statement of claim

No. Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN: Yasmin Bains, Leigh Della Siega, Quinn Dhaliwal, Micaela

Dickof, Cassandra Dypchey, Sarah Hillsdon, Brittany Hince Siwicki, Leanne Jung, Shayla Kaplan, Carrie McKewan, Taylor Nomura, Lindsey Ogilvie, Kelly Rumley, Carlyn Shimizu, Marga Sison, Lauren de Toit, Alana Westerhof, Olivia Zwick

Plaintiffs AND: Her Majesty the Queen in Right of Canada, Her Majesty the

Queen in Right of the Province of British Columbia, the University of British Columbia, the Board of Governors of UBC, the University of British Columbia Athletics & Recreation Department, Dr. Stephen Toope, Louise Cowin

Defendants

NOTICE OF CIVIL CLAIM

This action has been started by the plaintiff(s) for the relief set out in Part 2 below.

If you intend to respond to this action, you or your lawyer must (a) file a response to civil claim in Form 2 in the above-named registry of this court

within the time for response to civil claim described below, and (b) serve a copy of the filed response to civil claim on the plaintiff.

If you intend to make a counterclaim, you or your lawyer must

(a) file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and

(b) serve a copy of the filed response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim.

JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below. Time for response to civil claim

A response to civil claim must be filed and served on the plaintiff(s), (a) if you were served with the notice of civil claim anywhere in Canada, within 21 days

after that service, (b) if you were served with the notice of civil claim anywhere in the United States of

America, within 35 days after that service, (c) if you were served with the notice of civil claim anywhere else, within 49 days after

that service, or (d) if the time for response to civil claim has been set by order of the court, within that

time.

CLAIM OF THE PLAINTIFFS

Part 1: STATEMENT OF FACTS The Parties

1. The Plaintiff, Yasmin Bains, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Richmond, in the

Province of British Columbia.

2. The Plaintiff, Leigh Della Siega, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Surrey, in the Province

of British Columbia.

3. The Plaintiff, Quinn Dhaliwal, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Delta, in the Province


4. The Plaintiff, Micaela Dickof, a registered carded player on the 2013-2014 UBC Varsity



5. The Plaintiff, Cassandra Dypchey, a registered carded player on the 2013-2014 UBC

Varsity Softball team, currently resides in the City of Surrey, in the


6. The Plaintiff, Sarah Hillsdon, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Langley, in the Province


7. The Plaintiff, Brittany Hince Siwicki, a registered carded player on the 2013-2014 UBC

Varsity Softball team, currently resides in the City of Vancouver,

in the Province of British Columbia.

8. The Plaintiff, Leanne Jung, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Delta, in the


9. The Plaintiff, , Shayla Kaplan, a registered carded player on the 2013-2014 UBC Varsity



10. The Plaintiff, Carrie McKewan, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Vancouver, in the


11. The Plaintiff, Taylor Nomura, a registered carded player on the 2013-2014 UBC Varsity



12. The Plaintiff, Lindsey Ogilvie, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Surrey, in the


13. The Plaintiff, Kelly Rumley, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Surrey, in the


14. The Plaintiff, Carlyn Shimizu, a registered carded player on the 2013-2014 UBC Varsity



15. The Plaintiff, Marga Sison, a registered carded player on the 2013-2014 UBC Varsity



16. The Plaintiff, Lauren du Toit, a registered carded player on the 2013-2014 UBC Varsity

Softball team, currently resides in the City of Vancouver, in

the Province of British Columbia.

17. The Plaintiff, Alana Westerhof, a registered carded player on the 2013-2014 UBC Varsity



18. The Plaintiff, Olivia Zwick, a registered carded player on the 2013-2014 UBC Varsity



(collectively the “Softball Team”)

19. The Defendant, the University of British Columbia, Vancouver campus, (“UBC”), is a

publicly funded educational institution located at 2329 West Mall, in the City of Vancouver,

in the Province of British Columbia.

20. The Defendant, the Board of Governors of UBC (the “Board”), the majority having been

appointed by the BC Crown pursuant to the British Columbia University Act, and having an

office at 6328 Memorial Road, Room 121, in The Old Administration Building at UBC, in

the City of Vancouver, in the Province of British Columbia.

