Current Case Status

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.

Hearing

Case Update #38 – Tribunalmember Amber Prince Assigned to the Hearing

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Recently, I spoke with my counsel Clea Parfitt and learned that the Tribunalmember who will conduct the Hearing has been assigned: Amber Prince. She will also write the final decision. Devyn Cousineau will continue case management as required.

At this time my efforts are devoted to organizing documents and obtaining expert witnesses.

With respect to witnesses we may ask to testify, we are not yet reaching out or prepping anyone. Clea prefers to prepare witnesses closer to the time of their testimony, as in her experience it ensures the preparation is fresh and so that the anxiety/anticipation about doing so is reduced.

Case Documents

Case Update #37 – Proposed Remedies and Witness List Filed

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On July 1, we filed the anticipated witness list (which I am not posting on this website) and our remedies sought. (We obtained a short extension due to an illness of Clea’s and a family emergency for me.)

I am very proud of the remedies. We may end up adding to, dropping, or otherwise adjusting the remedies based on changes in the law or based on evidence at the Hearing – but the below document has been the product of years of deep conversations with many, many informed and intelligent people and reflects a careful, ambitious but practical vision for what it would take to make UBC how it SHOULD be – a safe, discrimination- and harassment-free environment for all.

ct-form-9.4-remedy-sought-22.07.01Download

In filing this remedy document, my counsel wrote “In setting out the remedy sought, we are aware of the Respondent’s position that a good deal of what we are seeking is in the policies the University brought in in 2017 and has since been amended. One way to deal with this, in our view, is for the Respondent to advise which paragraphs of the Remedy the University accepts or does not oppose on the basis that it is already doing those things.  That would assist the parties and the Tribunal to focus on what is contentious between the parties, while also permitting a clear statement of what has already been incorporated into current policy by the University.”

I think it is fair to recognize that in 2015, we didn’t have the coherent policy, centralized reporting entity, fact-finders, or the process that students have in 2022. While this human rights case was certainly a pressure factor, I credit the sincere and sustained concern by former and current UBC students, particularly in the AMS and Ubyssey staff, for the landscape today. Nevertheless, UBC requires a legal order to conform with the progress already obtained, to address the clawbacks it has already taken (its promise on rape kits), and to address the pernicious cultural factors that make failing their obligations to survivors the easier choice.

On a personal note, a family member living in India has suffered a sudden serious health condition and the circumstance will require me to travel there this summer and perhaps in the future (depending on what folks there say will be most helpful). I will do my best to prevent any other impacts for deadlines leading up to the Hearing, but it is by its nature difficult to predict the impact.

Hearing

Case Update #36 – Scratch That Last Post. Half the Hearing Dates are Gone.

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On April 26, 2022, the Tribunalmember Devyn Cousineau wrote to the parties a somewhat startling letter. She wrote that “The Human Rights Tribunal does not currently have resources to offer any complaint a ten-week hearing. At present, with rare exceptions, it is booking complaints for a maximum of three weeks. Given the scope of issues in this complaint, the Tribunal is prepared to schedule the hearing for up to five weeks.” She also wrote that while she is managing the complaint, she is not presently assigned to conduct the hearing – which was news to us!

26 Apr 22 Trib LtrDownload

UBC proposed to delay the hearing start as long as possible. I argued to keep some weeks in November 2022 to put forward my witnesses and some in January 2023 for UBC’s witnesses.

On May 31, 2022, Tribunalmember Cousineau selected the revised hearing dates. The hearing will now take place for five weeks beginning the following days:

January 16, 2023

January 23, 2023

February 13, 2023

February 20, 2023

February 27, 2023

Revised Hearing DatesDownload

In order to help try to move along the in-person hearing as expeditiously as possible, we proposed submitting chronologies and other evidence to come in by affidavit, which Tribunalmember Cousineau approved.

Interestingly, Tribunalmember Cousineau wrote “The parties agree, as do I, that my decision in Hale may impact the evidence and argument presented in this complaint. It is preferable for the parties to have that decision before the hearing, and sufficiently in advance to allow appropriate hearing preparation. I will prioritize my decision writing to ensure this is done.” So we may have a decision in Stephanie Hale’s case late this year.

The Tribunalmember did not allude again to whether or not she had been assigned to run the hearing itself, and unfortunately Clea and I think we need to know, so we wrote asking her to tell us what the deal is. We are requesting to tentatively hold some dates now just in case it runs over, although we certainly respect the desire to have a shorter hearing.

Ltr HRT 22.06.03Download

Finally, the May 31, 2022 letter set a deadline of June 30, 2022 for Kirchmeier to provide the witness list, the remedies sought, and documents related to remedy. UBC has a deadline of August 15, 2022 to provide its witness list, response to remedy, and documents related to remedy.

As far as my preparation on the case, we are currently working on chronologies for myself and other witnesses that we will eventually submit ahead of the hearing. This involves pulling together the supporting documentation to submit in writing as well. We are interviewing Class Members on their views of remedies as well as the facts of their pieces of the story, including seeking documents that they have. I have reached out to some Class Members, and Clea will reach out as well. If you believe you have relevant documents, I would be happy to take a look and ensure we have a copy.