Author: kirchmeiervubc

Hearing

Case Update #44 – Hearing Start Date Moved to February 13, 2023

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Again there is a change in the start of the hearing date.

For reasons I won’t be able to get into here, the parties requested an adjournment of the start date of the Hearing to February 13, 2023, which was already scheduled. Yesterday, the Tribunal granted that request.

Meanwhile, we are continuing to prepare for hearing. We sent our “document sort” (these are the documents we wish to present in the Hearing, which are selected out of the larger group of documents both sides disclosed to each other) to UBC, along with a list of each one. UBC will then supplement with any additional it wants to add, update the list, and send it to the Tribunal. This helps everyone have a copy of the documents ahead of time and keeps things moving smoothly. We are also continuing witness prep and outreach to witnesses as we get the time to prep them.

If you wish to attend the Hearing, which is held by video, the public is able to do so, but you will need to get permission from the Tribunal. Please see my prior blog post for instructions on how to do that.

Applications, Hearing

Case Update #43 – Hearing Starts January 23, 2023

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Yes, there’s no Update #42 – I took it down at UBC’s request. Class Members are encouraged to reach out to me for time-sensitive information.

On January 3, 2023, the parties held a case status conference with the Tribunal. One of the topics discussed was the University’s request to adjourn the first week of the Hearing (originally scheduled to start January 16) in order that counsel could read newly disclosed documents and generally get up to speed on the case. Tribunalmember Price issued a new Notice of Hearing which will, I hope, be the last. The four days previously scheduled the week of January 16 and January 30 are now set for the end of March.

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The dates are: January 23-27; February 13-17, 21-24, 27-28, March 1-3, and March 27-31.

Additionally, Tribunalmember Price set the following deadlines:

kirchmeier-cs-001093-phc-ltr-ap-jan3-2023Download

Complainant’s witness list due January 9; Respondent’s witness list due January 13; Joint Book of Documents due January 16 (which is a bunch of documents both sides compile together for ease of use in locating and entering evidence during the Hearing); Complainant’s expert files due February 9.

Here is a link to the BCHRT Hearing Schedule.

Important! This Video Hearing is Public – But You Need to Request Access Ahead of Time, Preferably ASAP

Here is a link to the BCHRT’s instructions about how to attend the hearing. It is at the bottom of the “Covid-19 issues at the Tribunal” page on the website. I am going to copy-paste the instructions to join as they appear today on January 5, but please be sure to check the website directly in case the information changes. Additionally, I will note that in the past I have had to identify myself by name and any other individuals listening in to a public hearing each day that I attended. The public listening in must use the mute button, will only hear the proceedings, and is not allowed to make a recording, though handwritten notes, live tweets etc. are fine. The parties and the witnesses we call will be able to use the video functions.

Public Access to Hearings

The Tribunal recognizes the importance of having its hearings open to the public. Contact the Tribunal by email at BCHumanRightsTribunal@gov.bc.ca at least one week before the hearing to request dial in audio access (listen in only without video) at the presiding Member’s discretion.  The email you send us must

  1. Identify the hearing from the hearing schedule
  2. Attach a completed and signed agreement to attend the virtual hearing that includes your name and the telephone number you will be dialing in with

Applications, Case Documents, disclosure

Case Update #41 – November/December 2022

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A fair amount of behind-the-scenes work has gone on since my last update November 5.

On November 10, the parties had a conference with the Tribunal.

On November 11, I went to Vancouver through November 14 to organize and prepare documents. One of my tasks was to ensure that the complainants’ disclosure is complete, to the extent I had documents in my control. I put the documents in order and Clea’s staff spent a great deal of time indexing them, in preparation to send them over to UBC. I also spent my time selecting evidence that we would want to come in through the hearing.

The week of November 14, Clea also got in touch with several witnesses. However, the witness contact and prep process is paused due to a hearing she has this week and work on other matters. As of today, December 13, we know there are still a few people waiting to be contacted and I apologize for the delay. She will be able to start reaching out again after Christmas.

On November 17, Tribunalmember Prince made a decision on my Application for Documents and hearing preparation. I will not be posting it in the Documents tab because it does refer to some Class Members by name.

In short, she ordered UBC to search for and produce documents related to a narrower set of asks than I had proposed, but which she felt would be relevant and proportionate to the hearing. Originally, she set a deadline of December 12 for UBC to produce these to me, but later she granted a short extension to December 19.

Tribunalmember Prince also asked the parties to work toward settlement, and she appointed a mediator to that purpose.

The Hearing will take place by video. The dates were slightly modified, to drop January 20 and add January 30. The dates are: January 16, 17, 18, 19, 23, 24, 25, 26, 27, 30; February 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28; March 1, 2, 3. Dates were reserved in June if necessary for 5, 6, 7, 8.

