Category: Applications

Applications, Hearing

Update #56: Monica Kay testimony completed. Only 2 complainant witnesses left, to be heard in November. Stephanie Hale removed from the General Class.

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From July 16 to July 31, the former Director of Conflict Management for the Equity and Inclusion Office at UBC, Monica Kay, testified. She had previously testified for two days this past April, covering her background, coming to UBC, her knowledge of UBC policies at that time, and establishing some baseline information to understand her later testimony about specific cases. The July testimony covered her knowledge of General Class matters – including a large number of General Class Members whose identities are unknown to us, and only revealed after Steve Bohnen produced a large number of documents during his questioning. It also, of course, covered the events of the Mordvinov case. Although Ms. Kay did testify as to the existence of documents which we not produced (such as her notes of meetings with Zoology Head Bob Shadwick, or running summaries of active cases she sent to her boss Sara-Jane Finlay every two weeks), unlike with Mr. Bohnen, we did not get bogged down in the production of more documents during testimony.

Member Prince on occasion asked Ms. Kay a few questions, and she permitted almost all questions put to her. Part of the reason the testimony took so long was that the witness (reasonably!) wanted to review written documents before she testified to them, and some of the documents were quite long. Her memory also needed refreshing by reference to the documents. After about a day of the usual course of witness testimony that UBC had insisted upon – that the witness exhaust the memory before being brought to a document, because UBC takes the position it is “oath-helping” otherwise – UBC’s counsel eventually permitted Clea to bring Ms. Kay to the documents right away.

On July 24, 2024, Member Prince issued a Decision excluding Stephanie Hale as a member of the General Class for the Kirchmeier action. As a quick reminder, Ms. Hale prevailed in her own standalone human rights complaint against UBC in August 2023 for its mishandling of her multiple reports of rape and for how it forced her through the deficient Non-Academic Misconduct process. However, she was also a member of the General Class in this case, because some of her allegations fell in the timeframe specified in the General Class, and the Tribunal stated her standalone complaint liability timeframe was later than the Kirchmeier General Class timeframe. Ms. Hale was prepared to testify here as a General Class Member, but UBC made an Application to oppose her testimony and her membership here, which Member Prince granted. Therefore, Ms. Hale will not testify, nor will she be entitled to any compensation that Member Prince might order. As the representative complainant for both Classes, I decided that I will not appeal Member Prince’s order excluding Ms. Hale. Ms. Hale has the ability to choose to appeal whether or not I do so.

Although her claim as a General Class Member has merit and I think that she deserves recompense, and although I do think there is a possibility of prevailing in an appeal, I am limited by two considerations. First, I do not have the funds to launch a new legal action. Second, I believe the interests of the other Class Members in completing the Hearing as soon as possible must be balanced against the limited upside for Ms. Hale. If an appeal prevails, more Hearing time for her testimony would need to be scheduled. Her liability period in the Kirchmeier matter was a few months, meaning her possible financial compensation would be relatively low. UBC’s strategy in her case was to dwell heavily on her unrelated personal traumas with the effect of making testimony as unpleasant for her as possible. (I listened in to much of the Hale Hearing.) Ms. Hale understands my thinking.

There are two more witnesses we will call before UBC officially begins its case. The order is not yet set. One is a General Class Member who is completely separate and apart from all the other General Class Members discussed in testimony to date, who approached me after the Hearing had started and eventually decided to testify.

The other remaining witness is adverse witness and Green College Principal Mark Vessey, who permitted Dmitry Mordvinov to conduct himself in an “exclusive” residence in the manner that he did, as well as permitting the general sexist environment at Green College, where he has been as a leader for decades, and Principal from 2008-2023. If Member Prince makes any findings about Green College, after hearing months of facts about it from many, many witnesses, the public should know Green College was and is that way because Mark Vessey wanted it to be.

Due to the availability of counsel, the next dates for the Hearing are:

November: 14, 15, 18, 19, 20, 21, 22

December: 2-6, 9-13

January 2025: 6-17 [tentative]

March 2025: 3-14 [tentative]

Applications, disclosure, Hearing

Update #55 – Summary of Testimony in February and April – Finished Kaitlin Russell and Steve Bohnen, started Monica Kay. UBC Revised Witness List – Hale Submissions Schedule

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Kaitlin Russell, who testified in December 2023 and January 29-31, finished her cross examination testimony on February 5.

On February 6, Mr. Bohnen returned to continue his direct testimony through February 9. He later returned to testify April 22 through April 25, 2024. His testimony was finished for the General Class member previously discussed, and he testified as to his involvement in the Mordvinov matter. Then his testimony moved on to focus on other members of the General Class, specifically those members for whom the University disclosed relevant documents in the past few months. We have an outstanding request to ensure these particular, new to us (and unknown, because their names are redacted) General Class members were properly notified of the existence of the complaint. It is troubling that, a year into the Hearing, the University has still not transparently provided such basics.

