Author: kirchmeiervubc

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

Week 5 of the Hearing took place September 5-8. In those four days, History Professor Emeritus Paul Krause completed his direct testimony and cross, and former History grad student and Green College resident Stephen Hay began his direct testimony. Dr. Hay’s direct testimony is ongoing and will continue into the next hearing date September 18.

Member Prince spoke to the parties about how the Human Rights Tribunal regards evidence, specifically that for hearsay evidence it errs on the side of admitting evidence and then considers weight.

UBC is declining to call four key decision-makers in its defense: Monica Kay of the Equity and Inclusion Office; Mark Vessey, Principal of Green College; Clark Lundeen, Assistant Principal of Green College; and Steve Bohnen, UBC Security. All four of them received multiple direct reports/complaints about Dmitry Mordvinov, and all four of them also received multiple direct reports/complaints from General Class Members. Therefore my counsel Clea Parfitt and I determined to call them, which means they will testify much earlier in the process than expected. UBC counsel accepted the Notices to Appear for Vessey, Lundeen, and Bohnen, but claimed that it would not violate Ms. Kay’s privacy by passing on her contact information; after we made an Application, Member Prince ordered that UBC provide the contact information to us.

The decision in Hale v. UBCO was issued August 29, 2023 and given to the parties; Member Prince clarified to everyone during the Hearing that the Tribunal regards such decisions as public as soon as the parties receive it. There had been a delay in posting it to the Tribunal’s website, but it is now up. I plan to do a detailed analysis of the decision for this blog, but one of the issues it is silent on is Ms. Hale’s status with respect to being a General Class Member here. Ms. Hale plans to testify in that capacity, and UBC’s counsel let us know that UBC opposes that. Therefore the parties agreed to make written submissions to Member Prince sometime after the October hearing dates about whether Ms. Hale should be allowed to testify, and further to what extent the evidence entered in her prior proceeding should come over here, or whether she will have to repeat testimony.

Finally, we will lose some hearing time in October due to holidays and scheduling conflicts. It is very likely additional hearing time will need to be scheduled in 2024.

UPDATE AS OF TUESDAY EVENING: As promised, a brief update on the events of the day. Actually, we did not spend as much time as I expected in housekeeping, argument, or scheduling. Member Cousineau’s decision in Stephanie Hale’s case came out last week and the parties have it, though it is not yet public; UBC’s counsel requested that we give them an indication of our position on Ms. Hale’s status in this matter (as a reminder, she is a General Class Member in this case and has appeared on our witness list, but she also had her own human rights matter that she filed for herself). Counsel also suggested we have some discussion about the order of witnesses and how much time they will take so he can advise his witnesses about when they need to be prepared to testify. However, we did not deeply get into those issues today. Mainly, we completed the direct examination of Emeritus History Professor Paul Krause, and the majority of his cross examination. He will finish cross examination tomorrow.

The previous blog entry continues below.

Tomorrow, we return to presenting the witnesses for the complainant. History Professor Paul Krause will be the next witness to be called. However, before he begins we will likely spend some time discussing issues that have arisen over the summer, as well as the plan for the next few weeks. I will update this post tomorrow once I know more. Otherwise, my plan is to continue with the end-of-week overview. As a reminder, I am not permitted to summarize witness testimony on this blog (nor, honestly, do I have the bandwidth for that), but any Class Member who does not plan to testify is welcome to reach out if she would like a more thorough summary.

As a reminder, here are the instructions to request access to the hearing as a member of the public.

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I recently became aware of a resource offered by McGill University – an annotated bibliography of primary (case law, policies, law) and secondary (research, reports) sources on campus sexual assault in Canada. We would have appreciated such a resource much earlier! And anyone looking for sources for their own work should definitely check it out: Selective Annotated Bibliography on Canadian Campus Sexual Violence from McGill University

This week we fully completed four Class Member witnesses.

On Monday, March 27 we heard from General Class Member Tara McBryan, who earned an MSc in Zoology at UBC Vancouver. She completed both her direct examination and cross examination. The parties and the Tribunal agreed that the abusive student that she reported will not be named, and was referred to as Student X.

On Tuesday, March 28, Dr. Caitlin Cunningham of the Mordvinov Class completed the last hour or so of her direct examination and completed her cross examination through the rest of the day.

On Wednesday, March 29 and Thursday, March 30, the Mordvinov Class Member known as Student E completed both her direct and cross examination. She finished about mid afternoon on Thursday, so the parties took some time to discuss the logistics of future hearing dates.

On Friday, March 31, the Mordvinov Class Member known as Student B completed both her direct and cross examination.

Both Student E and Student B had been residents of Green College, as opposed to members of the History Department.

I want to emphasize my appreciation for the witnesses who are testifying, especially the ones that came this week, as they had to go over some very harrowing experiences and revisit uncomfortable feelings that everyone hoped were in the past. I recognize doing so is a burden.

