Tag: application

Applications, Case Documents, communication plan

Case Update #4 – Plan to Respond to UBC’s Disclosure and Application to Dismiss

kirchmeiervubc

This is the regular monthly update for May. My apologies for it being slightly later than the 15th, as we hoped to have more substantive news to share.

I wrote earlier this month to the folks whose emails I have that yes, UBC did provide documents on its disclosure deadline of May 1. As expected, it also produced an Application to Dismiss that same date. I have posted the Application to Dismiss in the “Documents” section (and also re-ordered the section for easier navigation). Five employees of UBC produced affidavits in support of the Application; I didn’t post these, as they have documents attached as exhibits. Unlike in civil and criminal court, for the Tribunal’s process, not all filings by parties automatically mean the exhibits are public. However, class members who are interested in reading the affidavits should reach out to me and I will provide them, with the caveat that you must keep the documents confidential for now.

Also of note in the Documents tab – I posted a letter from the Tribunalmember dated 5 December 2017, which I had earlier inadvertently missed. In it, he orders me not to contact anyone who uses this website unless she reaches out first. I wasn’t doing that anyway, nor do I have the technical capability to sleuth and figure out how to find site visitors, but UBC was concerned that I would. Rest assured, I haven’t and I won’t.

After an Application to Dismiss is filed, the process is that the Tribunalmember will set a deadline for me to reply. He has done so for a date sometime in June, but this date will certainly be moved. First, my attorney has a previously scheduled two week vacation around that time. Second, we plan to file an Application for Documents shortly, which would set the Application to Dismiss deadlines on hold until all the fighting about document disclosure is wrapped up.

An Application for Documents is a formal request to the Tribunal that it order the other party to disclose relevant documents. Either side can make the Application. From May 1 to May 8, I sat in my lawyer’s office and reviewed the documents UBC disclosed. (We also interviewed several witnesses, and I retained an expert witness to comment on the Application to Dismiss.) UBC’s disclosures are quite insufficient in a number of ways. I am not going to describe the particulars of what is wrong right now because my lawyer is drafting our Application for Documents. However, I will post that as soon as she files it.

I will say that if anyone has documents related to the Green College, especially correspondence with Mark Vessey, or records of meetings with him and Clark Lundeen, or records of any concerns about sexual harassment/assault/misconduct taking place in the 2011-2014 timeframe, I would love to see these. You can email me, or mail them directly to my lawyer Clea Parfitt at 407 – 825 Granville St, Vancouver, BC V6Z 1K9, or fax them to her at 604-689-5572. I know, for example, that the Green Lanterns originated in 2013, but nothing regarding why Green College residents chose to create the program is disclosed.

We are also extremely concerned that UBC apparently just chose not to inform lots of class members with the Initial Disclosure. This is obvious for both the Mordvinov Class and the General Class, as many women who should have received the Initial Disclosure told me they did not, and so far an extremely small number of women from the General Class have gotten in touch. Given how many women who reported to UBC reach out to me just in general, I somehow doubt that women are choosing not to learn more about the case.

I have come to believe that the argument that “women don’t report” is actually victim-blaming – because it is abundantly clear that women do report, whether to the police, to their institutions, or to people they trust, and in response their complaints are not properly recorded, they are told to shut up, or they are told that their experiences don’t matter and that they are not worth protecting. Much verification of the women’s stories in the Weinstein case and others since have shown that women did contemporaneously tell others about what happened to them; but the cops and other investigating authorities chose not to interview corroborating witnesses. The issue of whether UBC is capable of “hearing” reports of sexual violence is fundamental in this case.

So, for right now we are drafting various documents to address the documents, the communication with class members, and the Application to Dismiss. As we file these documents I will update this website and send out email notices.

communication plan

Case Update #2 – Communication Schedule and the Disclosure Process

kirchmeiervubc

Today, March 21, is the two year anniversary of the filing of the complaint. The purpose of this blog post is to discuss what has occurred in the case since the last website update, in November 2017, and to set out the communication schedule I will follow for the rest of the case, and describe what has happened in the disclosure process thus far.

COMMUNICATION

UBC sent out the initial communication to group members on Wednesday, 28 February 2018. I drafted the initial communication and UBC and the Tribunal member approved it. My understanding was that I was only permitted to include certain documents and verbiage on the website until after the initial communication went out, so that is why I have not updated this website since creating it in November 2017. I also recently completed a cross country move beginning in March.

