O.P.E.I.U., Local 267 v. Domtar Inc. (No. 3)
1989-02-28
Ontario Board of Inquiry
Irene Gohm
Complainant
v.
Domtar Inc. and Office and Professional Employees International Union, Local 267
Respondents
Before: Ontario Board of Inquiry, William F. Pentney
Comm. Decision No.: 331C
Appearances by: David Lepofsky, Counsel for the Commission
Keith Juriansz, Counsel for the Complainant
Keith Billings, Counsel for Domtar
Elizabeth Lennon, Counsel for the Office and Professional Employees International Union, Local 267
INVESTIGATIVE POWERS — scope of Commission's power to issue summons — PRODUCTION OF DOCUMENTS — description of documents in summons to meet test of reasonable distinctiveness
Summary: This is an interim decision regarding a challenge to summonses requested by the Ontario Human Rights Commission and the complainant. The effect of the summonses is to require the production of documents by Domtar Inc.
The Board of Inquiry finds that the summonses issued by the Commission and the complainant are of sufficient particularity and relevance to the Inquiry that they should be obeyed.
Cases Cited
Bezeau v. Ontario Institute for Studies in Education, 1982 CanLII 4870 (ON HRT), 3 C.H.R.R. D/874: 6, 9
Commodore Business Machines Ltd. v. Olarte, 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705; aff'g 1983 CanLII 4712 (ON HRT), 4 C.H.R.R. D/1399; aff'd 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div. Ct.): 6
Dalgleish and Basu (1974), 1974 CanLII 913 (SK QB), 51 D.L.R. 309: 6
Johnson v. East York Bd. of Education, 1988 CanLII 8872 (ON HRT), 9 C.H.R.R. D/4791: 6
Joseph v. North York General Hospital and College of Nurses of Ontario, 1982 CanLII 4876 (ON HRT), 3 C.H.R.R. D/854: 9
Niedswiecki v. Beneficial Finance System (May 29, 1981) (Ont. Bd.Inq.) [unreported]: 1, 6, 9
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53:
s. 32: 5
s. 38.2(a): 3
s. 38.2(b): 3
Statutory Powers Procedures Act, S.O. 1971, c.47: 2, 3
s. 12(1): 6
Ruling on Motion to Quash by Mr. Pentney (Chairman) (Orally)
1I'd like to begin by thanking [sic] for the submissions that they've made before me. Under s. 38 of the Ontario Human Rights Code, 1981 my chief responsibility as a board of inquiry is to hold a hearing to determine whether the right of a complainant under this Act has been infringed, to determine who infringed the right, and to decide on an appropriate order under s. 40. That responsibility, [it] seems to me, is one that it's incumbent on me to fulfill separate and apart from the separate and different responsibilities that are imposed upon the Commission, particularly under the Act, in respect of its investigation and in respect of what it does in relation to the case. And the chief difficulty which I face here is a difficulty that other boards have faced as well. That in the absence of a statutory process for compulsory discovery of documents, hearings can be interrupted or delayed or otherwise impeded by the absence of any formal process for discovering documents. As Chairman Ratushny said in the Niedzwiecki [Niedzwiecki v. Beneficial Finance System (May 29, 1981) (Ont. Bd. Inq.) [unreported]] case at p. 4, the difficulty with [sic] 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. He points out, as well, the difficulties that might ensue in carrying on with the hearing in the absence of such a statutory process.
2In any event, that's the situation that I find myself in, and the issues that I see require a determination of first, whether the issuing of two identical summonses by Mr. Lepofsky for the Commission and Mr. Juriansz for the complainant is contrary to the preliminary ruling I made on the participation of Mr. Juriansz in the hearing in June. The second issue is whether the scope of the Commission's power to issue a summons under the Statutory Powers Procedures Act as a party to this proceeding is restricted by its powers of investigation under the Code and third, and this relates in some way to this, at least in respect of the Commission, whether these particular summonses are inappropriate as being, as Mr. Billings put it, for the usual reasons too broadly worded etc.
