Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, 1981
Ken Johnson Complainant
v.
East York Board of Education and Richard Dodds, Douglas Wyles, and Douglas Groom Respondents
Date of Complaint: December 3, 1984 Date of Interim Decision: January 26, 1988 Place: Toronto, Ontario Before: Berend Hovius Comm. Decision No.: 327
Appearances by: Raj Anand, T. Hadwen and Bonnie Ostroski, Counsel for the Ontario Human Rights Commission and Ken Johnson Carolyn Kay-Aggio, Brent Labord, Counsel for East York Board of Education and Richard Dodds Peter Waldman and Mary Jarrell, Counsel for Douglas Wyles and Douglas Groom
PRODUCTION OF DOCUMENTS — party summoned to produce documents required to give oral testimony — subpoenas duces tecum — personnel file — EVIDENCE — oral testimony
Summary: This is an interim decision of a Board of Inquiry hearing an allegation that East York Board of Education discriminated against Ken Johnson because of his race, colour, and ancestry.
The preliminary issue here concerns notes taken by Douglas Groom who was Ken Johnson's Department Head at the time of the alleged discrimination. The Commission wished to obtain access to these notes, and the Board found that the proper course of action for the Commission was to request the Board of Inquiry for a summons to be issued under section 12 of the Statutory Powers Procedure Act requiring Mr. Groom to testify at the hearing and produce the notes.
The Board issued the summons. However, by having the summons issued the Commission wished to have access to the documents prior to the hearing of the case on the merits. It wished to have Mr. Groom called to produce the notes at a preliminary hearing and then have that hearing adjourned so that the Commission could decide whether to introduce the notes as evidence.
The respondent then moved to have the summons set aside on the grounds that: 1) a person summoned under the Statutory Powers Procedure Act can only be required to produce documents at a hearing on the merits and not at a preliminary hearing, 2) the summons was too broad, and 3) the Commission could not obtain the documents without calling Mr. Groom as a witness.
Considering this motion, the Board of Inquiry finds that section 12 of the Statutory Powers Procedure Act does not allow for discovery or for production of documents at a preliminary hearing. The summons must require the witness to attend the hearing on the merits and it can require the witness to produce documents. The Board of Inquiry sets aside the summons on this ground.
The Board of Inquiry also finds that the summons is not overbroad and the documents are relevant to the complaint. Finally, the Board also rules that the witness who is summoned must be called to testify by the Commission. The wording of the summons provision indicates that the witness is to testify and produce documents. The Commission cannot compel the witness to produce the documents but refuse to call him as a witness.
While the Board sets aside the summons, it indicates that the Commission can request a new summons requiring Mr. Groom to appear at the hearing on its merits to testify and produce his notes.
1. Introduction
1Mr. Johnson, a black Canadian originally from Jamaica, alleges that he was discriminated against because of race, colour, ancestry and place of origin while he was employed as a teacher in the Industrial Arts Department at East York Collegiate Institute. The respondents are Mr. Groom, Mr. Dodds, Mr. Wyles and East York Board of Education. The preliminary issue to be determined concerns certain documents in the possession of Mr. Groom who was Department Head at the time of the alleged violations of the Code.
2On September 9, 1987 a preliminary hearing was held and dates for a hearing on the merits were set. At the September 9 hearing, counsel for the Commission requested a further preliminary hearing to determine an issue relating to the production of notes taken by Mr. Groom during the years 1976 to 1984 recording observations concerning Mr. Johnson and his performance as a teacher, the relationship between Mr. Groom and Mr. Johnson, and the interrelationship between Mr. Groom, Mr. Johnson and Mr. Beniuk the only other member of the Department. This hearing was held on September 28, 1987. On that date, counsel for the Commission explained that the Investigating Officer was aware of the existence of these notes during the investigation but had only requested and been granted access to some of them. After the investigation concluded, Commission requests for access were denied by Mr. Groom. Counsel for the Commission argued that the Board had inherent jurisdiction to order production in advance of the hearing. I ruled that the Board did not have, apart from the power to issue a summons under section 12(1) of the Statutory Powers Procedure Act, any authority to order production of documents. As held in Ryckman v. Kenora (Town) Commissioners of Police (1987), 1987 CanLII 8510 (ON HRT), 8 C.H.R.R. D/4138, the proper course of action for the Commission in this situation is to request the Board of Inquiry for a summons to be issued under section 12(1) of the Statutory Powers Procedure Act.
