Potocnik v. Thunder Bay (City) (No. 1)

1995-10-27

Ontario Board of Inquiry

Dena Potocnik Complainant

v.

City of Thunder Bay Respondent

Date of Complaint: October 25, 1988

Date of Decision: October 27, 1995

Before: Ontario Board of Inquiry, Lorne Slotnick

Decision No.: 95-047-I

Appearances by: Stephen Wojciechowski, Counsel for the Commission Allan McKitrick, Counsel for the Respondent

PRODUCTION OF DOCUMENTS — employment hiring records — notes from investigation — record of investigation — adequacy of disclosure prior to hearing — summons to produce documents under privacy legislation — summons to produce documents not previously requested — summons used for pre-hearing discovery — CONFIDENTIAL RECORDS — personnel files access as violation of confidentiality — HUMAN RIGHTS COMMISSIONS — authority to issue summons — PROCEDURE — procedural fairness — EVIDENCE — similar fact evidence

Summary: This is an interim decision in the matter of a complaint filed by Dena Potocnik who alleges that she was discriminated against because of her sex when she applied for the positions of Treasurer and Deputy Treasurer with the City of Thunder Bay. Ms. Potocnik also alleges that there is a systemic pattern of discrimination against women in the hiring for financial management positions with the City.

At issue here are two motions. The City is seeking pre-hearing disclosure of certain documents in the possession of the Ontario Human Rights Commission. The City is also seeking an order quashing a summons issued by the Commission seeking disclosure of documents that are in the possession of the City.

The Board of Inquiry finds that the Commission is obliged to disclose "the fruits of its investigation" to the City. The first category of documents which the City seeks to have disclosed is notes of calls, memos and letters dealing with procedural questions at the investigation stage. The City wants these documents in order to make an argument that the complaint should be dismissed for delay. The Board of Inquiry finds that these documents are not related to the substance of the complaint. Procedural fairness requires that the City know the case it has to meet, but these documents will not assist it to do this. Further it is the City who wishes to make the argument regarding delay. The City, then, cannot claim that the documents are necessary to enable it to know the case it has to meet. For these reasons, the Board of Inquiry declines to order the pre-hearing disclosure of internal documents dealing with procedural matters.

The Board of Inquiry also declines to order the Commission to provide a list of Ms. Potocnik's employers and supervisors before she was first employed by the City of Thunder Bay. It finds that this is a document which does not already exist, and whose relevance to the case is unclear.

However, the Board of Inquiry orders the Commission to provide the City with a list of all the documents in the Commission's file on this case, in order that the City can assure itself that all relevant materials have been disclosed.

Wtih respect to the summons served on the City by the Commission, the Board of Inquiry finds that this summons required three City officials to attend the hearing and produce a wide range of documents, mainly relating to numerous job competitions. The City does not challenge the portions of the summons which seek detailed information regarding eight job competitions mentioned in Ms. Potocnik's complaint, but seeks an order from this Tribunal before disclosing the documents because of its obligations under the Municipal Freedom of Information and Protection of Privacy Act. The Board of Inquiry orders these documents to be disclosed to the Commission.

The City seeks an order quashing the remaining portions of the summons which require disclosure of information with respect to the hiring and employment of a number of co-workers of Ms. Potocnik in financial management positions over a ten-year period.

The Board of Inquiry finds that the Commission requested disclosure of many of these documents during the investigation of the complaint but was refused, and that it has described with as much specificity as can be expected the documents it requires. The Board of Inquiry concludes that the Commission is entitled to use a summons to compel disclosure in these circumstances, and that the documents are relevant because of the allegation of systemic discrimination.

The Board of Inquiry declines to quash the summons. It orders disclosure of the Commission's record of investigation, and the City of Thunder Bay's records as set out in the Commission's summons.

[Ed. Note: See also related decisions (No. 2) (1996), C.H.R.R. NP/96-85, (No. 3) (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333 and (No. 4) (1997), 1997 CanLII 24839 (ON HRT), 29 C.H.R.R. D/343.]