3By para. 38.2(a) of the Code the Commission is a party and it "shall have carriage of the complaint." By para. 38.2(b) the complainant is also a party and under the Statutory Powers Procedures Act, as was noted in the earlier ruling, a party to a proceeding is entitled to participate in the hearing, including the calling of witnesses and requesting the Board to issue a summons under the Statutory Powers Procedures Act. In the course of the arguments in respect of the preliminary motion, counsel for the complainant gave an undertaking not to duplicate counsel for the Commission, and I specifically mentioned that in my preliminary ruling on participation by counsel for the complainant in June 1988. Now, as a practical convenience, counsel have divided the responsibilities during this hearing with Mr. Lepofsky presenting the case in respect of liability and Mr. Juriansz presenting the case in respect of quantum of damages, but this is not binding on either of them as I would understand it, in the sense that it's not part of my ruling. I did not rule in June that that division had to be followed. What I do [sic] rule is that Mr. Juriansz could not duplicate the participation of Mr. Lepofsky in this hearing.
4Mr. Juriansz represents a party who is by statute fully entitled to be present to participate and to request that summons be issued. My ruling in June merely precludes duplication, it does not go further. As will become evident at the end of this ruling, I am prepared to quash the summons issued on behalf of Mr. Juriansz to Mr. Eamer because in the end, as I will rule, it will be inappropriate to have the same parties subject to two identical summonses, but not doing so on the basis, and I want to emphasize that, that Mr. Juriansz had no entitlement per se to request that such a summons be issued. My ruling merely prevents him from duplicating participation by counsel of the Commission, and since the Commission has carriage of the complaint, the division of responsibilities [that] has been decided upon seems to me to be working relatively well. Mr. Juriansz had every right to, under the statute, request that such a summons be issued.
5In respect of the second issue I'm not persuaded that the existence of the powers of investigation as set out in s. 32 of the Ontario Human Rights Code, 1981 as a matter of law precludes or narrows the scope of the Commission's power to request that summonses be issued under s. 12(1). The case law does not support that proposition, particularly where such a summons is to be issued during the course of a hearing, but this power is, as I understand it, very relevant to the question of the determination, the key one here I suppose, in relation to issue number three which is whether the summons per se is invalid.
6From the case law as I understand it the governing test in a motion to set aside a summons under s. 12(1) of the Statutory Powers Procedures Act is relevance, subject also to the criteria set out in Dalgleish and Basu(1974), 1974 CanLII 913 (SK QB), 51 D.L.R. 309, which have been adopted in a series of cases including [Niedzwiecki v. Beneficial Finance System, supra; Bezeau v. Ontario Institute for Studies in Education, [1982 CanLII 4870 (ON HRT), 3 C.H.R.R. D/874]; Commodore Business Machines Ltd. v. Olarte, [1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705; aff'g 1983 CanLII 4712 (ON HRT), 4 C.H.R.R. D/1399; aff'd 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div. Ct.)]; Johnson v. East York Bd. of Education, [1988 CanLII 8872 (ON HRT), 9 C.H.R.R. D/4791]. The key point I think to take from the Dalgleish and Basu criteria are that there is a concern of fairness that's involved in the issuing of a summons. So that along with the relevance criteria are the ones that I think are chiefly to be applied in resolving this issue. I don't intend to exhaustively summarize the law because that's been done in other cases, but to briefly summarize it. As I understand it s. 12(1) permits the summons to [be] issue[d] to:
any person including a party and that such a summons can require a party or a person to produce in evidence at a hearing documents and things specified by the tribunal.
Now such summonses have been treated in human rights boards of inquiry in the past as analogous to a subpoena duces tecum and that's the way in which I propose to treat these summonses.
