Findlay v. Mike's Smoke and Gifts (No. 2), 1993 CanLII 16454 (ON HRT)

1993-04-29

Ontario Board of Inquiry

Pat Findlay and Marty McKay

Complainants

Mike's Smoke and Gifts and Soon Hwan Kim, Jug Mart and Four Star Variety

Respondents

Dates of Complaint:

April 13 and 15, 1988

Date of Decision:

April 29, 1993

Before:

Ontario Board of Inquiry, Ruth Hartman, Loretta Mikus and Frederick Zemans

Comm. Decision No.:

513A

Appearances by:

Reva Landau, Counsel for the Complainant P. Findlay

Geri Sanson, Counsel for the Ontario Human Rights Commission

Walter Fox, Counsel for the Respondent Mike's Smoke and Gifts

Peter Israel, Counsel for the Respondent Four Star Variety

Aubrey Golden, for Playboy Enterprises Inc.

Sheila Block and E. Polak, for the Canadian Civil Liberties Association

PRODUCTION OF DOCUMENTS — investigator's report — particulars — privileged documents — adequacy of disclosure prior to hearing — right to examination for discovery — EVIDENCE — disclosure prior to hearing — COMPLAINTS — human rights commission's refusal to supply information from investigator's report — CONFIDENTIAL RECORDS — confidentiality of statements made to human rights investigator — BOARDS OF INQUIRY/TRIBUNALS — authority to order human rights commission to deliver reasonable information of allegations — HUMAN RIGHTS COMMISSIONS — conciliation and investigation procedures followed to effect a settlement

Summary: This is a second preliminary decision in the matter of complaints alleging discrimination against women with respect to public services because of the display and sale of pornographic magazines in neighbourhood convenience stores.

The respondent, Four Star Variety, requests that the Board of Inquiry require the Ontario Human Rights Commission to make full disclosure of: the intake and investigating officers' notes and information, copies of magazines purchased and photographs taken, a list of conciliation attempts, notes and correspondence for conciliation meetings. The basis for these requests is the respondents' allegation that the Ontario Human Rights Commission did not follow its own mediation and conciliation procedures when dealing with this complaint.

The Board of Inquiry finds that there is no preliminary disclosure in human rights cases. Respondents are entitled to reasonable information regarding the allegation made against them, but not to notes from investigation and conciliation efforts which go beyond this "reasonable information." At the time of the hearing the respondents will be given information regarding the magazines and photographs, but at this stage this request is premature. Further, notes regarding conciliation meetings are privileged because if information regarding admissions made during settlement discussions became part of the record, parties would be reluctant to engage in the frank and open discussions needed for successful conciliation.

For these reasons, the Board of Inquiry declines the respondents' motion for disclosure.

[Ed. Note: See also 1993 CanLII 16430 (ON HRT), 21 C.H.R.R. D/11, 1993 CanLII 16461 (ON HRT), 21 C.H.R.R. D/19 and 1994 CanLII 18437 (ON HRT), 21 C.H.R.R. D/42.]

Bhadauria v. Toronto (City) Board of Education (No. 1) (1987), 1987 CanLII 8498 (ON HRT), 9 C.H.R.R. D/4501 (Ont. Bd.Inq.): 8

Nembhard v. Cansurop Manufacturing Ltd. (March 11, 1976), (Ont. Bd.Inq.) [unreported]: 8

Salamon v. Searchers Paralegal Services (1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162: 10

Walbar Machine Products of Canada Limited v. Dubajic (1980), 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228 (Ont. Bd.Inq.): 9, 13

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53: 7

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

s. 8: 7

s. 12: 10

INTERIM DECISION RESPECTING THE DISCLOSURE OF PARTICULARS

1A board of inquiry was appointed on January 12, 1993, by the Minister of Citizenship, the Honourable Elaine Ziemba, in respect of complaints against three variety stores and one individual alleging that by displaying and selling certain magazines in stores that offer a general service to the public [sic] create an environment which is hostile to and discriminates against women. The complainants allege that their right to equal treatment with respect to services, goods and facilities has been infringed because of their sex, in violation of ss. 1 and 8 of the Human Rights Code, S.O. 1981, c. 53 as amended.

2At a preliminary hearing held on February 8, 1993, it was agreed by all parties present and their counsel that a notice of hearing inviting applications for interested party status with respect to this Inquiry would be advertised in the Ontario press. It was further agreed that the notice would contain the substance of the complaints and be reviewed by the parties or their counsel prior to publication.

