Author: kirchmeiervubc

Applications, Case Documents, communication plan

Case Update #4 – Plan to Respond to UBC’s Disclosure and Application to Dismiss

kirchmeiervubc

This is the regular monthly update for May. My apologies for it being slightly later than the 15th, as we hoped to have more substantive news to share.

I wrote earlier this month to the folks whose emails I have that yes, UBC did provide documents on its disclosure deadline of May 1. As expected, it also produced an Application to Dismiss that same date. I have posted the Application to Dismiss in the “Documents” section (and also re-ordered the section for easier navigation). Five employees of UBC produced affidavits in support of the Application; I didn’t post these, as they have documents attached as exhibits. Unlike in civil and criminal court, for the Tribunal’s process, not all filings by parties automatically mean the exhibits are public. However, class members who are interested in reading the affidavits should reach out to me and I will provide them, with the caveat that you must keep the documents confidential for now.

Also of note in the Documents tab – I posted a letter from the Tribunalmember dated 5 December 2017, which I had earlier inadvertently missed. In it, he orders me not to contact anyone who uses this website unless she reaches out first. I wasn’t doing that anyway, nor do I have the technical capability to sleuth and figure out how to find site visitors, but UBC was concerned that I would. Rest assured, I haven’t and I won’t.

After an Application to Dismiss is filed, the process is that the Tribunalmember will set a deadline for me to reply. He has done so for a date sometime in June, but this date will certainly be moved. First, my attorney has a previously scheduled two week vacation around that time. Second, we plan to file an Application for Documents shortly, which would set the Application to Dismiss deadlines on hold until all the fighting about document disclosure is wrapped up.

An Application for Documents is a formal request to the Tribunal that it order the other party to disclose relevant documents. Either side can make the Application. From May 1 to May 8, I sat in my lawyer’s office and reviewed the documents UBC disclosed. (We also interviewed several witnesses, and I retained an expert witness to comment on the Application to Dismiss.) UBC’s disclosures are quite insufficient in a number of ways. I am not going to describe the particulars of what is wrong right now because my lawyer is drafting our Application for Documents. However, I will post that as soon as she files it.

I will say that if anyone has documents related to the Green College, especially correspondence with Mark Vessey, or records of meetings with him and Clark Lundeen, or records of any concerns about sexual harassment/assault/misconduct taking place in the 2011-2014 timeframe, I would love to see these. You can email me, or mail them directly to my lawyer Clea Parfitt at 407 – 825 Granville St, Vancouver, BC V6Z 1K9, or fax them to her at 604-689-5572. I know, for example, that the Green Lanterns originated in 2013, but nothing regarding why Green College residents chose to create the program is disclosed.

We are also extremely concerned that UBC apparently just chose not to inform lots of class members with the Initial Disclosure. This is obvious for both the Mordvinov Class and the General Class, as many women who should have received the Initial Disclosure told me they did not, and so far an extremely small number of women from the General Class have gotten in touch. Given how many women who reported to UBC reach out to me just in general, I somehow doubt that women are choosing not to learn more about the case.

I have come to believe that the argument that “women don’t report” is actually victim-blaming – because it is abundantly clear that women do report, whether to the police, to their institutions, or to people they trust, and in response their complaints are not properly recorded, they are told to shut up, or they are told that their experiences don’t matter and that they are not worth protecting. Much verification of the women’s stories in the Weinstein case and others since have shown that women did contemporaneously tell others about what happened to them; but the cops and other investigating authorities chose not to interview corroborating witnesses. The issue of whether UBC is capable of “hearing” reports of sexual violence is fundamental in this case.