7The material subject to the summons must be requested by a party for the purpose of producing it into evidence, not for the purpose simply of discovery of the documents. It must therefore be relevant to the matter of the proceeding in order to be admissible as evidence, it must be relevant to a matter in issue. In order to determine what is relevant and, according to Dalgleish and Basu, what is fair to the respondent or the complainant or whoever is subject to the summons, there are a series of criteria to be considered. Now these have been adequately summarized in other cases, particularly I think the Niedzwiecki case and the series of cases following it, and I don't propose to repeat that here. The fundamental principle that's identified in Dalgleish and Basu and it's carried forward in the subsequent cases, is that the description of the documents must be "fair and feasible and reasonably distinctive." And in Dalgleish and Basu there are four criteria that are set out which assist in that determination. I don't propose to go through all of those as well because they're also summarized, quoted and summarized in Niedzwiecki and subsequent cases.
8In these circumstances I find that the description in the summonses does meet the test of reasonable distinctiveness. I have no doubt that from the four descriptions of the classes of documents in the summons, Mr. Eamer and others at Domtar would have a sufficient idea of what to look for. Although I completely understand, in light of the passage of time and the changes that have occurred in Red Rock and in Mr. Eamer's employment, that there may be very practical problems of knowing where to look for them, as it still seems to me that, given the description in the summonses, it should be clear to the parties basically what it is that they are to look for.
9I would contrast the descriptions that are set out in the four paragraphs of these summonses with those that were struck out in cases such as Bezeau, supra, which, and I'm paraphrasing here, asked the party to produce any and all documents relating to the case, and [Joseph v. North York General Hospital and College of Nurses of Ontario), 1982 CanLII 4876 (ON HRT), 3 C.H.R.R. D/854], I'm not giving the full citation, but in the Joseph case what was requested were all patient records, notes, etc. for sixty-three named patients and seventeen others. And in Niedzwiecki, supra, what was struck out was a request to produce all documents, records, notes, and/or writings pertaining to the complaint.
10It seems to me that in all of these situations it's appropriate for a board to find that the test of reasonable distinctiveness is not satisfied, but I would categorize the requests that are set out in the summons under challenge here as being more comparable to the requests that have been upheld in other cases, including the Bezeau case. The requests here speak to specific documents in relation to specific issues, events, and times and it seems to me that the alternative would be to require either the Commission or the complainant here to name particular documents and identify specific dates, and things like that, in relation to each specific documents requested, and it seems to me to do that would be to defeat the purpose of the summons. It seems to me that the descriptions here are of sufficient particularity to enable Domtar to conduct a reasonable search for them.
11Now, having said all that it is of concern to me that we have a situation in which a Commission has had ample opportunity to engage in an investigation of the matter and, where seven days into the hearing, we're faced with a challenge to a summons. Like all other board chairpersons who have addressed the issue, I wanted to note for the record that it's a matter of regret to me that the absence of a pre-hearing discovery process can entail delay in a hearing. It seems to me, that until the legislation is amended, that is an unavoidable consequence of the statutory scheme in which we're operating. However, [as] much boards [as] continue to lament the potential for a cat and mouse game, the fact is that in the absence of compulsory pre-hearing discovery we may be faced with situations in which requests will come forward for the production of documents into evidence that will entail certain difficulties as a practical matter.
12I think that the Commission's power to conduct an investigation is relevant and I would particularly like to draw attention in this ruling to the Joseph case and to note that the board of inquiry essentially concluded there that the Commission was seeking to expand upon and redo an inquiry, and that it struck out the request particularly sixty-three personnel files, as I read it basically on the basis that the Commission ought to have done its investigation the first time around and not the second time around. I wouldn't want by this ruling to indicate that I would have acquiesced in any such request, but it seems to me that the requests that are being made here are rather in relation to matters that [are] directly relevant to the basic questions that are in issue before the Board, and that are described with sufficient particularity for me to find that the summons will be or ought to be complied with.
That is my ruling.