Category: disclosure

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, 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.

Applications, Case Documents, disclosure, Hearing

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

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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.

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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 Documents, disclosure

Case Update #25 – Next Phase Assessing Disclosures – Sept/Oct 2020

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Since my last update, I have had my baby (and wrapped up my professional work before my parental leave, and submitted my spouse’s green card application).

I also completed my primary task of assessing what was included in the July 31, 2020 document disclosure from UBC. While I have not read every word of the documents, I have a general sense of them. They consisted of 19 folders ranging from one one-page document to dozens and several hundred pages, sorted by the originating person. Clea and her staff are still reading some of the Outlook files that I was not able to open. We’ve got some questions to UBC about redactions and additional missing documents – but, fortunately, the lion’s share of this part of the case is finally about done.

On September 10, the Tribunal sent a letter to the parties setting deadlines of October 8 for me to reply to UBC’s Application to Dismiss, and UBC the deadline of October 22 to reply. The Tribunal did not check with Clea before issuing the deadlines; I am not sure if UBC was consulted. In any case Clea wrote to inform everyone that we could not meet them, as she had a Hearing the week of October 8 (and I have been preoccupied with childbirth and a newborn). The Tribunal also did not ask us if we are satisfied with UBC’s production. She proposed dates in November for us to answer the long-lingering Application to Dismiss. I have not been able to catch up with her this past week, but when we spoke earlier in October the Tribunal had not replied to her letter.

FURTHER UPDATE AS OF OCTOBER 16: The Tribunal canceled the October dates and gave us until October 15 to advise on whether document disclosure was complete, which we did. We named a number of categories of documents that we think still need to be disclosed, but indicated that we are nonetheless ready to address the Application to Dismiss and proposed December 4 as our deadline. Today, October 16, the Tribunal agreed to December 4 for us, and December 18, 2020 for UBC’s written reply.