Current Case Status

Applications

Case Update #33 – Tribunal Denies UBC’s Application to Dismiss

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Great news. Late on Friday, October 22, 2021, the Tribunal posted its denial of UBC’s Application to Dismiss my case.

A denial of an Application to Dismiss does not make findings of fact. Instead, the decision says that UBC has failed to convincingly argue that my complaint does not raise issues worthy of a full hearing. Specifically, UBC failed to show that I had “no reasonable prospect of proving discrimination” under the Human Rights Code, and that “the issues underlying the complaint have been effectively remedied such that it would not further the purposes of the Code for the complaint to proceed.”

UBC’s argument to the first point was that I was demanding a particular and specific process, which the Code does not require. The Tribunalmember wrote in paragraph 98 that “The issue in this complaint is not whether, in offering this service [enforcing its policies for providing a safe and harassment free education environment by investigating complaints and disciplining as appropriate those who violate such policies – quoted from a 2019 Hale decision], UBC acted fairly, complied with its policies, or reached wrong or unreasonable conclusions….Nor is the issue whether UBC’s services contained the specific elements which Ms. Kirchmeier has detailed in her complaint. Rather, the issue, as contemplated in both Rojas and Maughan, is whether, in the course of providing this service, UBC adversely impacted women in a way that was connected to their sex and was thus discriminatory.” The Tribunalmember noted that UBC’s argument was already rejected in 2017 in the first decision to accept the complaint, and again in Hale in 2019. Remember also that UBC claimed that I (and most of the Mordvinov Class Members) cannot claim to have experienced sex-based discrimination because I did not experience sexual abuse by Mordvinov. The Tribunalmember reminded the reader of the test for discrimination, which “simply requires Ms. Kirchmeier to prove that she and the class members experienced an adverse impact in respect of a service provided by UBC, and that their sex was a factor in that impact. It is not a stretch, or a significant expansion of the law, to suggest that an employer or service provider could discriminate against a person raising a complaint even if the person is not complaining about discrimination they experienced.”

UBC also argued that I failed to establish nexus, or that sex was factor in any adverse impact I and the Class Members experienced. The Tribunalmember decided that UBC’s view of the legal cases it cited on this point was unpersuasive and that those decisions both left open the facts and arguments I made, and that I presented evidence not found in those cases, and that certain complex legal arguments interpreting those cases should be addressed in a hearing. The discussion of the legal arguments is at paragraphs 106-111. Finally, the Tribunalmember addressed UBC’s argument that the way it treated the Class Members had to do with their willingness to complain, that Mordvinov was out of the country, and that I was not a direct victim of sexual assault or harassment. The Tribunalmember rejects UBC’s argument at paragraph 113: “As I have said, this argument does not account for the discrimination that arises when seemingly neutral policies or conduct disproportionately impact certain people based on personal characteristics protected by the Code. At a hearing…it would be sufficient to prove that the women were adversely impacted in connection with UBC’s services and that sex was a factor in that impact.”

With respect to UBC’s burden to show it would not further the purposes of the Code to proceed to hearing, UBC argued that the entire structure to deal with complaints is now different, from disclosure to investigation to discipline processes. I argued in my reply that not all of the problems were resolved by these changes, such as where failures arose from conduct of university actors rather than from policy. The Tribunalmember stated that such changes “do not address the impact of any discrimination which Ms. Kirchmeier or class members may have experienced” and again cited a similar time when UBC failed in this argument, in Hale.

“It is very much consistent with the purposes of the Code that Ms. Kirchmeier have the opportunity to present her complaint and for the Tribunal to resolve it on its merits.”

Over the summer Tribunalmember Trerise retired and the case was reassigned to Tribunalmember Devyn Cousineau, who wrote the denial decision. I did not post about it when we learned of the assignment because we thought UBC might choose to object to her and did not want to give them any pretext to do so. Tribunalmember Cousineau will handle the remainder of the case, including the hearing. She has also handled Stephanie Hale Sparks’ case and hearing. I think this is a good appointment in part because she is already familiar with the way the University was structured, the policies in place at the time of events, etc. and so the hearing will go faster because we will not have to spend as much time explaining them.

What happens next?

The Tribunal is reaching out to both sides to schedule the hearing. I hope it will be set for next summer, 2022. With respect to pandemic precautions, the Tribunal has done hearings with remote witnesses, so even if public health conditions allow some of the hearing to take place in person, I imagine that it would be possible to have remote witnesses again. This is great news because I understand that many witnesses have moved away from Vancouver, so they could avoid the expense of traveling in person.

Clea and I need to decide which documents to present and how to do it without taking up too much hearing time. I am considering hiring a legal assistant to assist with this work and I am happy to take recommendations.

We also need to speak with people who would testify as witnesses. If you would like to be a witness, and we have not spoken about it, please reach out to let me know.

I will return to publishing a blog update monthly now that the case is moving again.

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.

Editorial, Media

Editorial – UBC’s Legal Tactics Help Cover Up Misconduct

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By Caroline Grego, Ph.D., Glynnis Kirchmeier, M.A., and additional signatory Stephanie Hale Sparks

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.

Stephanie Hale Sparks is a Class Member and the complainant for her own human rights case against UBC for its repeated mishandling of her own report of rape and discriminatory process. Her case is currently being heard by the Tribunal.

Applications

Case Update #31 – May/June 2021

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We continue to await the Tribunal’s decision for UBC’s Application to Dismiss.

The Hale v. UBCO hearing ran for two weeks in May and additional dates have been set to hear more witnesses. Stephanie Hale Sparks, her treating psychologist Dr. Maertz and Security Services’ Troy Campbell testified and were cross examined. UBC intends to call former legal counsel Kimberley Beck and President Santa Ono and possibly others.

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.

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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.