3Counsel for the Commission then sought to argue that the Board could use its power under that subsection to require production in advance of the hearing on the merits. When Mr. Groom's counsel indicated he was not prepared to deal with that issue at that time, I granted an adjournment and eventually December 15 was set for the resumption of the preliminary hearing.
4On December 15 I signed, at the request of counsel for the Commission, a summons requiring Mr. Groom to attend at the hearing on that day and to bring with him and produce all notes taken by him "during the years 1976 to 1984 recording observations concerning Mr. Ken Johnson and his performance as a teacher, your relationship with him as well as the relationship between yourself, Mr. Beniuk and Mr. Johnson." By this summons Commission counsel intended to achieve the following. Mr. Groom would be required to produce these notes at the preliminary hearing without being called as a witness by the Commission. Commission counsel would then be granted access to them. The preliminary hearing would then be adjourned to permit the Commission to study the documents and prepare its case accordingly. The documents, if admissible, would eventually be presented in evidence at the hearing by the Commission in the manner it felt most appropriate.
5Mr. Waldman immediately brought a motion to quash the summons. He raised three basic grounds: first, that a person could be required to produce documents under section 12(1) of the Statutory Powers Procedure Act only at the hearing on the merits and not at a preliminary hearing in advance of the presentation of the evidence; second, that the summons was too broad and constituted a form of discovery or fishing expedition; and third, that the Commission could not obtain these documents through a summons and introduce them into evidence without calling Mr. Groom as a witness for the Commission. I will deal with each of these objections in turn.
2. Timing of the Production
6Section 12(1) of the Statutory Powers Procedure Act specifies:
A tribunal may require any person, including a party, by summons
(a) to give evidence on oath or affirmation at a hearing; and
(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.
7Several boards of inquiry have held that a summons issued under section 12(1) cannot be used as a disguised form of discovery (see Guru v. McMaster University (1981), 1980 CanLII 3915 (ON HRT), 2 C.H.R.R. D/253; Joseph v. North York General Hospital (1982), 1982 CanLII 4876 (ON HRT), 3 C.H.R.R. D/854; Bezeau v. Ontario Institute for Studies in Education (1982), 1982 CanLII 4870 (ON HRT), 3 C.H.R.R. D/874; and Olarte v. DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4712 (ON HRT), 4 C.H.R.R. D/1399). It is also clear from the wording of section 12(1) that this subsection does not permit the Board to order production or inspection of documents prior to the hearing. Rather 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.
8At this stage of the proceedings, the Board has not yet entered into a hearing on the merits. No opening statements have been made by any party. The Commission, which has carriage of the complaint, has not yet begun presentation of its case. In short, the Board has not begun to hear or receive evidence. If Mr. Groom were required to produce the documents at a preliminary hearing so that they can be studied by the Commission, it would not be production "in evidence at a hearing" as dictated by section 12(1). Rather, it would serve only as a means by which the Commission obtained production or inspection of documents prior to the presentation of evidence at the hearing. Furthermore, no factual basis for the introduction of these documents has been established at this stage.
9Two fairly recent board of inquiry decisions support the conclusion that a board does not have authority to require production of a document prior to the hearing on the merits. In Salamon v. Searchers Paralegal Services (1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162, the respondent sought to compel the Commission's investigating officer to attend at a preliminary hearing to gain access to certain documents in her possession prior to the hearing on the merits. Professor Zemans declined to issue the summons. He reasoned (at para. 32912):
Section 12(1)(a) clearly states that the party summoned is to give evidence at a hearing and further that any documents produced under this section are to be produced "in evidence at a hearing". Hence, any documents that are produced are to go into evidence. The provision does not contemplate, and therefore cannot be used for, pre-hearing discovery. Whether the documents requested would be admitted as exhibits will have to be decided at the hearing itself, and not at this preliminary stage.
