Bezeau v. Ontario Institute for Studies in Education, 1982 CanLII 4870

Bezeau v. Ontario Institute for Studies in Education

1982-04-21

Ontario Board of Inquiry

ONTARIO

CHRR Doc. 82-047

Lawrence Bezeau Complainant

v.

Ontario Institute for Studies in Education Respondent

Date: April 21, 1982

Place: Toronto, Ontario

Before: Board of Inquiry , Ed Ratushny

RACE, COLOUR AND PLACE OF ORIGIN — employment tenure denied — EDUCATION — non-Canadians preferred for tenure — CITIZENSHIP — non-Canadian(s) favoured for employment

PRODUCTION OF DOCUMENTS — letter of reference — personnel file — subpoenas duces tecum — CONFIDENTIAL RECORDS — tenure review files in personnel files — letters of reference in personnel files — COMPLAINTS — particularity

Summary: The complaint of Mr. Bezeau alleges that he was discriminated against in the granting of tenure because he is a Canadian and preference was given to non-Canadians.

The Board of Inquiry rules on three preliminary motions by the respondent.

The first is a motion requesting that the Ontario Human Rights Commission provide further particulars with respect to the complaint. The Board rejects this motion, finding that the statement of particulars in the complaint and in a letter from the Commission are sufficient to establish the allegation to be met.

On a second motion, the Board strikes down one paragraph of a subpoena duces tecum, requiring the production of documents by the staff of the Ontario Institute for Studies in Education, on the grounds that it is too broad and does not meet the requirements of "reasonable distinctiveness". With this one exception, the Board allows the subpoena to stand.

Finally, the respondent claims that all letters from referees or appraisers are subject to the privilege of confidentiality. The Board finds that the claim of privilege is outweighed by the public interest in the proper resolution of complaints under the Ontario Human Rights Code and rules that no claim of confidentiality can be maintained in this case.

INTERIM DECISION

Background

1The complaint of Lawrence Bezeau is dated July 18, 1979. This Board of Inquiry was appointed on December 11, 1980, in lieu of Professor Robert W. Kerr who, apparently, was not in a position to proceed.

2In early March of 1981, the Chairman of the Board received a letter from Mr. Harvey A. Beresford indicating that he was acting as counsel for the Ontario Board of Education in this matter and requesting that the hearing be scheduled during the last two weeks in May since material witnesses for the respondent would be out of the country and in the Far East commencing in early June and throughout the summer. In his reply the Chairman raised the following issue:

In an earlier board of inquiry (Rajput and Algoma University College – 1976), an objection was raised at the start of the hearing that there was a possibility of a "reasonable apprehension of bias" on the part of the Board Chairman on the basis that "this was a dispute between a faculty member, on the one hand, and a university administrator and the university on the other". At the time, the Board Chairman was, himself, a professor (at York University). The Chairman rejected this contention but offered to adjourn the hearing in the event that counsel wished to bring an application for judicial review. Counsel declined and withdrew the objection.

In the circumstances, if you intend to challenge the jurisdiction of this Board along these lines, I would be prepared to convene a special hearing for that purpose, immediately following the appointment of Commission counsel. In the event that I should decide it necessary to disqualify myself from conducting the hearing, it might still be possible for the Minister of Labour to appoint another chairman in time to proceed in late May. In the event that I should reject such a challenge, it might be possible to conclude any judicial review in time for the late May hearings (if the ruling were to be upheld). (Letter dated March 6, 1981)

Mr. Beresford responded in the following manner:

Please be assured that the Ontario Institute for Studies in Education considers your appointment entirely proper and has no objections whatsoever to your hearing and deciding this matter. (Letter dated April 2, 1981)

However, since counsel for the Ontario Human Rights Commission still had not been appointed by that time, the Chairman scheduled October 13th to 16th inclusive as the tentative dates for the hearing.

3Following the appointment, later that month, of Mr. John Sopinka, Q.C. as counsel for the Commission in this matter, a series of dates were scheduled and re-scheduled for the purpose of holding an interim hearing with a view to assisting counsel in arranging for the mutual disclosure of documents and narrowing the issues to be dealt with at the hearing. Finally, by letter dated October 6, 1981, the Chairman informed counsel that the week of December 14th to 18th would be set aside as the "firm dates" for the conduct of the hearing.

4However, counsel encountered further scheduling problems and expressed difficulty in briefing other counsel due to the large volume of documents. The hearing was rescheduled for the week of February 15th, 1982, and, at the request of counsel, was further delayed until February 17th on the basis that counsel were still attempting to reach some sort of agreement with respect to the disclosure of documents.

