Joseph v. College of Nurses of Ontario (No. 1)
1982-04-06
ONTARIO
CHRR Doc. 82-045
Cynthia Joseph Complainant
North York General Hospital
College of Nurses of Ontario Respondents
Place: London, Ontario
Before: Ontario Board of Inquiry, Ian A. Hunter
Appearances by: Charles Roach, Counsel for Cynthia Joseph John Judge, Counsel for the Ontario Human Rights Commission Christopher G. Riggs, Counsel for North York General Hospital
COMPLAINTS — particularity — PRODUCTION OF DOCUMENTS — subpoenas duces tecum — examination for discovery — medical file — particulars
Summary: The Board of Inquiry rules on two preliminary objections raised by the respondent Hospital.
The first is an objection that a statement of particulars regarding the complaint, which was furnished to the Hospital by the Ontario Human Rights Commission, was inadequate. The Board of Inquiry finds that the particulars provided by the Commission were sufficient to reasonably define the issues and enable North York General Hospital to adequately prepare for the hearing. Consequently, this objection is dismissed.
The second objection takes the form of a motion by the Hospital to have set aside two subpoenas duces tecum requiring hospital staff to produce documents.
The Board of Inquiry sets aside the subpoenas on the grounds that the Ontario Human Rights Commission has powers to require production of documents during the investigation of a complaint and to apply to a Court for production of documents if they are refused. However, the Code includes no statutory authorization for a right to discovery at any other stage. In addition, the Board finds that it has the power to subpoena documents if in the course of the hearing the existence of documents is revealed and they are relevant to the proceedings.
The Board finds that the effect of the subpoenas duces tecum would be to import a form of disguised discovery in advance of a hearing into human rights proceedings and this would be undesirable since it would create delay and unnecessary emphasis on technicalities.
INTERIM DECISION
1On July 15, 1981, I was appointed a Board of Inquiry by the Honourable Robert Elgie, then Minister of Labour, to hear and decide the complaint of Cynthia Joseph dated October 1, 1979, alleging employment discrimination against North York General Hospital (complaint Appendix A). After discussion with the parties concerning possible hearing dates, I was requested by Mr. John Judge, counsel to the Ontario Human Rights Commission, with the concurrence of all parties, to postpone the scheduling of a hearing until a Board of Inquiry could be appointed to deal with a second related complaint.
2On February 15, 1982, I was appointed a Board of Inquiry by Mr. R.H. Ramsay, Minister of Labour, to hear and decide a complaint by Cynthia Joseph dated January 25, 1982 alleging employment discrimination against the North York General Hospital and the College of Nurses of Ontario (complaint Appendix B). On 17 March, 1982, I convened a hearing in Toronto to deal with certain preliminary objections. Participating as counsel at that hearing were Mr. Roach, representing the complainant, Mr. Judge, representing the Ontario Human Rights Commission, and Mr. Riggs, representing the North York General Hospital. The College of Nurses of Ontario was advised of the date and place of hearing but did not choose to be represented or to participate on the preliminary objections. This decision is confined to the two preliminary objections raised by Mr. Riggs.
(1) Particulars
3The complaints, which form the subject-matter of this inquiry, are appended (Appendices A and B). Section 15(1) of the Code provides that the complaint shall be "... in the form prescribed by the Commission." The face of the complaint form outlines the allegation of discrimination. In the absence of any viva voce evidence, but from a plain reading of the initial complaint form, the general allegation of discrimination appears to be of a racially-motivated campaign of harassment, taking the specific form of (a) differential disciplinary treatment, (b) demotion, (c) additional supervision, (d) changes in working conditions. The second complaint (Appendix B) again alleges a racially-motivated campaign of harassment, taking the specific form this time of (a) untenable working conditions, leading to (b) employer's orders to submit to a physical and psychiatric examination, and (c) firing, and (d) an investigation of professional competence by the College of Nurses of Ontario, resulting in (e) suspension of her licence as a registered nurse.
4The complaint forms themselves give sketchy particulars of some, but not necessarily all, of the specific manifestations of this alleged "campaign of harassment."
5Section 8(1) of the Statutory Powers Procedure Act, applicable to Boards of Inquiry exercising a statutory power of decision pursuant to the Ontario Human Rights Code (s. 19), provides: "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."
6From a plain reading of the complaints themselves, there can be no doubt that "the propriety of conduct" of the North York General Hospital, and its senior administrative staff, is in issue in these proceedings. Accordingly, the respondent is entitled to be furnished with "reasonable information of any allegations" with respect to that conduct.
