CHRR Doc. 80-043
Walbar Machine Products of Canada Limited
Applicant
Ontario Human Rights Commission
Respondent
September 25, 1980
Before:
Ontario Board of Inquiry, M.R. Gorsky
Place:
Toronto, Ontario
Appearances by:
John A.M. Judge and R. Bruce Pollock, Counsel for the Commission
R.W. Cosman, Counsel for the Respondent
PRODUCTION OF DOCUMENTS — examination for discovery particulars — HUMAN RIGHTS COMMISSIONS — authority to refuse to supply information to parties — COMPLAINTS — particularity — BOARDS OF INQUIRY / TRIBUNALS — authority to order human rights commission to deliver reasonable information of allegations
Summary: An Ontario Board of Inquiry, in an interim decision, considers the respondent's request for the Commission to provide it with particular information regarding the allegations in advance of the hearing. The Board rules on the general application of its powers to require disclosure under the Statutory Powers Procedure Act ("SPPA") and on the specific requests for information made by the respondent, Walbar Machine Products of Canada Ltd.
Prior to the Board of Inquiry hearing, the respondent company served a notice of motion for an order adjourning the hearing until the disposition for an application for judicial review pending in Divisional Court. That application concerned the Commission's duty under ss. 6 and 8 of the SPPA to provide the respondent with reasonable information of the allegations contained in the complaints.
In its motion, the respondent asserted that proceeding with the hearing would violate the SPPA because of the Commission's failure to provide the information the Act requires. According to the respondent, the SPPA requires the Commission to produce not only the facts upon which it relies in making allegations in the complaint, but also the evidence upon which it intends to rely in proving those factual allegations. The respondent argued for a very broad interpretation of the Act's requirement that it receive "reasonable information" of any allegations made in the complaint. Furthermore, the respondent argued that the Board did not have the jurisdiction to require the Commission to produce the information that it seeks, and that therefore the matter would have to be decided by the court.
The Commission argued for a much narrower interpretation of that provision. It submitted that s. 8 of the SPPA would be satisfied if the Commission were to provide a written statement of the material facts upon which it intended to rely at the hearing in support of the allegations. However, the Commission suggested that the Act did not require it to furnish either documents or evidence to be used in supporting the factual allegations. The Commission further urged the Board to adopt a narrow understanding of the term "facts", and specifically argued that it should not be required to disclose such matters as where and when an incident which gives rise to an allegation took place and the names of persons unnamed in the complaints who allegedly made statements giving rise to an issue involving allegations in the complaint.
First, the Board finds that it does have the jurisdiction to decide these issues and to order compliance with its decision. Any party dissatisfied with the Board's order can apply to the courts for a review of the decision. The Board further holds that s. 8 must be interpreted in relation to its context within the Act. The purpose of requiring information to be furnished is to define the issues and prevent surprise by enabling the responding party to prepare for the hearing. In general terms, this means that s. 8 relates to the provision of "reasonable information of ... allegations ..." and not with the means whereby those allegations will be proved. It is concerned with particulars to know a case and not with evidence as to how the case will be proved. According to the Board, this means providing a written statement of the material facts upon which the Commission intends to rely in support of the allegations. Such material facts should include when and where the alleged acts that raised the issues occurred, as well as the names of people who are referred to in the allegations. It does not include discovery of documents for inspection or statements of evidence by which it intends to make out a case.
The Board goes on to make specific rulings on specific items of information requested, noting that the Commission should provide copies of documents rather than simply producing the originals for inspection.
INTERIM DECISION
1Prior to the hearing I was served with a notice of motion on behalf of Walbar Machine Products of Canada Limited, hereinafter referred to as "Walbar", which was for: An order adjourning the hearing of the complaints until the disposition of an application for judicial review pending in the Divisional Court. The alternative grounds were:
(1) That it would be a violation of sections 6 and 8 of the Statutory Powers Procedure Act, S.O. 1971, c. 47 (hereinafter referred to as the "Act"), to proceed with this hearing by reason of the failure of the respondent, the Human Rights Commission (hereinafter referred to as the "Commission"), to provide to the applicant reasonable information of the allegations contained in the complaints.