21. The Defendant, UBC Athletics & Recreation Department (“A&R”), having an office at 6081

University Road, Room 272, War Memorial Gym, in the City of Vancouver, in the Province


22. The Defendant, Dr. Stephen Toope (“Toope”), is the President and Vice-Chancellor of UBC

and resides at 6565 North West Marine Drive, in the City of Vancouver, in the Province of

British Columbia.

23. The Defendant, Louise Cowin (“Cowin), is the Vice President, Students at UBC, residence

unknown, and having an office at 6328 Memorial Road, UBC, in the City of Vancouver, in

the Province of British Columbia.

24. The Defendant, Her Majesty the Queen in Right of the Province of British Columbia (the

“BC Crown”) as represented by her agent, the Ministry of Advanced Education, with an

office at Room, 133, 501 Belleville Street, in the City of Victoria, in the Province of British

Columbia.

25. The Defendant, Her Majesty the Queen in Right of Canada (the “CDN Crown”) as

represented by her agent, the Minister of the Department of Canadian Heritage, with an

office at Canadian Heritage, 15 Eddy Street, in the City of Gatineau, in the Province of

Quebec.

26. UBC was established to carry out the CDN Crown’s and BC Crown’s policies. Its purpose is

to ensure delivery of quality educational programs consistent with the laws of Canada and

the Province of British Columbia for the benefit of Canadian society and the global

community.

27. UBC receives a large amount of its funding from the BC CROWN and CDN CROWN, and it

is dependent on and accountable to the BC CROWN and CDN CROWN for much of its

revenues.

28. The Defendant, the BC Crown, is responsible for education within the province of British

Columbia including post-secondary education. The BC Crown appoints the majority of the

Board.

29. The Defendant, the CDN Crown, delegates the powers to education to the BC Crown but

retains the right to resume the delegated powers and/or intervene as per the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Constitution

Act”) in certain circumstances.

30. The CDN CROWN has jurisdiction over inter-provincial and international trade as per the

Constitution Act.

31. UBC is the owner and landlord of the Local Areas, as defined by the Neighbourhoods

Agreement 2008 (the “UNA K”), collects Community Amenity Charges, and collects various

other charges that comprise the Neighbourhood Levy from strata developers, lessees, and

Residents.

32. The Board is responsible for the management, administration, and control of the property,

revenue, business, and affairs of the University. It is the duty of the Board to ensure that

UBC is well managed and that procedures are in place to review all aspects of its

operations with a view to increasing quality, pursuing revenue enhancement, and that

responsible stewardship of public resources is followed.

33. Toope was engaged as President and Vice-Chancellor of UBC in July 2006 and has held

those positions at all material times.

34. Cowin was engaged as Vice President, Students of UBC in October 2011 and holds that

position to present day.

35. UBC, the Board, Toope, and Cowin are controlled by the CDN Crown and BC Crown by

virtue of appointment, employment, the receipt of funds, direction and oversight of

spending, or otherwise, that it is an entity of all or any of them.

36. All of the Defendants owe a fiduciary duty to the Softball Team collectively and to each and

every one of the Plaintiffs.

UBC’s Vision, Values, and Mission Statements

37. UBC states that its vision as one of the world’s leading universities, creates an exceptional

learning environment that fosters global citizenship, advances a civil and sustainable

society, and supports outstanding research to serve the people of British Columbia,

Canada and the world.

38. UBC states that its values are, in alphabetical order:

a. Academic Freedom: The University is independent and cherishes and defends free

inquiry and scholarly responsibility;

b. Advancing and Sharing Knowledge: The University supports scholarly pursuits that

contribute to knowledge and understanding within and across disciplines, and seeks

every opportunity to share them broadly;

c. Excellence: The University, through its students, faculty, staff, and alumni, strives

for excellence and educates students to the highest standards;

d. Integrity: The University acts with integrity, fulfilling promises and ensuring open,

respectful relationships;

e. Mutual Respect and Equity: The University values and respects all members of its

communities, each of whom individually and collaboratively makes a contribution to

create, strengthen, and enrich our learning environment;

f. Public Interest: The University embodies the highest standards of service and

stewardship of resources and works within the wider community to enhance societal

good.