7In compliance with this obligation, prior to the hearing Mr. Judge, on behalf of the Commission and the complainant, furnished a seven page document entitled: "Response to Request for Particulars" (Appendix C). The first preliminary issue is the adequacy of this response.
8Mr. Riggs contended that the Particulars provided in Appendix C are deficient in several respects: (a) "examples" only, rather than a comprehensive catalogue of the "campaign of harassment", are cited; (b) some of the specific incidents alleged in the "campaign of harassment" do not mention the particular hospital employee allegedly involved; (c) to the extent that specific incidents are particularized, in some cases dates are absent and, in other cases, the specific impropriety alleged against the hospital is not sufficiently detailed.
9The relief Mr. Riggs requested was an order of this Board that the Commission supply further and better particulars of the discrimination alleged.
10Human rights cases have no pre-hearing pleadings: to inform themselves on the allegation and the issues, respondents must rely on the complaint form itself plus whatever particulars are furnished by the Commission or ordered by the Board. In this case, particulars have been provided and the issue is their adequacy.
11In Fairbairn v. Sage (1925), 1925 CanLII 403 (ON SCAD), 56 O.L.R. 462 at 470, Ferguson J.A. enumerated the purposes of particulars as follows:
Particulars are, I think, ordered for several purposes:
(1) to define the issue;
(2) to prevent surprise;
(3) to enable the parties to prepare for trial;
(4) to facilitate the hearing.
12Applying each of these four purposes to the particulars supplied in this case, I am satisfied that these particulars adequately fulfill these purposes.
13The application of s. 8 of the Statutory Powers Procedure Act to pre-Board of Inquiry disclosure requirements under the Ontario Human Rights Code was considered in the Walbar Machine Products decision (1980), 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228, para. 1994. The Board Chairman, Professor Gorsky, distinguished between "disclosure of the facts on which a party relies" versus "the evidence in support of the facts" (following the terminology of Haines J. in Rubinoff v. Newton (1967), 1966 CanLII 198 (ON HCJ), 1 O.R. 402 at 404).
14Professor Gorsky wrote: "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."
15Having reviewed the particulars already provided, I have concluded that they reasonably define the issues and enable the North York General Hospital to adequately prepare for the hearing.
16Accordingly, I decline to order further particulars and Mr. Riggs' first objection is dismissed.
(2) The Subpoenas Duces Tecum
17Mr. Riggs' second preliminary objection is by way of motion to have set aside two subpoenas duces tecum, the first directed to Eleanor Morton, Director of Medical Records of North York General Hospital, requiring her to produce: "patient records from June 1, 1978 to June 18, 1980, including care plans and charts, notes of clinical conferences, medication charts, and all notes, memoranda and records of all patient care, medication errors and incident reports, complaints and the Staff Communication Book for nurses on the seventh floor, in the possession of North York General Hospital, its servants or agents, maintained for the following patients cared for by the complainant"; there follow sixty-three named former hospital patients, and seventeen additional patients identified only by a stated code number.
18The second subpoena duces tecum is directed to Anne Waldron, Personnel Manager of the North York General Hospital, and requires her to produce: "personnel files, attendance records, and disciplinary records maintained by the North York General Hospital for the following nurses during the period 1977–1980"; there follows twenty-seven named nurses.
- All notes, memoranda, correspondence and other documents in the possession of North York General Hospital, its servants and agents, contained in or relating to:
(a) the personnel file of Cynthia Joseph;
(b) disciplinary proceedings and penalties against Cynthia Joseph during the course of her employment from 1977–1980; and
(c) performance reviews, appraisals and criticisms of Cynthia Joseph by North York General Hospital, its servants or agents, including Gale Ouellette;
Documents setting out the nursing policy and objectives and primary nursing guidelines maintained by North York General Hospital for psychiatric nurses;
Operating guidelines and policies for the employee assistance program established by North York General Hospital;
All employee assistance program files including, without limitation, all notes, memoranda, correspondence, charts and diagnoses contained therein or relating thereto for the following employees of North York General Hospital:
(a) Cynthia Joseph;
(b) all employees who were directed as a term of employment or referred to the employee assistance program during the course of their employment from 1977–1980.
19In their text on Administrative Law and Practice, Reid and David state: "... there is no common law right to discovery, unless a right is conferred by the relevant legislation, none exists" (p. 92).
20No right to discovery is conferred by the Ontario Human Rights Code.
