Author: kirchmeiervubc

Applications, Case Documents, disclosure

Case Update #22 – Tribunal Decision on my Application for Documents – June 2020

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Forward progress!

On April 24, Tribunalmember Norman Trerise finally rendered a Decision on my Application for Documents and Costs that I filed in June 2019. Although the conclusion section is not as definitive as I hoped, the discussion throughout clearly indicates a win for me. The Tribunalmember indicated that the only permissible redactions would be names of Class Members or potential Class Members – in my view, taking rather too seriously the argument of UBC that it was protecting the privacy and confidential trust of women who disclosed misconduct (the process already provides that I’m not supposed to share or misuse this information and any identifying information revealed at a future Hearing could be protected with a publication ban). Still, this means that if (and when) UBC redacts either the substantial content of disclosures to me, or the names of non Class Members and employees (revealing that they were in the loop about Mordvinov’s misconduct), UBC would be in clear violation of a Tribunal order.

The Tribunalmember articulated yet another process by which UBC and I are to attempt to “work out” our disagreements about disclosure. My choice was to provide UBC notice of the Class Members who had indicated to me directly that they consented to my representation of them. For those Class Members who have remained silent, UBC will redact their names, but painstakingly go through the documents and replace their names with “either numerical and/or alphabetical designations,” so that we can understand to whom a particular document refers. British Columbia’s tax dollars and tuition money at work! At least I will finally understand exactly how many women UBC knows Mordvinov assaulted.

Here is where we currently stand:

1. As of today, June 7, 2020, UBC has disclosed only one major document dump from May 2018. Paula Butler’s investigation and full report were not provided. The documents were obviously incomplete, clearly missing from key persons (like Chad Hyson or Mark Vessey) or events (such as Mordvinov’s disciplinary hearing in October 2015), out of order, and substantially redacted.

2. Despite its claims to the Tribunal, UBC has NOT provided me a list of additional documents that it intends to provide, although it conceded that its disclosure to me is not complete.

3. It is also currently in violation of three orders from the Tribunal: one from November 14, 2017, where it will provide me with the number of persons (Class Members) who it sent the initial communication letter; one from December 5, 2017, where it was ordered to canvass all administrative staff for relevant documents in the relevant time period “regardless of the concerns expressed by UBC of doing so”; and one from January 17, 2019, where it was ordered to “investigate what occurred respecting the failure to provide the Package [initial letter to Class Members] to those individuals and will advise Ms. Kirchmeier respecting the information it received in that investigation and will provide each person named by Ms. Kirchmeier, who is within the Class, the Package.”

4. UBC has not provided me with Paula Butler’s investigation or full report, despite agreeing to do so in August 2019. In the Documents Decision, the Tribunalmember mistakenly asserts that he understands UBC provided them – it did not.

5. On May 13, Clea and I sent a letter to UBC’s counsel with the names of the Class Members (Mordvinov and General) who communicated directly to me that they consented to or supported this human rights complaint. We also expressed our expectations about receiving the documents, canvassing, and the orders with which UBC hasn’t yet complied. Counsel did not reply.

6. On June 1, Clea again nagged UBC’s counsel Jennifer Devins and Michael Wagner at Roper Greyell LLP. To date they have not replied.

OTHER NEWS:

Stephanie Hale’s hearing was originally set for the end of March. However, the general shutdown due to the pandemic pushed it to the summer, and it is now set to be heard July 30 and 31, 2020.

UBC is set to revise its Sexual Misconduct and Assault Policy. This was created as Policy 131. However, in its usual bureaucratic strategy of deterring people from being able to follow the thread (typically by posting documents online then breaking links, changing the site, taking down previously created resources, “notifying” the public only by posting it on the UBC counsel website, etc.), the latest iteration is now going to be called the Sexual Misconduct Policy SC17. What is interesting is that at the same time, UBC is also developing two brand new, but related policies which I believe will significantly address the practical safety issues for sexual violence victims – the At-Risk Behaviour Policy SC13, and Retaliation Policy SC18.