The initial communication posted on this website is slightly different than the one UBC sent out, due to it being sent several months after I drafted it. I believe the minor changes are limited to updating the language to be current in the “what comes next” section.

From now on, I will schedule blog updates on the 15th of every month, or more frequently if there is something to report. I will post the updates here, and I will also email a link to the class members who have chosen to share their email addresses with me. If you have a special request for communication, please let me know.

Along with the blog posts, I will also update the Documents tab with new documents, if any. Today I posted correspondence in my possession, by date, since September 2017 to the present.

I already believe that UBC has not sufficiently distributed the initial communication to all class members. At least one class member in the Mordvinov class let me know she did not receive the communication. However, it is difficult for me to monitor who received the initial communication. UBC objected to seeking out the specific number of complaints/reports it received on privacy/confidentiality grounds (see the Documents tab). If you know of someone who may be a class member, please pass on this information and let me know if she did not receive the initial communication.

THE DISCLOSURE PROCESS

As mentioned in the initial communication, UBC filed its response to the complaint in October 2017 (see the Documents tab of this website). After a respondent files a response to a complaint, the next step is that the parties exchange all relevant documents in their possession in a process called disclosure. (This is slightly different than discovery, which is used in civil and criminal cases.) The complainant first produces the documents in her possession to the respondent, which is initially scheduled to a few weeks after the response is filed. The respondent then has a month to produce its own documents. The respondent also has an additional deadline on the same date as its disclosure deadline to file what is called an Application to Dismiss. The Application will argue why the respondent believes a complaint should be dismissed prior to a Hearing. If the respondent wins, the case is over; if the complainant wins, then the Tribunal member schedules a Hearing. Here is a link to a list of reasons why a complaint might be dismissed.

The Application to Dismiss is an optional procedure, but I believe UBC intends to file one. I will have the opportunity to provide a written response to the Application to Dismiss. Importantly, though, I have a right to all relevant documents in UBC’s possession prior to answering the Application. Upon receiving UBC’s disclosures, my first task will be to sort through and figure out whether all relevant documents were actually produced. If not, then I can file an Application of my own to request the Tribunal order UBC to release more documents.

My first deadline to produce documents was in November 2017. However, UBC allowed me an extension several times, due to the fact that I had so many documents for my counsel to review, and she also had Hearings scheduled for other clients. We sent documents to UBC in two large batches, the second of which was delivered on 23 February 2018. UBC’s deadline to produce documents to me had been extended to 3 April 2018. However, just yesterday (20 March 2018) my counsel granted an extension to UBC to 1 May 2018.

Documents produced in disclosure are confidential, so I won’t be posting anything I receive from UBC except as part of the litigation (e.g. if it was an exhibit to a filing, or used as evidence in Hearing). UBC is also not allowed to share or distribute anything I give them outside of the litigation. However, if I’ve disclosed a document to UBC, I can share it myself, and certainly I can share it with class members.

If a class member believes she has something which is relevant to the litigation that I do not have, please let me know. I am also happy for you to produce it directly to my counsel rather than to me if you prefer.

MISCELLANEOUS

RETALIATION: Retaliation is strictly prohibited by the Tribunal. Any person associated with the case in any way should not suffer consequences because they are, or are believed to be, associated with this case. This includes: providing documents; being named in documents; being a (potential) class member; communicating with me; testifying as a witness; or other participation in litigation. Please let me know immediately if you believe you are experiencing retaliation so I can inform the Tribunal.

COUNSEL: For your information, my counsel is Clea Parfitt. Counsel for UBC is Michael Wagner and Jennifer Devins of Roper Greyell LLP in Vancouver. The current Tribunal member assigned to my complaint is Norman Trerise.

OTHER CASES: This case is the third known human rights complaint filed in Canada against a university alleging systemic discrimination based on sex due to mishandling of reports of sexual misconduct. The first case was Mandi Gray’s case against York University in 2015, which settled; the second was Tarrah McPherson’s case against Mount St. Vincent University, which was rejected by the Nova Scotia Human Rights Commission (the complaint process differs between the provinces). Since I filed two years ago to the day, another complaint against UBC alleging discrimination based on sex and mental/physical disability was filed in 2017 by former student Stephanie Hale. It has been accepted and is moving forward. Cases have also been filed and accepted against two different universities on Vancouver Island. Across Canada, students have filed cases against universities including Concordia University, the University of Toronto, the University of Ontario Institute of Technology, and others.