Jan Waterman
Ontario Human Rights Commission
Complainants
National Life Assurance Company of Canada, Ross Johnson and Vince Tonna
Respondents
Date of Complaint:
September 13, 1988
Date of Decision:
September 8, 1992
Before:
Ontario Board of Inquiry, W. Gunther Plaut
Comm. Decision No.:
459a
Appearances by:
Catherine Bickley, Counsel for the Commission
Bruce Pollock, Kathryn Chalmers and E. Turner, Counsel for the Respondents National Life Assurance Company of Canada and Vince Tonna
S. Margot Blight and Russell G. Juriansz, Counsel for the Respondent Ross Johnson
PRODUCTION OF DOCUMENTS — investigator's notes — CONFIDENTIAL RECORDS — confidentiality of statement made to human rights investigator — HUMAN RIGHTS — applicability of criminal law precedents to human rights law
Summary: This is a preliminary decision in the matter of a complaint alleging discrimination on the basis of sexual orientation.
The respondent company seeks access to the notes made by the investigating officer from the Ontario Human Rights Commission during the course of the investigation.
The National Life Assurance Company of Canada argues that the Board of Inquiry should ignore the decisions of other boards of inquiry regarding the privileged nature of the invesigator's notes and instead follow the recent decision of the Supreme Court of Canada in R. v. Stinchcombe. In this case, the Supreme Court of Canada ordered a new trial because Crown counsel failed to release the contents of an interview with a Crown witness who gave evidence apparently favourable to the defence. The witness was not called to testify. The defence argued successfully in the Supreme Court of Canada that they were entitled to disclosure.
The Board of Inquiry finds that R. v. Stinchcombe cannot be applied directly in the circumstances of a human rights complaint. The role of the Commission and the role of Crown counsel are not identical and human rights proceedings are civil, not criminal, matters. Many of those who give evidence with respect to human rights complaints are vulnerable to further discrimination and give their evidence on the understanding that confidentiality will be maintained. Moreover, in Stinchcombe there was a special and identifiable witness whose testimony was at issue. This is not the case here.
The Board of Inquiry declines to order production of the notes of the investigating officer.
[Ed. Note: See also final decision (1993), 1993 CanLII 16509 (ON HRT), 18 C.H.R.R. D/176.]
Cases Cited
Adair v. K.B. Home Insulation Ltd. (1991), 1991 CanLII 13133 (ON HRT), 15 C.H.R.R. D/331 (Ont. Bd.Inq.): 3
Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326: 7
Hall v. A-1 Collision and Auto Service (No. 2) (1992), 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204 (Ont. Bd.Inq.): 6
R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326: 4, 7, 10, 13, 17
Roosma v. Ford Motor Co. of Canada (No. 3) (1992), 1992 CanLII 14244 (ON HRT), 18 C.H.R.R. D/195 (Ont. Bd.Inq.): 11
Salamon v. Searchers Paralegal Services (1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162 (Ont. Bd.Inq.): 3
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53
s. 4(1): 1
s. 7: 1
s. 8: 1
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 1
s. 8: 1
s. 9: 1
s. 39(4): 13
s. 41(6): 14
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 13
INTERIM DECISION
1On September 13, 1988, Ms. Jan Waterman filed a complaint against the above-named respondents, alleging that she had been discharged from the National Life Assurance Company of Canada ("NLA") because of her sexual orientation, and also because she had refused to infringe the right of another person, in contravention of the Ontario Human Rights Code, [1981, S.O. 1981, c. 53] (the "Code"), ss. 4(1), 7 and 8 (now numbered 5, 8 and 9 [R.S.O. 1990, c. H.19], as they will be cited hereafter).
2At a preliminary hearing, on September 4, 1992, respondents asked that they be given access to the notes taken in the course of the investigation by the officer of the Ontario Human Rights Commission ("Commission") who was assigned to the case. Respondents held that they could not conduct a proper defence without knowing who the witnesses that had been interviewed were, what they had said to the officer, and further whether in the report to the Commission the officer had withheld results of any interviews that might have been favourable to the defence. The Commission refused to accede to such a disclosure.
This decision deals with only that issue.