21Section 12(1) of the Statutory Powers Procedure Act provides:
(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.
22The statutory test for ordering production of documents by a tribunal governed by that section seems to me to be (a) for production in evidence, if (b) relevant and (c) admissible. Given the rules governing admissibility (essentially, relevance: s. 15(1)), I conclude that I ought only to issue a subpoena for production of documents where I am satisfied that the documents sought are for the purpose of introduction in evidence and are relevant to the subject-matter of the proceedings before this Board of Inquiry. At this stage, having heard no evidence, I can only determine relevancy from the allegations of discrimination made on the face of the two complaint forms.
23"A subpoena duces tecum or an application in the nature of such a subpoena ... may be set aside or refused where it appears that the request is irrelevant, fishing, speculative or oppressive." The Supreme Court Practice, 1979, Part 1 at p. 606 referring to Senior v. Holdsworth, [1976] Q.B. 23 at 35, per Lord Denning: "... The Court should exercise this power only where it is likely that the [document] will have a direct and important place in the determination of the issues before the Court. The mere assertion that the document may have some bearing will not be enough. If the judge considers that the request is ... fishing or speculative ... the judge should refuse it."
24The Ontario Human Rights Code makes no provision for discovery in advance of a Board of Inquiry. On the other hand, the Code does confer extensive power on the Commission and its investigating officers to "... require the production for inspection or examination of employment applications, payrolls, records, documents, writings and papers that are or may be relevant to the investigation of the complaint" (s. 16(2)(b) of the Code).
25Referring to this "wide power" in the recent case of O.H.R.C. and O'Malley v. Simpsons-Sears (judgment released March 4 1982, as yet unreported [1982 CanLII 4899 (ON HCJDC), 3 C.H.R.R. D/796]) Mr. Justice Southey implied, in my respectful opinion, that it was limited to the investigative stage: "The wide powers given to the Commission under s. 16 of the Code to enter private premises, seize documents, and question persons in the course of inquiries into complaints make it difficult, in my view, for an employer to conceal successfully an intentional discrimination ..." (emphasis added).
26Moreover, the legislation prohibits a respondent from failing to comply with a proper request for production in the course of investigation, or withholding documentation relevant to the investigation (s. 16(5)), and makes contravention a summary conviction offence (s. 21).
27In my opinion, the legislative intention to be deduced from these sections is to provide authority to require disclosure and production of documents from the respondent during the investigation of a human rights complaint. Such disclosure will assist the Commission should conciliation and settlement (required by s. 16(1) of the Code) prove unfruitful and in exercising its discretion in recommending to the Minister whether or not a Board of Inquiry should be appointed to hear and decide the complaint (s. 17). Similarly, full disclosure at the investigation stage would be desirable, if not essential, in order that the Minister make a properly informed decision as to whether or not to appoint a Board of Inquiry (s. 17). As I have said, the legislature has made explicit provision for dealing with a recalcitrant respondent who refuses disclosure.
28However, once the Minister has appointed the Board of Inquiry, the Code is silent on disclosure or discovery requirements. In my opinion, this was not legislative omission but rather a deliberate recognition that adequate provision had already been made for compelling disclosure at an earlier (i.e. pre-Board) stage.
29Investigation of human rights complaints is frequently involved and protracted. In the instant case twenty-one months elapsed between the filing of the initial complaint and the appointment by the Minister of the Board. That is sufficient time for the Commission to compel production.
30In my opinion, it would be unproductive and contrary to the legislative intention to countenance further delay while the parties seek additional disclosure and discovery of documents.
31Once the Board of Inquiry is appointed, it is assumed that the Commission has conducted a full, thorough and informed investigation of all the relevant facts. I construe the absence of legislative provision for any pleading or discovery stage as an indication that the hearing is to commence as expeditiously as possible. And that hearing is to be as informal as the mandatory procedures imposed by the Statutory Powers Procedure Act permit. In my opinion, it would be contrary to the legislative scheme provided to bring in, through the issuance of subpoenas duces tecum, a disguised form of discovery which the legislature has not seen fit to provide expressly. In this respect, I again concur with my colleague, Professor Gorsky, who wrote in the Guru v. McMaster University decision (1981) C.H.R.R. para. 2185: "Counsel appear to have been of the view that the power to issue a subpoena duces tecum permitted the use of such device for the purpose of obtaining production and discovery of the documents sought. The legislature has provided for the form of production for inspection and examination of documents by the Commission or an officer of the Commission. I have concluded that a power to issue a subpoena duces tecum does not provide an alternative method of securing this purpose."