As a representative of the Classes, one of my concerns is that if/when we prevail and are awarded monetary compensation, one or many Class Members will be excluded from receiving money to which she is entitled by the fact that she was never informed she was in the Class. UBC successfully argued before Member Trerise back in 2017 that it need not provide the names of the Class Members (though not third parties who are not Class Members – see Kirchmeier No. 2) to me, and it obviously failed to keep a list of the actual women it contacted as Member Trerise ordered (instead, it says keeping a list of the University employees it tasked to reach out to an unknown number of women is sufficient). It hasn’t disclosed proof that it contacted anyone. UBC’s counsel have argued at various moments that the Tribunal should not consider documentary evidence by Class Members who do not personally testify, as they say there’s “no way” the Tribunal can reasonably find harm accrued to someone unless that individual personally shows up to the Tribunal to say so. UBC’s counsel also informed us that they are going to argue in writing that the Class formation process in this case was incorrect. It’s not clear right now what Member Prince’s posture is on such arguments. I would encourage the Class Members not to worry about it, as these are defenses we will have to deal with in argument. Practically speaking, if every Class Member had to testify in order for them to receive compensation, this Hearing would probably not end for some time, maybe when the sun explodes. I certainly do think Member Prince would like to see the Hearing wrapped up before any major extinction events.

There were a lot of breaks in Mr. Bohnen’s testimony for argument amongst the lawyers. Some of the argument was not contentious, such as an agreement reached on how to discuss the General Class members in the Hearing, and eventually in Member Prince’s final decision such that their identities would be protected. Also, it seems likely that most of the males discussed will not be named, other than Mordvinov, whose name is already out in the world (though it is possible Member Prince will choose to anonymize him too in the final decision). A big area of argument centered around redactions in disclosure, as UBC’s counsel took it upon themselves to censor quite a bit more than was permitted by Member Trerise’s order. At one point Mr. Bohnen stated he could not testify more because he could not understand the document in front of him due to the redactions. He was then excused, and Clea took point on a long argument that involved referring to Member Trerise’s second order on the topic and going through it together. There was also late disclosure as Mr. Bohnen was sent to find and produce Incident Reports (a special document only he could enter, as UBC Security’s record of reports to it, which were typically authored by him) relevant to various Class Members, some of which were then entered into evidence. All in all, I would say at least a day and probably more was lost to argument about late disclosure, documents redacted by UBC to the extent of losing their meaning, and missing disclosure, and Mr. Bohnen’s testimony probably extended by a day or two.

On Thursday afternoon, April 25, 2024, the questioning started of Monica Kay, the Director of Conflict Management at the UBC Equity and Inclusion Office at the time at issue in the human rights complaint. Before she came on the stand, UBC tried to argue that Ms. Kay was NOT an adverse witness, in large part because she is not currently a UBC employee, but did not prevail. As with all witnesses, she began with background information about herself, how she came to UBC, her knowledge of policies when she first arrived, etc. As we had only a day and a half of testimony, we did not get beyond these questions to any of the particular Class Member situations.

UBC provided a revised witness list. At this point, their anticipated witnesses are:

  1. Robbie Morrison [Chair of the UBCV Non-Academic Misconduct Committee]
  2. Tina Loo [then-Chair of History Department]
  3. Chad Hyson [VP Students, in charge of investigations for the NAM process]
  4. Leslie Paris [NEW – History Professor]
  5. Laura Ishiguro [NEW – History Professor]
  6. Carly Stanhope [Director of Investigations at UBC SVPRO – not involved in any facts in 2014-2015 to my knowledge]
  7. Habi Ba [NEW – this may be a nickname of a name of an individual who appears to be administrative staff at UBC SVPRO – not involved in any facts in 2014-2015 to my knowledge]
  8. [REMOVED FROM LIST] Sara-Jane Finlay [Monica Kay’s supervisor at UBC Equity and Inclusion Office]

To address the issue of whether General Class Member Stephanie Hale should be permitted to testify, Member Prince ordered the following schedule:

Respondent’s [UBC’s] application due: March 15, 2024

Complainants’ response due: March 28, 2024

Respondent’s reply due: April 11, 2024

I believe these were generally followed, perhaps with some extensions. I did not assist with the submissions on this issue, or read them.

Member Prince sent a new Notice of Hearing with additional dates in 2024. These are:

June: 5, 11, 12, 13 [tentative, depending on UBC counsel]

July: 16, 17, 18, 19, 22, 23, 24, 25, 26, 29, 30, 31 [firm]

November: 12, 13, 14, 15, 18, 19, 20, 21, 22 [tentative, depending on UBC counsel]

Additionally, Member Prince canvassed for additional dates, so there may be more to come.

Notice of Hearing dated February 9, 2024

I will update the blog to state whether or not the June dates go forward – otherwise, the next big item will be testimony in July.

Applications, Hearing

Update #53 – Week 8 Finished in October, Week 9 Finished in December; Leslie Paris Incident

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Week 8 ran from October 10, the day after Thanksgiving, to October 13. Clark Lundeen of Green College finished giving evidence this week, and Sarah Thornton, MA student in the History Department during the events, began her evidence.