No members of the public opted to join and listen to the Hearing this week (including the Risk Management official from the province of British Columbia, who as far as I recall only observed my own testimony and cross examination). Anonymized individuals will not have their names published in the final decision, and as we have gone through the testimony, if witnesses needed to discuss anonymized individuals (other than themselves), we have asked them to use our Student A/B/C/etc. system, so eventually any direct quotes of their testimony will maintain that. Although it was not an issue this week, Member Prince said that she would remind any members of the public of the order to keep certain names private.

In addition to the three weeks scheduled in the fall, we discussed and scheduled a week in December for the hearing. Counsel for UBC advised that it he would let us know if a conflict in his schedule opened up in the summer, most likely in June, so that we could continue presenting our witnesses.

We also raised the issue that UBC has not put certain witnesses on its witness list that we, the complainants, feel we need to hear from, so we may choose to call them ourselves. Counsel also suggested that he may not call some of the witnesses he did list, and the lawyers discussed how that choice might be an issue for our ability to put all the evidence in that we think the Tribunal needs to hear. Before the complainants close the remainder of our case, we would require clarity on what to do about those additional individuals, but nothing was decided this week. As of right now, the complainants anticipate calling three fact witnesses, all from the History Department, with an estimated amount of hearing time as at least a week and a half to get through them (not counting the whole discussion of calling others).

Member Prince issued another Notice of Hearing with the additional dates. They are:

September 5, 6, 7, and 8; 18, 19, 20, 21, 22;

October 2, 3, 4, 5, and 6; 10, 11, 12, and 13;

December 4, 5, 6, 7, 8.

Week 3 was productive.

On Monday, February 27, we called Dalya Israel, the Executive Director of WAVAW, to be qualified as an expert to speak specifically about what survivors need from systems and processes set up to respond to sexual misconduct. (I don’t have my notes for exactly how my lawyer phrased the area of expertise we are calling on for her, but that is the gist.) Ms. Israel has served around 5,000 clients in British Columbia since she began working with WAVAW about 20 years ago, in a number of different contexts. After about a half day of argument, Member Prince qualified her as an expert to give evidence in this case. Due to the amount of time spent in argument, we were unable to finish her direct examination on Monday.

On Tuesday, February 28, we called Dr. Laura Brown, an eminent clinical and forensic psychologist with every accomplishment and accolade her field has ever created, to speak about institutional betrayal, institutional betrayal trauma, institutional cowardice, institutional courage, and the associated traumas that occur when institutions fail to respond appropriately to sexual misconduct (again, this description is likely slightly different than how we requested her to be qualified because I don’t have my notes, but this is basically the gist). After lengthy argument, Member Prince qualified her as an expert to speak to these areas, and we finished her direct examination and cross examination. Ms. Israel was able to come back to us to continue her direct examination at the end of the day.

On Wednesday, March 1, we called Caroline Grego, a member of the Mordvinov Class, and finished her direct and cross examination by the afternoon. That same day, we called Professor Alexei Kojevnikov from the History Department and completed the vast majority of his direct examination.

After that the anticipated schedule was disrupted quite a bit. Counsel for UBC complained that our remaining witness schedule was too packed. Ultimately, and again after lengthy argument, we cancelled two witnesses at the last moment, a development about which I was extremely displeased. Luckily, Caitlin Cunningham stepped up to make sure all the hours were utilized, for which I am very grateful.

On Thursday, March 2, we called a member of the Mordvinov Class to testify. Her direct examination and cross examination were completed, and in the afternoon Caitlin Cunningham’s direct evidence took the time allotted to one of the cancelled witnesses.

On Friday, March 3, we finished up the remaining direct and all the cross examination of Ms. Israel in the morning. Then Dr. Cunningham completed nearly all of her direct examination. Finally, in the late afternoon. Dr. Kojevnikov completed his cross examination.

After three weeks of hearing, we fully completed four fact witnesses, completed two expert witnesses, nearly completed one fact witness except for a few questions and cross examination (Dr. Cunningham), and rescheduled four witnesses (one General Class member, two Mordvinov Class members, and a History Department witness).

The next dates scheduled are March 27-31. We will certainly finish Dr. Cunningham’s evidence that week but my understanding is that we are still confirming which of our witnesses are available for which days. I will continue the practice of summing up what happened at the end of the week.

Going into the semi-distant future, the June 2023 week has been cancelled for a conflict that UBC’s counsel had advised us about a long time ago. Unfortunately, there was basically no time the rest of the summer that everyone was available, so Member Prince set three weeks in September, alternating one on, one off. My notes have the exact dates but I will eventually get them on this blog.

I very much appreciate the efforts of each and every witness to assist with this case. Although it was disappointing to move so slowly through the evidence, and especially when it caused folks to be rescheduled, we did accomplish quite a lot in this first block of time.