Category: Case Documents

Applications, Case Documents, disclosure

Case Update #19 – UBC Submitted a Sur-Reply

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In an unexpected development, on 11 September UBC decided to submit an application for further submission on my application for documents – what’s called a “sur-reply” – and in response my lawyer Clea Parfitt and I filed a “sur-sur-reply” on September 17.

Backing up a bit: Generally the application process goes like this:

  1. Any party has the right to file an Application (a request to the Tribunal to order something), and the Tribunal must consider it (with certain limitations);
  2. The opposing party has the right to file a Reply (or Response) to the Application, and if they do, the Tribunal must consider it;
  3. The applicant has the right to file a Response (or Reply) to the Reply, and the Tribunal must consider it.

This had been the process so far with my Application for Documents and Costs. With respect to UBC’s Application to Dismiss, that process has been on hold at step 1, because in this case I have the right to full disclosure of ALL relevant documents prior to fighting about case dismissal. My Application for Documents must be resolved first because my right to a fair process depends on full disclosure (as we argued in our 30 August 2019 Response to UBC’s Reply, or step 3 above).

However, there are additional optional steps:

4. The opposing party may file a new Application to Reply to the Response to the Reply, and at the same time the proposed Response to the Reply (“sur-reply”) itself, BUT has no right to do so (e.g. the Tribunal can simply ignore it when considering the Application in step 1), and cannot repeat earlier arguments;

5. The applicant may also file an Application and a Response to the sur-reply, called the “sur-sur-reply,” BUT has no right to do so (e.g. the Tribunal can ignore it too), and again cannot repeat earlier positions, but must respond to new issues.

On  September 11, UBC submitted an application for sur-reply. It claimed fairness required the Tribunal to consider the sur-reply, because it argued I advanced new arguments in my Response of 30 August (step 3), that I articulated for the first time relevance of documents in the 30 August Response, that I made the “surprising” argument that the temporal scope of the complaint should be expanded, that I should not be allowed to attempt to “correct” what they argue were the deficiencies of my Application for Documents (step 1), and that I sought to put the entire operations of UBC on trial and set myself as the general supervisor.* Further it argues again that I did not establish relevance for the subject matter and scope of documents prior to January 2014, and that my request for documents had changed in a way UBC could not possibly expected to anticipate, and that my Application for Costs (step 1) should be dismissed because I did not have “clean hands” when I did not disclose relevant documents I possessed but which I attached to my 30 August Response. UBC claimed that it had no idea that the documents I attached to the 30 August Response existed.

To be honest we did consider not submitting a sur-sur-reply. It was clear that the tone of the sur-reply is fairly hysterical and rather light on convincing argumentation, and it seems likely to merely annoy the Tribunalmember, whose position on document disclosure has been fairly clear to us – we fully expect he is going to order UBC to disclose relevant documents without redactions. It is likely, then, that the Tribunalmember will simply ignore the sur-reply and to submit a sur-sur-reply would just run up costs for no reason. However, in the end we decided that UBC’s accusations of misconduct by me and its twisting of our arguments required correction.

On September 17, we filed our sur-sur-reply. We argued that fairness required our sur-sur-reply to be considered. We pointed out that our position that documents prior to January 2014 were arguably relevant and should be disclosed was not a new position for us and that we previously provided the rationale for documents as necessary to set context for the period of UBC’s liability. We pointed out that our 30 August Response (step 3) was not advancing new arguments, but was responding specifically to issues raised by UBC in its 9 August Reply (step 2) – which is the point of the Reply/Response process, and doesn’t mean my argument was changing so much that UBC couldn’t be expected to know what I wanted. We pointed out UBC did not bother to correctly establish proper grounds for its sur-reply, so the sur-reply should be dismissed.

With respect to the documents I acquired and used without prior disclosure, we argued that my relatively recent acquisition of them isn’t the basis for either a sur-reply or to negative our Application for Costs. We acknowledged the obligation for ongoing disclosure. However, in a big case like this, it is typical for a party to gather a number of documents to disclose at once rather than sending them over in a trickle. Such a practice is certainly not equivalent to the grossly inadequate disclosure UBC provided, which it conceded was incomplete in its 9 August reply. We argued we should not have to rely on the luck of obtaining relevant documents from other sources to prosecute our case. Finally, we pointed out that UBC’s claim it had no idea of the existence of the documents is both a lie and an admission it did not canvass all the employees it should have, and UBC should be sanctioned. In any case UBC did not provide any legal support whatsoever that supposedly inadequate disclosure by me means that my Application for Costs should be wiped out.

