Case Update #39 – Whoa. A Lot Happened.

Whoa, a lot has happened. As background, Clea has been in a hearing from late September through October 5 and is out of the office for two weeks starting October 11. I myself am about to travel to India to visit family for two weeks from October 14 to 30, where I will be spending time with the relative who had the medical emergency earlier this year. Please note that the Documents page may not be updated right away!

On August 10, 2022, UBC sent us a letter complaining that our witness list was deficient. First, we listed some Mordvinov Class Members by pseudonyms (e.g. Student B and Student F) instead of their names. Second, we did not name particular experts but rather areas of expertise. Finally, UBC complains that in our remedy list, we did not set out particular monetary damages that we are seeking, specifically “injury to dignity, expenses, lost wages, or any other heads of damages.” Nor did I identify which Class Members are seeking monetary compensation, nor provide copies of documents.

Clea did not let me know that we received this letter because she missed it in her inbox, and we did not reply.

On August 26, 2022, UBC sent a letter to the Tribunal filing its witness list and response to my statement of remedy, where it also told the Tribunal we did not respond to the August 10, 2022 letter. UBC repeated its complaints and asked the Tribunal to direct us to “revise Forms 9.3 and 9.4 in accordance with the Tribunal’s Rules and to file a Form 9.5 [listing documents related to monetary remedy sought].”

Here is the UBC’s Response to Remedy Sought filed August 26, 2022.

Here is UBC’s Witness List, also filed August 26, 2022.

The witnesses are: Robbie Morrison (the Chair of the Non-Academic Misconduct Committee who ran the proceeding regarding Mordvinov), Michel Ducharme (the first professor I told about witnessing Mordvinov touch a woman and that I heard secondhand about what turned out to be Caitlin Cunningham’s assault), Sara-Jane Finlay (who ran the Equity and Inclusion Office starting in 2015), Monica Kay (Director of Conflict Management in the Equity and Inclusion Office, who initially received my report in January 2014, as well as Caitlin’s later that year), Clark Lundeen (Assistant Principal of Green College who personally received several reports about Mordvinov), Chad Hyson (who had some title along the lines of “student safety” in 2015, and who took the Mordvinov file from Kay in 2015 before giving it to Morrison), and Tina Loo (then-Head of the History Department).

On August 31, 2022, Tribunalmember Prince responded to UBC’s August 26 letter. She directed me to file and disclose names of all witnesses, amounts sought, and disclose documents related to Form 9.5 by September 30, 2022. She laid out the reasons for her direction in the letter, which is to meet the Tribunal’s goals of fairness and efficiency and to prevent “trial by ambush.” She also directed both parties to raise any concerns by September 15, 2022. Again, Clea missed this letter and, at least as of October 10, 2022 when we last corresponded about it before she left the office, we have not complied.

On September 15, 2022, UBC took the opportunity to raise a concern as invited by Tribunalmember Prince. It said that UBC “had intended to make a with prejudice settlement offer, followed by an application to dismiss if the offer was not accepted, following receipt of the Complainant’s statement of remedy. Such an offer was not possible because the statement of remedy failed to identify the damages sought by the Complainant and the number of class members on behalf of whom such remedies were sought. Further, the Complainant failed to provide any documentation related to expenses or wage loss that may have factored into an offer.” UBC then sought an extension of the deadline to make an application to dismiss, which would have been September 16, 2022, or four months before the hearing.

Now, to back up a bit, I too was surprised to learn that there is yet ANOTHER way UBC can get the case dismissed despite having lost the last one before the hearing. The “with prejudice settlement offer” means a respondent can offer a complainant a settlement that meets certain standards of reasonableness – basically, it cannot be a waste of time or pretext offer. Then the respondent in the human rights process can approach the Tribunal and say, “look, this complainant should be satisfied by the offer, it meets what they are looking for, it is a waste of resources to continue to hearing.” And the Tribunal would then decide whether to dismiss on that basis, as opposed to the earlier Application to Dismiss, which was all about the actual arguments I made. So what UBC is doing here is putting everyone on notice that it intends to make me a with prejudice settlement offer and then file another Application to Dismiss, and it wanted permission from the Tribunal to do so even though it is running up against rules that prohibit Applications to Dismiss too close to the hearing.

On September 20, 2022, Tribunalmember Prince extended the deadline for UBC to file its Application to Dismiss based solely on my non-acceptance of a reasonable settlement offer to October 31, 2022.

As noted above, our deadline to provide clarity on witnesses and documents was September 30, 2022, which we missed. To date, there has also been no offer of settlement.

On October 13, 2022, UBC filed an Application to Adjourn the Hearing set to begin in January 2023, on the basis that I have not provided the required disclosures, but also because UBC’s “current counsel is medically unable to conduct the scheduled hearing.”

As Clea is out of the office, I have not discussed the latest Application with her, and so I will keep my comments brief. Before she left we had been working on expert witness reports as well as cost documents, but we were not able to reply to UBC before she left. I was already planning on going to Vancouver in early November for a weekend to work on organizing documents and it seems as though we will work on our various responses to these developments as well. To be clear, the Hearing is not currently adjourned and is still set for January 2023. The Tribunal will likely seek our response to the Application for Adjournment. I hope to provide a response as soon as possible – again, that will be no sooner than early November.