(2) That the Board of Inquiry lacks jurisdiction to make an order granting the relief sought by the applicant from the Divisional Court, by way of Application for Judicial Review. In the further alternative Walbar requested an adjournment, should the Board find that it has jurisdiction. Such an adjournment was requested to enable Walbar to examine particulars furnished by the Respondent and thereafter determine what other particulars it deems ought to be provided and to permit it, if it so decides, to proceed with the Application for Judicial Review. (See pp. 4 and 8 of the Transcript.)
2Argument on the motion was heard on the 2nd day of June 1980, and this intermediate order is restricted to my ruling on the said application.
3As I have concluded that a Board of Inquiry appointed pursuant to s. 14(a)(1) of the Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended (hereinafter referred to as the "Code"), has jurisdiction to make an intermediate order with respect to the information required to be furnished pursuant to ss. 6 and 8 of the Act, I will consider whether Walbar is entitled to the relief it seeks under the two sections, with the rights of Walbar under s. 8 being discussed first. Section 8 is as follows:
Where the good character, propriety of conduct or competence of a party is an issue in any proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.
4Whereas, in an action brought in the Supreme Court, a party is usually entitled, on an examination for discovery, to discover from a party opposite in interest the facts upon which the latter party relies in making allegations in the pleadings; Mr. Cosman, counsel for Walbar, argued that s. 8 of the Act required the Commission to go even further and disclose the evidence upon which it intended to rely in proof of its factual allegations.
5It was submitted, on behalf of Walbar, that the words "reasonable information" in s. 8 of the Act should be given a very broad interpretation. Such an interpretation, it was suggested, should encompass a statement, not only of the material facts with respect to the allegations affecting the good character and propriety of conduct of Walbar, but, as well, the evidence by which such allegations were intended to be proved, along with the production of documents touching and concerning the said allegations. Mr. Cosman took the position that he was entitled to the equivalent of discovery of documents, along with a form of discovery of evidence, which went beyond that encompassed in examination for discovery in a Supreme Court action.
6It has become necessary to deal with most of the requests relating to the allegations to be referred to hereinafter. This is a result of my being assured by counsel for the Commission that he intends to rely, except where otherwise specifically noted, on each of the allegations contained in the complaints and it was acknowledged that each of them created an issue involving the good character or propriety of conduct of Walbar.
7Counsel for the Commission strenuously argued against such a broad interpretation of s. 8 of the Act as was supported by counsel for Walbar. He argued that the requirements of s. 8 of the Act would be satisfied by the furnishing of a written statement of the material facts intended to be relied upon by the Commission in support of allegations giving rise to an issue involving the good character or propriety of conduct of Walbar. In addition, it was argued on behalf of the Commission that s. 8 of the Act did not include the right to either of the furnishing of the documents or the evidence, as requested on behalf of Walbar.
8Although counsel for the Commission was agreeable to furnishing a statement of facts, as above noted, he took a very restrictive, and I conclude incorrect, position as to what was encompassed in the word "facts". It was his position that such matters as, where and when an incident took place, giving rise to an allegation within the meaning of s. 8 of the Act, represented a statement of evidence and not fact. Such a submission fails to differentiate between the material facts relied on with respect to an issue under s. 8 of the Act and the evidence by which it is intended to establish those facts. It is sometimes very difficult to discover the "line of demarcation between disclosure of facts on which a party relies and the evidence in support of the fact" (Rubinoff v. Newton, 1966 CanLII 198 (ON HCJ), [1967] 1 O.R. 402, at p. 404 per Haines J.). This is not such a case.
9It was also argued by counsel for the Commission that an order made pursuant to s. 8 of the Act, requiring the Commission to furnish the names of persons unnamed in the complaints, who allegedly made statements giving rise to an issue involving allegations affecting the good character or propriety of conduct of Walbar, should not be furnished. Two arguments were made in support of this position:
(1) That the disclosure of the names of such persons could result in their being joined as parties pursuant to the provisions of s. 14(b)(1)(e) of the Code, which is as follows:
14(b)(1)(e) The parties to a proceeding before a board of inquiry with respect to any complaint are ... any other person specified by the board upon such notice as the board may determine and after such person has been given an opportunity to be heard against his joinder as a party.
