Current Case Status

UPDATE AS OF TUESDAY EVENING: As promised, a brief update on the events of the day. Actually, we did not spend as much time as I expected in housekeeping, argument, or scheduling. Member Cousineau’s decision in Stephanie Hale’s case came out last week and the parties have it, though it is not yet public; UBC’s counsel requested that we give them an indication of our position on Ms. Hale’s status in this matter (as a reminder, she is a General Class Member in this case and has appeared on our witness list, but she also had her own human rights matter that she filed for herself). Counsel also suggested we have some discussion about the order of witnesses and how much time they will take so he can advise his witnesses about when they need to be prepared to testify. However, we did not deeply get into those issues today. Mainly, we completed the direct examination of Emeritus History Professor Paul Krause, and the majority of his cross examination. He will finish cross examination tomorrow.

The previous blog entry continues below.

Tomorrow, we return to presenting the witnesses for the complainant. History Professor Paul Krause will be the next witness to be called. However, before he begins we will likely spend some time discussing issues that have arisen over the summer, as well as the plan for the next few weeks. I will update this post tomorrow once I know more. Otherwise, my plan is to continue with the end-of-week overview. As a reminder, I am not permitted to summarize witness testimony on this blog (nor, honestly, do I have the bandwidth for that), but any Class Member who does not plan to testify is welcome to reach out if she would like a more thorough summary.

As a reminder, here are the instructions to request access to the hearing as a member of the public.

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I recently became aware of a resource offered by McGill University – an annotated bibliography of primary (case law, policies, law) and secondary (research, reports) sources on campus sexual assault in Canada. We would have appreciated such a resource much earlier! And anyone looking for sources for their own work should definitely check it out: Selective Annotated Bibliography on Canadian Campus Sexual Violence from McGill University

This week we fully completed four Class Member witnesses.

On Monday, March 27 we heard from General Class Member Tara McBryan, who earned an MSc in Zoology at UBC Vancouver. She completed both her direct examination and cross examination. The parties and the Tribunal agreed that the abusive student that she reported will not be named, and was referred to as Student X.

On Tuesday, March 28, Dr. Caitlin Cunningham of the Mordvinov Class completed the last hour or so of her direct examination and completed her cross examination through the rest of the day.

On Wednesday, March 29 and Thursday, March 30, the Mordvinov Class Member known as Student E completed both her direct and cross examination. She finished about mid afternoon on Thursday, so the parties took some time to discuss the logistics of future hearing dates.

On Friday, March 31, the Mordvinov Class Member known as Student B completed both her direct and cross examination.

Both Student E and Student B had been residents of Green College, as opposed to members of the History Department.

I want to emphasize my appreciation for the witnesses who are testifying, especially the ones that came this week, as they had to go over some very harrowing experiences and revisit uncomfortable feelings that everyone hoped were in the past. I recognize doing so is a burden.

No members of the public opted to join and listen to the Hearing this week (including the Risk Management official from the province of British Columbia, who as far as I recall only observed my own testimony and cross examination). Anonymized individuals will not have their names published in the final decision, and as we have gone through the testimony, if witnesses needed to discuss anonymized individuals (other than themselves), we have asked them to use our Student A/B/C/etc. system, so eventually any direct quotes of their testimony will maintain that. Although it was not an issue this week, Member Prince said that she would remind any members of the public of the order to keep certain names private.

In addition to the three weeks scheduled in the fall, we discussed and scheduled a week in December for the hearing. Counsel for UBC advised that it he would let us know if a conflict in his schedule opened up in the summer, most likely in June, so that we could continue presenting our witnesses.

We also raised the issue that UBC has not put certain witnesses on its witness list that we, the complainants, feel we need to hear from, so we may choose to call them ourselves. Counsel also suggested that he may not call some of the witnesses he did list, and the lawyers discussed how that choice might be an issue for our ability to put all the evidence in that we think the Tribunal needs to hear. Before the complainants close the remainder of our case, we would require clarity on what to do about those additional individuals, but nothing was decided this week. As of right now, the complainants anticipate calling three fact witnesses, all from the History Department, with an estimated amount of hearing time as at least a week and a half to get through them (not counting the whole discussion of calling others).

Member Prince issued another Notice of Hearing with the additional dates. They are:

September 5, 6, 7, and 8; 18, 19, 20, 21, 22;

October 2, 3, 4, 5, and 6; 10, 11, 12, and 13;

December 4, 5, 6, 7, 8.

Week 3 was productive.

On Monday, February 27, we called Dalya Israel, the Executive Director of WAVAW, to be qualified as an expert to speak specifically about what survivors need from systems and processes set up to respond to sexual misconduct. (I don’t have my notes for exactly how my lawyer phrased the area of expertise we are calling on for her, but that is the gist.) Ms. Israel has served around 5,000 clients in British Columbia since she began working with WAVAW about 20 years ago, in a number of different contexts. After about a half day of argument, Member Prince qualified her as an expert to give evidence in this case. Due to the amount of time spent in argument, we were unable to finish her direct examination on Monday.