Pre-pandemic, SC17 was presented to the Board of Governors in November 2019, a public comment period opened to the end of January 2020 (so, when students are mostly gone from campus), and then the committee would consider the public comments to present revisions in March and eventual rubberstamp by the BOG by June. I have no idea whether they are on track for that post-pandemic or what happened with the revisions at all. My bandwidth to keep track of these things in my free time is simply not there anymore (another way institutions successfully “win” against individual reformers). However, due entirely to promotion by Julia Burnham, Max Holmes, and the Ubyssey on Twitter, I was able to review and submit a comment in January 2020 on the new Policy, which you can read here and in the Documents page (copies of the draft policies are also preserved there).

The At-Risk Behaviour Policy SC13 was developed without any apparent consultation with the committee working on the Sexual Misconduct Policy SC17, and it’s certainly not clear to me that people responsible for enacting these policies will understand they both exist. However, every student should read them – and demand UBC follow them – together. I think the At-Risk Behaviour Policy will provide a path to safety for victims without the formality of process required by the Sexual Misconduct Policy, because it basically allows a reasonable administrator to limit a perpetrator’s actions or presence on campus for up to 3 weeks – after which a formal process MUST begin, including investigation of that conduct, if the restrictions were to stay. This would allow, for instance, stalking to be addressed immediately without all the hand-wringing, because it merely requires (in draft form) reasonable people to act to reduce risk.

That these policies exist now is 100% due to the constant pressure and commonsense advocacy by the Ubyssey, the AMS and undergraduate students who have relentlessly told administrators that sexual violence is not an acceptable side effect of seeking an education at UBC. While these policies have the distinct quality of spooking from the ghosts of professors who think sticking things inside students is a perk (professors alone get special treatment and excessive reference to employment law/unions, though staff and students are also members of unions and also can be employees), they are better than the alternative of nothing. I remember, on the day the Butler report summary was gloatingly released in February 2016, sitting in a forum with administrators and faculty talking about how UBC should address sexual misconduct, including retaliation for reporting. Janet Mee, Janet Teasdale (who was unceremoniously fired last year), Lisa Castle, and a few other admins there rolled their eyes at the suggestion. (“The faculty union will just kill it,” one of the Janets said, I no longer recall which.”) Now, a mere four years later, and with so many other promises broken (still no rape kit access, welcome wagons for John Furlong and white supremacists) – UBC has a set of policies that a motivated victim with a giant support system can use to get some parts of a safe, discrimination- and harassment-free education.

BLOG HOUSEKEEPING:

Now that the case is moving again, I will be resuming the monthly updates, or more frequently as developments occur. Given the timing of this post, it makes sense to update at the beginning of each month, rather than the 15th. I do apologize for the lack of updates in 2020. Around the time the Decision was sent out in late April, I began to move across the US yet again. On top of that, I am sure I am not alone in the disruption due to the pandemic, and while I hoped to make this post last weekend, the urgency of joining the actions against racist police got in the way.

Applications, Case Documents, disclosure

Case Update #19 – UBC Submitted a Sur-Reply

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In an unexpected development, on 11 September UBC decided to submit an application for further submission on my application for documents – what’s called a “sur-reply” – and in response my lawyer Clea Parfitt and I filed a “sur-sur-reply” on September 17.

Backing up a bit: Generally the application process goes like this:

  1. Any party has the right to file an Application (a request to the Tribunal to order something), and the Tribunal must consider it (with certain limitations);
  2. The opposing party has the right to file a Reply (or Response) to the Application, and if they do, the Tribunal must consider it;
  3. The applicant has the right to file a Response (or Reply) to the Reply, and the Tribunal must consider it.

This had been the process so far with my Application for Documents and Costs. With respect to UBC’s Application to Dismiss, that process has been on hold at step 1, because in this case I have the right to full disclosure of ALL relevant documents prior to fighting about case dismissal. My Application for Documents must be resolved first because my right to a fair process depends on full disclosure (as we argued in our 30 August 2019 Response to UBC’s Reply, or step 3 above).