10Such a possibility should not prejudice the right of Walbar to receive the reasonable information it would otherwise be entitled to under s. 8 of the Act. It was the position of counsel for the Commission that the allegations in issue were being seriously pursued and that evidence in proof of them would be presented at the hearing on the merits. At that time the names of the persons sought by Walbar will have to be disclosed, and even if this submission on behalf of the Commission merits my acceding to Commission counsel's request, it would not alter the situation. Disclosure of the names during the course of the hearing on the merits could similarly lead to an order of joinder pursuant to s. 14(b)(1)(e) of the Code.
(2) That the disclosure of the names of such persons would amount to a disclosure of evidence.
11I cannot see how such disclosure can be considered as evidence of the way "... in which [the Commission] is going to make out [its] case." (Cook v. Cook, 1947 CanLII 53 (ON HCJ), [1947] O.R. 287, at p. 291, per Gale J.) In the latter case Gale J. (as he then was), in distinguishing questions relating to eliciting facts from those seeking evidence, concluded that a party was not entitled to discover how his opponent proposed to prove his case. In ordering the furnishing of such material facts I am not ordering the furnishing of the names of witnesses alone. Even if this was the case, where information as to the identity of a witness is being sought, the rule that such information is not obtainable is subject to an exception: "where ... those names form a substantial part of the facts material to the issue ..." (Permanent Mortgage Corp. v. Gostick (1932), 41 O.W.N. 169 per Grant J.A.). In Marriott v. Chamberlain (1886), 17 Q.B.D. 154, Fry L.J. said at p. 166:
... although one party cannot compel the other to disclose the names of his witnesses as such, yet, if the name of a person is a relevant fact in the case, the right that would otherwise exist to information with regard to such fact is not displaced by the assertion that such information involves the disclosure of the name of a witness ... I think that the law still is as there laid down, and the more circumstance that in making discovery of relevant facts the names of witnesses must be disclosed is not sufficient to take away the right to discovery.
12In ruling on the right to disclosure of the names of persons unnamed but referred to in the complaints I will consider:
(a) If the disclosure will result in identifying Commission witnesses whose identity does not "form a substantial part of the facts material to the issues". (Permanent Mortgage Corp. v. Gostick, supra.)
(b) Whether knowledge of the names of the persons referred to is reasonably necessary in order that Walbar may have sufficient information about the allegations relating to its good character or propriety of conduct, so as to enable it to prepare to meet such allegations.
13My view of s. 8 of the Act is that it was introduced to regulate one aspect of procedural natural justice which must be followed by certain tribunals including a Board of Inquiry appointed pursuant to s. 14(a)(1) of the Code. Whatever the scope of the information which must be furnished, its purpose is to define the issues and thereby prevent surprise by enabling the party against whom the allegations are made to prepare for the hearing. At the very least, s. 8 of the Act in order to fulfill this purpose would require that Walbar be furnished with a written statement of the material facts upon which the Commission intends to rely in support of the allegations with respect to the issues involving Walbar's good character or the propriety of its conduct. Such material facts should include when and where the alleged acts which raised the issues occurred, as well as the names of such persons who are referred to in the allegations, subject to the exceptions above noted.
14After having reviewed the nature and the extent of the information (hereinafter set out) to be furnished by the Commission to Walbar, in pursuance of my order, I have concluded that it will reasonably define the issues and enable Walbar to adequately prepare for the hearing. My assessment of the information that is to be furnished satisfies me that it will reasonably protect the interests of Walbar from the kind of surprise which s. 8 of the Act was intended to limit.
15There is a built-in safeguard which can compensate for insufficient information being furnished prior to the hearing, should my order be too restrictive. Where events disclose that an adequate hearing cannot be held because of a party being unable to prepare to meet an issue contemplated by s. 8 of the Act, the Board can grant an adjournment in a proper case pursuant to s. 21 of the Act. In this way, lack of perfect anticipation as to what information ought to have been furnished can, at worst, result in an adjournment. Section 21 of the Act is as follows:
A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.
16If I am wrong in my ruling that the provisions of s. 8 of the Act would be satisfied by the furnishing of the particulars to be subsequently set out, I would also find that s. 8 does not contemplate a means of obtaining discovery of documents for inspection or statements of evidence by which it is intended to make out a case. Counsel for Walbar acknowledged that in the absence of statutory authority for obtaining discovery such a right cannot be implied as part of a tribunal's power to regulate its proceedings. This restriction would also apply to the power of a tribunal to require a party to furnish details of the evidence it intends to adduce at the hearing.
