Ryckman v. Kenora (Town) Commissioners of Police
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Vicki Ryckman Complainant
v.
Board of Commissioners of Police of the Town of Kenora Respondent
Place: Kenora, Ontario
Before: Peter A. Cumming
Comm. Decision No.: 276
Appearances by: Luba Kowal, Counsel for the Ontario Human Rights Commission and Vicki Ryckman T. A. O'Flaherty, Counsel for the Board of Commissioners of Police of the Town of Kenora
PRODUCTION OF DOCUMENTS — procedure for production of documents — subpoenas duces tecum — PROCEDURE — proper procedure for production of documents
Summary: This is a decision on the preliminary issue of production of documents. The complaint of Vicki Ryckman alleges that she was denied a position as a police officer by the Town of Kenora because of her sex. The Board of Commissioners of Police has refused to provide copies of the application forms submitted by other applicants for the position to the Ontario Human Rights Commission.
The Board of Inquiry finds that the proper course of action for the Ontario Human Rights Commission is to request the Board of Inquiry to issue a subpoena duces tecum. When the hearing has begun, the Ontario Human Rights Commission should call the person subject to the subpoena as a witness and request him or her to produce the documents.
Decision
1This hearing opened by way of conference call November 18, 1986, with an adjournment sine die. A further conference call took place March 6, 1987, to consider motions by the Comission.
2The complaint relates to an allegation of denial of equal treatment in respect of employment because of gender and/or marital status in breach of section 4(1), 8 and 10 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 (hereafter, "the Code").
3The complainant applied for employment as a police officer in July, 1984, and was ultimately not hired. The respondent had solicited applications for the position, received sixty applications and hired two persons.
4The Human Rights Commission seeks production of the documents pertaining to the 57 other unsuccessful applications, and perhaps other documents. The Human Rights Commission wants to determine whether the evidence that can be gathered warrants an inquiry. The Human Rights Commission has not been able to obtain the documents needed to make this assessment. The respondent Police Commission quite understandably, is concerned that these application forms be kept confidential, as they contain very personal information.
5Counsel for the Human Rights Commission made a motion that it is implicit to section 35 that a board of inquiry, appointed by the subsections 32(5) and/or (6) route, can order the production of documents.
6Under the Code an enforcement process is established (Part IV). Upon a complaint being filed (section 31), and investigated (section 32), if the Commission "fails to effect a settlement of the complaint and the evidence warrants an inquiry" (subsection 35(1)), the Commission may request the Minister to appoint a board of inquiry. The Minister then makes the appointment pursuant to subsection 37(1).
7However, if the Commission, in seeking to conduct its investigation as it is empowered to do under subsection 32(2), is met with resistance, it may apply to a justice of the peace for a warrant to enter (subsection 32(4), (5) and (8)), and a search warrant for documents (subsection 32(6) and (7)).
8Alternatively, when it is met with resistance in its investigation, the Commission may request the Minister to appoint a board of inquiry (subsections 32(5) and (6)). If that approach is taken, the Commission need not take steps to complete its investigation or "endeavour to effect a settlement" (otherwise required by subsection 32(1)). Moreover, it does not have to appear to the Commission that "the evidence warrants an inquiry" as a prerequisite to requiring the Minister to made the appointment of a board of inquiry.
9A request to the Minister under subsections 32(5) and/or (6) will result in an appointment under section 37. However, it does not seem to me that a board of inquiry appointed by this route is then empowered to compel the production of documents. I cannot find anything in the Code that so provides, and specifically, such power is not found in subsections 32(5) or (6).
10Nor is a board of inquiry empowered to compel the production of documents prior to a hearing, that is, at a discovery stage, by any provision of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484. Paragraph 12(1)(b) and section 15 of that Act empower a board of inquiry to compel "at a hearing" documents "relevant to the subject matter of the proceedings," provided they are not inadmissable by reason of privilege or by statute. I have dealt with this issue in respect of motions under the old Code, being the Ontario Human Rights Code, R.S.O. 1970, c. 318. See for example Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police and Inspector William Dickson, (interim decision, November, 1978, (unreported, aff'd. (1980), 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48 (Div. Ct.) at 49, 53); see also Guru v. McMaster University, (unreported decision, November 12, 1980, M.R. Gorsky, Ont. Bd. of Inq.).
11In my view, the proper course of action for the Human Rights Commission in a situation like the instant one, is to request the board of inquiry for a subpoena duces tecum to be issued. The board is empowered to issue a subpoena duces tecum by section 12 of the Statutory Powers Procedure Act. After the hearing has begun, the Human Rights Commission should call the person subject to the subpoena duces tecum as a witness to produce the documents. At that point, the board must determine whether the documents meet the tests of section 15 of the Statutory Powers Procedure Act.
12An adjournment can be given to allow the parties to review the documents to allow them to make submissions as to whether the section 15 criteria are met. If documents are sensitive in nature and confidentiality should be maintained, then the evidence should be introduced in camera.
13In the instant situation, as an alternative, the Human Rights Commission suggested the subpoena duces tecum approach, with the documents obtained and admitted to be dealt with as in camera evidence. It should be noted that counsel for the respondent readily agreed to this approach as a proper and fair procedure. In my opinion, for the reasons given, it is the correct path to be followed.