Category: Case Documents

Case Documents, communication plan, disclosure

Case Update #12 – January 2019

kirchmeiervubc

First of all, my apologies for my delay with with update.

The case management conference between my lawyer, the lawyer for UBC Mike Wagner, and the Tribunalmember (plus my lawyer’s articling student) took place on Thursday, January 17. They discussed three deficiencies on UBC’s part: 1) UBC’s inadequate efforts to inform the class members in this case that it is actually going on; 2) UBC’s inadequate search for and production of relevant documents; and 3) UBC’s choice to redact names and content from documents produced in disclosure.

UBC never responded to the 20+ page letter sent last year where I described the nature and extent of documents I expected, but did not receive. Nor did it reply to the letter I sent naming the class members who I know of but who did not receive the initial contact notice. Upon prodding from my lawyer, UBC provided a two page reply stating its position that it did everything required. I’ve posted the correspondence on the “Documents” page. (As a reminder, I did not post the May 2018 letters because I decided that they contain too many confidential details.)

At the conclusion of the meeting, the Tribunalmember ordered us to cooperate with respect to the first issue – the missing communications with known class members. Per the order, I am preparing my list of known class members, to whom at UBC they reported sexual misconduct, and contact information. UBC will use my list to investigate what happened and, per the order, provide the initial communication to the women.

There was some forward progress during the discussions. The lawyers agreed to hold multiple discussions over the second and third issues over the next month. I hope to provide a positive update by mid-February on the second and third issues. Since we are negotiating currently, however, I won’t get into the details now.

Case Documents, communication plan, disclosure

Case Update #11 – December 2018

kirchmeiervubc

A telephone meeting has been set to discuss UBC’s deficiencies in its disclosure and other issues between the parties and the Tribunalmember. It will take place on January 17, 2019. As a refresher, here is my summary of the various inadequacies of UBC’s disclosure. (To find any of my older updates, click “current case status” on the navigation bar above.) Next month, I will post the monthly update after the 17th meeting, since there will hopefully be substantive news to share at that point.

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.

Case Documents

Initial Communication with the Group Members

kirchmeiervubc

On 21 March 2016, I filed a Human Rights Complaint against the University of British Columbia (“UBC”) both as an individual person and as a representative of a class of people. The complaint relates to UBC’s alleged systemic failures to respond appropriately to disclosures of alleged sexual misconduct by one graduate student in the History Department, who also resided at Green College on campus, Dmitry Mordvinov (“DM”).

The Tribunal has required UBC to send this email to potential members of the classes.  You are receiving this email from UBC because you may be a member of one of the classes of people covered by the complaint.  The purpose of this email is to introduce the complaint to you, and to give you the option of providing me your name and contact information so that I can continue providing information to you directly about the complaint.

I. BRIEF SUMMARY OF EVENTS PRIOR TO THE COMPLAINT

I was a graduate student in the History Department from 2011 to 2013. I observed DM touch a female graduate student on several occasions in 2011 in a manner that I believed to be non-consensual, which I communicated to UBC in January 2014 immediately after I learned he had allegedly physically assaulted another female graduate student until she slapped him. I unsuccessfully sought to have UBC include my observations of DM’s conduct in its disciplinary process against DM.

My human rights complaint alleges the first disclosure about DM was transmitted to UBC in January 2011, with fairly regular reports from multiple victims and/or witnesses until DM physically left Canada in the course of his studies. He was expelled by UBC in November 2015. His alleged actions include sexual harassment of colleagues, inappropriate and/or sexual touching, violence leading to injuries, attempted sexual assault, and sexual assault against several female UBC students in the History Department and Green College.

DM is not a party to the complaint.  The complaint is not about DM’s conduct, but rather UBC’s response to disclosures about his conduct.  I allege UBC’s handling of the disclosures regarding DM is systemic discrimination by UBC against female students based on their sex.

II. COPY OF THE COMPLAINT

The Amended Complaint is available here. The names of the alleged victims have been redacted in the filing and submissions, except for Caitlin Cunningham, who has chosen to use her name publicly.

III. A DEFINITION OF THE ROLE OF MEMBERS OF THE CLASS – or, what does this have to do with you?

The Amended Complaint has two classes of people I represent for the purposes of this litigation. Members of the classes need not actively participate in the case. Members of the classes may also opt out of participation in the complaint if they wish.  An opt out form is included in these materials.

Ultimately it is my obligation to act in the best interests of the members of both classes and to represent those who do not choose to opt out of the complaint.  I will bear all legal and financial costs of the litigation.

The first class the Tribunal has called the “Mordvinov Class.” The definition is:

“Any female student who at least once reported, disclosed or communicated to a faculty member or administrative staff member of UBC by any means, including telephone, fax, e-mail or in person in a formal, informal, scheduled or unscheduled interaction, a concern about the sexual misconduct of Dmitry Mordvinov towards women.”

The above definition does not require that you have been a victim of the alleged misconduct by DM. I myself was not.

The second class is called the “General Class.” The definition is:

“Any female student of UBC who at least once reported, disclosed or communicated to a faculty member or administrative staff member of UBC by any means, including telephone, fax, e-mail or in person in a formal, informal, scheduled or unscheduled interaction, a concern about sexual misconduct between January 8, 2014 and November 16, 2015 by a male student studying or employed at UBC towards a female student enrolled at UBC.”