17Section 8 must be interpreted in relation to its context in the Act. it is found in Part I, entitled "Minimum Rules For Proceeding of Certain Tribunals". David J. Mullen in Administrative law (2d ed.) (Carswell – Toronto, 1979) comments on the nature of the Minimum Rules, at p. 3-149 para. 89:
It should also be noted that the Act does not purport to lay down an exclusive procedural code for decision-makers coming within its ambit but rather only constitutes a minimum ...
18It is also significant, as observed in Manual of Practice on Administrative Law and Procedure in Ontario, Under the Statutory Powers Procedure Act, D.W. Mundell (Toronto: Queen's Printer, 1971), at p. 13, that:
The expression "reasonable information of any allegations" requires that a party be given sufficient information about the allegations to permit him to prepare his answer to them.
19In certain cases the Legislature has seen fit to supplement the nature of the information to be made available to a party before the hearing and has imposed requirements more onerous than those imposed under the minimum standards. There would be no reason to do so if s. 8 of the Act did, as counsel for Walbar argues, entitle a party to receive, for examination, documentary and other evidence in writing (Ibid. at p. 13).
20As discovery of documents is not an inherent right, it would be expected that any departure from the previous law was not intended, in the absence of more specific language. There is even greater difficulty in seeing how s. 8 of the Act can be interpreted as entitling Walbar to statements of evidence intended to be adduced by the Commission. Hearings before the Board of Inquiry, under the Code, are adversarial in nature. Each party remains responsible for the preparation of its case and, as in the case of an action brought in the Supreme Court, in the absence of statutory authority, each party cannot be compelled to disclose the evidence which it may use at the hearing on the merits in support of a claim or defence. I would repeat my earlier conclusion that such a radical change in the previous law would only be effected by more specific language.
21Even if s. 8 of the Act could be interpreted as encompassing documents and statements of evidence within the meaning of "reasonable information" the furnishing of such information would only be necessary where it was required by a party to either know the issues or to be able to prepare its answer to the allegations. That is, unlike discovery in the Supreme Court, the information does not include facts or documents which may assist a party in leading to a train of inquiry which might, in turn, result in the obtaining of evidence which could assist in making the party's case.
22I would agree with the statement of S.N. Lederman, in his decision dated March 11, 1976, in the case of Re Nembard and Manradge and Caneurop Manufacturing Limited, where he said, at pp. 22–23, in commenting on the meaning of s. 8 of the Act:
Prior to the hearing, a respondent therefore is entitled to receive sufficient information about the allegations to enable him to prepare his answer to them. This section does not, however, refer to advance notice of documentary evidence but merely to reasonable particularity of allegations. It is interesting to note that under the earlier statute, the Ontario Human Rights Code 1961–62, c. 93, s. 13(2), a Board of Inquiry was given all the powers of a conciliation board under s. 28 of the Labour Relations Act which included the power "to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board deems requisite to the full investigation and consideration of the matters referred to in the same manner as a court of record in civil cases." It has been held that a provision such as this which vested in a tribunal the rights and privileges of a court in respect of production of documents was sufficiently wide to encompass the power to make orders for examination for discovery: See Re Pasquale and Township of Vaughan, 1967 CanLII 192 (ON CA), [1967], 1 O.R. 417. This statutory provision, however, was not carried forward into the present Ontario Human Rights Code nor is there a similar provision contained in the Statutory Powers Procedures Act. Accordingly, there does not appear to be any present power in the Board to order production or inspection of documents prior to the hearing.
The only related power that presently exists is contained in s. 12(1)(b) of the Statutory Powers Procedures Act which reads as follows:
12(1) A tribunal may require any person, including a party, by summons,
(b) to produce in evidence at a hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceedings and admissible at a hearing.
The authority therein confers no rights of production as such inter parties. It is a summons power akin to the issuance of a subpoena duces tecum by which a witness is compelled to attend the hearing and produce documents into evidence.