However, there are additional optional steps:

4. The opposing party may file a new Application to Reply to the Response to the Reply, and at the same time the proposed Response to the Reply (“sur-reply”) itself, BUT has no right to do so (e.g. the Tribunal can simply ignore it when considering the Application in step 1), and cannot repeat earlier arguments;

5. The applicant may also file an Application and a Response to the sur-reply, called the “sur-sur-reply,” BUT has no right to do so (e.g. the Tribunal can ignore it too), and again cannot repeat earlier positions, but must respond to new issues.

OnĀ  September 11, UBC submitted an application for sur-reply. It claimed fairness required the Tribunal to consider the sur-reply, because it argued I advanced new arguments in my Response of 30 August (step 3), that I articulated for the first time relevance of documents in the 30 August Response, that I made the “surprising” argument that the temporal scope of the complaint should be expanded, that I should not be allowed to attempt to “correct” what they argue were the deficiencies of my Application for Documents (step 1), and that I sought to put the entire operations of UBC on trial and set myself as the general supervisor.* Further it argues again that I did not establish relevance for the subject matter and scope of documents prior to January 2014, and that my request for documents had changed in a way UBC could not possibly expected to anticipate, and that my Application for Costs (step 1) should be dismissed because I did not have “clean hands” when I did not disclose relevant documents I possessed but which I attached to my 30 August Response. UBC claimed that it had no idea that the documents I attached to the 30 August Response existed.

To be honest we did consider not submitting a sur-sur-reply. It was clear that the tone of the sur-reply is fairly hysterical and rather light on convincing argumentation, and it seems likely to merely annoy the Tribunalmember, whose position on document disclosure has been fairly clear to us – we fully expect he is going to order UBC to disclose relevant documents without redactions. It is likely, then, that the Tribunalmember will simply ignore the sur-reply and to submit a sur-sur-reply would just run up costs for no reason. However, in the end we decided that UBC’s accusations of misconduct by me and its twisting of our arguments required correction.

On September 17, we filed our sur-sur-reply. We argued that fairness required our sur-sur-reply to be considered. We pointed out that our position that documents prior to January 2014 were arguably relevant and should be disclosed was not a new position for us and that we previously provided the rationale for documents as necessary to set context for the period of UBC’s liability. We pointed out that our 30 August Response (step 3) was not advancing new arguments, but was responding specifically to issues raised by UBC in its 9 August Reply (step 2) – which is the point of the Reply/Response process, and doesn’t mean my argument was changing so much that UBC couldn’t be expected to know what I wanted. We pointed out UBC did not bother to correctly establish proper grounds for its sur-reply, so the sur-reply should be dismissed.

With respect to the documents I acquired and used without prior disclosure, we argued that my relatively recent acquisition of them isn’t the basis for either a sur-reply or to negative our Application for Costs. We acknowledged the obligation for ongoing disclosure. However, in a big case like this, it is typical for a party to gather a number of documents to disclose at once rather than sending them over in a trickle. Such a practice is certainly not equivalent to the grossly inadequate disclosure UBC provided, which it conceded was incomplete in its 9 August reply. We argued we should not have to rely on the luck of obtaining relevant documents from other sources to prosecute our case. Finally, we pointed out that UBC’s claim it had no idea of the existence of the documents is both a lie and an admission it did not canvass all the employees it should have, and UBC should be sanctioned. In any case UBC did not provide any legal support whatsoever that supposedly inadequate disclosure by me means that my Application for Costs should be wiped out.

To date UBC has still not submitted a list to us of relevant documents it claims it is willing to disclose further. It did have time to write the sur-reply quickly so we know the lawyers have time to work on the file.

Unfortunately I continue to expect this to be the only development for some time. Clea suggests we may wait six months for the Tribunalmember’s decision; in a different case of hers, her client has been waiting over a year for a decision Application for Documents, though I believe that case is with a different Tribunalmember.

The sur-reply and sur-sur-reply are now up on the “Documents” page.

*My reaction was L O L to this. As though I angle to do a high six-figure job for free! It was clearly inspired by annoyance that I had explicitly stated the manner of retaliation against members of the History Department who supported the Class Members, which UBC hopes to continue to keep out of public knowledge.

Applications, Case Documents, disclosure, Hearing

Case Update #18 – August/September 2019 – Documents and Costs Applications

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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.