IV. MY GOALS FOR THE COMPLAINT

I filed this human rights complaint because I believe UBC should act to protect the safety of students, especially vulnerable students. I filed this complaint because I believe, and I am prepared to prove, that UBC’s actions with respect to DM arise from UBC’s policies and practices and were not simply accidental – that is, that what I say is UBC’s failure to act effectively to protect vulnerable students was not a series of unfortunate events, but rather a systemic failure. In this case, the adverse impact of DM’s actions was borne by female students, and I allege UBC privileged DM’s interests over those of female students, including me. I filed the complaint because I want the educational services UBC provides to be safe, harassment-free and discrimination-free.

The remedies I am seeking through this complaint are set out in the complaint itself.

V. PROGRESS OF THE CASE SINCE IT WAS FILED

After filing my complaint in March 2016, UBC and I agreed to an early mediation to attempt to resolve the matter. This took place 24 October 2016 and we did not reach agreement.  Neither party is permitted to disclose any of the discussions that took place at that mediation.

Subsequently the Tribunal requested several rounds of submissions from the parties regarding a few different questions. Based on the first set of submissions, the Tribunal issued a decision dated 13 April 2017, which stated that I had filed in time (the BC Human Rights Code requires complaints to be filed within 6 months of the alleged contravention of the Human Rights Code, and there are several exceptions to this rule – see the decision for details). It also stated that the complaint had been accepted for filing with respect to the individual portion of the complaint – that is, for myself as an individual complainant.  No decision was made by the Tribunal on the merits of my complaint.

The Tribunal then requested submissions with respect to the representative portion of the complaint, which is the part of the complaint where I filed on behalf of a group of other people. After UBC and I made these submissions, the Tribunal issued a decision dated 30 August 2017, which allowed me to proceed with the representative portion of the complaint, if I amended the definition of the groups I represented. The Tribunal ordered a communication plan with the members of the two classes.  This email is the first step in the communication plan the Tribunal ordered.

The Tribunal agreed with UBC that UBC was not required to provide me with contact information for the members of the classes, and so this email is being sent by UBC to the members of the classes on my behalf.

As directed by the Tribunal, I filed amendments to the complaint on 7 September 2017.

On 17 October 2017, UBC filed a response to the complaint.

The decisions of the Tribunal are publicly available by date here: http://www.bchrt.bc.ca/law-library/decisions/index.htm

VI. KEY COMMUNICATIONS WITH THE TRIBUNAL/SUBMISSIONS TO DATE, REDACTED

Please see attached – these are the communications described in part V. I have lightly redacted submissions which identify current or former students by name, except for Caitlin Cunningham as mentioned above. Communications regarding mediation are excluded except for a scheduling letter.

VII. SUBMISSIONS TO DATE, REDACTED

Please see above.

VIII. THE COMMUNICATION PLAN

As a member of one of the representative classes, you have the right to know what is going on with the case and I have the obligation to communicate with you. The Tribunal has approved the following plan moving forward:

Who will do it?  I will handle direct communications with each member of the classes that I have already met, or who sends me their communication details.  You can send your communication details to me using the “Contact” tab of this website. My personal email and phone number is provided in the email you received from UBC. Or you may write c/o my lawyer, Clea Parfitt, 407 – 825 Granville Street, Vancouver, BC V6Z 1K9, or by fax to (604) 689-5572.

How often?  I will give case progress updates by email regularly, approximately once per month, or more frequently if there is more to report. At the end of the case I will send a closing report.

Who will see your name?  For those class members I have not yet met and communicated with, I will only have the direct contact information of those people who advise me directly that I may be in touch with them. I will share your name with my lawyer but suppress your name and information in the communications I send out to the members of the class unless you request to be known to or to communicate with the group, in which case I will facilitate that. You should be aware that my emails are not privileged, and anyone may share them.

Can you opt out of communications or the case?  Yes to both. You can choose not to receive any communications from me by not giving me your contact information or by telling me that you do not want communications from me.  If you do this, you can still be a member of the representative class.  You can also opt out of the representative class completely by completing the enclosed form and providing it to the Tribunal.

Do you have to respond or engage with the case or the communications?   No. As your representative, I make legal decisions. I am required to act in your best interest, but I do not need your authorization to make specific choices. You are not required to engage with me, though I hope you will so I can better understand how to make the complaint as representative as possible. Any concerns you express will be taken seriously.

What if you don’t like this plan?  I will honour all communication requests, including no communication, less frequent communication, having my lawyer communicate with you, or by using another method such as by post. My door is always open and I am happy to hear from you, even if you had previously told me you did not want information.

IX. WHAT HAPPENS NEXT?

By 22 November 2017, I must provide UBC with all relevant and non-privileged documents in my possession or control.

By 27 December 2017, UBC must provide me with all relevant and non-privileged documents in its possession or control.  UBC may also choose to file an application to dismiss the complaint without a hearing by that date.

If you want me to be able to update you directly about the complaint, please send your communication details to me using the “Contact” tab of this website. My personal email and phone number is provided in the email you received from UBC. Or you may write c/o my lawyer, Clea Parfitt, 407 – 825 Granville Street, Vancouver, BC V6Z 1K9, or by fax to (604) 689-5572.

If you do not want to be a member of either class, please complete the Opt-Out Notice and send it to the Tribunal letting them know you want to be excluded from the class.  Please do not send the opt out form to me or Ms. Parfitt.