Imperial Oil Ltd. v. Entrop (No. 2)
1994-09-27
Ontario Board of Inquiry
Martin Entrop
Complainant
v.
Imperial Oil Limited
Respondent
January 16, 1992
September 27, 1994
Before:
Ontario Board of Inquiry, Constance Backhouse
Comm. Decision No.:
639A
Appearances by:
Jeffrey M. Andrew and Elizabeth Nurse, Counsel for the Complainant
Mark Hart and Vandana Taxali (Student-at-Law), Counsel for the Commission
James Noonan and Colin Campbell, Counsel for the Respondent
PRODUCTION OF DOCUMENTS — personnel file — company records — PARTIES — adding friend of the court (amicus curiae) — intervener status for friend of the court (amicus curiae)
Summary: This is a second preliminary decision in the matter of a complaint by Martin Entrop alleging discrimination on the basis of a handicap or a perceived handicap under the terms of Imperial Oil's Alcohol and Drug Policy.
The Board of Inquiry deals with two issues: (1) an application from the Ontario Human Rights Commission for production of documents by Imperial Oil; and (2) an application by the Canadian Civil Liberties Association (CCLA) for intervener status.
The Board of Inquiry decides to deal with the complaint in phases. It will deal first with an inquiry into the situation of Mr. Entrop and his specific concerns with the Alcohol and Drug Policy of Imperial Oil. Depending on the evidence presented in this phase, it may be necessary to deal with the broader features of the policy itself.
Having decided on a phased approach, the Board of Inquiry orders Imperial Oil to immediately produce documents pertinent to the individual complaint of Martin Entrop, such as his personnel file. The Board decides that should it become clear as the hearing progresses that evidence regarding the development, implementation and cost of Imperial Oil's policy is germane, the production of additional documents can be ordered.
The Board of Inquiry grants the Canadian Civil Liberties Association intervener status. The CCLA will be allowed to make submissions at the conclusion of the case, and the Board of Inquiry will entertain submissions from CCLA about its right to call evidence.
[See also preliminary decisions (1994), 1994 CanLII 18434 (ON HRT), 23 C.H.R.R. D/181, (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186, (1994), 1994 CanLII 18412 (ON HRT), 23 C.H.R.R. D/188, (1995), 1995 CanLII 18158 (ON HRT), 23 C.H.R.R. D/191, (1995), 1995 CanLII 18154 (ON HRT), 23 C.H.R.R. D/196 and (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213.]
Cases Cited
American Airlines Inc. v. Canada (Competition Tribunal), 1988 CanLII 9456 (FCA), [1989] 2 F.C. 88, 33 Admin. L.R. 229 (C.A.): 9
Commodore Business Machines Ltd. v. Olarte (No. 2) (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 (Ont. Bd.Inq.): 4
Leshner v. Ontario (No. 1) (1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175 (Ont. Bd.Inq.): 9
Peel (Regional Municipality) v. Great Atlantic & Pacific Co. Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (Ont. C.A.): 9
York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.): 4
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19: 2
Authorities Cited
Muldoon, Paul and David, Scriven, "Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Adv. Q. 129: 9
INTERIM DECISION NO. 2
1Counsel for the parties have sought preliminary rulings on two matters:
the application of documents; and
application for intervener status.
PRODUCTION OF DOCUMENTS
2I will not repeat the alleged facts surrounding this complaint, since they were outlined in the first preliminary ruling issued in this case. The earlier preliminary ruling dealt with the scope of the issues to be canvassed in this matter. In the earlier hearing, the Commission sought a ruling that the whole of the respondent's "Alcohol and Drug Policy" should be subjected to inquiry under the Human Rights Code [R.S.O. 1990, c. H.19], while the respondent sought to limit the inquiry to the portions of the Policy which affected the individual complainant specifically. I ruled that it was premature to determine the scope of the hearing at the outset, and that the extent to which the complaint raised issues about the Policy as a whole was a matter for evidentiary argument and analysis.
3That ruling has led to some disagreement over the documentation which ought to be produced at the outset of the hearing. Counsel for the Commission requested that the respondent produce documents pertaining to the complainant's personnel files and his personal experience under the Alcohol and Drug Policy, as well as documents pertaining to the history, development, implementation and cost of the respondent's Alcohol and Drug Policy more generally. The respondent agreed to produce the documentation regarding the individual complainant, but argued that no evidentiary basis had yet been established upon which to compel the production of documentation regarding the wider Policy.
4The case of Olarte v. Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 at D/1711 [para. 14605] sets forth the test for production of documents: "Under section 12 of the Statutory Powers and Procedures Act any person can be required to produce in evidence at a hearing documents relevant to the subject matter." The case of Dudnik v. York Condominium Corp. No. 216 (No. 2)(1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 elaborated at D/333 [para. 56]:
A subpoena duces tecum can be refused or quashed where the request for documents is seen to be irrelevant in nature, or simply a so-called fishing expedition, is simply speculative, or is oppressive . . . However, given that there is not any pre-trial discovery of documents, and given that the issue of relevancy often cannot be determined without first reviewing the documents, a subpoena should not be quashed, or refused, where it simply seeks documents that, prima facie, may be relevant.