5When the hearing commenced, the Board was informed that a number of preliminary issues remained to be resolved. A brief hearing was conducted, during which counsel agreed to certain documents being admitted into evidence. Some viva voce evidence was also presented. Argument then proceeded in relation to three motions on behalf of the respondent, which can be summarized as follows:

(1) That the Commission be required to provide particulars of the complaint pursuant to section 8 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484;

(2) That the summons in the form of a subpoena duces tecum and entered as Exhibit C-4 be set aside on the basis that it is merely an attempt on the part of the Commission to obtain discovery;

(3) That all letters from referees or appraisers be ruled to be subject to the privilege of confidentiality and, therefore, inadmissible in evidence and not subject to production.

Each of these are discussed under the respective headings which follow.

1. Particulars of the Complaint

6In his complaint, Mr. Bezeau alleges that he is a Canadian by birth and that he and other native-born Canadians are being discriminated against in employment on the basis of nationality, ancestry and place of origin, contrary to the Ontario Human Rights Code, R.S.O. 1980, c. 340. The relevant paragraphs of the complaint are as follows:

In September 1978 there were 5 employees, including myself, eligible for tenure. Of this number 3 were not of Canadian origin. Despite the fact that the 2 Canadians in the department are the most senior of the group and the most qualified, we were denied tenure in favour of the non Canadians.

In the Institute there are 9 administrative staff persons; only 1 is of Canadian origin.

To my knowledge, this situation is not peculiar to my department. Tenured staff generally have better terms and conditions of employment.

By letter dated January 25, 1982, counsel for the respondent served the following demand upon counsel for the Commission:

We require from you a concise statement of all material facts, actions and omissions upon which the Commission intends to rely for the purpose of this complaint hearing, including the time when and the place where the actions or omissions occurred and the names of the persons who engaged in or committed them.

Counsel for the Commission responded by letter dated February 15, 1982, which elaborated upon the complaint as follows:

In September, 1978, there were five candidates for tenure in the Department of Educational Administration at OISE. Three of those candidates, Messrs. Hickcox, Townsend and McLeod, were not Canadian citizens or of Canadian origin. The other two candidates, the Complainant and Alphonse Selinger were of Canadian nationality and origin. In its review of the candidates, OISE applied more stringent standards to the Complainant than to the non-Canadians, thereby discriminating against the Complainant because of his Canadian nationality and place of origin. In the result, the three non-Canadians were granted tenure, while the Complainant was denied it.

Finally, during the hearing, counsel for the respondent expressed an uncertainty arising from the complaint as to whether the discrimination is alleged with respect to both tenure reviews or the latter one only. Counsel for the Commission responded by stating that a course of conduct was being alleged. In Mr. Sopinka's words, the first tenure review "is relevant to the second one, but we rely primarily on the second one".

7The respondent takes the position that the allegations contained in the complaint, as explained by the letter (and the comment of Commission counsel at the hearing), are insufficient to satisfy section 8 of the Statutory Powers Procedures Act. It provides:

8. Where the good character, propriety of conduct or competence of a party is in issue in any proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

The respondent takes the position that this provision entitles it to receive a statement of all material facts which the Commission intends to rely upon for the purpose of proving the allegations contained in the complaint (Citing the Interim Decision of Professor Gorsky in the Complaints of Dubajic, Butorac, Vujic and Ivicak against Walbar Machine Products of Canada Limited – September 25, 1980 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228).

8On behalf of the Commission, it was argued that the tenure review process is a "highly secret operation" so that the manner in which O.I.S.E. applied its standards was within the knowledge of O.I.S.E. and not available to the Commission. In effect, the Commission is saying that it can only point to the alleged result, i.e. the application of higher standards to a Canadian. However, it simply is unable to provide details as to how those standards were applied.

9In the Walbar case, Professor Gorsky made the following observations:

My 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 proved. 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 the 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 ... (p. 111)

This Board is in agreement with those observations.

10The word "reasonable" in section 8 must be interpreted in the context of the proceedings which are involved. In hearings under the Ontario Human Rights Code, there is often a total absence of any specific, overt misconduct which, in itself, would establish discrimination. Moreover, until recently, the weight of authority supported the view that under the Ontario Human Rights Code, it is not essential to provide an intention to discriminate in order to establish a contravention of the Code. (See, for example, Re Complaint of Ishar Singh (May 31, 1977) and Re Attorney General for Alberta and Gares (1976), 1976 CanLII 1116 (AB SCTD), 67 D.L.R. (3d) 635, at p. 695). Thus, the mere result, of itself, would take on an even greater significance than would otherwise be the case.