39. A&R states its mission statement is:

“To be Canada's definitive provider of university sport, recreation and fitness programs for the benefit of students and the University of British Columbia as a whole. UBC Department of Athletics and Recreation is committed to the University's Trek 2010 vision of enabling UBC to be Canada's best university by focusing on people, learning, community and internationalization.”

The Institution UBC

40. In the academic year 2000 – 2001 UBC had a female to male enrollment ratio of 60% to

40% respectively.

41. Between the academic years of 2001–2002 till 2013-2014 UBC has consistently had a

female to male enrollment ratio of approximately 55% to 45% in each academic year.

42. The majority of undergraduate academic programs at UBC require a minimum of 120

credits to qualify a student to graduate and receive their degree.

43. UBC defines a full time course load as 15 credits and/or 5 courses per academic term.

44. Dating back to 1993, at minimum, UBC has required their Varsity Athletes to maintain at

least 60% of a full course load in order to be eligible to play Varsity Athletics; this translates

to 3 courses per term and/or 9 credits per academic term.

45. Approximately 55,000 students attend UBC every year.

46. On November 23, 2010, according to the Board’s Meeting Minutes, the Board received an

update of the successful financial and operational performance of Athletics and Recreation

at UBC from A&R.

47. Each and every student attending UBC pays certain Non-Instructional fees in addition to

their tuition each academic year. The Non-Instructional fees designated for Athletics and

Recreation was $189.66 per student in the 2011-2012 year, $193.46 per student in 2012-

2013, and $200.04 per student in the 2013-2014 year. UBC collects these funds.

48. In each academic year between 2011 and 2014 UBC has collected approximately

$10,431,300 and $11,002,200 per year in Non-Instructional fees designated for Athletics

and Recreation.

49. A&R’s budget is approximately $6.2 Million per academic year.

50. UBC, A&R, and Cowin have repeatedly asserted and represented that the sport model that

was in place prior to the Sport Review was unsustainable due to monetary constraints.

51. A&R is charged with managing and distributing these funds, including proportioning them

amongst the various Varsity Athletics teams and intramural leagues and events.

52. In or about 1980 the A&R was given Ancillary status.

53. A&R has a staff of 29 individuals whom are tasked with the management, financial

comptrolling, marketing and promotions, alumni relations, and major gifts/donations of the

Varsity athletics programs.

54. In or about 2008 A&R investigated entering the NCAA league (the “NCAA Project”) and

leaving the Canadian Interuniversity Sport, formerly known as the Canadian Interuniversity

Athletic Union (the “CIS”).

55. Between 2008 and 2011 A&R did a full review of their varsity teams in conjunction with the

NCAA Project.

56. On or about April 26, 2011 a decision to not proceed with the NCAA application was made.

57. Following UBC’s decision to not proceed with the NCAA Project Toope promised the UBC

Alumni and UBC Students that he would personally work with other members of the CIS to:

“… take a leadership role in promoting reform in CIS – in governance, in the

creation of two divisions within Canada West, and in the rules concerning athletic

scholarships.”

58. In or about the Winter of 2011, the A&R was instructed by Cowin to conduct a review of all

its Varsity teams and programs (the “Sport Review”). The Sport Review was conducted

between the years of 2011 and February 2014.

59. There is no indication in the Board’s Meeting Minutes that they ever rescinded A&R’s

ancillary status and/or subsequently placed the A&R under Cowin’s directorship.

Gender Equity and University Sport

60. UBC was a founding member of the CIS and remains a member to date. Membership in

the CIS requires participating Universities to meet certain conditions of membership

outlined in the CIS’s Bylaws, Policies and Procedures 2013 – 2014.

61. The CIS Article 2.4.1 states that “The Board of Directors may suspend or terminate the

Membership of a Member of Canadian Interuniversity Sport who no longer meets the

Conditions of Membership stipulated in article 2.2 of this by-law.

62. The CIS Bylaw 10.10.2.7 states that a CIS Member must have “Demonstrated evidence of

a commitment towards gender equity (e.g. budgets, coaching salaries, financial aid to

student-athletes, current equity policy, etc.). “

63. UBC is a member of the Canada West Universities Athletic Association (“Canada West”)

and must adhere to section 9: Gender Equity of the Canada West Operations Manual

containing the By-laws and Policies.

