Week 6 of the Hearing took place September 18-22, 2023. It consisted of completing Dr. Stephen Hay’s direct testimony and his cross examination, starting the afternoon of Tuesday September 19 and ending Thursday September 21, and a brief amount of time spend in redirect questioning on Friday morning September 22.
The lawyers took some time between witnesses to discuss a new issue. As I mentioned in the prior post, UBC is declining to call certain witnesses, leaving the complainants in the position to call them in order to understand the evidence about what UBC was told about sexual misconduct by its male students and what steps it did or didn’t take in response to receiving that information. Green College Assistant Principal of Operations, Clark Lundeen was one of those witnesses; he was compelled to appear by a Notice to Appear and refused to meet with Clea prior to his testimony (but he testified he DID meet with UBC’s counsel at their request). As the employee of UBC we regard him as adverse (a position Member Prince later affirmed). Since this is a rare situation, where one calls an adverse witness, there was apparently not too much case law or rules regarding the extent to which Clea’s technically “direct” examination could venture into “cross” examination territory. The main difference is direct exams must not lead a witness, while cross exams can be hostile, can be leading, can put their earlier testimony to them, can put propositions to them, etc. The lawyers and Member Prince had probably the most friendly discussion yet in trying to understand what guidance was out there. In the end, prior to the testimony beginning, we went forward on the basis that Clea would structure her questions as “direct” and be given some latitude as she followed up on answers. If she felt he was in some way obstructing the questioning, she would make an Application to be permitted to cross examine (and UBC would oppose it). Clark Lundeen testified for part of the day on September 22.
Week 7 of the Hearing took place October 3-6, 2023. It consisted entirely of the direct examination of Clark Lundeen and started at 11 AM on October 3 due to a prior commitment by the witness. The direct examination continued through the week. I am not permitted to summarize his testimony here where other witnesses may seek it out, but in very general terms he spoke about his background, gave an overview of Green College, talked about the people he knew, including other UBC employees and Green College residents (both Class Members and not), and explained what he recalled, his understandings, and his actions around the Mordvinov events and the events of a General Class Member. Lundeen’s testimony ran at least a day or two longer than expected because he produced a large tranche of documents related to that General Class Member which were not previously produced. We are using the initials of this General Class Member, but there also were no members of the public during any part of Lundeen’s testimony.
In the end, Clea did not make an Application to cross examine Lundeen, though once some time was burned by lawyers discussing whether it was necessary in that moment. The lawyers and Member Prince discussed whether an “adverse” witness is a “hostile” witness, the test for that, and what is required before the side calling the witness would be permitted to cross examine. I personally feel his testimony was quite supportive to the arguments the Complainants are making, and further that it seemed to weaken certain defenses UBC’s counsel are exploring (which I can only divine through the direction of cross exam questions, since UBC opted to present its opening argument before it calls the first witnesses). Member Prince noted that he appeared to be an “agreeable” witness.
I am composing this blog entry during an extra-long lunch break on Tuesday October 10 due to yet another weirdness of calling adverse witnesses. In the normal course, one has a witness, preps them ahead of time and can talk to them during direct testimony, and does not speak to them during breaks in cross examination; for opposing witnesses, you only cross them and they refuse to speak to you at any other time. Here, UBC counsel stated they did NOT speak to Lundeen during his direct exam, and when Clea asked to be told ahead of time if they spoke to him before or during cross examination, they refused and kicked off a long discussion. Again, this seems to be an area without much guidance from legal authorities (whether UBC, when crossing a witness adverse to the party that called him, is permitted to speak to him outside of testimony). The lawyers are taking a long working lunch and will present argument, and Lundeen may begin testimony again at 3 PM.
At one point, counsel for UBC, in expressing “concern” about the evidence about the General Class Member’s situation, advised that UBC would provide extensive argumentation about the process of the creation of the classes. In a nutshell, it seems UBC will argue something along the lines that, because the Tribunal does not have a class certification process like that in court (and counsel referred to some sort of review going on related to the way the Tribunal handles class complaints), how it determined one or both classes for this matter will be critiqued. I thought it was a helpful piece of information, as now we are on notice and Clea will have more time to consider and prepare to counter that argument.
The parties and the Tribunal agreed to push off written argument about whether Stephanie Hale may testify until later, since in practical terms our existing dates are spoken for by other witnesses.
Due to other witnesses running longer than expected (for example because of the undisclosed document thing with Lundeen), scheduling conflicts, or time being taken up by vigorous legal argument instead of testimony, Kaitlin Russell now has the unfortunate distinction of being the most-rescheduled witness in the process. She was originally told she might appear in February, and then in March, and now in September and October but it appears October time is fast running out. She has my special appreciation for her flexibility.
The parties and the Tribunalmember discussed scheduling dates in 2024. Member Prince will at some point produce another Notice of Hearing with the dates, which I will post here. We verbally agreed on the following:
January 29 and 30
February 5-9 [tentative, and dependent upon a different matter on UBC counsel’s schedule going away]
April 22-26
July 16-31
Glynnis Kirchmeier - and - Kirchmeier obo Others v. UBC 