To date UBC has still not submitted a list to us of relevant documents it claims it is willing to disclose further. It did have time to write the sur-reply quickly so we know the lawyers have time to work on the file.

Unfortunately I continue to expect this to be the only development for some time. Clea suggests we may wait six months for the Tribunalmember’s decision; in a different case of hers, her client has been waiting over a year for a decision Application for Documents, though I believe that case is with a different Tribunalmember.

The sur-reply and sur-sur-reply are now up on the “Documents” page.

*My reaction was L O L to this. As though I angle to do a high six-figure job for free! It was clearly inspired by annoyance that I had explicitly stated the manner of retaliation against members of the History Department who supported the Class Members, which UBC hopes to continue to keep out of public knowledge.

Applications, Case Documents, disclosure, Hearing

Case Update #18 – August/September 2019 – Documents and Costs Applications

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UBC provided its response to my Application for Documents and Costs and its response to the Application for Documents from a Third Party – Paula Butler (from Paula Butler) on August 9 as agreed. I filed my own Glynnis Kirchmeier’s Response to UBC’s Submissions on Documents to its response on August 30. In the past the Tribunalmember has taken several weeks or months to consider our submissions, so I do not expect him to make a decision before the next scheduled update mid-September. I will next update the blog mid-October, unless of course we learn of his decision sooner.

All the submissions are now up on the Documents page.

UBC took a few interesting positions in its submissions which I will summarize here, slightly out of order. First, it opposed my application for costs, saying basically that I’m complaining about normal litigation costs. I take the position that its document disclosure is inadequate to the point of disrupting the normal litigation process and causing me harm, so UBC must be sanctioned with the award of costs.

Second, UBC did consent to the production of Paula Butler’s documents, with some caveats – it wants to continue redacting the names and identifying details of individuals. Butler herself did not make any submissions to the Tribunal, and with UBC’s consent obtained there should be no obstacle to the production of them immediately. However, I don’t have any great hope of this happening absent an order from the Tribunal. It is interesting that UBC chose not to defend itself, instead putting me to the delay and effort of filing an application for Butler’s documents.

Third, UBC stated in its submissions that it consents to disclosing “certain requested documents.” Which ones? I don’t know, as UBC did not choose to provide the documents themselves or a list of them, neither in the submission nor in private communication with my counsel. As it has been nearly a month since its submission without additional communication, I doubt UBC intends to provide anything at all without an order, despite its representations to the Tribunal.

Fourth, UBC argued that document disclosure should follow the principle of proportionality, and claimed my extensive request was a fishing expedition rather than a legitimate request under the rules. In reply, my counsel and I argued that document disclosure in the Tribunal process (rather than in civil court) followed the “arguably relevant” standard – that is, I’m entitled to see things which are arguably relevant, in part because this process very rarely includes the right to cross examine witnesses prior to the Hearing itself, even though my case faces dismissal.

Fifth, UBC argued “this is not a case where the Respondent has refused to provide disclosure.” In reply, we attached a number of key documents obtained from other sources which UBC did not disclose, including emails from a class member describing herself as a complainant, a self-incriminating email from Mordvinov, evidence related to a general class member from a science department, and emails from Student B. We also attached emails UBC DID provide, which refer to Facebook messages it claimed to have from Mordvinov, but never produced.

Sixth, UBC argued that it should maintain its redactions of the names of class members, basically on the grounds of personal privacy and that at the time of disclosure they did not expect me, a stranger, to later learn about their experiences or reports. It claims that the initial communication to class members did not seek consent to “disclose” their identities and records to me, which UBC claims would “contradict” the initial communication’s message to class members. In reply, my counsel and I argued that I have a legitimate right to information per my accepted role as the class representative, and that the process already balances privacy rights with the greater value to the public of the litigation (basically I cannot use or share information received from UBC unless it is entered into evidence, or with UBC’s consent, or by Tribunal order). We also pointed out that UBC twisted the purpose of the initial communication in its argument, that it could have chosen to raise this issue when it edited the communication (but it didn’t), that UBC failed to recognize when the class members have chosen to share their disclosures already, and that UBC had no compunction about violating class member privacy when it gave their information to Butler or staff within UBC, without asking their consent. I also reached out to class members on this issue, and on short notice a number of them were kindly able to reply and give explicit permission to me to see their information. (We attached these emails and others expressing consent from these class members to our submission, but I excluded it from the copy of the filing on the Documents page.) We pointed out that UBC had also redacted names of employees or persons who were not class members, and stated we believed this objection about consent is a pretext, and the point of the redactions is to limit my ability to litigate the case effectively.