64. A&R provides more males with the opportunity to be Varsity Athletes than it provides for

females.

65. A&R provides larger financial resources for the men’s varsity teams than it provides for the

women’s varsity teams with respect to operational budgets, coaches’ salaries, scholarships

and facilities.

66. The actions of UBC, the Board, Toope, Cowin, and A&R breach the CIS and Canada West

Bylaws, Policies and Procedures regarding gender equity. This puts all UBC Varsity sports

teams that compete in the CIS at risk of being suspended or terminated from CIS

competition.

67. The CIS’s 2013 – 2018 Strategic Plan includes the following statement, in part,

“In addition to domestic competition, Canadian interuniversity sport also provides

high performance international opportunities for Canadian student-athletes at both

winter and summer Universiades, as well as single-sport world university

championships. These FISU competitions provide student-athletes an opportunity to

represent their country and experience the next level of competition.

Canadian Interuniversity Sport gives student-athletes five years of eligibility to

compete for their university, giving them access to a high quality education that they

will rely on for the rest of their lives. Canadian universities are among the best

places in the world to study and compete. We are fortunate to have many of the

brightest young men and women in Canada on our sports teams. This is highlighted

by over 2,600 student-athletes who compete for our varsity teams and hold an 80

percent or above academic average.

Our student-athletes will become Canada’s next doctors, lawyers, teachers, CEOs,

and social workers. Canadian interuniversity sport is an exciting and vibrant

experience, attracting the best minds and bodies in the country.”

68. The opportunity to compete as a Varsity athlete is a benefit under the laws of Canada and

British Columbia for every student athlete with the potential to compete on them, Canadian

or not.

69. The opportunity to participate in Varsity sport is a significant benefit for the participant of

any sport. The benefits extend beyond university to, including, though not an exhaustive

list, physical health, mental health, employment opportunities, and participation on

Corporate Boards.

70. It is the policy of the CDN CROWN to encourage, support and participate in educating both

women and men on an equal basis with the view of having their formal and informal

education benefitting Canadian society socially and economically in the future.

71. The CDN Crown has the power to enact remedial laws to correct provincial incursions on

minority educational rights under s. 93 of the Constitution Act.

72. Parliament gave power over amateur sport to the Department of Canadian Heritage in the

Department of Canadian Heritage Act, S.C. 1995, c. 11.

73. The Department of Canadian Heritage created an organizational sub-unit with the name

Sport Canada to manage its responsibilities with respect to amateur sport and with the

mandate to provide leadership, policy direction and financial assistance for the

development of Canadian sport at the national and international level.

74. Sport Canada created policies to guide its actions including the Sport Canada Policy on

Women in Sport (the “POWS”) and the Canadian Sport Policy (the “CSP”) among others.

75. Sport Canada created the POWS which requires Sport Canada to ensure that its funds are

expended in such a way as to achieve the objective of equality for women in sport.

76. The POWS was created to ensure that Sport Canada and activities it controlled, funded or

both were conducted in accordance with the gender equality requirement of the Charter.

77. The failure to include women’s softball as a UBC Varsity sport is a violation of every

woman’s right to the equal benefit under the law guaranteed by section 15(1) of the

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 (the “Charter”) and, in particular, a

violation of the section 15(1) rights of the women denied the opportunity to qualify for and

participate in intercollegiate athletics in the same proportion as men and/or in the same

ratio as female to male enrollment at UBC.

UBC Varsity Softball Program

78. In or about 2008 the A&R approached Rick O’Connor (“O’Connor) to establish and develop

a Varsity Women’s Softball program to further A&R’s interests and in conjunction with the

NCAA Project. An agreement between O’Connor and A&R was reached, and O’Connor

fulfilled his obligations.

79. In or about 2010 A&R told the UBC Varsity Softball program and Softball Team that they

had reached an agreement with a developer (the “Developer K”) that included a clause

requiring the developer to build a softball facility to the specifications necessary for

University level of play.

80. On September 8, 2010 Bob Phillips, A&R’s Director at the time, stated at the coaches

meeting that there was a tender out to build a softball facility on Matthews field.

Subsequent to this announcement, Phil Thom (“Thom”), the first UBC Varsity Softball

coach, was told by Dan Cooper, Field Manager for Thunderbird Park, the quote came in at

$200,000.