11However, since the interim hearing in this matter, a decision of the Ontario Divisional Court was released in which the majority rejected the line of decisions referred to above (Re Ontario Human Rights Commission and Teresa O'Malley (Vincent) and Simpsons-Sears Limited, March 2, 1982 1982 CanLII 4899 (ON HCJDC), 3 C.H.R.R. D/796). Mr. Justice Southey, writing for himself and Gray J., concluded that an intention to discriminate on a prohibited ground was an essential element of establishing a contravention of the Code. In separate reasons, Mr. Justice Smith, developed the contrary view that a discriminatory result could be found to offend the provisions of the Code "... without any ill-will or even knowledge on the part of the employer". It appears that, in this case, the Court is speaking of "intention to discriminate" in the sense of a motive or a conscious desire to discriminate as opposed to mere intention to do an act which leads to a discriminatory result in the absence of ill-will.

12This issue may be of practical significance since the complaint of Lawrence Bezeau alleges only a discriminatory result. Absent the requirement of proving an intention to discriminate, a contravention of the Code might be established merely by proving the discriminatory result (in the absence of any reasonable explanation to the contrary). However, now an "intention to discriminate" must also be proven. This would suggest that, in this case, the Commission would have to prove not only that Mr. Bezeau was treated less fairly than others and that the only rational explanation for such differential treatment was his nationality. The Commission would have to go further and establish a deliberate intent to discriminate on the part of those responsible for deciding Mr. Bezeau's fate.

13Thus, for example, if the Tenure Review Committee happened to be composed entirely of American citizens who "subconsciously" gave preference to American applicants, this might not be sufficient to satisfy the Divisional Court's requirements for establishing a contravention of the Code. What if the differential treatment were to flow from a belief in the superiority of an American upbringing and educational background? This might not be sufficient to constitute a contravention even if the belief could be demonstrated to be completely misguided, provided the belief was sincerely held. In such circumstances, it might be argued that there was no "intention to discriminate" but only a mistaken assessment of the qualifications of the applicant. If such consequences do flow from the decision in the Simpsons-Sears Limited case, the burden of proof upon the Commission will be very high, indeed. Of course, much will depend upon future interpretation of the phrase "intention to discriminate".

14The complaint in this case makes no reference to an intention to discriminate. It is alleged that the discriminatory result occurred through the application of more stringent standards to the complainant than to non-Canadians (Exhibit R-2). It is the view of this Board that the absence of any reference to an intention to discriminate does not render the complaint insufficient. Even though such an intention must now be proven by the Commission, it will seldom be overt. In most cases, it will have to be inferred from all of the circumstances of the case. In some cases, mere proof of a discriminatory result, in the absence of a reasonable explanation may lead to the inference of an intention to discriminate. Thus, proof of a discriminatory result, by itself, still may be sufficient to establish a contravention of the Code in some cases. Of course, that range of cases is bound to be significantly reduced if the Divisional Court's decision in the O'Malley (Vincent) and Simpsons-Sears Limited case is upheld. (Apparently, it has been further appealed to the Ontario Court of Appeal.)

15In alleging that more stringent standards were applied to the complainant, it is obvious that those standards must have been applied during the tenure review process by those employees of O.I.S.E. responsible for conducting that review. The respondent is in a far better position than is the Commission to ascertain what occurred during each step of the review process. The Commission may well have a difficult task in proving "intention" by inference from the mere alleged discriminatory result. Nevertheless, it is entitled in law to attempt to do so.

16In all of the circumstances, this Board is of the view that the allegations which have been provided to the respondent furnish "reasonable information of the allegations" for the purpose of section 8 of the Statutory Powers Procedure Act. The allegation of the complainant is straightforward. It amounts to the assertion that he was denied tenure in favour of less-qualified applicants and that the only logical inference is that the denial was the result of discrimination.

17In any event, should the respondent suffer potential prejudice at the hearing through the introduction of issues by the Commission which could not have been reasonably anticipated, such prejudice may be avoided through timely adjournment pursuant to section 21 of the same Statutory Powers Procedure Act.

