Category: Hearing

Hearing

Case Update #34 – Scheduling the Hearing

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On November 17, the counsel for the parties had a discussion with Tribunalmember Cousineau about how long the Hearing is anticipated to take and when. Counting up witnesses for both sides, at this time the total is about 24 or 25 potential witnesses, including potential expert witnesses. With this many witnesses, the Hearing is scheduled to take place for ten weeks.

Right now the dates will begin in November 2022 and end in February 2023, in two blocks with a break in between. However, these dates are tentative. The first reason is that I applied to law school and I should hear shortly whether I will be in class at that time – if so, we would next look for dates in summer 2023. (For a case filed in 2016! Ridiculous!) The second reason is that counsel for UBC needs to verify the dates work on their side. If I don’t get into law school, I should be able to take leave from my job to make the current dates work.

Hearing

Case Update #32 – July 2021 – Hale Hearing Continues

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We continue to await the Tribunal decision in UBC’s Application to dismiss. The Stephanie Hale Sparks v. UBCO hearing continues starting tomorrow, July 12 through July 16. For an excellent summary of witness testimony so far by the one and only media outlet dedicated to preserving institutional memory about this case (and, therefore, asking intelligent questions about the disconnect between UBC’s rhetoric and practice), please see Charlotte Alden’s coverage in The Ubyssey.

Hearing, Media

Case Update #30 – Editorial on UBC’s Legal Tactics – Hale v. UBCO Hearing before the BCHRT May 10-21

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We continue to await from the Tribunal on UBC’s Application to Dismiss. In the meantime, Class Member Caroline Grego and I wrote the below editorial (with Stephanie Hale as an additional signatory) which we have been sending to various outlets. Any suggestions for appropriate venues for publication are appreciated!

As universities across Canada continue to grapple with developing policies around sexual assault, and as students struggle to receive proper support, institutional accountability, and justice after cases of sexual misconduct, ongoing events connected to the University of British Columbia demonstrate how fraught this process can be. Since 2017, the University of British Columbia has worked on implementing SC17, many community members have come forward with their thoughts on the new sexual misconduct policy. As alumnae and participants in a case now before the British Columbia Human Rights Tribunal, we feel compelled to raise our own concerns about actions UBC’s legal team is currently taking before the tribunal that are at cross-purposes with SC17. The legal team’s defense contradicts the representations of the administration in how seriously UBC takes reports of sexual misconduct. 

In 2016, Glynnis Kirchmeier filed a Human Rights Complaint against UBC for its mishandling of repeated reports of sexual misconduct from many sources about Dmitry Mordvinov, her colleague in the History Department. UBC expelled Mordvinov in November 2015, days before a CBC documentary aired about the case and years after the first student reports of his behavior. As the case drags on five years later, we as class members see a hypocritical disjuncture between UBC’s legal arguments on the one hand, and UBC’S new policy SC17 and the public face that the university puts forth on the other. 

UBC’S legal tactics undermine the dignity of the case’s class members and should also cause the UBC community to question whether UBC lives up to SC17. The university’s practices ought to accurately reflect policy and stated public commitments, and it should not abandon those commitments when it stands in front of a Tribunal justice.

We take issue with the following:

The university’s lawyers say first-person testimony of sexual assault is “hearsay.” Inrecent arguments the lawyers ask the Tribunal to throw out the accounts of the victims as “hearsay.” This line of defense is bizarre, offensive, and unlikely to succeed – but it follows an old pattern at UBC. Earlier, UBC administrators also winnowed away or ignored firsthand accounts of Mordvinov’s abuse on narrow technical grounds. The legal team’s description of these women’s accounts as “hearsay” emerge from rape culture in denying survivors’ accounts unless they match some unspecified criteria of perfection.

They argue that bystander reports have no place in the case. While SC17 suggests UBC will take bystander reports of misconduct, UBC’s legal team undermines them in front of the Tribunal. UBC maintains that the women who were not personally assaulted by Mordvinov have “no claim” to make in the case, no matter if they witnessed harmful actions or statements on his part or experienced fall-out from their willingness to speak out. 

They deny that a hostile environment for women existed at UBC, or that the “environment” is even a concept to be drawn upon at all. Yet this hostile environment was so prevalent that Dr. Grego and two other Green College resident members wrote about it for GUTS Magazine in January 2014. The concept of a “hostile work environment” is routine in definitions of sexual misconduct at workplaces throughout Canada. Mordvinov, a serial sexual predator who attacked numerous women connected to UBC over the course of years, turned the university into his hunting ground, creating an atmosphere of risk that threatened the safety of all women at UBC. When women raised the alarm, leaders across campus, and now the UBC defense team, contributed to the hostile environment by treating women and their allies who spoke up as the problem.