81. Thom, Dan Cooper, and Kavie Toor (“Toor”), Director for Athletic fields and buildings met at

the location for the future softball facility, referred to at that time as the future Noble Park

Diamond (“Diamond”). Toor stated the developers would build the park and the Diamond

and A&R would pay the $25,000 to build the dugouts.

82. Noble Park is located within the Local Area known as the Wesbrook Place Neighbourhood

on the lands of UBC.

83. The UNA K signed between UBC and the University Neighbours Association (the “UNA”)

outlines the principles by which UBC’s facilities may be accessed by Residents and by

which the UNA’s Facilities and Amenities may be accessed by the Academic community.

84. In 2012 the Diamond was built but it did not meet University Varsity level specifications.

85. In 2012 subsequent to discovering that the Diamond had not been built to appropriate

specifications Thom and Toor met and Toor stated they would pay for the first $30,000 of

upgrades required. These upgrades were never started.

86. The Diamond was used by the community at large in the fall of 2012 and spring of 2013.

87. On or about June 25, 2013 A&R hired the first full-time Head Coach for the UBC Varsity

Women’s Softball program (“Varsity Softball”).

88. A&R made representation that the Head Coach position would be for a 5 year commitment

and would become a full-time regular position under the management and professional

classification.

89. The Softball Team was invited to hold a clinic on the official opening day of Noble Park

scheduled for August 2013 for the residents of the UNA and they voluntarily did so.

90. In or about the fall of 2013 Toor told Thom that he was unable to get an acceptable working

agreement for the Diamond, that there were all kinds of legal issues, and he would not be

proceeding with getting a working agreement for the use of the Diamond.

The Sport Review

91. Cowin was responsible for all elements of design and selection of those involved in the

Sport Review.

92. In the Fall of 2012 Cowin hired Ashley Howard for the position of Manager Director of A&R.

93. An Advisory Assessment team was assembled for the Sport Review to review the current

varsity teams and interested AMS clubs. It consisted of three alumni, two students, one

recently graduated student-athlete, one faculty member, one high performance sport

representative, and two representatives from A&R (the “Assessment Panel”).

94. On December 9, 2013 the A&R announced and distributed the finalized Criteria including

the weighting and associated measures that formed the basis of the assessment phase of

the Sport Review.

95. The Criteria included five categories

a. Competitive Success, Competition, and Progression;

i. Competitive Success;

ii. Competition Structure;

iii. Sports Progression and Pathways;

b. Supports for Competitive Success;

iv. Quality Facilities;

v. Coaching;

c. Community Support and Tradition;

vi. Alternative Funding Support;

vii. Community Support Factors;

viii. Tradition;

d. Partnerships

ix. Partnerships with External High Performance Sports Organizations

x. Campus and Community Partnerships and/or Relationships;

e. Fit With University Mission;

xi. Student Athlete Academic Success;

xii. Strategic Fit

1. UBC Vision (Place & Promise)

2. Vice President, Students;

3. The Vision for A&R, of which varsity sport is a critical component

96. The A&R made recommendations regarding what Varsity sports should become Enhanced

Varsity, Continued Varsity, Hybrid Funding Varsity, and Competitive Club to Cowin the Vice

President, Students department (the “VPS”).

97. On or about January 21, 2014 UBC announced the first group of Varsity sports to secure

status as Enhanced Varsity and/or Continued Varsity.

98. Varsity Softball was not one of the teams that secured their status after Stage 1 of the

Sport Review. As a result, Varsity Softball prepared submissions and made a presentation

as required by Stage 2 of the Sport Review.

99. After Varsity Softball’s Stage 2 presentation they were told by the selected members of the

Assessment Panel present to hear Varsity Softball that they had the best presentation of all

Stage 2 varsity team presentations.

100. On or about February 28, 2014 UBC announced the final list of Varsity sports to secure

Enhanced Varsity, Continued Varsity, and Hybrid Funding Varsity.

