Category: Applications

Applications, Case Documents, disclosure

Case Update #15 – April 2019 – Request to Class Members for Documents

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The Application for Documents continues to be drafted. For most of the past month I was in India with limited Internet access, and my lawyer Clea Parfitt was in a Hearing for another client which lasted two weeks longer than she expected.

If you are a Class Member, particularly a Mordvinov Class Member, and you have any documents you think would be relevant to the case, now is the time to share. If I had even some of the correspondence between the university and the other Class Members, my Application of Documents would be far stronger, because I would be able to show that UBC did not provide relevant and material disclosure. I can already show this using internal inconsistencies in the documents provided (or blatant oversights such as the refusal to disclose the Butler Report), but it makes for a stronger argument to show the evidence itself.

I am particularly interested in events which took place at Green College, the representations UBC made to Class Members about the disciplinary process or the October 2015 hearing for Mordvinov, and any time a Class Member or advocate disclosed/reported Mordvinov or had a meeting with a UBC employee. However, I welcome any document a Class Member is willing to share. The sooner, the better, so we have time to read and digest the evidence.

There are several options for getting the documents to me. You can email it to my public email address ubcsexualassault@gmail.com (or my personal email address, which was conveyed in the initial communication provided by the university). You can mail or fax it directly to Clea Parfitt at 407 – 825 Granville Street, Vancouver, BC V6Z 1K9, (604) 689-5572. For those people in Vancouver, she is also available to meet in person and can answer any questions you may have.

Applications, Case Documents, disclosure

Case Update #14 – March 2019

kirchmeiervubc

UBC sent out notifications to at least some of the Mordvinov class members whom I identified for it. These class members should have received the notification of this case’s existence last year – but, better late than never! If you are coming to this website for the first time after the initial communication – welcome. You can find the case history by clicking the “Current Case Status” tab at the top.

Unfortunately, UBC chose not to respond at all to our follow up letter outlining the insufficient or missing documents it must disclose. This ridiculous foot-dragging has gone on since last May and beyond. My lawyer is drafting an Application for Documents, in which we will request all documents to be provided unredacted and all relevant ones produced. We had hoped to have the Application ready by March 15, but she has been in Hearings for other cases. I will post the Application on the “Documents” tab once it is filed, as well as email it to class members who have told me they want to receive it.

Through some of my own efforts reaching out to people who have relevant documents, it is evident that UBC did not bother to collect them for disclosure. As with the class member communication situation – and going back to its mishandling of every single report of sexual violence by Dmitry Mordvinov – UBC’s “strategy” is to choose to do nothing and hope it works out.

The Application to Dismiss for my case is still pending, since I’m entitled to all disclosure prior to responding to it. The deadlines have been set aside.

Last month I neglected to share the great news that Stephanie Hale’s case survived the Application to Dismiss.

Finally, I will be traveling from March 15 to April 7 and I will have only intermittent access to email, and likely none to social media. I apologize if this causes any inconvenience.

Applications, communication plan, disclosure

Case Update #13 – February 2019

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Following last month’s prehearing conference, my lawyer sent a 24 page letter to UBC again detailing the types and location of documents it did not produce. She gave UBC a deadline of February 15, 2019 to reply – and UBC missed the deadline. Not only did it not produce any new documents, it also did not send any updates to the documents already provided (e.g. without redactions). Because we were waiting to hear back, and because my lawyer was tied up in a Hearing in another case, I pushed my update to today. Given the detail of the letter, I am not going to post it to the Documents section of this website, but any class member may request it from me.

My plan now will be to prepare and file an Application for Documents to file with the Tribunal. This means that I am going to complain to the Tribunal that UBC has been deficient with its disclosure. (Any party in a legal action can file an “application,” which is a request for the Tribunal to give that side something that the other side doesn’t agree to give.) UBC was put on notice last year that, if it forced me to do that, I would request the Tribunal to order it to pay my costs. If I were still a taxpayer in BC, I would be upset by the unnecessary waste. We will also bring up UBC’s failure to contact all the class members.

I aim to file the Application by the end of February. I’m also preparing an Application for documents from a third party which will be filed at the same time.

 

Applications, communication plan, disclosure

Case Update #5: My Initial Response to UBC’s Disclosure

kirchmeiervubc

This is the regular monthly update for June.

As you’ll recall from my last update, my lawyer Clea Parfitt and I had carefully reviewed the disclosure UBC provided on May 1, as well as its Application to Dismiss. We regard the disclosure as insufficient. Some dates were set for us to respond to the Application to Dismiss, but since Ms. Parfitt let everyone know she was out of the office from May 22 to June 10, the Tribunalmember said he would set aside the deadlines (that is, reschedule them later).

On 21 May 2018, my lawyer sent a letter to UBC and the Tribunalmember giving notice that we believe UBC has chosen simply not to follow the communication plan. Not one member of the Mordvinov class has been informed of this case’s existence. It is tiresome that UBC opted not to inform women of the existence of this case and their rights in the process, but somehow not surprising. (I’m not sure why UBC didn’t bother to inform the women it knows I speak with regularly.) In the letter, we listed the names of Mordvinov class members known to us and requested the Tribunalmember order UBC to provide details about reaching out to them.