THE LAW
3It has been established jurisprudence to consider the notes of the Commission's investigating officers as privileged and not subject to the inspection of respondents. The standard precedent cited is Salamon v. Searchers Paralegal Services(1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162, where respondent asked for an "analysis of investigation" prepared in relation to the complaint. Chairman F.H. Zemans ruled on the motion (Summary):
The respondents request the Board of Inquiry to issue a summons compelling the Ontario Human Rights Commission's investigator of this complaint to appear and produce the Commission's original intake questionnaire, the analysis of the investigation's findings and all other documents prepared by her that the Commission considered with respect to this complaint. The respondents also request that the Commission be compelled to reveal the names of two witnesses it intends to produce at the hearing.
The Board of Inquiry refuses these requests on the grounds that there are no provisions in the Code or the Statutory Powers Procedures Act for pre-hearing discovery.
A recent Ontario Board of Inquiry ruled similarly. In Adair v. K.B. Home Insulation Ltd.(1991), 1991 CanLII 13133 (ON HRT), 15 C.H.R.R. D/331, Chairman B. Adell said [at D/332, para. 14]:
The respondents asked for the full statements made by witnesses during the course of the investigation, and for the names of witnesses. That material I would hold to be privileged . . .
Respondents do not argue that this has been the accepted position, but hold that a recent decision of the Supreme Court of Canada creates a new and in fact contrary precedent.
4In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, the Court considered the following scenario: A lawyer had been accused of breach of trust, fraud and theft. A former secretary of his was a Crown witness at a preliminary inquiry, where she gave evidence apparently favourable to the defence. After the inquiry, but before the trial began, the witness was interviewed by the police and tape recording[s] were made of the interview. However, the witness was never called by the Crown and the application by the defence that the witness either be called or the police release the contents of the interview were rejected by the Court. The defendant was convicted and the Court of Appeal for Alberta affirmed the conviction. The Supreme Court allowed the appeal and ordered a new trial. Mr. Justice Sopinka, after reviewing the history of disclosure, said:
It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information . . . I would add that the fruits of the investigation which are in the possession of Counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. [At 333.]
The search for truth is advanced rather than retarded by disclosure of all relevant material. [At 335.]
There is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. [At 336.]
Where statements are not in existence, other information such as notes should be produced, and, if there are no notes, then in addition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be supplied. [At 345.]
5However, the Court did not make the requirement of full disclosure absolute (at p. 339).
It is subject to the discretion of the Crown. This discretion extends both to the withholding of information and the timing of disclosure. For instance, Counsel for the Crown has a duty to respect the rules of privilege. In the case of informers the Crown has a duty to protect their identity. In some cases serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation.
If this judgment, delivered with respect to a criminal proceeding, is applicable to human rights law, then the application of the respondents in the instant case should be seriously entertained, subject to whatever exceptions the Supreme Court judgment would allow.
6The question of the relation between criminal and human rights law was recently considered by Prof. T. Brettel Dawson in an interim decision under the Code, in the matter of Hall v. A-1 Collision and Auto Service and Latif (unreported, dated August 28, 1992, at 22 [now reported 1992 CanLII 14233 (ON HRT), 17 C.H.R.R. D/204 at D/210, para. 34]):
A Board of inquiry does not determine "guilt" but rather assigns responsibility for a discriminatory act or practice. For these reasons alone I believe that it is unwise to readily analogize grounds of complaint in human rights legislation with conduct controlled by the criminal law and to apply protections developed in the criminal law context to other contexts.
[And at] p. 23 [D/210, para. 36]:
Unlike a criminal charge which is laid only after a police investigation, a human rights complaint may be filed as of right. While the Commission attempts to settle disputes informally prior to the filing of a formal complaint, it is only after a formal complaint has been filed that an investigation takes place. The investigation is non-partisan and aimed at identifying what took place and ultimately endeavouring to settle the matter in a non-adversarial manner. Unlike the laying of a criminal charge, the filing of a human rights complaint implies no suspicion on the part of the public body, of wrongdoing.
7The Board also cited the Supreme Court's earlier caution that a "right or freedom may have a different meaning in different contexts" (Edmonton Journal v. Alberta Attorney General, 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at 1355). In fact, even while delivering the judgment in Stinchcombe, supra, the Court cautioned that in a case of summary conviction offences certain factors which were considered "may not apply at all or may apply with less impact" (at p. 342).