Varsity Softball’s Sport Review Assessment

101. In Stage 1 of the Sport Review the Varsity Softball received the following feedback from the

Assessment Panel, A&R, and Cowin regarding the respective categories in the Criteria:

1. Competitive Success,

Competition Structure,

Progression

Some competitive success, but limited

to date

Challenging competitive structure

requiring significant travel –

independent

Not a key part of the progression

pathway

2. Supports for Competitive

Success

Challenges with facility access

Very good on coaching

3. Community Support and

Tradition

Some donors and sponsorships

Limited community engagement;

limited campus engagement and

challenges with lack of campus games

4. Partnerships Limited, informal partnerships

Limited wider community involvement

5. Fit with University Mission Good academics (with caveat on the

short season making it easier to

achieve good academics

Some student leadership/involvement

on campus/community, but not as

much as other teams

102. Softball is not currently included in the International Summer Olympics, however it is one of

the fastest growing sports amongst girls in Canada.

103. The lack of a softball facility had a negative impact for the Softball Team in the Sport

Review that was conducted as per the Criteria. The responsibility and accountability for the

building of a softball facility falls squarely on UBC, the Board, Toope, the BC CROWN, and

the CDN CROWN.

104. Varsity Softball, over its history, has been financed by private donors and sponsorships in a

ratio of not less than 60% in any budget for any academic year since its inception.

105. The Softball Team trains and competes, in both exhibition and league play, throughout the

majority of the UBC academic year.

106. To date no member of the Softball Team has been placed on academic probation, been

suspended or expelled, failed to continue their academic studies in a timely manner, or

graduate on time.

107. Several members of the Softball Team have been named All Canadians; a designation

awarded by CIS for student athletes who maintain an academic average of 80% or higher

in an academic year.

108. The Softball Team was very involved in student leadership and campus/community

engagement. Specifically, but not limited to:

a. three players were on the student athlete Thunderbird Athletic Council;

b. several players volunteered at the Telus Millennium Breakfast;

c. seven players participated in the “I’m Going to UBC” program;

d. one player assisted in running a mentorship program consisting of providing 6

seminars and liaising between professionals and participants;

e. two individuals participated in the Relay for Life for cancer awareness;

f. many of the Softball Team players voluntarily run clinics for youth in BC and their

home provinces and assist with coaching of teams in the minor associations during

the academic year and in the summer; and

g. the Softball team participated in Lace Up for Kids, Breast Cancer Awareness Month,

clinics for Special Olympics.

UBC Varsity and NAIA

109. The National Association of Intercollegiate Athletics (the “NAIA”) is comprised of teams

from both the United States of America and Canada.

110. The Cascade Collegiate Conference (the “CCC”) is a conference belonging to the NAIA.

The CCC has an opening for a women’s softball team and the Softball Team has the

support of three current participating member teams to be chosen as the inductee to fill that

position.

111. The UBC Varsity golf, baseball, track and field, and cross country running teams all

compete in conferences overseen by the NAIA, and all of them were accepted as

Continued Varsity or Hybrid Funding Varsity teams after stage 1 or stage 2 of the Sport

Review.

112. The NAIA permits the individual teams within their league to sell tickets and profit from

those proceeds as individual teams. This amounts to interprovincial and international trade

to which the CDN Crown has jurisdiction as per the Constitution Act.

113. UBC continues to have the duty and ability to include and fund a UBC Varsity Softball

team, either with the agreement of other parties or unilaterally, and any provision or

rationale that purports to prevent it from doing so is illegal or otherwise rendered void and

of no effect.

Breach of Contract and Misrepresentation

114. Individual members of the Softball Team were induced to attend UBC on the

representation that:

a. a Varsity Softball team existed;

b. a team would be funded in the future;

c. a coach would be provided; and

d. a softball facility appropriate to University level play would be built to mandated

specifications.

115. The Softball Team relied on these representations and were induced to act upon them

despite having offers from other schools, some including significant scholarships.

PART 2 – RELIEF SOUGHT

1. The Plaintiffs seek specific performance that UBC construct or cause to be constructed a

softball facility built to intercollegiate play specifications;

2. The Plaintiffs seek specific performance that UBC Women’s Softball team be returned to

full Varsity status or alternatively Varsity Hybrid;

3. The Plaintiffs ask that the Sport Review and all its consequences be declared null and void;

4. The Plaintiffs seek damages for distress;

5. The Plaintiffs seek punitive damages;

6. As a further consequence of the negligence by the Defendants herein, the Plaintiffs have

suffered and continue to suffer special damages, the particulars of which will be provided at

trial;

7. The Plaintiffs seek costs and court ordered interest; and

8. The Plaintiffs seek further damages that this Court deems just.

PART 3 – LEGAL BASIS

1. The legal basis for the claim is gender discrimination, breach of fiduciary duty, breach of

contract, misrepresentation, and negligence.