3A notice was duly published and a terminal date for applications was set as March 18, 1993. On or before that date, twenty-seven applications were received by the Registrar and, when the hearing was reconvened on April 1 and 2, 1993, three further applications were presented to this Tribunal. The Tribunal heard submissions from all the applicants present at the hearing as well as the parties and an interim decision as to the status of those applications was issued by the Tribunal.

4There were several preliminary matters raised at the hearings on April 1 and 2, 1993. One of those issues involved a notice of motion filed by Mr. Israel on behalf of the respondent, Four Star Variety, seeking full disclosure of all documents and information relating to the Inquiry. Specifically, the request includes the following:

(a) the intake officer's notes and information (referred to as "The Blue Sheets";

(b) L. Ackroyd's or any other investigating officer's notes;

(d) copies of the photographs taken by the investigating officers;

(e) a list of all conciliation attempts (i.e. personal or telephone contact or correspondence);

(f) notes from any conciliation meetings; and

(g) copies of any correspondence relating to conciliation.

At the hearing the respondent became aware of the fact that the complainant had previously filed a complaint in 1985 and added the following to its request for disclosure:

(h) 1985 complaint and Blue Sheets of same.

The basis for the motion is the respondent's allegation that the Human Rights Commission did not follow its own mandatory conciliation procedures in investigating this complaint. It takes the position that failure operates to deprive this Tribunal of its jurisdiction to hear and decide this complaint. As well, it takes the position that the Commission displayed a bias in the processing of this complaint and that bias is demonstrated by its failure to make sincere efforts to settle the matter.

5Ms. Sanson, counsel for the Commission, objected to the motion for disclosure on the basis that the Commission has already provided the respondents with sufficient particulars to allow the respondents to know the case it has to meet and that is all it is required to do.

6This issue has arisen in several similar proceedings under the Code and a body of jurisprudence has been developed concerning the appropriate scope of disclosure before a Board of Inquiry.

7Boards of Inquiry have consistently maintained that neither the Code or the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (hereinafter referred to as the SPPA) provide for discovery in the same manner that is expected in civil litigation. Many of the decisions on this issue arose in the context of an argument concerning s. 8 of the SPPA which reads as follows:

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

8In Bhadauria v. Toronto Board of Education (1987), 1987 CanLII 8498 (ON HRT), 9 C.H.R.R. D/4501, the Board stated [at D/4502, para. 35082]:

. . . the civil procedure concept of furnishing "particulars" is analogous but not identical to the requirements of the Statutory Powers Procedure Act. The Legislature could easily have drafted section 8 of the Statutory Powers Procedure Act to require that particulars of allegations be furnished to the respondents in hearings such as these. This would have imported the jurisprudence which identifies particulars and eventually leads to discovery of the opponent's case. But section 8 puts a different onus on the parties. It simply requires that reasonable information be given of any allegation with respect to a claim impugning character or conduct. "Reasonable information" is not as rigid a requirement as the furnishing of particulars. It only requires that the respondent has sufficient information about the allegations to prepare itself to answer the allegations.

In Nembhard v. Cansurop Manufacturing Ltd. (March 11, 1976), unreported (Ont. Bd.Inq.) (Transcript, p. 22), the Board interpreted the requirements of s. 8 of the SPPA as follows:

[P]rior to the hearing, a respondent is entitled to receive sufficient information about the allegations to enable him to prepare his answer to them. This section does not, however, refer to advance notice of documentary evidence but merely to reasonable particularity of allegation.

9In Dubajic v. Walbar Machine Products of Canada Limited (1980), 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228 (Ont. Bd.Inq.), the Board was not persuaded by the argument of the respondent that he was entitled to be informed about the evidence the Commission intended [to] adduce to prove its allegations. The Board commented as follows [at D/230, para. 2016]:

My interpretation of s. 8 is that it is concerned with the furnishing of "reasonable information of . . . allegations . . ." and not with the means whereby those allegations will be proved. It is concerned with particulars to know a case and not with evidence as to how the case will be proved. It is concerned with the case intended to be made and not with the information allegedly favourable or unfavourable to the case. Furthermore, it is not concerned with facts which might assist the party, against whom the claim is being made, to discover evidence in support if its defence, as contrasted with information of the case to be met, although I would expect that the Commission would, at the hearing, adduce evidence arguably favourable as well as unfavourable to Walbar.