UBC argues that since there’s a sexual misconduct policy now, Mordvinov’s victims should just get over it. UBC’s legal team asserts that UBC neither owes anything to women whom Mordvinov attacked nor needs to take responsibility for their bungled disciplinary process from 2013 – 2015. Instead, they hold that SC17 is sufficient redress — ironic because the clear failures of UBC’s old sexual misconduct policy in the Mordvinov case played a major role in creating SC17 in the first place. What about the women who endured physical attacks, whose environment was tainted by fear, and whose professors retaliated against them? A new, flawed policy, implemented on the last day before the province made it illegal not to have one, isn’t enough.

Based on our familiarity with the Mordvinov case and UBC’s response to it, we recommend a few areas of improvement in SC17 that could be instructive for other universities as they modify their own sexual misconduct policies. 

First, all complainants should know the full case against a respondent and should have a written copy of the disciplinary findings and outcome. This includes written reasons why the Director of Investigations declined to investigate any report.

Second, the policy should explicitly state the geographic and event limits of UBC’s jurisdiction. SC17 recycles vague phrasing from the old policy that the “alleged conduct must have a real and substantial connection to UBC.” The administration has used that same language to throw out multiple allegations of sexual assault, including a report of a rape perpetrated by Mordvinov. UBC’s reliance on this language suggests that UBC could continue to claim the legal right to ignore violence by UBC community members if they keep it off-campus.

Third, UBC needs to conduct and release results from annual climate surveys of both campuses, as well as statistics about how many disciplinary processes substantiated sexual misconduct reports, and whether the perpetrator was expelled. As of right now, there is no public information that anyone has been removed from UBC since Mordvinov in 2015.

We understand that UBC’s lawyers have a case to win. But their defense of the university does not align with UBC’s stated commitment to “trauma-informed” policy. SC17 is a starting point, not a finish line — and the strategies of UBC’s legal team call into question UBC’s sincerity in practicing its policy.  If UBC is genuinely dedicated to SC17, then why are survivors’ accounts of their assault and their allies’ attempts to support and bear witness so callously dismissed by its lawyers? Why has UBC so consistently refused to show accountability for the Mordvinov case? We know why: because UBC prioritizes protecting itself from legal repercussions over the well-being of its students. 

As the flagship university of the province of British Columbia, UBC ought to serve as an example for universities across Canada. So far, they are failing to live up to that reputation. The university community deserves consistency from UBC from policy to practice, whether on campus or in the courtroom, and we call on the administration to hold themselves to the standards that they have recently adopted. 

Caroline Grego received her MA from UBC’s Geography Department in 2013 and was a resident member of Green College from 2011 – 2013. She then completed her Ph.D. in History at the University of Colorado Boulder and is now a Visiting Assistant Professor in the History Department at Queens University of Charlotte. Dr. Grego is a class member because she witnessed, documented, and reported both a hostile environment against women at Green College, of which Mordvinov took advantage, and frightening behaviors and self-incriminating statements from Mordvinov himself.

Glynnis Kirchmeier earned her MA in History from UBC, where she was a student from 2011 – 2013. She witnessed and reported Mordvinov’s misconduct, participated in the effort to get UBC to send him through a disciplinary process, and is spearheading the human rights complaint against UBC. She works as a paralegal in securities law.

While we continue to wait for news in this case, I am extremely pleased to give an update on Stephanie Hale’s human rights complaint. For brief background: Hale, an engineering student at the UBCO campus, was raped by a classmate in 2013 and reported it at the time, which was never referred to a disciplinary process or steps taken to protect her, though UBCO did assist her with some mental health issues that arose from the attack. She later reported again, after UBC had made public statements (in response to the Mordvinov case) that it was trying to do better; nevertheless, it subjected her (she argues) to a process that it knew was deficient. She filed a human rights complaint in 2017, which survived UBC’s Application to dismiss. UBC promptly filed for judicial review of the decision, alleging various errors by the Tribunal, and applied for adjourning the Hearing dates to avoid the situation where the full Hearing took place but the Court of Appeal possibly dismissed the case (one of several possible outcomes). Additionally, the pandemic caused further delays.

Well, finally, two great developments occurred. On April 20, 2021, the Tribunal denied UBC’s fourth request for an adjournment, basically saying “enough already, this is too much delay for what is essentially a gatekeeping decision.” Then, on April 22, 2021, the Court of Appeal handed down a decision in Hale’s favor, even ordering UBC to pay her costs. The Court’s decision lays out an extensive history of policy changes and representations made by UBC that it knew its own process sucked. One of UBC’s complaints about the Tribunal was that the Tribunal used the evidence UBC presented about all these changes to draw a different conclusion than what UBC thought the evidence was about; the Court said that’s too bad! The Tribunal is entitled to interpret the evidence before it however it likes.

judge-crossin-re-university-of-british-columbia-okanagan-v.-hale-04-22-1Download

All this meant that the Hearing date, which had been set to May 10, came up pretty quickly on everyone! Time was scheduled to May 21 because UBC apparently indicated a long witness list, including Santa Ono, but I somehow suspect that a far smaller number will appear. Although the Tribunal requests a week in advance to dial in to the Hearing, it is still worth asking as the Hearing is so long. (scroll down to “Public Access to Hearings) Hale v. UBCO’s case number is CS-000257.

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.