Cases Cited

Alberta (Human Rights Comm.) v. Alberta Blue Cross Plan (1983), 1983 ABCA 207, 1 D.L.R. (4th) 301, 1983 CanLII 4699 (AB CA), 4 C.H.R.R. D/1661 (Alta. C.A.): 54

Commodore Business Machines v. Olarte (1984), 1984 CanLII 2017 (ON HCJ), 49 O.R. (2d) 17, 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Div.Ct.): 47

Entrop v. Imperial Oil Ltd. (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 (Ont. Bd.Inq.): 46

Guru v. McMaster University (1980), 1980 CanLII 3915 (ON HRT), 2 C.H.R.R. D/253 (Ont. Bd.Inq.): 29, 49

Lewis v. York Region Board of Education (No. 4) (1994), C.H.R.R. NP/96-125 (Ont. Bd.Inq.): 51

MacDonald v. Canada Kelp Co. (1973), 1973 CanLII 1087 (BC CA), 39 D.L.R. (3d) 617 (B.C.C.A.): 45

Ontario (Human Rights Comm.) v. Ontario (Human Rights Board of Inquiry) (1993), 1993 CanLII 16421 (ON CTGDDC), 20 C.H.R.R. D/498 (Ont.Ct. (Gen.Div.)): 5, 11, 51

Legislation Cited

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 11: 2, 39, 41, 44

s. 33: 26

s. 33(6): 27

s. 39(4): 51

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56: 18

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 12: 27, 38, 42

Authorities Cited

Keene, Judith, Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992): 31, 47

1This is an interim decision relating to two aspects of disclosure: the respondent is seeking pre-hearing disclosure of certain documents in the Commission's possession; at the same time, the Commission has had a wide-ranging summons issued seeking disclosure of documents by the respondent, and the respondent requests an order quashing the summons.

2The complaint itself alleges that Dena Potocnik was discriminated against because she is a woman in the filling of the positions of Treasurer and Deputy Treasurer of the City of Thunder Bay in 1988. In addition, the complaint cites numerous other competitions for financial management jobs with the City, and alleges that hiring practices constitute constructive or systemic discrimination against women, contrary to what is now s. 11 of the Human Rights Code [R.S.O. 1990, c. H.19].

3At the start of this hearing, counsel for the City outlined a large number of preliminary matters in dispute. After some discussion between the parties, many of these were resolved, including many of the issues related to disclosure.

4It is now roughly seven years since this complaint was filed, and the City takes the position that the complaint should be dismissed because of delay and procedural unfairness. Counsel agreed that this issue would not be argued as a preliminary matter, because evidence on this issue would probably overlap with evidence on the complaint itself. However, some of the disclosure issues below relate to the City's plan to raise the delay argument.

DISCLOSURE BY THE COMMISSION TO THE CITY

5The Commission acknowledges its obligation in light of the Northwestern General Hospital case [sub nom. Ontario (Human Rights Commission) v. Ontario (Human Rights Board of Inquiry)] (1993), 1993 CanLII 16421 (ON CTGDDC), 20 C.H.R.R. D/498 (Ont.Ct. (Gen.Div.)) to disclose the "fruits of the investigation". However, in this case, there is some dispute over precisely what documents should be considered the "fruits of the investigation". At the end of the first day of this hearing, I asked the Commission to provide to the City a list of items in its file that it was not prepared to disclose, and its reasons. The respondent was then asked which of these items it was still seeking. This process resulted in some further agreement on disclosure, but three areas remain in dispute. The parties made submissions on these areas.

(a) Investigators' Dealings with Senior Commission Staff

6The first category of disputed documents in the Commission's file are described by Commission counsel as notes of calls, memos, and letters from Commission investigators to senior staff of the Commission, dealing with procedural questions at the investigation stage of the complaint.

7The Commission argues simply that these documents cannot be described as the fruits of the investigation, and so need not be disclosed. Many of them, Commission counsel says, seek "what do I do next?" advice from senior staff.