23My interpretation of s. 8 is that it is concerned with the furnishing of "reasonable information of ... allegations ..." and not with the means whereby those allegations will be provided. It is concerned with particulars to know a case and not with evidence as to how the case will be proved. It is concerned with the case intended to be made and not with the information allegedly favourable or unfavourable to the case. Furthermore, it is not concerned with facts which might assist the party against whom the claim is being made to discover evidence in support of its defence, as contrasted with information of the case to be met, although I would expect that the Commission would, at the hearing, adduce evidence arguably favourable as well as unfavourable to Walbar.
24The means employed by counsel for Walbar in attempting to secure particulars is similar to the process of putting interrogatories in jurisdictions where such a process of discovery exists. It is well settled that such interrogatories, put for the mere purpose of obtaining information as to the evidence by which the opposite party intends to prove the facts which he alleges, are inadmissible (see Knapp v. Harvey, [1911] 2 K.B. 725 (C.A.)). In the Knapp case, where the action was brought for personal injuries caused by a dog belonging to the defendant objected to an order which required him to furnish the plaintiff with particulars of "any specific occasion or occasions on which the dog had bitten a man, woman or child ..." as well as particulars of "... any specific notice to the defendant of such bite or bites ..." (Knapp case at p. 726). The Court of Appeal ruled that when a request for the names of witnesses through whom the plaintiff proposed to establish his case, was "... not material to the actual issues in the action" except to permit the defendent to "... make inquiries about them, and, if necessary, [to] interview them ..." that is merely "... to get the names of the plaintiff's witnesses ..." then such a request should be denied (Ibid., at pp. 729–30).
25The situation is different where the names of potential witnesses are material facts on which a party relies. That is, a substantial part of any fact to be proved (Lapinska v. Arenburg, [1962] O.W.N. 249 (C.A.)).
26A further issue that was raised, relates to the Commission's argument that a number of matters, concerning which information is being sought by Walbar, are either within the knowledge of Walbar or could be ascertained by it upon making reasonable inquiries. Counsel for Walbar stated, and Counsel for the Commission did not suggest otherwise, that it had, during the conciliation stage and thereafter, received no information with respect to the matters in issue and that it was unfair that Walbar should now be required to undertake a further investigation to ascertain the information relating to the particular matters in issue. As I have no reason to believe that Walbar is not genuinely in need of the information and has been unable to obtain the facts it requires arising out of the allegations, I do not propose to enter upon a further exercise to determine which of the allegations are likely to be within the knowledge of Walbar and which ones it could, with reasonable effort, ascertain without assistance from the Commission. If I am wrong I fail to see what unfairness has been done to the position of the Commission.
27At the outset, counsel for Walbar argued that this Board of Inquiry lacks jurisdiction to require the Commission to deliver to Walbar "prior to the hearing of the Complaints reasonable information of the allegations contained in the ... Complaints ..." It was the position of counsel for Walbar that s. 8 of the Act does not give the tribunal the jurisdiction to order the furnishing of reasonable information of any allegations covered by s. 8 and accordingly, where a party complains that s. 8 has not been complied with, the courts are solely responsible to see that there is compliance with s. 8.
28In support of this position counsel referred to s. 14(b)(6) of the Code:
14(b)(6) Subject to appeal under section 14d, the board of inquiry has exclusive jurisdiction and authority to determine any question of fact or law or both required to be decided in reaching a decision as to whether or not any person has contravened this Act or for the making of any order pursuant to such decision.
29It was argued that the subsection dealt with matters exclusive of those dealt with in s. 8 of the Act and hence beyond the jurisdiction of the Board. The power of a Board of Inquiry to decide whether s. 8 has been complied with is no different from any other necessary determination reached in the course of reaching a decision "as to whether or not any person has contravened the ... [Code]". Even if the Code does not place the issue within the exclusive jurisdiction of a board of inquiry, this would only mean that Walbar would not be compelled to await the decision of this Board before resorting to have it determined by a court of law (see Bell v. Ontario Human Rights Commission (1971), 1971 CanLII 195 (SCC), 18 D.L.R. (3d) 1 (S.C.C.) at p. 20).