Week 9 ran from December 4 to December 8. Sarah Thornton’s evidence was completed (direct ended December 4) and we began both Kaitlin Russell, MA Student in the History Department, and Steve Bohnen of UBC Security. All three witnesses very graciously accommodated each others’ limited schedules, and the occasional long breaks from testimony for legal argument, and I am very grateful to all three of them for being flexible so that we could make the most use of the scheduled time.

Prior to Mr. Bohnen giving evidence, Clea made a verbal Application and argued that she should be permitted to cross examine him – and all the adverse witnesses – from the beginning rather than use the direct exam mode and then have UBC “cross” him. The argument was extensive, but it boiled down to the fact that Lundeen and his evidence was not tested (a point affirmed by Member Prince, that UBC’s questioning of Lundeen did not constitute cross examination), and that the Tribunal need to have evidence tested to make the best decision, especially from the UBC witnesses, who have key knowledge not possessed by the complainants: what UBC was doing out of our view. UBC opposed the Application, arguing among other things that it was unsupported by case law. Member Prince made a ruling that mostly favored UBC’s arguments. She did not permit Clea to conduct the questioning in a cross mode most of the time. The direct mode will continue. However, Member Prince agreed that it was important to the process for evidence to be tested. The solution she ordered was that Clea would, at some time, decide that the direct mode of questioning was not sufficient to test the witness’s evidence at that moment, so Clea will announce that she will begin crossing the witness. Presumably, once the topic under discussion is over, Clea would then go back to the direct mode examination, and this would be verbally clear on the record. So far in Mr. Bohnen’s evidence, we have not yet entered a situation where Clea feels she needed to cross, so the logistics of this method of questioning have yet to be run in practice.

For the case writ large, there were a number of logistical developments. UBC’s counsel advised they may call Professor Leslie Paris and Professor Laura Ishiguro of the History Department. Additionally, a General Class Member, not from the History Department or Green College, indicated their desire to testify and has been gathering documents to produce, which we advised UBC some time ago. Counsel for both sides will submit written arguments to Member Prince sometime in January about whether General Class Member Stephanie Hale may testify. Finally, UBC counsel has been producing to us hundreds of pages of documents not previously produced, apparently mostly for the General Class. We have run into a bottleneck with them because Clea’s associate took a new position in October and Clea herself has been in hearings almost every week from October to December, so she has not had the time to figure out how to get them to me to help review and organize.

UBC Counsel confirmed that the tentative dates booked for February are now available, so currently all the fixed dates on the calendar for 2024 are:

January 29 and 30 (anticipated witnesses Kaitlin Russell/Steve Bohnen)

February 5-9 (anticipated witnesses Kaitlin Russell/Steve Bohnen/Monica Kay??)

April 22-26

July 16-31

On a personal level, I have been sick for most of the past two months, most recently with Covid.

To my great displeasure, I must write about a very unnecessary incident which occurred on December 14, 2023. I write about this reluctantly, because I actually do not enjoy conflict, but I feel my role as the leader of this complaint and the defender of the interests of all the complainants compels me to respond in this public forum.

After completing her testimony, Sarah Thornton had an apparently random encounter in public with Professor Leslie Paris (whom she had not seen for years) on December 14 which she described to me as “pretty unpleasant,” and “uncomfortable,” in which Dr. Paris initiated contact with her and to Ms. Thornton “it felt like she was simmering with anger.” Dr. Paris told Ms. Thornton “without being specific” that what Ms. Thornton had testified was untrue. Ms. Thornton was polite in response: she invited Dr. Paris to sit down with her over coffee after this complaint was resolved to talk (Dr. Paris said, “Absolutely not.”) and further wishing her happy holidays, which apparently surprised Dr. Paris.

I can say that Dr. Paris was NOT a member of the public observing any part of Ms. Thornton’s testimony – testimony given under solemn promise – and therefore Dr. Paris has no basis to accuse Ms. Thornton of being untruthful, although it was unclear to Ms. Thornton about what, specifically, Dr. Paris thought she lied about.

Ms. Thornton, Dr. Paris’ former student, is not the only witness testifying to her actions. Paul Krause also testified about her actions and Kaitlin Russell, also her former student, is in the midst of testifying. I spoke with Ms. Russell about Dr. Paris’s choice to initiate an interaction with Ms. Thornton, and she affirmed to me that she would find initiation of a confrontation from Dr. Paris extremely unwelcome, as would I. Hearing about it made her afraid of experiencing a similar incident. Ms. Russell avoids the UBC campus and would ignore anyone from UBC that she encounters in public.

I remind Dr. Paris, and ALL individuals currently or formerly affiliated with UBC, that subjecting ANY of my witnesses to bad treatment may be considered retaliation for participation in the complaint, and the BC Human Rights Tribunal prohibits retaliation against anyone participating in a complaint process. I strongly encourage Dr. Paris to refrain from initiating contact with Sarah Thornton, Paul Krause, and especially Kaitlin Russell, and to simply walk away from them if she encounters them in public.

Sarah Thornton and Kaitlin Russell both gave me permission to write about this incident here.

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:

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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.