8Moreover, in Stinchcombe, supra, the potential evidence appertained to a specific witness whose testimony was not produced. In the instant case, and in the administration of the Code in general, the investigation is not surrounded by the prosecutorial aura associated with the police. I have no doubt that many a respondent, investigated by an officer of the Commission, feels that the powers and actions of the officer are "intrusive." However, the special powers of the Commission are never invoked when the respondent assists the Commission in establishing the facts of the case.
9Moreover, while it is the purpose of the Code to empower the weakest elements of the population in that it makes a complaint readily available and takes on the responsibility of discerning its possible validity, experience shows that the vast majority of the complaints end in either a settlement or in the dismissal of the complaint by the Commission — a dismissal usually recommended by the investigating officer. Fewer than 5 percent of all complaints proceed to a board of inquiry.
10Respondent counsel has implied that there may be evidence in the officer's notes which is withheld because it is favourable to the respondent, and that therefore, as in Stinchcombe, supra, the notes ought to be produced.
Personal experience leads me to believe that this implication is unjustified. The officer comes to the investigation without any apprehension of who is right and who is wrong. The Commission becomes a partisan only after the Commissioners, by vote, agree that a prima facie infringement of the Code has occurred and therefore ask the Minister to appoint a board of inquiry. Until then, the Commission is an impartial searcher for the truth. Its agents and officers may not always carry out their tasks to perfection, and certainly often are seen as antagonists by potential respondents, but the kind of truth shading of which the police in Stinchcombe were suspected should not be laid at the door of the Commission.
11In this vein did Chairman P.P. Mercer, adjudicating under the Code, characterize the analogy with Stinchcombe, supra (Roosma and Weller v. Ford Motor Company, June 5, 1992; unreported [now reported 1992 CanLII 14244 (ON HRT), 18 C.H.R.R. D/195 at para. 3]):
Nor is the analogy with the Crown's duty in Stinchcombe particularly apt; the Commission's role under the Ontario Human Rights Code is indeed not merely adversarial but these proceedings are also clearly civil and not criminal.
12There is another basic reason why the officer's notes, unless relied upon by the Commission, should not be accessible to the respondent. Officers usually find potential witnesses very hesitant to come forward; they fear for their position and are therefore assured by the officer that their privacy and anonymity will be safeguarded. Without such assurance the whole process of establishing the facts through an investigation of the case would be severely impeded. The parallel with a criminal case breaks down on this point alone.
13Moreover, in Stinchcombe, supra, there was a special and identifiable witness whose testimony was at issue, while in the instant case no such person has been targeted by the respondents.
The latter has also invoked the Statutory Powers Procedure Act [R.S.O. 1990, c. S.22] and have cited s. 23(1), which gives a tribunal the power to regulate its own procedures. But in the past, human rights boards have hesitated to order pre-hearing disclosures, for which there is no provision in the Code, and instead have asked for the production of materials which appeared relevant to the board after the hearing has begun, taken advantage of s. 39(4) of the Code.
14Counsel for Mr. Johnson has stressed that, while in criminal cases the accused faces a possible jail sentence, a human rights judgment too can have serious effects on the respondent party. An adverse decision by this Board would have an impact on the respondent's reputation, and the large damages which will be asked for (over $150,000) are a heavy threat to her client. The rules of natural justice should prevail in human rights cases no less than in a criminal court. Counsel has in fact indicated that s. 41(6) of the Code will be invoked and redress be sought from the Commission.
15In principle, I have sympathy with counsel's position. Natural justice makes no distinction between criminal and civil law. Mental anguish and financial loss have their own serious effects upon the life of a person, and it is not the function of a board to establish a ranking order of what is of greater or lesser impact. Each situation, like each person, must be considered separately.
16But justice has two parts, and the complainant has hers as well. Bringing a complaint against one's employer is in itself a difficult and often wrenching step, which many potential complainants never take. The possible loss of a job looms large and, even in the best of circumstances, the employee's relationship to the employer is clouded thereafter.
17I can therefore not justify the direct and unreserved application of Stinchcombe, supra, to the matter before me. The particularities set forth in Stinchcombe are sufficiently different to deem the conclusions drawn there applicable to the instant case.
Therefore, the motion to have this Board order the Commission to produce the notes of the investigating officer is denied.