2. Validity of the Summons

18The respondent asks that the summons in the form of a subpoena duces tecum to Bernard Shapiro, Director, O.I.S.E. and Dr. Mark Holmes, O.I.S.E., be set aside on the basis that it is merely an attempt on the part of the Commission to obtain discovery. The document in question directs the witnesses to attend to give evidence

... and also to bring with you and produce ... any and all documents relating to the matters in issue including, and without limiting the generality of foregoing, the following:

1. The complete tenure review files pertaining to Lawrence Bezeau for the years 1977–78 and 1978–79 including, without limiting the generality of the foregoing, all existing documents, correspondence, references, reasons for decision and minutes of meetings of departmental tenure committees, "DPAC Faculty" and the Board of Governors of O.I.S.E.;

Paragraph two is identical except that it relates to the files of "all other candidates for tenure in the Department of Educational Administration" and adds the years 1979–80. The remaining paragraphs are as follows:

3. All statements of Procedure, Statements of Interpretation, Policy Statements, the "Institute Policy Book" and all other documents and materials relating to the tenure review process at O.I.S.E.;

4. The service lists of O.I.S.E. faculty members maintained by the Board of Governors of O.I.S.E. since 1977 pursuant to its Collective Agreement with the O.I.S.E. Faculty Association;

5. Lists of O.I.S.E. faculty members in the University of Toronto Graduate faculty from 1977 to the present.

No attack was made upon the relevance of these documents to the proceedings.

19Counsel for the respondent pointed to the apparently broad powers of the Commission to obtain production of documents pursuant to section 14 of the Code. However, upon closer examination these provisions are seen to be very restrictive in scope. A failure to comply may result in a prosecution under section 15 of the Code but section 16 requires the consent of the Minister for such a prosecution. Counsel for the Commission stated that the avenue of prosecution was simply considered to be too "heavy handed" to be acceptable in human rights cases. The only alternative is to obtain a search warrant. However, this requires a specific description of the object to be seized so that it is limited as a discovery device. Moreover, search warrants might also be considered to be "heavy handed" in this context.

20Moreover, these powers are granted "in carrying out an inquiry under sub-section 1". This subsection provides that where a complaint is made:

... the Commission or an officer thereof shall inquire into the complaint and endeavour to effect a settlement of the matter complained of.

This preliminary inquiry seems, therefore, to be restricted in scope to what is necessary to effect a settlement. If attempts at settlement are unsuccessful and a board of inquiry is established, section 14 would not appear to be available to the Commission as a means of discovery in preparation for the hearing.

21Thus, for all practical purposes, there is no effective procedure for obtaining discovery in preparation for a hearing before a board of inquiry.

22Counsel for the respondent cited the complaint of Doctor Bardi Guru against McMaster University, where Board of Inquiry Chairman M.R. Gorsky dealt with a similar motion (Interim Decision dated November 12, 1980 1980 CanLII 3915 (ON HRT), 2 C.H.R.R. D/253). In that case it was conceded by counsel that the summonses were served for the specific purpose of obtaining discovery. The documents were to be examined and considered for introduction into evidence, or not, depending upon their content. The summonses were set aside on the basis that since "... there is no common law right to discovery, unless a right is conferred by the relevant legislation, none exists" (citing Administrative Law and Practice, Reid and David (2nd ed.) at pp. 92–3).

23Counsel for the Commission cited the decision of the Ontario Divisional Court in Re Metropolitan Board of Commissioners of Police (1979), 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48. In that case, Board Chairman Peter Cumming had refused to quash a subpoena requiring the production of certain records. The Chairman had also granted an adjournment to permit counsel for the respondent to examine those records. Mr. Justice Labrose, delivering the judgment of the Court, declined to interfere with that decision.

24Counsel for the Commission also cited the Complaints of Benet against Merer, Colledge and G.E.C. Canada Ltd. (Interim Decision dated May 22, 1981). In that case, a subpoena was served upon one of the respondents. Professor Cumming, again acting as Board Chairman, expressed agreement with the view that under section 12(1)(b) of the Statutory Powers Procedure Act, production of a document is to be for the purpose of producing it in evidence at the hearing and not merely for the purpose of obtaining discovery. However, he concluded that the subpoena in question was for the purpose of producing documents as evidence. Nor was it "irrelevant, fishing, speculative or oppressive". Therefore, its validity was upheld subject only to considerations of relevance and privilege which were to be dealt with on a document by document basis.

25This issue was also considered in another recent decision: Re complaint of Helen Niedzwiecki against Beneficial Finance System (Interim Decision, May 29, 1981). There the Board applied the case of Re Dalgleish and Basu (1974), 1974 CanLII 913 (SK QB), 51 D.L.R. 309 in which an application was brought in the Saskatchewan Court of Queen's Bench to set aside a subpoena duces tecum which was issued under the Medical Profession Act, R.S.S. 1965, c. 303. The procedures under that legislation made no provision for discovery and the subpoena duces tecum was drawn in extremely broad terms.