I will post instructions on the blog before the hearing for how the public can attend, once the Tribunal makes that information available.

Tribunalmember Price also made a few other procedural orders about updating witness lists, filing the proposed Joint Book of Documents by January 9, 2023, etc.

I have been sick since coming back home from Vancouver but hopefully on the mend.

Applications, Case Documents, disclosure, Hearing

Case Update #40 – Great News. Hearing Moving Forward as Scheduled. And Info About My Experts.

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Wonderful news! On October 31, Tribunalmember Price issued a letter with her decision on, among other things, UBC’s Application to Adjourn the Hearing. She denied UBC’s Application and the Hearing will move forward as scheduled on January 16, 2023.

As she explains in her decision, Tribunalmember Price is “not persuaded that the Respondent [UBC] has been/is prevented from making a reasonable settlement offer in the absence of that information [particulars and monetary claims from me].” She also found “that adjourning the hearing will result in undue prejudice to the Complainants. Ms. Parfitt says that the Representative Complainant, Glynnis Kirchmeier, now lives in another country, and has had to make arrangements to be off work and to travel for the hearing. Ms. Parfitt’s calendar will also make it difficult to change the hearing dates.” She scheduled a pre-hearing conference on November 10, 2022.

Beyond responding to UBC’s Application to Dismiss, we have been working hard through October. Our original deadline to provide expert witness reports was October 18. We have received reports from two expert witnesses. The first is Dalya Israel, the Executive Director of WAVAW Rape Crisis Centre in British Columbia, who has been working there for over 20 years. We asked her to consider general questions about what survivors of sexual assault need from processes that are created to address sexual misconduct, drawing on her experiences serving survivors and the feedback they provided to WAVAW. We felt her testimony is especially relevant because WAVAW is a community organization that has also served UBC students harmed by sexual violence for many years. However, Ms. Israel is not speaking to particular facts for any of our Class Members. I am not posting the expert report at this time because I need to ask Clea about whether I am allowed to do so before the Hearing. UBC has the option to cross examine Ms. Israel on her opinion, but in the interests of making the Hearing go quickly, it may choose not to do that.

On October 19, we asked Tribunalmember Price for a brief extension of time to deliver the expert report for our second expert, which she granted in her October 31 letter (and granted UBC a matching extension to respond to it). The second expert witness is Dr. Laura Brown, a clinical and forensic psychologist working since the 1970s, to provide evidence about Institutional Betrayal, a key concept that we believe will help the Tribunal understand the dynamics and the harms caused by UBC’s actions when it failed to respond appropriately to reports about Dmitry Mordvinov and the other men reported by General Class Members. We asked Dr. Brown to define Institutional Betrayal, including key concepts and findings in the research, and to opine on whether the nature of the existing relationships between the person reporting sexual misconduct and the institutional representative(s) who respond inadequately impact any harm caused. Dr. Brown completed her report on November 1, and I think it is an absolutely stellar report. Again, it is not particular to the facts of any Class Members, but rather it is summarizing the academic research on this area of study, which the Tribunalmember may choose to draw upon in her final decision.

Also on November 1, I provided to Clea a summary of my personal monetary damages to date with receipts. I am not sure if they made it over to UBC yet with Dr. Brown’s report on November 1 but if not they will soon, after have a chance to discuss it. This doesn’t include my costs for legal fees, nor does it include my future costs (i.e. travel to Vancouver for the Hearing), nor does it include items for which I did not have receipts (such as gas).

On October 19, we submitted an Application for Documents to Tribunalmember Price requesting that she order UBC to produce documents for General Class Members, to correct deficiencies in disclosures already provided, and to provide documents related to Mordvinov, all of which we painstakingly laid out for UBC in October 2020. In support of the Application, we used examples from two different General Class Members who chose to provide documents to me, which illustrate how deficient UBC’s production was.

I am not going to post the October 19, 2022 Application for Documents or its supporting affidavit with evidence because we refer to a Mordvinov Class Member by name in it who has not agreed to use it widely, and because one of the General Class Members has a reasonable fear of further harm from her attacker, so we are taking several steps to make sure he cannot identify her.

Tribunalmember Price noted that the deadline for new evidence was October 14, 2022 as set down by Tribunalmember Cousineau. However, we argued, and Tribunalmember Price agreed, that we “are not seeking new disclosure but repeating [our] request for disclosure sought since 2020. The Respondent could not confirm whether the disclosure sought it new or not.” So she is prepared to consider our application and this will be the main topic of conversation on November 10.

To continue to assist the case, I will be in Vancouver November 11 – November 14, 2022.

MY ASKS FOR CLASS MEMBERS – If we have reached out to you to start prepping you as witnesses, please get back to us ASAP. January is just around the corner!

Applications, Case Documents, disclosure

Case Update #39 – Whoa. A Lot Happened.

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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.