So, for right now we are drafting various documents to address the documents, the communication with class members, and the Application to Dismiss. As we file these documents I will update this website and send out email notices.

communication plan

Case Update #3 – Waiting for Documents

kirchmeiervubc

The purpose of this blog post is to provide a case update on the monthly schedule. Not much has occurred since my last communication. As discussed in Case Update #2, UBC’s deadline for document disclosure and its anticipated possible Application to Dismiss is 1 May 2018. My lawyer has reached out to see if UBC might require an extension, but we have not yet heard back. I will update this blog post once we hear back. **Update: UBC has confirmed it is on track to meet the deadline and anticipates disclosing several thousand pages of documents. I will therefore be in Vancouver the week of 1 May.**

If UBC delivers the documents as expected, then I will be in Vancouver the week of 1 May and available to meet. Some class members have expressed interest in meeting. I am happy to do this.

Other than waiting, not much has happened on my end for the litigation. I will note that at the Board of Governors committee meeting this past Friday, 13 April 2018, the new Sexual Violence and Prevention Office (the centralized location on both campuses where victims are supposed to turn for services and to file Reports) reported to the BoG that in the last fiscal year 121 disclosures were received. She further reported that 11 Reports were in the investigation stage, and 25 “files” though it is not clear if the additional files are now closed, or yet to be investigated.

The full BoG meets on 19 April 2018, though discussion of Policy #131 is not on the agenda.

My first reaction to these statistics are that they are extremely low for the number of students enrolled – over 56,000 in the winter session of 2017 at UBC Vancouver, and over 9,000 in the winter session of 2017 at UBC Okanagan. One of the commitments UBC stated in Policy #131 is to reduce barriers to reporting sexual violence/misconduct.

It is unclear how exactly the experiences of survivors will be incorporated into improving future conduct of the office, although UBC employees are claiming to BoG that they will do so.

 

communication plan

Case Update #2 – Communication Schedule and the Disclosure Process

kirchmeiervubc

Today, March 21, is the two year anniversary of the filing of the complaint. The purpose of this blog post is to discuss what has occurred in the case since the last website update, in November 2017, and to set out the communication schedule I will follow for the rest of the case, and describe what has happened in the disclosure process thus far.

COMMUNICATION

UBC sent out the initial communication to group members on Wednesday, 28 February 2018. I drafted the initial communication and UBC and the Tribunal member approved it. My understanding was that I was only permitted to include certain documents and verbiage on the website until after the initial communication went out, so that is why I have not updated this website since creating it in November 2017. I also recently completed a cross country move beginning in March.

The initial communication posted on this website is slightly different than the one UBC sent out, due to it being sent several months after I drafted it. I believe the minor changes are limited to updating the language to be current in the “what comes next” section.

From now on, I will schedule blog updates on the 15th of every month, or more frequently if there is something to report. I will post the updates here, and I will also email a link to the class members who have chosen to share their email addresses with me. If you have a special request for communication, please let me know.

Along with the blog posts, I will also update the Documents tab with new documents, if any. Today I posted correspondence in my possession, by date, since September 2017 to the present.

I already believe that UBC has not sufficiently distributed the initial communication to all class members. At least one class member in the Mordvinov class let me know she did not receive the communication. However, it is difficult for me to monitor who received the initial communication. UBC objected to seeking out the specific number of complaints/reports it received on privacy/confidentiality grounds (see the Documents tab). If you know of someone who may be a class member, please pass on this information and let me know if she did not receive the initial communication.

THE DISCLOSURE PROCESS

As mentioned in the initial communication, UBC filed its response to the complaint in October 2017 (see the Documents tab of this website). After a respondent files a response to a complaint, the next step is that the parties exchange all relevant documents in their possession in a process called disclosure. (This is slightly different than discovery, which is used in civil and criminal cases.) The complainant first produces the documents in her possession to the respondent, which is initially scheduled to a few weeks after the response is filed. The respondent then has a month to produce its own documents. The respondent also has an additional deadline on the same date as its disclosure deadline to file what is called an Application to Dismiss. The Application will argue why the respondent believes a complaint should be dismissed prior to a Hearing. If the respondent wins, the case is over; if the complainant wins, then the Tribunal member schedules a Hearing. Here is a link to a list of reasons why a complaint might be dismissed.