26The Board Chairman in the Niedzwiecki case outlined the nature of the Basu decision and offered some observations as to the difficulties faced in attempting to conduct hearings in the absence of adequate discovery procedures:

Mr. Justice Bayda (now Chief Justice of Saskatchewan) summarized the basic criterion to be applied in determining whether or not a subpoena is so broad and indefinite that it should be set aside:

The fundamental principle that applies in determining whether the description of the documents in a subpoena is too broad and indefinite is stated by Wigmore, supra, at p. 126, in these words: "... it must specify, with as much precision as is fair and feasible, the particular documents desired". Lord Denning, M.R., in Soul v. Inland Revenue Com'rs, [1963] 1 W.W.R. 112 at p. 114, uses the words "with reasonable distinctiveness" to describe the desirable standard.

His Lordship listed four factors to be considered in determining "whether a particular specification is fair and feasible and reasonably distinctive". They may be summarized as follows:

(1) The witness must be fairly informed in advance what he is to produce. He must be asked to produce documents rather than to make discovery of documents.

(2) Greater latitude will be permitted in describing the documents where there is no prior compulsory discovery of documents and where voluntary disclosure has been refused.

(3) Greater latitude will also be permitted where the witness in question is a party or agent and can be taken to know the issues reasonably well.

(4) The issues involved in the proceedings must be considered. The broader the scope of the hearing, "the greater should be the permissible breadth of subpoena duces tecum".

Mr. Justice Bayda ordered, on the application before him, that the part of subpoena commanding the production of documents be set aside.

The difficulty which this Board faces is in attempting to conduct a full and fair hearing in relation to the complaint in question without the benefit of an adequate discovery procedure which would allow all documents to be produced prior to the hearing. In the course of the hearing, counsel might well find it necessary to ask witnesses whether certain documents exist. A witness might well respond by saying that he is not aware of any such documents but that it is within his power to determine with certainty whether such documents exist and he has not done so. In such circumstances, a board of inquiry would have to give serious consideration to a request for an adjournment or leave to recall the witness in order that the question might be answered in a meaningful way. Further adjournments might be required to permit counsel to examine documents produced for the first time at the hearing.

It would be far preferable for both counsel to have made full and frank voluntary disclosure prior to the hearing. The prospect of a possible "cat and mouse" game throughout the course of the hearing is not in the best interests of the administration of justice nor, in the long run, will it be in the best interests of the parties. All of this is not to suggest that the motion under consideration is inappropriate. It has a sound basis in law and in fairness to the prospective witness.

27Applying all of these considerations to the subpoena under consideration, then, the first general description of documents must be struck from the subpoena i.e. "... any and all documents relating to the matters in issue ..." As in the Niedzwiecki case, this description does not meet the requirement of "reasonable distinctiveness" and is suggestive of speculative discovery rather than production for the purpose of introduction into evidence.

28However, this Board is of the view that, in all of the circumstances, the remaining five paragraphs should be permitted to stand. They could not be said to be "irrelevant, fishing, speculative or oppressive". They were included to require production of the documents into evidence and not simply for the purpose of obtaining discovery. On balance, they satisfy the criteria articulated in the Basu case. The nature of the documents in each of the paragraphs would appear to relate directly to the complainant's allegation of differential treatment. Of course, the admissibility of these documents will have to be determined on an individual basis.

3. Claim of Privilege

29The respondent claims that all letters from referees or appraisers are subject to the privilege of confidentiality and, therefore inadmissible in evidence and not subject to production.

30Dr. Hickcox was Chairman of the Department of Educational Administration from 1977 to 1981. He also served on a number of Tenure Review Committees and frequently wrote to referees requesting information concerning persons being reviewed for tenure. He testified that the policy of the Department was that letters of reference and requests for external assessment were always treated as confidential. Copies of a number of letters requesting such assessment were introduced to demonstrate that referees often were told that their comments would be treated as confidential. However, not all such letters made reference to confidentiality.

31In addition, the collective agreement for the period from July 1, 1978, to June 30, 1980 was filed as an exhibit. Section 18.31 provides that a faculty member "shall not have the right to examine the confidential letters of references and evaluation obtained for appointment, tenure and promotion decisions". This provision did not come into effect until ratification in November of 1979.

32In asserting this claim of privilege, the respondent relies heavily upon two judicial decisions. In Slavutych v. Baker (1975), 1975 CanLII 5 (SCC), 55 D.L.R. (3d) 224, the Supreme Court of Canada gave favourable recognition to Wigmore's formulation of four fundamental conditions necessary for the establishment of a privilege against the disclosure of communications (8 Wigmore on Evidence, 3rd ed., McNaughton Revision, 1961, para. 2285). They are as follows:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.