32On the undesirability of engrafting a form of disguised discovery in advance of a human rights hearing, I hope I am adopting, with respect, the tenor and the spirit of the Ontario Court of Appeal's recent admonition to arbitration Boards in Corporation of the City of Toronto v. C.U.P.E., Local 79 (reasons for judgment March 2, 1982; as yet unreported) in which Blair J.A. urged administrative tribunals to "... proceed with the maximum of common sense and a minimum of technicality." Although the Court was there dealing with an issue of admissibility in evidence rather than production of documents, I subscribe to and respectfully adopt these words of Mr. Justice Blair:
... What has happened in this case seems to me to confound the intention of the legislature, which wisely decided that grievances under collective agreements should not be adjudicated upon by the Courts. It is obvious that the rigidities and technical rules of court procedure would interfere with the necessarily broad inquiry required.
The purpose of arbitration of grievances under collective agreements is to provide an expeditious and fair method of settling disputes which experience has demonstrated are much better solved in that fashion than by complex judicial proceedings.
... It is, therefore, surprising to observe the extent to which arbitration awards purport to deal with complex questions of law. Many arbitration Board decisions cited to us contain scholarly dissertations on important substantive and procedural rules applicable to judicial proceedings. They exemplify the extreme legal formalism and adherence to technical rules which overhangs the arbitration process. At best these elaborate legal studies may be irrelevant because Boards are not bound in their procedure by technical rules of law and procedure. At worst, they can cause delay and unnecessary expense and, as the argument in this appeal demonstrated, they could obscure the real issues confronting an arbitration Board and confuse it in the performance of its duty. While it may be helpful for arbitration Boards to seek guidance by way of analogy from established legal procedures, they risk committing jurisdictional error by rigid adherence to them.
33With respect to the two subpoenas in the instant case, I have no evidence, at this preliminary stage in the proceedings, that any of the material therein sought is necessary "to be produced in evidence" at the hearing, or even "relevant" (s. 12(1), Statutory Powers Procedure Act). In the course of the hearing the existence of relevant documents may come to light through testimony of witnesses; in that event, I am satisfied that s. 12(1) gives the Board authority to order production in evidence of such a document and, if necessary, to grant an adjournment for that purpose. Of course, this could protract the hearing unnecessarily (a particularly worrisome possibility given a Board of Inquiry's lack of authority to award costs) and on this point I express agreement with Professor Ratushny's interim decision in Niedzwiecki v. Beneficial Finance (May 29, 1981);
It would be far more 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.
34For the foregoing reasons, the subpoenas duces tecum served upon Eleanor Morton and Anne Waldron are hereby set aside.
35Two other grounds of objection to the two subpoenas were urged upon me by Mr. Riggs. Although I have set the subpoenas aside on the grounds indicated above, I shall, in deference to the care and thoroughness with which these points were argued by both counsel, briefly indicate my position on one of them.
36In Re Dalgleish and Basu (1974), 51 D.L.R. (3d) 310, Bayda J. of the Saskatchewan Queen's Bench dealt with an application to set aside a subpoena duces tecum in a fact situation bearing certain similarities to the instant case. Mr. Justice Bayda wrote:
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, at p. 126, in these words: "It must specify, with as much precision as is fair and feasible, the particular documents desired". Lord Denning, N.R. in Soul v. Inland Revenue Commissioners, [1963] 1 W.L.R. 112 at p. 114, uses the words "with reasonable distinctiveness" to describe the desired standard.
37Applying the test in the Statutory Powers Procedure Act (production in evidence at the hearing and relevance) and this test of "reasonable distinctiveness," I would have held that the description of documents sought in the subpoena to Eleanor Morton does not meet these tests, being deficient in both scope and volume, and suggestive of a fishing expedition rather than an attempt to obtain relevant exhibits for introduction at a hearing.
38Applying the same tests to the subpoena issued to Anne Waldron, I would have set aside paragraphs 1, 3, 4 and 5(b).
39Mr. Riggs' final objection to the subpoenas was based on s. 49 of Regulation 865 made under the Public Hospitals' Act which prohibits a hospital Board from permitting removal, inspection or receipt of information from a medical record, but goes on to exempt records produced pursuant to process "... issued in Ontario out of a Court of Record or any other court."
40Given the decision I have already reached, it is unnecessary to determine whether or not a Board of Inquiry falls within this exception and I refrain from expressing any opinion on that point.