The Application to Dismiss is an optional procedure, but I believe UBC intends to file one. I will have the opportunity to provide a written response to the Application to Dismiss. Importantly, though, I have a right to all relevant documents in UBC’s possession prior to answering the Application. Upon receiving UBC’s disclosures, my first task will be to sort through and figure out whether all relevant documents were actually produced. If not, then I can file an Application of my own to request the Tribunal order UBC to release more documents.

My first deadline to produce documents was in November 2017. However, UBC allowed me an extension several times, due to the fact that I had so many documents for my counsel to review, and she also had Hearings scheduled for other clients. We sent documents to UBC in two large batches, the second of which was delivered on 23 February 2018. UBC’s deadline to produce documents to me had been extended to 3 April 2018. However, just yesterday (20 March 2018) my counsel granted an extension to UBC to 1 May 2018.

Documents produced in disclosure are confidential, so I won’t be posting anything I receive from UBC except as part of the litigation (e.g. if it was an exhibit to a filing, or used as evidence in Hearing). UBC is also not allowed to share or distribute anything I give them outside of the litigation. However, if I’ve disclosed a document to UBC, I can share it myself, and certainly I can share it with class members.

If a class member believes she has something which is relevant to the litigation that I do not have, please let me know. I am also happy for you to produce it directly to my counsel rather than to me if you prefer.

MISCELLANEOUS

RETALIATION: Retaliation is strictly prohibited by the Tribunal. Any person associated with the case in any way should not suffer consequences because they are, or are believed to be, associated with this case. This includes: providing documents; being named in documents; being a (potential) class member; communicating with me; testifying as a witness; or other participation in litigation. Please let me know immediately if you believe you are experiencing retaliation so I can inform the Tribunal.

COUNSEL: For your information, my counsel is Clea Parfitt. Counsel for UBC is Michael Wagner and Jennifer Devins of Roper Greyell LLP in Vancouver. The current Tribunal member assigned to my complaint is Norman Trerise.

OTHER CASES: This case is the third known human rights complaint filed in Canada against a university alleging systemic discrimination based on sex due to mishandling of reports of sexual misconduct. The first case was Mandi Gray’s case against York University in 2015, which settled; the second was Tarrah McPherson’s case against Mount St. Vincent University, which was rejected by the Nova Scotia Human Rights Commission (the complaint process differs between the provinces). Since I filed two years ago to the day, another complaint against UBC alleging discrimination based on sex and mental/physical disability was filed in 2017 by former student Stephanie Hale. It has been accepted and is moving forward. Cases have also been filed and accepted against two different universities on Vancouver Island. Across Canada, students have filed cases against universities including Concordia University, the University of Toronto, the University of Ontario Institute of Technology, and others.

Case Documents

Initial Communication with the Group Members

kirchmeiervubc

On 21 March 2016, I filed a Human Rights Complaint against the University of British Columbia (“UBC”) both as an individual person and as a representative of a class of people. The complaint relates to UBC’s alleged systemic failures to respond appropriately to disclosures of alleged sexual misconduct by one graduate student in the History Department, who also resided at Green College on campus, Dmitry Mordvinov (“DM”).

The Tribunal has required UBC to send this email to potential members of the classes.  You are receiving this email from UBC because you may be a member of one of the classes of people covered by the complaint.  The purpose of this email is to introduce the complaint to you, and to give you the option of providing me your name and contact information so that I can continue providing information to you directly about the complaint.

I. BRIEF SUMMARY OF EVENTS PRIOR TO THE COMPLAINT

I was a graduate student in the History Department from 2011 to 2013. I observed DM touch a female graduate student on several occasions in 2011 in a manner that I believed to be non-consensual, which I communicated to UBC in January 2014 immediately after I learned he had allegedly physically assaulted another female graduate student until she slapped him. I unsuccessfully sought to have UBC include my observations of DM’s conduct in its disciplinary process against DM.

