Case Update #33 – Tribunal Denies UBC’s Application to Dismiss

Great news. Late on Friday, October 22, 2021, the Tribunal posted its denial of UBC’s Application to Dismiss my case.

A denial of an Application to Dismiss does not make findings of fact. Instead, the decision says that UBC has failed to convincingly argue that my complaint does not raise issues worthy of a full hearing. Specifically, UBC failed to show that I had “no reasonable prospect of proving discrimination” under the Human Rights Code, and that “the issues underlying the complaint have been effectively remedied such that it would not further the purposes of the Code for the complaint to proceed.”

UBC’s argument to the first point was that I was demanding a particular and specific process, which the Code does not require. The Tribunalmember wrote in paragraph 98 that “The issue in this complaint is not whether, in offering this service [enforcing its policies for providing a safe and harassment free education environment by investigating complaints and disciplining as appropriate those who violate such policies – quoted from a 2019 Hale decision], UBC acted fairly, complied with its policies, or reached wrong or unreasonable conclusions….Nor is the issue whether UBC’s services contained the specific elements which Ms. Kirchmeier has detailed in her complaint. Rather, the issue, as contemplated in both Rojas and Maughan, is whether, in the course of providing this service, UBC adversely impacted women in a way that was connected to their sex and was thus discriminatory.” The Tribunalmember noted that UBC’s argument was already rejected in 2017 in the first decision to accept the complaint, and again in Hale in 2019. Remember also that UBC claimed that I (and most of the Mordvinov Class Members) cannot claim to have experienced sex-based discrimination because I did not experience sexual abuse by Mordvinov. The Tribunalmember reminded the reader of the test for discrimination, which “simply requires Ms. Kirchmeier to prove that she and the class members experienced an adverse impact in respect of a service provided by UBC, and that their sex was a factor in that impact. It is not a stretch, or a significant expansion of the law, to suggest that an employer or service provider could discriminate against a person raising a complaint even if the person is not complaining about discrimination they experienced.”

UBC also argued that I failed to establish nexus, or that sex was factor in any adverse impact I and the Class Members experienced. The Tribunalmember decided that UBC’s view of the legal cases it cited on this point was unpersuasive and that those decisions both left open the facts and arguments I made, and that I presented evidence not found in those cases, and that certain complex legal arguments interpreting those cases should be addressed in a hearing. The discussion of the legal arguments is at paragraphs 106-111. Finally, the Tribunalmember addressed UBC’s argument that the way it treated the Class Members had to do with their willingness to complain, that Mordvinov was out of the country, and that I was not a direct victim of sexual assault or harassment. The Tribunalmember rejects UBC’s argument at paragraph 113: “As I have said, this argument does not account for the discrimination that arises when seemingly neutral policies or conduct disproportionately impact certain people based on personal characteristics protected by the Code. At a hearing…it would be sufficient to prove that the women were adversely impacted in connection with UBC’s services and that sex was a factor in that impact.”

With respect to UBC’s burden to show it would not further the purposes of the Code to proceed to hearing, UBC argued that the entire structure to deal with complaints is now different, from disclosure to investigation to discipline processes. I argued in my reply that not all of the problems were resolved by these changes, such as where failures arose from conduct of university actors rather than from policy. The Tribunalmember stated that such changes “do not address the impact of any discrimination which Ms. Kirchmeier or class members may have experienced” and again cited a similar time when UBC failed in this argument, in Hale.

“It is very much consistent with the purposes of the Code that Ms. Kirchmeier have the opportunity to present her complaint and for the Tribunal to resolve it on its merits.”

Over the summer Tribunalmember Trerise retired and the case was reassigned to Tribunalmember Devyn Cousineau, who wrote the denial decision. I did not post about it when we learned of the assignment because we thought UBC might choose to object to her and did not want to give them any pretext to do so. Tribunalmember Cousineau will handle the remainder of the case, including the hearing. She has also handled Stephanie Hale Sparks’ case and hearing. I think this is a good appointment in part because she is already familiar with the way the University was structured, the policies in place at the time of events, etc. and so the hearing will go faster because we will not have to spend as much time explaining them.

What happens next?

The Tribunal is reaching out to both sides to schedule the hearing. I hope it will be set for next summer, 2022. With respect to pandemic precautions, the Tribunal has done hearings with remote witnesses, so even if public health conditions allow some of the hearing to take place in person, I imagine that it would be possible to have remote witnesses again. This is great news because I understand that many witnesses have moved away from Vancouver, so they could avoid the expense of traveling in person.

Clea and I need to decide which documents to present and how to do it without taking up too much hearing time. I am considering hiring a legal assistant to assist with this work and I am happy to take recommendations.

We also need to speak with people who would testify as witnesses. If you would like to be a witness, and we have not spoken about it, please reach out to let me know.

I will return to publishing a blog update monthly now that the case is moving again.