Tag: application to dismiss

Applications, communication plan, disclosure

Case Update #5: My Initial Response to UBC’s Disclosure

kirchmeiervubc

This is the regular monthly update for June.

As you’ll recall from my last update, my lawyer Clea Parfitt and I had carefully reviewed the disclosure UBC provided on May 1, as well as its Application to Dismiss. We regard the disclosure as insufficient. Some dates were set for us to respond to the Application to Dismiss, but since Ms. Parfitt let everyone know she was out of the office from May 22 to June 10, the Tribunalmember said he would set aside the deadlines (that is, reschedule them later).

On 21 May 2018, my lawyer sent a letter to UBC and the Tribunalmember giving notice that we believe UBC has chosen simply not to follow the communication plan. Not one member of the Mordvinov class has been informed of this case’s existence. It is tiresome that UBC opted not to inform women of the existence of this case and their rights in the process, but somehow not surprising. (I’m not sure why UBC didn’t bother to inform the women it knows I speak with regularly.) In the letter, we listed the names of Mordvinov class members known to us and requested the Tribunalmember order UBC to provide details about reaching out to them.

UBC did apparently send out one small batch of communications to general class members, but only three women subsequently got in touch with me. We certainly expect a lot more than that. Notably, for example, Stephanie Hale has filed her own case. She is also a general class member. Since UBC has declined to give her the initial communication, she hasn’t been able to reach out to the Tribunal for guidance in whether to withdraw from my general class or not. Potentially, this could create trouble down the road for her. I could foresee a situation where UBC argues her case cannot continue because of something that happened in this one. The initial communication was supposed to prevent such situations from happening, and case progress was delayed for months over it. In the letter, we requested the Tribunalmember order UBC to disclose how it went about surveying staff to send out communications, and how many it sent. In a letter dated 23 May 2018, the Tribunalmember declined to make any orders until UBC gets a chance to respond on its own.

I will not post the 21 May 2018 letter because it has names in it.

Instead of filing the an Application for Documents right away, we decided to advise the Tribunalmember of the general nature of the deficiencies of UBC’s disclosure in a letter dated 22 May 2018. I’ve decided to post this letter in the Documents section of this website*, because it doesn’t into specific description of the evidence, which of course is confidential at this point.

On the same date, we sent a different letter to UBC describing, in specific detail, the ways the disclosure was deficient and requesting both general and specific documents. We did this in the hopes that UBC would take the opportunity to correct its deficiencies without forcing me to go through the expense and delay of a formal Application. (You betcha I’ll ask for costs if it makes me do that!) The 24-page letter to UBC makes it clear that I know exactly what is missing and that I’ll easily be able to use what I have so far to demonstrate that UBC has held back evidence in violation of its disclosure obligations. I last spoke with Ms. Parfitt a few days ago. UBC doesn’t appear to have regarded our letters as anything that required reply.

I’ve decided not to post the 22 May 2018 letter to UBC because it has lots of clearly identifying information and descriptions of the disclosure documents. I am happy to provide the letter to class members who request it, with the understanding that you must keep it confidential, and I will redact some names.

Since disclosure is supposed to be confidential, I won’t describe the specifics of the evidence here. But in general, the deficiencies fall into two categories. First, UBC censored – inexpertly – most names in the documents, for both students and employees. This was true even for the documents provided as evidence in the Application to Dismiss (which is against the rules unless you get permission from the Tribunal to do it – and UBC didn’t ask). I was amused by one particular email, produced several times, in which the redaction choices differed for each copy. I also found that I could copy-paste some pages onto a Word document and read redacted sections, a software bug which has been known for at least a decade. Still, overall the redactions severely affect legibility and prevent me from knowing who said what and when, and who was copied or forwarded emails. On rare occasion, whole lines or paragraphs are redacted.

The second big problem with the disclosure is that it appears that UBC provided partial files from only two employees. One file, from an employee in the Equity Office, appears slightly more complete than the other file, from an employee at Green College. However, I have disclosed evidence that should be in the files of these two employees, and yet UBC did not provide their own copies of evidence. There are abundant internal references to other documents which are not produced. Moreover, there’s plenty of public domain evidence which was not produced. Obviously, more than two employees have relevant documents. In the 22 May 2018 letter to UBC, I named over 30 additional employees known to have relevant documents.

There’s also an interesting aspect to the disclosure in that UBC disclosed evidence related to general class members. So, I presume UBC agrees I’m allowed to see all general class documents and has decided to waive the argument that general class member information isn’t relevant, confidential, or privileged. But this portion of disclosure is also obviously incomplete. First, the volume is far too small for these files to be complete; second, I already disclosed evidence related to some general class members which was not disclosed back by UBC even though it was the same case file; third, it excludes files for class members known to me; fourth, the number of cases is far below the number of complaints UBC has stated it received to the Board of Governors or the media; fifth, the number of cases is far below what would be expected due to the prevalence of sexual misconduct on college campuses or as per the AMS’s recent Academic Experience Survey, 13% of women students self-reported as experiencing sexual assault or misconduct (with a staggering spike of 38% of women in the Greek system. Also noteworthy is that by ethnicity South Asian victims were the highest group, at 19%, and LGBTQ students self-reported misconduct at 17%, or more than double the rate for heterosexual students). I predict UBC will attempt to argue that women just don’t report – to which I would counter, even multiple reports of a range of bad acts by DM were not treated as such. If one defines literally every fact pattern and circumstance (plus all the documents made about what women said) as not a report, it is easy to blame women for not reporting.

Anyway, it remains to be seen whether or not general class member documents will be relevant to official filings either of us make. Certainly, at the very least I will need the copies of what UBC already provided in uncensored form.

Should UBC reply to our queries or the Tribunalmember decides to issue an order, I will update this blog before the July monthly update.

*I will post this letter sometime this weekend and update this post

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 #3 – Waiting for Documents

kirchmeiervubc

The purpose of this blog post is to provide a case update on the monthly schedule. Not much has occurred since my last communication. As discussed in Case Update #2, UBC’s deadline for document disclosure and its anticipated possible Application to Dismiss is 1 May 2018. My lawyer has reached out to see if UBC might require an extension, but we have not yet heard back. I will update this blog post once we hear back. **Update: UBC has confirmed it is on track to meet the deadline and anticipates disclosing several thousand pages of documents. I will therefore be in Vancouver the week of 1 May.**

If UBC delivers the documents as expected, then I will be in Vancouver the week of 1 May and available to meet. Some class members have expressed interest in meeting. I am happy to do this.

Other than waiting, not much has happened on my end for the litigation. I will note that at the Board of Governors committee meeting this past Friday, 13 April 2018, the new Sexual Violence and Prevention Office (the centralized location on both campuses where victims are supposed to turn for services and to file Reports) reported to the BoG that in the last fiscal year 121 disclosures were received. She further reported that 11 Reports were in the investigation stage, and 25 “files” though it is not clear if the additional files are now closed, or yet to be investigated.

The full BoG meets on 19 April 2018, though discussion of Policy #131 is not on the agenda.

My first reaction to these statistics are that they are extremely low for the number of students enrolled – over 56,000 in the winter session of 2017 at UBC Vancouver, and over 9,000 in the winter session of 2017 at UBC Okanagan. One of the commitments UBC stated in Policy #131 is to reduce barriers to reporting sexual violence/misconduct.

It is unclear how exactly the experiences of survivors will be incorporated into improving future conduct of the office, although UBC employees are claiming to BoG that they will do so.

 

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.