My human rights complaint alleges the first disclosure about DM was transmitted to UBC in January 2011, with fairly regular reports from multiple victims and/or witnesses until DM physically left Canada in the course of his studies. He was expelled by UBC in November 2015. His alleged actions include sexual harassment of colleagues, inappropriate and/or sexual touching, violence leading to injuries, attempted sexual assault, and sexual assault against several female UBC students in the History Department and Green College.

DM is not a party to the complaint.  The complaint is not about DM’s conduct, but rather UBC’s response to disclosures about his conduct.  I allege UBC’s handling of the disclosures regarding DM is systemic discrimination by UBC against female students based on their sex.

II. COPY OF THE COMPLAINT

The Amended Complaint is available here. The names of the alleged victims have been redacted in the filing and submissions, except for Caitlin Cunningham, who has chosen to use her name publicly.

III. A DEFINITION OF THE ROLE OF MEMBERS OF THE CLASS – or, what does this have to do with you?

The Amended Complaint has two classes of people I represent for the purposes of this litigation. Members of the classes need not actively participate in the case. Members of the classes may also opt out of participation in the complaint if they wish.  An opt out form is included in these materials.

Ultimately it is my obligation to act in the best interests of the members of both classes and to represent those who do not choose to opt out of the complaint.  I will bear all legal and financial costs of the litigation.

The first class the Tribunal has called the “Mordvinov Class.” The definition is:

“Any female student who at least once reported, disclosed or communicated to a faculty member or administrative staff member of UBC by any means, including telephone, fax, e-mail or in person in a formal, informal, scheduled or unscheduled interaction, a concern about the sexual misconduct of Dmitry Mordvinov towards women.”

The above definition does not require that you have been a victim of the alleged misconduct by DM. I myself was not.

The second class is called the “General Class.” The definition is:

“Any female student of UBC who at least once reported, disclosed or communicated to a faculty member or administrative staff member of UBC by any means, including telephone, fax, e-mail or in person in a formal, informal, scheduled or unscheduled interaction, a concern about sexual misconduct between January 8, 2014 and November 16, 2015 by a male student studying or employed at UBC towards a female student enrolled at UBC.”

IV. MY GOALS FOR THE COMPLAINT

I filed this human rights complaint because I believe UBC should act to protect the safety of students, especially vulnerable students. I filed this complaint because I believe, and I am prepared to prove, that UBC’s actions with respect to DM arise from UBC’s policies and practices and were not simply accidental – that is, that what I say is UBC’s failure to act effectively to protect vulnerable students was not a series of unfortunate events, but rather a systemic failure. In this case, the adverse impact of DM’s actions was borne by female students, and I allege UBC privileged DM’s interests over those of female students, including me. I filed the complaint because I want the educational services UBC provides to be safe, harassment-free and discrimination-free.

The remedies I am seeking through this complaint are set out in the complaint itself.

V. PROGRESS OF THE CASE SINCE IT WAS FILED

After filing my complaint in March 2016, UBC and I agreed to an early mediation to attempt to resolve the matter. This took place 24 October 2016 and we did not reach agreement.  Neither party is permitted to disclose any of the discussions that took place at that mediation.

Subsequently the Tribunal requested several rounds of submissions from the parties regarding a few different questions. Based on the first set of submissions, the Tribunal issued a decision dated 13 April 2017, which stated that I had filed in time (the BC Human Rights Code requires complaints to be filed within 6 months of the alleged contravention of the Human Rights Code, and there are several exceptions to this rule – see the decision for details). It also stated that the complaint had been accepted for filing with respect to the individual portion of the complaint – that is, for myself as an individual complainant.  No decision was made by the Tribunal on the merits of my complaint.