5Counsel for the respondent argued that the "relevance" or "prima facie relevance" of the documentation concerning the whole Policy had not yet been established. Furthermore, he asserted that such documentation was extremely voluminous, and would necessitate an undue delay in order to permit the respondent to conduct a time-consuming and expensive process of searching through records and duplicating files. He suggested that a better approach would be to deal with the production of documents by phases — to begin with evidence that dealt directly with the individual complainant, to rule on the substance of the specific complaint, and then to entertain submissions regarding the need to expand the hearing to address the matter of the Policy as a whole. Counsel for the Commission objected to this process, which he labelled a "bifurcated proceeding," arguing that it would also create delay and might lead to an inefficient duplication of argument.
6In my view, the position I reached in the previous preliminary ruling dictates that a "phased" approach to this hearing is preferable. This hearing should proceed with an inquiry into the situation of Mr. Entrop and his specific concerns regarding the "Alcohol and Drug Policy." Mr. Entrop's individual situation must be the focus of the first phase of this hearing. Accordingly, all of the documentation requested which relates to Mr. Entrop's employment records must be produced now.
7I would not, however, categorize this "phased" process as one of complete "bifurcation." It may not be possible to separate the concerns of Mr. Entrop from an inquiry into certain wider features of the Policy itself. Consequently, it may not be possible to rule on the substance of the specific complaint of Mr. Entrop prior to entertaining submissions regarding another phase of the hearing process, as the respondent has suggested. The extent to which Mr. Entrop's employment situation will necessarily raise concerns about the "Alcohol and Drug Policy" as a whole will undoubtedly become clearer as the hearing progresses. If, at any point, issues relating to the wider Policy are shown to have become relevant to this complaint, additional production of documents will be in order at that time.
INTERVENER STATUS
8The counsel representing Mr. Entrop at this hearing also sought to have leave to appear on behalf of the Canadian Civil Liberties Association ("CCLA"). Arguments were made regarding the application of the CCLA to be permitted to intervene as amicus curiae, "as a friend of the Board of Inquiry." Counsel for the CCLA specified that he was not seeking the status of a party, with full rights of examination and cross-examination. Instead, the CCLA requested a limited right of participation, including the right to present oral and written argument at the conclusion of the case. In addition, the CCLA requested the option (which it conceded might never be exercised), to present evidence at some point during the proceedings, if such was necessary to produce a full evidentiary record. Counsel for the respondent did not dispute the CCLA's right to present submissions at the close of hearing, but opposed its request to be given the option to call evidence.
9The case of American Airlines Inc. v. Competition Tribunal (1988), 1988 CanLII 9456 (FCA), 33 Admin. L.R. 229 (F.C.A.), noted at 237 that there is wide latitude for granting amicus curiae status:
Courts and tribunals are masters of their own procedures. As part of this principle, courts have also been recognized as having an inherent authority or power to permit interventions basically on terms and conditions that they believe are appropriate in the circumstances.
Various factors have been articulated as relevant in determining when it is appropriate to grant such status. Leshner v. Ontario (No. 1)(1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175, quoted Muldoon and Scriven ["Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Adv. Q. 129] at D/183 [para. 62]:
(1) as a general rule, amicus intervention should be looked upon more favourably in cases involving matters of public interest, than cases where only private rights are concerned;
(2) the characterization of "matters of public interest" should be made in a liberal and common sense fashion with the understanding that, while on one hand almost every decision of the court affects the public in one way or another, any issues, even those couched in terms of private litigation, carry with them significant implications for the development and implementation of public policy and the public rights;
(3) as a general rule, interventions should be permitted only where the proposed applicants can demonstrate that they have a significant commitment to the matters that are represented in the issue presented; and
(4) as a general rule, interventions should be favourably considered where the issue to be argued is more likely to be understood in terms of its practical implication or impact or where the intervenor may bring to the exposition of the problem or to its solution a dimension or argument, experience or understanding which the court may find useful.
See also Regional Municipality of Peel v. Great Atlantic and Pacific Co. Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 at 167 (Ont. C.A.), per Dubin C.J.O.
10Inquiries under the Human Rights Code almost without exception will involve "matters of public interest." The Canadian Civil Liberties Association is a national organization with recognized expertise in human rights and civil liberties, which has a serious interest in the relationship between mandatory alcohol and drug tests in the workplace and concepts of individual dignity and privacy. The CCLA has made submissions to a variety of governmental and legislative committees on issues relating to privacy and human rights. It has also been granted intervener status in many constitutional and human rights cases in the past.
11In my view, this is an appropriate case in which to grant the Canadian Civil Liberties Association amicus curiae standing. I will allow the CCLA to make submissions at the conclusion of the case. I will entertain submissions about the right to call evidence if and when the request arises.