follow when it produces documents.
Glynnis Kirchmeier - and - Kirchmeier obo Others v. UBC 