30It is significant that s. 14(b)(6) was enacted after the decision in the Bell case, supra, and it would appear to be concerned not with the matters which can be decided by a board of inquiry, but with placing certain decisions of fact or law or both within the "exclusive jurisdiction and authority" of a board of inquiry. If that is the case, there is no reason why a board of inquiry should have any different powers with respect to the administration of s. 8 of the Act than other tribunals, subject to the minimum rules of the Act (see Re Ontario Transport Limited et al. and Ontario Highway Transport Board et al. (1979), 1979 CanLII 1817 (ON HCJ), 26 O.R. (2d) 202; Re Kellar and College of Physicians and Surgeons (1977), 1977 CanLII 1030 (ON HCJ), 17 O.R. (2d) 516. Re Dodd and Chiropractic Review Committee et al. (1978), 1978 CanLII 1698 (ON HCJ), 23 O.R. (2d) 423).
31It would be surprising if a tribunal which was, prior to the enactment of the Act, bound to see that certain information relating to allegations was furnished to the subject of those allegations, in accordance with the rules of natural justice, was now, because of the enactment of a statutory requirement of similar effect, required, initially, to defer to the courts for directions. This is not to say that a party dissatisfied with the tribunal's intermediate order cannot apply to the courts which properly supervise such tribunals, should the tribunal fail in its responsibility to see that the rules of natural justice or the statutorily imposed rules of procedure are properly adhered to.
32I have considered the arguments of counsel for Walbar as to the sufficiency of compliance with s. 6 of the Act and conclude that all of the requirements of notice have been met.
33I will now set out the request for particulars and my disposition of each request.
The Complaint of Ivanka Butorac
(1) If this allegation is being seriously pursued then evidence of some generalized feeling of resentment would hardly assist the proof of the claim. If, however, the Commission is aware of the names of those alleged to have resented Miss Butorac's presence in the factory, such information would be reasonably necessary for the preparation of a defence. Even if (and I cannot know if this is the case) disclosure of the names of witnesses for the Commission will occur, the identity of the persons is sufficiently material to the issue so as to require identification, where possible. No other arguments were presented to me in support of a ruling against disclosure.
(2) This information would represent evidence by which it is intended to prove the allegation and need not be furnished.
(3) Although this may amount to disclosure of the name of a Commission witness, the name is sufficiently material to the allegation to warrant its being furnished to Walbar.
(4) This is a relevant fact and represents reasonable information within the meaning of s. 8 of the Act and should be furnished.
(5) The occasion of the alleged statement represents reasonable information within the meaning of s. 8 of the Act and should be furnished. Those present (if any) would be mere witnesses to an event and their evidence would only go to proving or disproving whether the alleged statement was made. Such information would not amount to reasonable information as to the nature of the allegations.
(6) This information should be furnished for the reasons set out in (4) supra.
(7) The names are material for the same reasons referred to in (1) and should be furnished, if they are known.
(8) This is a request for evidence of how the allegation would be proved and need not be furnished.
(9) This information should be furnished for the reasons set out in (1).
(10) This information represents a request for the evidence whereby it is intended to prove the allegation and need not be furnished.
(11) The names of the persons referred to should be furnished, if known, as being sufficiently relevant to the issue.
(12) This information should be furnished as being necessary if Walbar is to know the nature of the allegations and be in a position to prepare its answer.
(13) This request is answered in the same terms as number (12) supra.
The Complaint of Veljko Dubajic
(14) This allegation is intended to be substantiated, apparently with a view to demonstrating an animus against perceived antagonists to the cause of Serbian nationalism. The information sought should be furnished as being material to the issue and not a mere request for disclosure of the names of witnesses otherwise immaterial to the issue.
(15) The factual nature of the preferential "treatment" should be furnished as being material to the issue and reasonably necessary to enable Walbar to answer the allegation.
34The request for "instances" is not a request for evidence of how the allegations are to be proved, but a request for information as to time and place, which information would be necessary in order to enable Walbar to know, with reasonable certainty, what events are being referred to. The allegedly wrongful act is the granting of preferential treatment. While the evidence to be adduced in proof of the allegation would be unnecessary in order to obtain reasonable information about the allegation, the time and place would be necessary facts related to the incidents and should be furnished.
(16) and (17) As Commission Counsel indicated that this allegation would not be relied upon, it is unnecessary for me to deal with requests (16) and (17).