10In Ryckman, supra, the Board of Inquiry was asked to require the respondent to supply the Commission with certain documents prior to a hearing on the merits. Professor Cumming declined to do so. He stated (at para. 32691):
Nor 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 inadmissible by reason of privilege or by statute.
He went on to provide the following guidance for the parties (at paras. 32692 and 32693):
In 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.
An 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.
11Accordingly, I conclude that the motion to set aside this summons is well-founded and the summons is set aside. The Commission is free to obtain a new summons requiring Mr. Groom to give evidence at the hearing on the merits and to produce in evidence at that hearing documents relevant to the subject-matter of the proceedings and admissible at the hearing. As pointed out by counsel for the Commission, this may very well result in the need for an adjournment at the hearing so that Commission counsel can review the documents. In order to avoid the consequent delay, counsel frequently divulge the documents in advance of the hearing on the merits once the summons is issued. In this way the party who obtained the summons has an opportunity to study the documents and prepare its case accordingly. This is, however, a matter of volition since the Board has no power to order production of the documents in advance of the hearing on the merits.
12As mentioned earlier, two other grounds were put forward for setting aside the summons. Although I have set aside the summons on the basis indicated above, I shall briefly indicate my position on each of them. I do so not only in deference to the thoroughness with which these points were argued by counsel, but because a resolution of these issues may expedite the hearing.
3. Breadth of the Summons
13Mr. Groom's counsel argued that even if the summons had required his client to appear as a witness and produce the notes at the hearing on the merits, it would still be an improper summons because it was too broad and constituted a fishing expedition.
14An analysis of this issue must begin with consideration of the wording of section 12(1) of the Statutory Powers Procedure Act. In Joseph v. North York General Hospital, supra, Professor Hunter stated (at para. 7578):
The 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.
All of the counsel in the case at hand accepted that this was the appropriate test to apply on a motion to set aside a summons issued under section 12(1).
15As further guidance in the application of this test, counsel for the Commission and counsel for Mr. Groom referred to Re Dalgleish and Basu (1974), 1974 CanLII 913 (SK QB), 51 D.L.R. (3d) 309 in which an application to set aside a subpoena duces tecum issued under the Medical Profession Act, R.S.S. 1965, c. 303 was considered. The essence of that case was explained as follows in Niedzwiecki v. Beneficial Finance System (Interim Decision, May 29, 1981) (Quoted in Bezeau, supra, at para. 7796):
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 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 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 issue 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 the subpoena commanding the production of documents be set aside.
16Applying all of these considerations to the summons under consideration, I would not have set it aside on the basis that the request for production of the specified notes is too speculative, a fishing expedition or oppressive. The complaint alleges that Mr. Groom, as department head, engaged in a course of conduct which discriminated against Mr. Johnson and harassed him because of his race. Differential treatment of Mr. Johnson in comparison to Mr. Beniuk is specifically raised. The entire employment relationship between Mr. Johnson, Mr. Groom and Mr. Beniuk is therefore relevant in order to assess the specific allegations. Notes kept by Mr. Groom regarding that relationship are therefore prima facie relevant, although it cannot be determined at this time that any particular note is admissible. Furthermore, one of the specific allegations in the complaint is that Mr. Groom insisted on documenting alleged deficiencies in Mr. Johnson's teaching and his execution of administrative acts. Therefore, the very existence of these notes as a means of building a case for future use against Mr. Johnson is prima facie relevant. I conclude that these notes could be made the subject matter of a summons for the purpose of introducing them into evidence at a hearing on the merits once a factual basis for their production was established.
4. Must the Party Summoned to Produce a Document Also Give Oral Testimony?
17Counsel for the Commission argued that the Board could require Mr. Groom to produce documents pursuant to section 12(1) of the Statutory Powers Procedure Act even if he was not called as a witness. In this way, the Commission could avoid calling Mr. Groom as its witness and still obtain the notes for presentation as part of its case. Presumably, the Commission would attempt to prove the notes through the testimony of some other witness.