The Tribunal then requested submissions with respect to the representative portion of the complaint, which is the part of the complaint where I filed on behalf of a group of other people. After UBC and I made these submissions, the Tribunal issued a decision dated 30 August 2017, which allowed me to proceed with the representative portion of the complaint, if I amended the definition of the groups I represented. The Tribunal ordered a communication plan with the members of the two classes.  This email is the first step in the communication plan the Tribunal ordered.

The Tribunal agreed with UBC that UBC was not required to provide me with contact information for the members of the classes, and so this email is being sent by UBC to the members of the classes on my behalf.

As directed by the Tribunal, I filed amendments to the complaint on 7 September 2017.

On 17 October 2017, UBC filed a response to the complaint.

The decisions of the Tribunal are publicly available by date here: http://www.bchrt.bc.ca/law-library/decisions/index.htm

VI. KEY COMMUNICATIONS WITH THE TRIBUNAL/SUBMISSIONS TO DATE, REDACTED

Please see attached – these are the communications described in part V. I have lightly redacted submissions which identify current or former students by name, except for Caitlin Cunningham as mentioned above. Communications regarding mediation are excluded except for a scheduling letter.

VII. SUBMISSIONS TO DATE, REDACTED

Please see above.

VIII. THE COMMUNICATION PLAN

As a member of one of the representative classes, you have the right to know what is going on with the case and I have the obligation to communicate with you. The Tribunal has approved the following plan moving forward:

Who will do it?  I will handle direct communications with each member of the classes that I have already met, or who sends me their communication details.  You can send your communication details to me using the “Contact” tab of this website. My personal email and phone number is provided in the email you received from UBC. Or you may write c/o my lawyer, Clea Parfitt, 407 – 825 Granville Street, Vancouver, BC V6Z 1K9, or by fax to (604) 689-5572.

How often?  I will give case progress updates by email regularly, approximately once per month, or more frequently if there is more to report. At the end of the case I will send a closing report.

Who will see your name?  For those class members I have not yet met and communicated with, I will only have the direct contact information of those people who advise me directly that I may be in touch with them. I will share your name with my lawyer but suppress your name and information in the communications I send out to the members of the class unless you request to be known to or to communicate with the group, in which case I will facilitate that. You should be aware that my emails are not privileged, and anyone may share them.

Can you opt out of communications or the case?  Yes to both. You can choose not to receive any communications from me by not giving me your contact information or by telling me that you do not want communications from me.  If you do this, you can still be a member of the representative class.  You can also opt out of the representative class completely by completing the enclosed form and providing it to the Tribunal.

Do you have to respond or engage with the case or the communications?   No. As your representative, I make legal decisions. I am required to act in your best interest, but I do not need your authorization to make specific choices. You are not required to engage with me, though I hope you will so I can better understand how to make the complaint as representative as possible. Any concerns you express will be taken seriously.

What if you don’t like this plan?  I will honour all communication requests, including no communication, less frequent communication, having my lawyer communicate with you, or by using another method such as by post. My door is always open and I am happy to hear from you, even if you had previously told me you did not want information.

IX. WHAT HAPPENS NEXT?

By 22 November 2017, I must provide UBC with all relevant and non-privileged documents in my possession or control.

By 27 December 2017, UBC must provide me with all relevant and non-privileged documents in its possession or control.  UBC may also choose to file an application to dismiss the complaint without a hearing by that date.

If you want me to be able to update you directly about the complaint, please send your communication details to me using the “Contact” tab of this website. My personal email and phone number is provided in the email you received from UBC. Or you may write c/o my lawyer, Clea Parfitt, 407 – 825 Granville Street, Vancouver, BC V6Z 1K9, or by fax to (604) 689-5572.

If you do not want to be a member of either class, please complete the Opt-Out Notice and send it to the Tribunal letting them know you want to be excluded from the class.  Please do not send the opt out form to me or Ms. Parfitt.