On Tuesday, February 28, we called Dr. Laura Brown, an eminent clinical and forensic psychologist with every accomplishment and accolade her field has ever created, to speak about institutional betrayal, institutional betrayal trauma, institutional cowardice, institutional courage, and the associated traumas that occur when institutions fail to respond appropriately to sexual misconduct (again, this description is likely slightly different than how we requested her to be qualified because I don’t have my notes, but this is basically the gist). After lengthy argument, Member Prince qualified her as an expert to speak to these areas, and we finished her direct examination and cross examination. Ms. Israel was able to come back to us to continue her direct examination at the end of the day.

On Wednesday, March 1, we called Caroline Grego, a member of the Mordvinov Class, and finished her direct and cross examination by the afternoon. That same day, we called Professor Alexei Kojevnikov from the History Department and completed the vast majority of his direct examination.

After that the anticipated schedule was disrupted quite a bit. Counsel for UBC complained that our remaining witness schedule was too packed. Ultimately, and again after lengthy argument, we cancelled two witnesses at the last moment, a development about which I was extremely displeased. Luckily, Caitlin Cunningham stepped up to make sure all the hours were utilized, for which I am very grateful.

On Thursday, March 2, we called a member of the Mordvinov Class to testify. Her direct examination and cross examination were completed, and in the afternoon Caitlin Cunningham’s direct evidence took the time allotted to one of the cancelled witnesses.

On Friday, March 3, we finished up the remaining direct and all the cross examination of Ms. Israel in the morning. Then Dr. Cunningham completed nearly all of her direct examination. Finally, in the late afternoon. Dr. Kojevnikov completed his cross examination.

After three weeks of hearing, we fully completed four fact witnesses, completed two expert witnesses, nearly completed one fact witness except for a few questions and cross examination (Dr. Cunningham), and rescheduled four witnesses (one General Class member, two Mordvinov Class members, and a History Department witness).

The next dates scheduled are March 27-31. We will certainly finish Dr. Cunningham’s evidence that week but my understanding is that we are still confirming which of our witnesses are available for which days. I will continue the practice of summing up what happened at the end of the week.

Going into the semi-distant future, the June 2023 week has been cancelled for a conflict that UBC’s counsel had advised us about a long time ago. Unfortunately, there was basically no time the rest of the summer that everyone was available, so Member Prince set three weeks in September, alternating one on, one off. My notes have the exact dates but I will eventually get them on this blog.

I very much appreciate the efforts of each and every witness to assist with this case. Although it was disappointing to move so slowly through the evidence, and especially when it caused folks to be rescheduled, we did accomplish quite a lot in this first block of time.

In week 2 of the Hearing (taking place from Tuesday February 21-February 24, as Monday was a holiday), the Respondent’s counsel cross examined Glynnis Kirchmeier. This was completed on Thursday, except for a final, limited session of cross examination on the expenses incurred during the course of the Hearing, as that will be dealt with at the end of the Hearing.

The original plan was to call Kaitlin Russell next, but because the anticipated schedule had gotten so far off, she was not available later in Week 2, and as a result we called Caitlin Cunningham instead for her direct evidence starting late on Thursday. Her direct evidence was not able to be finished by the end of Friday, so she will need to be finished up in direct exam and cross examined at a future date.

The start of Week 3 of the Hearing, today, concerns evidence by two expert witnesses – Dalya Israel, the Executive Director of WAVAW, on Monday, February 27, and Dr. Laura Brown on Tuesday, February 28. The parties have made arguments regarding the admissibility of Ms. Israel’s evidence and we anticipate further argument about Dr. Brown. I will indicate Member Price’s decision on these arguments when I give the update for Week 3. Further, a number of witnesses with relatively short narratives are scheduled for the remaining three days of Week 3.

The Hearing in this matter before Tribunalmember Amber Prince began last Monday, February 13, 2023. Clea Parfitt delivered the opening statement on behalf of the complainants, and counsel for UBC opted to wait to deliver the Respondent’s opening statement, which is a choice available for respondents before the BCHRT. Glynnis Kirchmeier was the first witness and was under direct examination all week. Monday, February 20 is a holiday and cross examination will begin on Tuesday, February 21.

It is not possible to provide any summaries of witness testimony at this time, since this blog is public-facing and other witnesses have access to it. As far as updating Class Members about the progress of the Hearing, I will provide brief check-ins about which persons have already testified. Counsel for both sides have already submitted several verbal Applications to Member Prince about various evidentiary (and other) issues. This is part of the reason why forward progress has been slow so far.

Persons planning to testify may attend the Hearing by telephone only after their testimony is complete. Anyone else who is interested in attending may join at any time and should review my earlier blog posts for instructions on how to join.