2. The Softball Team claims breach of contract and misrepresentation against UBC, A&R, and

Toope.

3. The Softball Team claims breach of fiduciary duty against all the Defendants.

4. The Softball Team claims gender discrimination against the CDN Crown, the BC Crown,

the Board, UBC, Cowin, and A&R.

5. The Softball Team claims negligence against the CDN Crown, the particulars of which are:

a. failing to enact remedial laws to correct the imbalance in education and University

athletics funding under s. 93 of the Constitution Act; and

b. failing to supervise and hold Sport Canada accountable to its mandate to provide

leadership, policy direction and financial assistance for the development of

Canadian sport at the national and international level where University Athletics are

involved.

6. The Softball Team claims negligence against the BC Crown, the particulars of which are:

a. failing to supervise UBC and its Board to ensure that UBC is providing equality of

educational opportunities between men and women; and

b. failing to enact any and all measures necessary to correct the imbalance in the

equality of educational opportunities between men and women.

7. The Softball Team claims negligence against the Board, the particulars of which are:

a. failing to follow their mandate to provide quality educational programs on an equal

basis to women and men;

b. failing to exercise their powers in accordance with their mandate of providing quality

education to the public as their paramount concern;

c. failing to exercise their powers as per the standards of good stewardship of public

resources;

d. failing to control and supervise the conduct of Toope and Cowin;

e. failing to control and supervise the conduct of the A&R;

f. failing to supervise and enforce the terms of the Developer K relating to the

construction of a softball facility to University level of play specifications; and

g. failing to designate all sport and recreation facilities, fields, and green space parks

on the University Endowment Lands as Informal Learning Spaces.

8. The Softball Team claims negligence against UBC, the particulars of which are:

a. failing to ensure equality of educational opportunities between men and women,

including varsity athletics, representative of its student population;

b. failing to design, supervise, and conduct a fair Sport Review process;

c. failing to supervise Toope, Cowin, and A&R in their conduct of the Sport Review

process; and

d. failing to appoint individuals with appropriate backgrounds and expertise in sport

participation, sport organization, and sport management to the Sport Review

Assessment Committee.

9. The Softball Team claims negligence against Toope, the particulars of which are:

a. failing to supervise and control Cowin; and

b. failing to supervise and control the conduct of the Sport Review.

10. The Softball Team claims negligence against Cowin, the particulars of which are:

a. exerting her influence and powers in areas outside her conferred discretion;

b. failing to disclose conflicts of interest; and

c. failing to act in a manner that is in the best interests of UBC and its students.

11. The Softball Team relies on the Constitution Act, 1982, being Schedule B to the Canada

Act 1982 (U.K.), 1982, c. 11.

12. The Softball Team relies on the Canadian Charter of Rights and Freedoms, Part I of the

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

13. The Softball Team relies on the University Act, [R.S.B.C. 1996] c. 468.

14. The Softball Team relies on the Negligence Act, [R.S.B.C.1996] c. 333.

Plaintiff's address for service:

#221 -119 West Pender Street Vancouver, BC V6B 1S5

E-mail address for service (if any): [email protected] Place of trial: Vancouver, British Columbia The address of the registry is:

800 Smithe Street Vancouver, BC

Date: April 15, 2014 ______________________________

Kerri Farion Signature of Plaintiff Lawyer for plaintiff(s)

Rule 7-1 (1) of the Supreme Court Civil Rules states:

(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists i. all documents that are or have been in the party’s possession or control and

that could, if available, be used by any party at trial to prove or disprove a material fact, and

ii. all other documents to which the party intends to refer at trial, and (b) serve the list on all parties of record.

APPENDIX

Part 1: CONCISE SUMMARY OF NATURE OF CLAIM:

Part 2: THIS CLAIM ARISES FROM THE FOLLOWING:

X Another Cause

statement of claim

Documents