In Re University of Guelph and Canadian Association of University Teachers (1980), 1980 CanLII 1839 (ON HCJ), 29 O.R. (2d) 312, Mr. Justice Hollingworth of the Ontario High Court concluded that all four criteria were satisfied when applied to the written evaluations of a university faculty member for promotion. The injury that would inure to the peer evaluation process was considered to be greater than the benefit to be gained by disclosure.

33The position of the respondent is, essentially, that the Guelph University case must be applied to render the letters of reference privileged in this case, as well, in order to sustain the peer evaluation process. The Commission, on the other hand, takes the position that the Guelph University case is distinguishable. In the present case, it is argued, a broader public interest is introduced which tips the balance in favour of disclosure. The public interest is said to be the policy embodied in the Preamble to the Ontario Human Rights Code and its presence in the case at hand is said, in terms of Wigmore's fourth principle, to require "the correct disposal" of the case at hand to override "the injury that would inure to the relation by the disclosure of the communication".

34Before dealing with these arguments, reference will be made to the suggestion that the complainant (or the Commission on his behalf) is precluded from seeking disclosure because, as a member of the bargaining unit, he had effectively agreed that the documents not be disclosed. The recent decision of the Supreme Court of Canada in The Ontario Human Rights Commission et al.. v. The Borough of Etobicoke (Feb. 9, 1982) 1982 CanLII 15 (SCC), 3 C.H.R.R. D/781 is relevant. In that case, it was argued that, since the collective agreement had provided for a mandatory retirement age of 60, such a requirement should be considered to be a bona fide occupational qualification. Mr. Justice McIntyre, delivering the judgment of the Court, could not accept this argument since:

... in my opinion to give it effect would be to permit the parties to contract out of the Human Rights Code.

Although the Code contains no explicit restriction on contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy. (at p. 12)

It is the view of this Board that such contracting out is nonetheless contrary to public policy because it relates to the availability of evidence. The practical effect would still be a purported waiver of a public right by making it unenforceable. While the provisions of the collective agreement tend to reflect an intention of the parties that peer evaluation letters be treated as confidential, those provisions cannot operate, by themselves, to remove such evidence from the purview of the Ontario Human Rights Code. If they are to be excluded from consideration, they must be found to fall within the scope of the privilege recognized in the Guelph University case.

35In the Guelph University case, Mr. Justice Hollingworth placed great stress upon the importance of confidentiality to the peer evaluation process at universities:

In short, to break the rule of confidentiality would be to rupture irretrievably the effective working of a system of peer evaluation of tenure, merit increments and of promotion. By disclosure, witnesses would inferentially and conceivably be held in terrorem. This has been stressed for many, many years and to me is one of the most sacred and fundamental principles of law and is not an ancient and skeletal shibboleth ... the concept of confidentiality ... has been woven inextricably into our law. (at p. 322)

His Lordship later added that:

... to me this is almost a sacred safeguard and I do not feel that the review of the intra-university process of promotion and determination of salary can effectively be done in any other way. (at p. 323)

In Slavutych v. Baker, Mr. Justice Spence had also considered confidentiality to be important in this context:

These persons were working every day together and it would be simply impossible to have the statement made by one at the request of the university authorities in reference to the worth of another known either to him or to the balance of the staff. (at p. 229)

However this observation might appropriately be restricted to the facts and time frame of the Slavutych case. The more general practice today appears to be to seek evaluations from persons outside of the institution in question. At least, that is suggested by the letters filed as exhibits in the case at hand.

36In the Guelph University decision, there is little discussion of the importance to the individual being assessed of knowing the evidence which has been considered in making decisions which may have adversely affected an important area of his life, namely, his career. There is a danger that peer evaluation may, from time to time, drift into a highly subjective and, indeed, arbitrary exercise. The application of the administrative law principle of fairness to many aspects of these decisions could be largely emasculated in this area of decision-making through reliance upon the concept of privilege. Members of the academic community should not necessarily be considered to be above carelessly critical comments, exaggerated demonstrations of brilliance, petty jealousies and other human weaknesses. Consider, for example, the assessment which had been given in the Slavutych case and assume that it was totally untrue. A professor who had been denied promotion by a committee which had relied upon such an assessment might never know the injustice which had been done to him.