Seventh, UBC argued my document request was out of scope, and that I am only entitled to documents from January 8, 2014 to November 16, 2015. It argues that I seek to improperly expand my complaint with out of time requests as well as for specific topics, specifically the “peeping tom” incidents at Green College, documents related to parties at Green College 2011-2014, and meetings held at Green College in the summer of 2013. It later also objected to documents related to Paul Krause, David Eby, Sally Campbell, the “School of Secrets” documentary by CBC’s fifth estate, and the contract with Peak Resilience. We replied that this is only the period of liability for UBC, but that the university was not a blank slate before that time and the earlier documents provide key context. We also explain the basis for all specific requests noted by UBC as objectionable. I also attached David Eby’s letter to Martha Piper in November 2015, which UBC claimed to be irrelevant. He wrote the letter after I complained to him immediately after the Mordvinov Hearing. It was previously disclosed to UBC, and does not contain private information, so I uploaded it on the Documents page. I don’t believe the intervention by Eby has yet become widely known, although I did include it in the original complaint.

Eighth, UBC argued we asked for documents not in its possession or control, specifically related to the Green Lantern program at Green College, documents related to the GUTS magazine articles where Green residents described how Mordvinov’s and other men’s unchecked behavior created an unwelcome environment for them, and documents created by former employees, including Arvind Gupta, Martha Piper, Louise Cowin, and Monica Kay. We responded by clarifying what we wanted from each request, and how we thought UBC possessed it – pointing out especially that they continue to control documents by former employees, as proven by the fact they produced some from Monica Kay.

We continued throughout the filing to seek orders from the Tribunal laying out specific terms we want the university to follow when it produces documents.

Applications, Case Documents, disclosure

Case Update #16 – May/June 2019 – Two Applications Filed by Kirchmeier

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On June 5, 2019, my lawyer filed two Applications with the Tribunal. These applications, as well as the supporting affidavit of Jennifer Cocke (which was used to file evidence to the Tribunal), are now uploaded on the Documents page. I’ve chosen to put up only the pleadings and not the underlying documents themselves as they have some confidential information like email addresses, and I don’t currently have access to a pdf editing program.

The first Application is for Documents and Costs. As you will see, it thoroughly sets out the relevant documents UBC should have provided, and the deficiencies in what it did end up providing. As a result of the egregious deficiencies, I’ve asked for the Tribunal to order UBC to pay me costs of $10,000. I should have been provided documents by late 2017, but granted UBC extensions, and over a year’s worth of time to follow up the insufficient disclosure from May 2018. In the process, I incurred costs to travel and stay in Vancouver, as well as delaying the start of a new job (two weeks of pay and a month’s worth of health insurance coverage for my family), plus the costs of a year of lost litigation time, paying for my lawyer’s time, and the lost time of class members who assisted me in figuring out what was missing. In the past year, I moved even further away from Vancouver and as a private citizen working pretty much by myself on this case, my ability to put on the pressure pales compared to UBC’s ability to ignore me. I am hopeful the Tribunal will recognize that UBC should be penalized for its foot dragging.

The second Application is for Documents from a Third Party – Paula Butler. As you may recall, in the immediate aftermath of the airing of “School of Secrets” and the press conference when I announced I would file a human rights complaint, UBC hired her as an outside consultant to evaluate what went wrong in the Mordvinov events. She interviewed me and several others from the History Department, but I understand that some people refused to work with her, as their trust in UBC’s institutional management was completely broken. In February 2016, UBC released a summary of her full report (claiming the full report would be confidential in order to “protect the privacy” of the women). Martha Piper and Sara-Jane Finlay made some rather crowing statements to the Board of Governors and the media about how Butler had exonerated UBC’s conduct in mishandling the reports about Mordvinov, and also that she concluded CBC had made misleading statements in its reporting. However, UBC stated after this litigation began that her report was suddenly privileged and did not produce it, despite relying upon it in its defense. Butler personally told me that she would not be able to answer whether UBC retained her to produce privileged materials. My Application requests the Tribunal order her to produce the full report, her terms of reference, and relevant supporting documents, such as communications with people who refused to speak with her and the documents she reviewed.

At this point our next step is to await UBC’s response to the Applications. I anticipate it will oppose them.

Finally, I should explain the delay in updating this blog for the month of May. We had hoped to file the Applications in that month. My time has also been taken up as I have been defending myself in a defamation case (unrelated to this human rights case). In the past two months I prepared and filed an application and affidavit and was cross examined in that matter. I regret that my attention was divided to the detriment of this case, but now that the ball is back in UBC’s court I am hopeful that forward progress will continue.

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

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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.