8The City says these documents must be disclosed because they are relevant to the argument it will be making on delay and procedural abuse. Respondent's counsel concedes that these documents are not the fruits of the investigation, but he argues that the documents are evidence that is relevant to an issue in the case, namely that of delay. He cites Rule 49 of the Board of Inquiry's Interim Rules of Practice (August 1995), which allows a panel to order any party "to provide to any other party further particulars, physical or documentary evidence, expert(s)' reports, lists of witnesses and witness statements", and says this Rule essentially means the Commission is bound to produce any evidence germane to the complaint.

9While these documents are clearly relevant to the question of delay, I think there is a distinction to be made between disclosure of documents related to the substance of the complaint and disclosure of the Commission's internal discussions on procedural matters related to the complaint. This inquiry was set up to determine the merits of the complaint, and procedural fairness requires that the City know the case it has to meet, including any evidence uncovered in the Commission's which might tend to help the respondent's own case rather than the Commission's. The City has evidently decided that one method of attacking the complaint is to make the an [sic] argument regarding delay and procedural unfairness. The respondent of course has a right to make this argument. but that does not entitle the respondent automatically to pre-hearing disclosure of all the internal communications in the Commission's files.

10The delay argument has been initiated by the party seeking disclosure. The respondent, then, cannot claim that these documents must be disclosed to enable it to know the case it has to meet. In fact, I would expect that whatever evidence there is to support the delay is already in the possession of the respondent — the City and its officials presumably can tender evidence of the timing of various events and correspondence since the complaint originated, and can testify as to the prejudice caused by any delays. If that evidence is compelling, the Commission may have some explaining to do, possibly in the form of some of the documents that are at issue now. But that is the Commission's decision, and I do not see any reason to compel disclosure of this portion of the Commission's file at this stage.

11Further, I believe the Board of Inquiry has attempted to enshrine the disclosure obligations as laid out in the Northwestern case, supra, in the form of Rule 47 in its Interim Rules. Rule 47 provides that the Commission "provide full disclosure of the information, witness statements, documents and evidence relating to the complaint" prior to the hearing. The phrase "relating to the complaint", in my opinion, is intended to encompass the fruits of the investigation into the substance of the complaint and is not intended as an obligation on the Commission to disclose documents dealing solely with procedural questions.

12For these reasons, I will not order pre-hearing disclosure of documents that are internal communications dealing with procedural matters.

(b) Record of the Investigation

13This is described by Commission counsel as an index or listing of all the documents in the file. The Commission objects to its disclosure, arguing that it may include reference to privileged documents and that disclosure is unnecessary if the Commission is already disclosing all the actual documents to which the respondent is entitled. The City argues that there is no reason to keep it secret and that disclosure would enable the respondent to check whether the Commission has actually disclosed all the fruits of the investigation.

14I believe there is some value in having the respondent feel confident that the Commission has met its disclosure obligations, and I order the Commission to disclose the Record of the Investigation. I am assuming that this Record does not contain a detailed description of the content of any document. In the event that it does, I will permit the Commission to black out any details, beyond a brief description, of a document it is not disclosing.

(c) List of the Complainant's Former Employers and Supervisors

15The City is seeking from the Commission a list of Ms. Potocnik's employers and supervisors before she was first employed by the City in 1983. This is apparently a document that does not currently exist, although presumably the Commission could create it easily through information provided by Ms. Potocnik. The Commission argues that such information cannot be relevant to an examination of the process resulting in Ms. Potocnik being rejected for the positions she sought, since any information not already in the possession of the City could not, by definition, have been part of that decision making process.

16I have some doubts about the relevance of such information, and in any event I do not believe the duty to disclose includes any obligation to create documents that do not already exist. I therefore do not order disclosure of this information.

THE SUMMONS

17In September 1885, the Commission served on three city officials — the City Manager, the City Archivist, and the General Manager, Human Resources — a summons requiring them to attend the hearing and produce a wide range of documents, mainly relating to numerous job competitions. The City is not contesting parts of the summons, and has agreed to provide pre-hearing disclosure of the documents sought in these uncontested portions. In addition, during the hearing on these preliminary matters the Commission dropped some material from the list of documents it is seeking through the summons. These two developments helped narrow the issues in dispute.