37Indeed, it might be asked how crucial confidentiality is to the peer evaluation process. An argument might even be made that objectivity could be enhanced in some situations. The frame of reference might shift from "terrible–bad–adequate" to "good–very good –excellent" but that is not to say that the entire process would necessarily crumble. Many academics do not hesitate to criticize the work of others in journals or public forums. All of this is not to suggest that the Guelph University decision is incorrect in its assessment of the importance of confidentiality to the peer evaluation process but merely to observe that there may be additional factors worthy of consideration.

38In applying the fourth principle articulated by Wigmore, His Lordship in the Guelph University case concluded that, on balance, confidentiality should be given preference over disclosure:

To me the interesting point is tenet 4, supra, in that it would appear from Wigmore that if there were a conflict between confidentiality and disclosure, confidentiality should be followed rather than disclosure. (at p. 317)

This interesting perspective appears to have been a significant factor in reaching the decision in the Guelph University case. In His Lordship's words:

The matter, as I see it, boils down to whether or not the fourth principle of Dr. Wigmore should be deemed valid, namely, that confidentiality is more important than disclosure. (at p. 322)

This interpretation of Wigmore's fourth criterion is not apparent on its face but may have flowed from the following passage in the Slavutych case, where Mr. Justice Spence commented that:

... if the two interests were of equal weight, surely the greater effect should be to support the confidentiality of a document ... (at p. 229)

If this passage is the source of the interpretation in question, it may be important to stress the words which immediately follow, namely:

... [a document which was] given upon the firm agreement of both parties that it should remain confidential, indeed that it should be destroyed so soon as it had been read and perused, especially when the party who proposes the breach of that confidentiality i.e. the University of Alberta, is the party who made the firm commitment that the confidentiality should be absolute. (Ibid.)

Indeed, in that case, it might be added, the party seeking the breach had used the guarantee of confidentiality to induce the other (reluctant) party to create the document only to use it against the maker as cause of dismissal! In this respect, the facts in the Guelph University decision were substantially different.

39Moreover, in introducing his four principles, Wigmore is unequivocal in treating disclosure rather than the privilege of confidentiality as the general rule:

Looking back upon the principle of privilege, as an exception to the general liability of every person to give testimony upon all facts inquired of in a court of justice, and keeping in view that preponderance of extrinsic policy that alone can justify the recognition of any such exception ... (1961, vol. 8, c. 81, at p. 527. Emphasis added.)

He goes on to point out that the privilege is denied at common law to communications between physician and patient, journalist and source, priest and penitent as well as to other important, confidential communications.

40In sum, the courts have been reluctant to extend the operation of the doctrine of privilege and, it might be said, that reluctance is certainly understandable. If not applied with restraint, the concept of privilege could greatly diminish the capacity of the courts to resolve disputes with a corresponding decrease in public confidence in the administration of justice.

41The Guelph University decision treated the application of Wigmore's principles as one of the grounds upon, which the Slavutych decision proceeded:

On the basis of these tenets of confidentiality, the letter by the professor concerning his colleague was deemed to be a confidential document and was ruled inadmissible. Consequently, the learned Justice of the Supreme Court of Canada found that the firing was improper and, accordingly, the Court of Appeal was reversed. (at p. 317)

Reference has already been made to the contrasting factual situations in the Guelph University and Slavutych cases. It might also be argued that the references to Wigmore's four principles in the Slavutych case were merely obiter. The language of Mr. Justice Spence is qualified:

I would, therefore, be of the opinion that considering this matter only an evidentiary one and under the doctrine of privileges as so ably considered in Wigmore the confidential document should have been ruled inadmissible ... I am, however, of the opinion, as was Sinclair J.A., that this is not to be considered as a matter of the application of the doctrine of privilege in the light of the evidence. (at p. 229)

His Lordship then proceeded to deal with the case on the basis of "the equitable principle of breach of confidence" which prevents "confidential communications made in good faith" from being used to the prejudice of their maker. Reliance upon this concept of equity rather than upon the evidentiary rule of privilege may be of considerable significance if the Supreme Court of Canada should have future occasion to consider the application of the Slavutych case to other factual situations such as that which existed in the Guelph University case or the present one.

42In Reference Legislative Privilege (1978), 1978 CanLII 1604 (ON CA), 18 O.R. (2d) 529, a majority of the Ontario Court of Appeal adopted Wigmore's four principles. However, in the words of Mr. Justice Lacourciere:

Having regard to the totality of the public interest, we are unable to say that the injury which may be caused to the relation between the member of the Assembly and his potential informants would be greater than the benefit to be gained by the community by the proper and unimpaired disposition of criminal cases. (at p. 539)

Wigmore's fourth condition was held not to be satisfied.

