Category: Applications

Applications, Case Documents, disclosure, Hearing

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

kirchmeiervubc

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.

kirchmeiervubc

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.

Applications

Case Update #33 – Tribunal Denies UBC’s Application to Dismiss

kirchmeiervubc

Great news. Late on Friday, October 22, 2021, the Tribunal posted its denial of UBC’s Application to Dismiss my case.

A denial of an Application to Dismiss does not make findings of fact. Instead, the decision says that UBC has failed to convincingly argue that my complaint does not raise issues worthy of a full hearing. Specifically, UBC failed to show that I had “no reasonable prospect of proving discrimination” under the Human Rights Code, and that “the issues underlying the complaint have been effectively remedied such that it would not further the purposes of the Code for the complaint to proceed.”

UBC’s argument to the first point was that I was demanding a particular and specific process, which the Code does not require. The Tribunalmember wrote in paragraph 98 that “The issue in this complaint is not whether, in offering this service [enforcing its policies for providing a safe and harassment free education environment by investigating complaints and disciplining as appropriate those who violate such policies – quoted from a 2019 Hale decision], UBC acted fairly, complied with its policies, or reached wrong or unreasonable conclusions….Nor is the issue whether UBC’s services contained the specific elements which Ms. Kirchmeier has detailed in her complaint. Rather, the issue, as contemplated in both Rojas and Maughan, is whether, in the course of providing this service, UBC adversely impacted women in a way that was connected to their sex and was thus discriminatory.” The Tribunalmember noted that UBC’s argument was already rejected in 2017 in the first decision to accept the complaint, and again in Hale in 2019. Remember also that UBC claimed that I (and most of the Mordvinov Class Members) cannot claim to have experienced sex-based discrimination because I did not experience sexual abuse by Mordvinov. The Tribunalmember reminded the reader of the test for discrimination, which “simply requires Ms. Kirchmeier to prove that she and the class members experienced an adverse impact in respect of a service provided by UBC, and that their sex was a factor in that impact. It is not a stretch, or a significant expansion of the law, to suggest that an employer or service provider could discriminate against a person raising a complaint even if the person is not complaining about discrimination they experienced.”

UBC also argued that I failed to establish nexus, or that sex was factor in any adverse impact I and the Class Members experienced. The Tribunalmember decided that UBC’s view of the legal cases it cited on this point was unpersuasive and that those decisions both left open the facts and arguments I made, and that I presented evidence not found in those cases, and that certain complex legal arguments interpreting those cases should be addressed in a hearing. The discussion of the legal arguments is at paragraphs 106-111. Finally, the Tribunalmember addressed UBC’s argument that the way it treated the Class Members had to do with their willingness to complain, that Mordvinov was out of the country, and that I was not a direct victim of sexual assault or harassment. The Tribunalmember rejects UBC’s argument at paragraph 113: “As I have said, this argument does not account for the discrimination that arises when seemingly neutral policies or conduct disproportionately impact certain people based on personal characteristics protected by the Code. At a hearing…it would be sufficient to prove that the women were adversely impacted in connection with UBC’s services and that sex was a factor in that impact.”

With respect to UBC’s burden to show it would not further the purposes of the Code to proceed to hearing, UBC argued that the entire structure to deal with complaints is now different, from disclosure to investigation to discipline processes. I argued in my reply that not all of the problems were resolved by these changes, such as where failures arose from conduct of university actors rather than from policy. The Tribunalmember stated that such changes “do not address the impact of any discrimination which Ms. Kirchmeier or class members may have experienced” and again cited a similar time when UBC failed in this argument, in Hale.

“It is very much consistent with the purposes of the Code that Ms. Kirchmeier have the opportunity to present her complaint and for the Tribunal to resolve it on its merits.”

Over the summer Tribunalmember Trerise retired and the case was reassigned to Tribunalmember Devyn Cousineau, who wrote the denial decision. I did not post about it when we learned of the assignment because we thought UBC might choose to object to her and did not want to give them any pretext to do so. Tribunalmember Cousineau will handle the remainder of the case, including the hearing. She has also handled Stephanie Hale Sparks’ case and hearing. I think this is a good appointment in part because she is already familiar with the way the University was structured, the policies in place at the time of events, etc. and so the hearing will go faster because we will not have to spend as much time explaining them.

What happens next?

The Tribunal is reaching out to both sides to schedule the hearing. I hope it will be set for next summer, 2022. With respect to pandemic precautions, the Tribunal has done hearings with remote witnesses, so even if public health conditions allow some of the hearing to take place in person, I imagine that it would be possible to have remote witnesses again. This is great news because I understand that many witnesses have moved away from Vancouver, so they could avoid the expense of traveling in person.

Clea and I need to decide which documents to present and how to do it without taking up too much hearing time. I am considering hiring a legal assistant to assist with this work and I am happy to take recommendations.

We also need to speak with people who would testify as witnesses. If you would like to be a witness, and we have not spoken about it, please reach out to let me know.

I will return to publishing a blog update monthly now that the case is moving again.

Applications

Case Update #31 – May/June 2021

kirchmeiervubc

We continue to await the Tribunal’s decision for UBC’s Application to Dismiss.

The Hale v. UBCO hearing ran for two weeks in May and additional dates have been set to hear more witnesses. Stephanie Hale Sparks, her treating psychologist Dr. Maertz and Security Services’ Troy Campbell testified and were cross examined. UBC intends to call former legal counsel Kimberley Beck and President Santa Ono and possibly others.

Applications

Case Update #29 – March/April 2021

kirchmeiervubc

The Application to Dismiss and various submissions from myself and UBC remain under the Tribunal’s review.

Class Member Caroline Grego and I have drafted an Op-Ed on this case. We have submitted it for review and are waiting to hear back. Once it is accepted for publication I will post it here. I have shared the text with some Class Members already, but if you are interested and would like to sign on then I am happy to provide it to you.