18Parts I and II of the summons seek detailed documentation related to eight job competitions, all of which are mentioned in Ms. Potocnik's complaint. The City is not challenging these portions of the summons, but because of concerns about its obligations under the Municipal Freedom of Information and Protection of Privacy Act [R.S.O. 1990, c. M.56] the City wants an order from this Tribunal before disclosing the documents. Therefore, I order the City to disclose the documents outlined in Parts I and II of Schedule A to the summons, prior to the hearing. As agreed by the Commission and the complainant, they will be treated with confidentiality.

19However, the City has asked me to quash the remainder of the summons. These portions of the summons read as follows:

Part V

With respect to the following individuals ... the qualifications of each individual at the time of entering into the said positions:

1. Paul Milligan

b. Acting Treasurer (1988)

c. Treasurer (1988)

2. Bill Young

b. Acting Deputy Treasurer (1988)

c. Deputy Treasurer (1988)

3. John Dunn

a. Accounting and Administration Co-ordinator (1983)

4. Peter Kelos

a. Accounting Supervisor (1983)

b. Manager — Budgets and Planning (1984)

5. Tim Commisso

b. Services and Financial Co-ordinator (1983/84)

c. Manager — Budgets and Planning (1985)

6. Tom Mustapic

a. Financial Analyst (1984)

b. Corporate Development Officer (1985)

c. Acting Manager — Budgets and Planning (1989)

d. Manager — Budgets and Planning (1990)

7. Doug Strachan

a. Accounting Supervisor — Financial (1984)

8. Gary Donadel

a. Accounting Supervisor — Continuing Property Records (1984)

9. Kevin Bums

a. Accounting Supervisor — Rates and Tariffs (1983)

10. Rob Colquhoun

a. Financial Analyst (1987)

b. Accounting and Financial Supervisor (1989–90)

c. Capital and Revenue Control Supervisor (1990)

d. Manager — Disbursements Division (1993/94)

e. Manager — Revenue (1995)

11. Chuck Abey

a. Manager — Budgets and Planning (1991)

b. Manager — Financial Programs Division (1993/94)

Veli Kraft

a. Budget and Office Co-ordinator (Homes for the Aged) (1983)

18. Sam Federico

a. Tax Collector (1983)

b. Billing Supervisor (1993/94)

21. Dave Home

a. Tax Supervisor (1983)

Part VI

With respect to the Job Positions listed in V above, any and all information in the possession or control of the Corporation of the City of Thunder Bay which relates to:

3. Names of those supervising the said competition, or names of those approving and recommending the appointment of the named individual to the said job position, and all those involved in the selection process, as well as any documents or notes which they prepared in supervising the competition or making the decision to appoint the named individual;

4. Names of all those who applied for the said position, along with copies of their applications and accompanying documents;

5. Policies and procedures followed throughout the competition or appointment process including screening criteria used.

20The City objects on a number of grounds to these portions of the summons. First, the City argues that this evidence is irrelevant, in that many of these positions were awarded up to five years before the complaint was filed, and many were awarded after the complaint was filed. In effect, the City is saying the information being sought is either too old or too new to be relevant.

21Second, the City says the Commission has not laid any groundwork for seeking this information. The Commission is said to be clearly on a fishing expedition. In fact, the City says, the Commission is only now — seven years after the complaint was filed — getting around to conducting its investigation, using this summons as its tool.

22In addition, the City says most of these documents have never been requested by the Commission in the seven-year history of this complaint until the summons was served in September 1995. The City questions the fairness of this first-time request for documents that are up to twelve years old. The City also raised concerns about privacy for the individuals who are the subject of the documents.

BACKGROUND TO THE SUMMONS

23While this complaint does have a long history, it is clear that the Commission feels it still needs more information. The information requested clearly has some connection to the allegations in the complaint, but — for whatever reason — the Commission did not exercise its right to seek a search warrant in order to obtain the documents.

24Counsel for the Commission acknowledges that the Commission has never requested the documents now being sought in the disputed portions of the summons. He says the reason is that the City refused numerous requests by the Commission for documents related to the eight job competitions mentioned in the complaint. These are, by and large, the documents that are described in Parts I and II of the summons, and which the City has only now agreed to provide. Counsel argues, why would the Commission ask for a further batch of documents when it was repeatedly refused the first batch?