It went on to say [p. D/230, para. 2014]:

even if s. 8 . . . could be interpreted as encompassing documents and statements of evidence within the meaning of "reasonable information" the furnishings of such information would only be necessary where it was required by a party, to either know the issues or to be able to prepare its answer to the allegations. That is, unlike discovery in the Supreme Court, the information does not include facts or documents which may assist a party in leading to a train of inquiry which might, in turn, result in the obtaining of evidence which could assist in making the party's case.

10In the case of Salamon v. Searchers Paralegal Services(1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162 the interpretation of s. 12 of the SPPA was considered. By way of a preliminary matter, the respondents were seeking a summons compelling the attendance of the Ontario Human Rights Commission's investigator to appear and produce the original intake questionnaire, the analyses of the investigator's findings and all other documents prepared by the Commission and intended to be relied on by it for its case.

11 Section 12 of the SPPA empowers a tribunal to:

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.

The tribunal in that case declined to order the appearance of the investigator on the basis that it was inappropriate to compel her attendance at that stage of the proceedings. It stated at p. D/4163 [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 . . . 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.

12In considering the nature of the documents requested, the Tribunal noted, at p. D/4164 [D/4165]:

It is worth noting, however, that much or all of the information gained by Commission officers at the inquiry and conciliation stages of human rights proceedings is privileged. In Bendi v. Mercer et al, supra, the Board of Inquiry states at page 9 that:

the testimony of the [Commission] officers as to the inquiry and conciliation stages, are privileged on one or more grounds. [Quoted in para. 32914.]

First, the materials requested . . . have been prepared in consequence of the complaint filed. The Commission's file was prepared with a view to conciliation following investigation and in contemplation of a Board of Inquiry if conciliation was not successful. [Quoted in para. 32920.]

Documents are privileged when they are prepared in contemplation of ligation. Such materials are privileged in law because a party to litigation should be able to assess and determine his position without fear of disclosure. The material prepared in this regard is not really relevant to the factual evidence culminating in the event which has given rise to litigation. [Quoted in para. 32920.]

And at p. 10:

[T]he objective of conciliation of the Code would be compromised, if discussions and knowledge gained in the process could be forced through a subpoena to be divulged at a subsequent hearing. [Quoted in para. 32914.]

In considering the request for particulars before us, we are of the view that, for various reasons, the respondent Four Star Variety is not entitled to the documents named in the notice of motion.

13In all of the cases relied on by the parties, there is an agreement that there is no prehearing disclosure. There is, however, general agreement that a party is entitled "reasonable information" concerning the allegations made against it. In this preliminary motion, the respondent is alleging that the Commission has failed to observe its own mandatory conciliation procedures and has demonstrated a bias in its processing of this complaint. The particulars requested in this motion are intended to prove those allegations. The tribunal in the Dubajic v. Walbar case, supra, declined to order disclosure of similar information on those grounds. We agree with that decision. The intake officer's notes (the Blue Sheets), L. Ackroyd's or any other investigating officer's notes, the list of all conciliation attempts, the 1985 complaint and the Blue Sheets concerning that complaint fall into that category and for that reason go beyond the "reasonable information" allowed in hearings before a board of inquiry.

14There is no doubt that, at some time in the proceedings, the respondent will be entitled to be give[n] the photographs taken by the investigating officer and the list of the magazines that form the basis of these complaints. However, that information is not necessary at this stage of the proceedings. They will become relevant when the Commission begins its case on the merits. For purposes of this preliminary hearing, the request is premature.

15The notes of conciliation meetings and the copies of correspondence relating to conciliation are clearly privileged. They are records of attempts at settlement that, for the reasons outlined in the excerpts above, should not be disclosed to the parties. The courts and administrative tribunals have consistently recognized the qualified privilege that attaches to settlement discussions. If the parties to a litigation or complaint must be concerned that statements against interest or admissions made during settlement discussions will ultimately become part of the hearing record, they will be unwilling to have open and frank discussion during the conciliation stages of a complaint. Obviously, that would have [a] chilling effect on settlement discussions and would result in fewer settlements. For practical and public policy reasons, we are not prepared to order disclosure of the content of settlement discussions of this complaint.

16The preliminary hearing in this matter will continue on June 16, 17 and 18, 1993. By agreement of the parties and consistent with our decision concerning intervener status, the respondent will serve its notice of motion on the parties within ten days of the release of this interim decision. The factum in support of that motion will be served on the other parties by May 16, 1993. The reply will be returned by June 1, 1993, and the reply, if any, by June 11, 1993.