UBC did apparently send out one small batch of communications to general class members, but only three women subsequently got in touch with me. We certainly expect a lot more than that. Notably, for example, Stephanie Hale has filed her own case. She is also a general class member. Since UBC has declined to give her the initial communication, she hasn’t been able to reach out to the Tribunal for guidance in whether to withdraw from my general class or not. Potentially, this could create trouble down the road for her. I could foresee a situation where UBC argues her case cannot continue because of something that happened in this one. The initial communication was supposed to prevent such situations from happening, and case progress was delayed for months over it. In the letter, we requested the Tribunalmember order UBC to disclose how it went about surveying staff to send out communications, and how many it sent. In a letter dated 23 May 2018, the Tribunalmember declined to make any orders until UBC gets a chance to respond on its own.

I will not post the 21 May 2018 letter because it has names in it.

Instead of filing the an Application for Documents right away, we decided to advise the Tribunalmember of the general nature of the deficiencies of UBC’s disclosure in a letter dated 22 May 2018. I’ve decided to post this letter in the Documents section of this website*, because it doesn’t into specific description of the evidence, which of course is confidential at this point.

On the same date, we sent a different letter to UBC describing, in specific detail, the ways the disclosure was deficient and requesting both general and specific documents. We did this in the hopes that UBC would take the opportunity to correct its deficiencies without forcing me to go through the expense and delay of a formal Application. (You betcha I’ll ask for costs if it makes me do that!) The 24-page letter to UBC makes it clear that I know exactly what is missing and that I’ll easily be able to use what I have so far to demonstrate that UBC has held back evidence in violation of its disclosure obligations. I last spoke with Ms. Parfitt a few days ago. UBC doesn’t appear to have regarded our letters as anything that required reply.

I’ve decided not to post the 22 May 2018 letter to UBC because it has lots of clearly identifying information and descriptions of the disclosure documents. I am happy to provide the letter to class members who request it, with the understanding that you must keep it confidential, and I will redact some names.

Since disclosure is supposed to be confidential, I won’t describe the specifics of the evidence here. But in general, the deficiencies fall into two categories. First, UBC censored – inexpertly – most names in the documents, for both students and employees. This was true even for the documents provided as evidence in the Application to Dismiss (which is against the rules unless you get permission from the Tribunal to do it – and UBC didn’t ask). I was amused by one particular email, produced several times, in which the redaction choices differed for each copy. I also found that I could copy-paste some pages onto a Word document and read redacted sections, a software bug which has been known for at least a decade. Still, overall the redactions severely affect legibility and prevent me from knowing who said what and when, and who was copied or forwarded emails. On rare occasion, whole lines or paragraphs are redacted.

The second big problem with the disclosure is that it appears that UBC provided partial files from only two employees. One file, from an employee in the Equity Office, appears slightly more complete than the other file, from an employee at Green College. However, I have disclosed evidence that should be in the files of these two employees, and yet UBC did not provide their own copies of evidence. There are abundant internal references to other documents which are not produced. Moreover, there’s plenty of public domain evidence which was not produced. Obviously, more than two employees have relevant documents. In the 22 May 2018 letter to UBC, I named over 30 additional employees known to have relevant documents.

There’s also an interesting aspect to the disclosure in that UBC disclosed evidence related to general class members. So, I presume UBC agrees I’m allowed to see all general class documents and has decided to waive the argument that general class member information isn’t relevant, confidential, or privileged. But this portion of disclosure is also obviously incomplete. First, the volume is far too small for these files to be complete; second, I already disclosed evidence related to some general class members which was not disclosed back by UBC even though it was the same case file; third, it excludes files for class members known to me; fourth, the number of cases is far below the number of complaints UBC has stated it received to the Board of Governors or the media; fifth, the number of cases is far below what would be expected due to the prevalence of sexual misconduct on college campuses or as per the AMS’s recent Academic Experience Survey, 13% of women students self-reported as experiencing sexual assault or misconduct (with a staggering spike of 38% of women in the Greek system. Also noteworthy is that by ethnicity South Asian victims were the highest group, at 19%, and LGBTQ students self-reported misconduct at 17%, or more than double the rate for heterosexual students). I predict UBC will attempt to argue that women just don’t report – to which I would counter, even multiple reports of a range of bad acts by DM were not treated as such. If one defines literally every fact pattern and circumstance (plus all the documents made about what women said) as not a report, it is easy to blame women for not reporting.

Anyway, it remains to be seen whether or not general class member documents will be relevant to official filings either of us make. Certainly, at the very least I will need the copies of what UBC already provided in uncensored form.

Should UBC reply to our queries or the Tribunalmember decides to issue an order, I will update this blog before the July monthly update.

*I will post this letter sometime this weekend and update this post

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.