43In Re Inquiry into the Confidentiality of Health Records in Ontario (1979), 1979 CanLII 76 (ON CA), 24 O.R. (2d) 545, another majority of the same Court held that a Royal Commissioner was correct in ruling that the law recognized no privilege which would operate to prevent disclosure to the Commission of those physicians and hospital employees who divulged medical information to members of the R.C.M.P. without patient authorization. Mr. Justice Dubin expressed the view that since the informants were under a duty of non-disclosure, the ordinary police-informer relationship did not exist and Wigmore's third condition had not been met.

44In the appeal of this decision to the Supreme Court of Canada, the majority set aside the judgment of the Court of Appeal. However, in his reasons for judgment, Mr. Justice Martland (Ritchie, Estey, McIntyre and Chouinard JJ. concurring) focuses narrowly upon the scope of the police-informer privilege. No reference, whatsoever, is made to Wigmore's four principles or to Mr. Justice Dubin's application of them.

45Chief Justice Laskin, in dissent (Dickson J. concurring) would have dismissed the appeal. In his reasons, specific reference is made to Wigmore's four principles:

What the Slavutych case established is that the categories of privilege are not closed ... This Court, speaking through Spence J. ... was of the opinion that the fourfold test propounded in 8 Wigmore on Evidence ... provided a satisfactory guide for the recognition of a claim of privilege. (at pp. 16–17)

The Chief Justice also makes reference to the potentially limited scope of application of this decision:

The recent judgment of this Court in Slavutych, supra, shows that confidence may be protected by denying resort to information elicited in confidence, at least where it is sought to use the information against the person providing it. (at p. 17. Emphasis added.)

In any event, His Lordship found it unnecessary to invoke the test in the case before him.

46A number of questions may be raised, then, with respect to the Guelph University decision. In adopting the Slavutych decision's application of Wigmore's four principles, greater regard might have been given to the factual differences in the two cases and the actual basis upon which Slavutych proceeded. In interpreting those principles, the emphasis upon confidentiality over disclosure might be worthy of reconsideration. In the application of the fourth principle, the adverse consequences to the individual and the adverse consequences of occasional disclosure upon the peer evaluation process might also warrant closer scrutiny. Finally, the conspicuous absence of reference to Wigmore's four principles in the majority decision of the most recent Supreme Court of Canada decision in this area may be significant.

47Nevertheless, the decision in the case at hand is not based upon any departure from the approach taken in the Guelph University case. What is crucially different is that, in the present circumstances, another element must be considered in weighing the public interest. In the case at hand, the public interest in the peer evaluation process must be weighed not only against considerations of fairness to the individual affected but also against the public policy expressed in the Ontario Human Rights Code.

48This broader public interest was fully recognized in the recent Borough of Etobicoke case which was referred to earlier. Mr. Justice McIntyre, delivering the judgment of the Court, concluded that:

The Human Rights Code has been enacted by the Province of Ontario for the benefit of the community at large and clearly falls within that category of enactment which may not be waived or varied by private contract. (at p. 13)

It is the view of this Board that the public interest in the proper resolution of complaints under the Ontario Human Rights Code out-weighs the public interest in the perceived maintenance of the peer evaluation process through the reliance upon the confidentiality of references.

49In the Guelph case, Mr. Justice Hollingworth was of the view that the arbitrator would still be in a position to fulfill his mandate, even without the letters of reference:

... nevertheless the arbitrator would be able to make a decision using as a yardstick some of the questions which Mr. Paliare wanted to raise. (at p. 322)

Such is clearly not the case here. Discrimination is rarely admitted openly. Evidence of discrimination is seldom easy to establish. Often a difficult and subtle balancing of the evidence is required and every relevant piece of evidence must be scrutinized.

50Excerpts from the Minutes of the Tenure and Review Meeting for the complainant (1979, 04, 06. Ex. C-2) illustrate that the letters in question were the subject of considerable interpretation by Committee members:

The committee then turned to examine the written evidence from referees ... – spoke to a particular piece of scholarly writing. Two members thought him ambiguous and three members thought his report was negative – spoke to scholarly writing and to research and was seen to be ambiguous or faintly positive – was seen as being slightly positive....

It is impossible to see how any meaningful hearing could be conducted in accordance with the requirements of the Code without openly assessing and comparing the letters of reference in relation to the complainant as well as to others under consideration.

51Finally, reference might be made to section 9 of the Statutory Powers Procedure Act, which provides that a tribunal may hold parts of a hearing in camera where the tribunal is of the opinion that:

... intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.

This provision might well be invoked to limit the adverse consequences of disclosure in circumstances such as the present.