18There is some authority for the proposition that in conventional civil litigation a party can require a person to produce a document pursuant to a subpoena duces tecum without calling the person as its witness to give oral testimony. See Davis v. Dale (1830), 172 E.R. 729; Summers v. Moseley, (1834), 2 Cr. & M. 477; Perry v. Gibson (1834), 1 Ad. & El. 48; and Tribune Newspaper Co. Ltd. v. Fort Francis Pulp and Paper Co. Ltd. (1932), 1932 CanLII 291 (MB CA), 40 Man. R. 401, at 409–11 (C.A.). See also Wigmore on Evidence (Chadbourn Rev. 1976) at Section 2200. This approach has also been adopted by the Ontario Labour Relations Board in Heart Construction Co. Ltd. v. Labourer's, Local 183, [1983] O.L.R.B. Rep. Jan. 84 and United Steelworkers of America v. Shaw-Almex Industries (1984), 6 C.L.R.B.R.(N.S.) 635.
19Counsel for the Commission did not refer to any board of inquiry decision under the Human Rights Code or indeed any decision by a tribunal exercising the summons power under section 12(1) of the Statutory Powers Procedure Act in which a party had been permitted to require a person to produce documents without that person also giving oral testimony. However, he did draw my attention to a comment by Professor Cumming in Olarte et al. v. De Filippis and Commodore Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705. In para. 14604, Professor Cumming states:
I think it is useful, as an aside, to mention briefly that the person who is subject to a subpoena duces tecum need not be a witness beyond the mere production of the documents in the subpoena.
Professor Cumming then refers to Wigmore on Evidence and Holmested and Gale, The Judicature Act, as authority. Other board of inquiry decisions seem to assume that a person summoned to produce a document will also be called to testify orally. See, for example, Guru v. McMaster University, supra, and Salamon v. Searchers Paralegal Services, supra, especially para. 32914.
20In resolving this issue, I re-emphasize that the power of this Board to issue a summons and require the production of documents is governed by section 12(1) of the Statutory Powers Procedure Act. The case law dealing with the subpoena duces tecum in ordinary civil litigation or with the power of the Labour Relations Board under the Labour Relations Act may provide some guidance in interpreting section 12(1) but they are not determinative. The wording of section 12(1) indicates that a person is summoned to do two things: to testify orally and to produce in evidence at a hearing documents which may be specified by the tribunal. It goes without saying that if the tribunal does not specify that the individual is to produce any documents, then the summons is only to testify orally.
21It may be that, as a matter of law, the Board has the authority to decide that a person who is summoned to testify orally and to produce documents should, when he or she appears at the hearing, only be required to produce the documents. However, both the wording of the Act and the particular circumstances of this case suggest that such an approach would be inappropriate if Mr. Groom were summoned to testify and to produce the notes referred to in the summons into evidence at the hearing. Section 12(1)(b) states unequivocally that the Board's authority to require production of documents is limited to production in evidence at a hearing. One way to attempt to ensure that the documents are indeed being produced into evidence at the hearing is to have the creator of the documents called as a witness to testify as to their authenticity and the circumstances of their creation. This avoids the possibility that the party originally seeking production of the documents is granted access to them but chooses not to call another witness to prove the documents or is unable to do so. In other words, requiring the Commission to call Mr. Groom as a witness if it wishes the production of these notes into evidence as part of its case helps to ensure that the notes are indeed being sought for the purpose of introducing them into evidence and not merely as aids in the preparation of the Commission's case. It also avoids the protracted proceedings that may be necessary to prove the documents by some other witness.
5. Conclusion
22The summons issued on December 15, 1987 directed to Mr. Groom is set aside. The Commission is, of course, free to obtain a new summons requiring Mr. Groom to give evidence at the hearing on the merits and to produce at that hearing any documents which may be specified in the summons.