(18) This information should be furnished, if known to the Commission. It is material to the allegations as to whether the employees can be said to represent the Company.
(19) This information should be furnished. It does not represent evidence. Rather, it represents facts which assist Walbar to know what events are being relied upon, with reasonable specificity. This is necessary in order that Walbar can focus upon the occasions relevant to the preparation of its answer.
(20) It was stipulated by counsel for the Commission that the event occurred the day after the complainant Butorac was hired. The place where the conversation took place should be furnished.
(21) This is a matter relating to how the allegation will be proved and need not be disclosed.
(22) Disposition as in (21), supra.
(23) The Commission should furnish information about "what" Mr. Lukac was allegedly lying about but not "why" the complainant suspected Mr. Lukac of lying. The last mentioned matter represents the evidence whereby the allegation is intended to be proved. Sufficient particulars will be provided to enable Walbar to know the nature of the allegations if particulars of "what" the alleged lie referred to.
(24) This particular should be furnished as relating to the factual basis for the allegation and is necessary to enable Walbar to focus on the specific events being relied upon.
(25) Disposition as in (24), supra.
Complaint of Mirjana Ivicak
(26) In this case Walbar would be in a better position than anyone else to know in what capacity the complainant was hired. The request is denied.
(27) & (28) The information requested should be furnished in order to narrow the scope of inquiry Walbar will have to engage in, in preparing its answer.
(29) The name of the "boss" should be furnished as being material to the allegation.
(30) & (31) The time of the occurrence of the event is material to the issue and Walbar should be able to receive this information to save time in the preparation of its answer and to limit the chance of surprise if it fails to accurately identify the times when the alleged acts took place.
(32) When Ms. Ivacak spoke to Mr. Bibic is a material fact and ought to be disclosed, as should the facts relating to what request was made of Mr. Bibic. It may be that the Company is in a good position to discover the latter information, however, it will facilitate the hearing if the information is furnished prior to the hearing on the merits.
(33) This is evidence and is not necessary in order to enable Walbar to know the basis of the case to be met.
(34) & (35) Walbar is entitled to know the facts relating to the alleged instances. Such information would hardly be expected to be found in the Company records. It may be that the allegations are true and there is an explanation consistent with Walbar's not being inspired by anti-Yugoslav animus. It is important for Walbar to be able to concentrate its efforts on the particular incidents raised in the complaint. Vague, generalized claims which make it difficult to identify the real issue should be made sufficiently specific if the element of surprise is to be reduced.
Complaint of Bozo Vujic
(36) Same as no. (14), supra.
(37) Same as no. (14), supra.
(38) Same as no. (18), supra.
(39) When the remarks were made is reasonably required to enable Walbar to reduce the scope of inquiry it must make in formulating its answer and this information should be furnished. The nature of the remarks is relevant to the issue of Walbar's good character or the propriety of its conduct. Unless it is aware of what was said by a person, who arguably can bind it by his actions, it will experience real difficulty in preparing its answer.
(40) & (41) These are facts relating to the issue and are reasonably necessary for the preparation of an answer.
35There were a number of matters with respect to the case which Commission counsel was agreeable to furnishing information, subject to the stipulation that it was not acknowledging its obligation to do so under the Act. In addition, there were certain agreements which counsel sought from counsel for Walbar as a condition to seek disclosures. As agreement was not forthcoming I ruled on all requests remaining in issue.
Documents Sought to be Produced
36I was not called upon, at this time, to rule on matters of privilege, and I understand this will be necessary when certain documents are subpoenaed for the purposes of the hearing on the merits. My ruling on the documents sought for production is that they are unnecessary for the purposes of obtaining reasonable information of the allegations referred to in s. 8 of the Act. In any event, I am not satisfied that production of documents for inspection is provided for under s. 8. I would hope that copies of documents taken from Walbar will be furnished to it so as to avoid further delays.
Re Schedule "B" – Being a Request for Further Particulars from the Respondent
37Such requests for evidence are unnecessary for the purpose of furnishing Walbar with reasonable information of the allegations concerning the matters contained in section 8 of the Act. In any event I am not satisfied that the furnishing of evidence, by which the factual allegations are to be proved, is provided for in s. 8.