25The City acknowledges that, until this hearing began, it refused to disclose the documents related to the eight job competitions mentioned in the complaint.

26The Human Rights Code contains the following provisions relevant to this issue, giving the Commission and its agents certain powers during an investigation, and allowing the Commission some recourse where a party fails to co-operate with the investigation.

33(1) A person authorized to investigate a complaint may,

(a) enter any place, other than a place that is being used as a dwelling, at any reasonable time, for the purpose of investigating the complaint;

(b) request the production for inspection and examination of documents or things that are or may be relevant to the investigation;

(6) If a person refuses to comply with a request for production of documents or things, the Commission may request the Minister to appoint a board of inquiry, or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7).

(7) Where a justice of the peace is satisfied on evidence upon oath or affirmation that there are in a place documents that there is reasonable ground to believe will afford evidence relevant to the complaint, he or she may issue a warrant in the prescribed form authorizing a person named in the warrant to search a place for any such documents, and to remove them for the purposes of making copies thereof or extracts therefrom, and the documents shall be returned promptly to the place from which they were removed.

27The Commission argues that the clear meaning of subsection 33(6) above is that when the Commission is faced with a party that refuses to disclose documents, it has two options: it can apply for a search warrant, or it can refer the case to the board of inquiry for a hearing. If it refers the case to a hearing, then the board of inquiry has the power under s. 12 of the Statutory Powers Procedure Act [R.S.O. 1990, c. S.22] to issue a summons requiring that documents be produced at the hearing. Section 12(1) of the Statutory Powers Procedure Act reads as follows:

12(1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceeding and admissible at an oral or electronic hearing,

28In this particular case, no search warrant was requested. Counsel for the Commission gave no reason for this choice, but it appears from s. 33(6) that the Commission has complete discretion in its choice of how to deal with a party that is refusing to co-operate: it can request a search warrant, or it can refer the matter to the board of inquiry for a hearing at which the summons power is available.

29There appears to be little law on this aspect of the Code. Counsel for the City referred me to the case of Guru v. McMaster University(1980), 1980 CanLII 3915 (ON HRT), 2 C.H.R.R. D/253 (Ont. Bd.Inq.), in which the Board ruled that the Commission cannot use a subpoena as a method of discovery of documents. However, it is important to note that this ruling was made at a time when the Human Rights Code gave the Commission broader power to compel disclosure of documents during the investigation stage. Amendments to the Code have eliminated these options for the Commission. To quote from the Guru ruling (at [pp. D/253–D/254] paras. 2181–85):

... [the Code] provides certain powers whereby the "Commission or an officer of the Commission may ... require the production for inspection or examination of employment applications, payrolls, records, documents, writings and papers that are or may be relevant to the investigation of the complaint". Section 14(5) of the Code provides that "No person shall hinder, obstruct, molest or interfere with the Commission or an officer of the Commission in the exercise of a power or the performance of a duty under this Act or withhold from it or in [sic] any employment application, payrolls, records, documents, writings or papers that are or may be relevant to the investigation of a complaint".

S. 15 of the Code provides a means of punishing any breach of the provisions of the Act. [The decision reprints the text of the section providing for a summary conviction offence for contravening any of the provisions of the Code.]

... The Commission had every means, during the enquiry stage, of securing the documents it now seeks but apparently did not exercise its rights under s. 14, for this purpose ...

... The legislature has provided for a form of production for inspection and examination of documents by the Commission or an officer of the Commission. I have concluded that a power to issue a subpoena duces tecum does not provide an alternative method of securing this purpose.

30The powers referred to in Guru that were used as the rationale to quash the subpoena no longer exist as part of the Code, and for this reason I believe the Guru case is of no assistance in deciding the present matter.

31However, the discussion of this issue in Judith Keene's book Human Rights in Ontario (Carswell, 1992), at pp. 301–301 [sic] is helpful:

... the present Code no longer empowers the Commission to require production of documents, or to prosecute when documents are withheld. The only options available to the Commission where the respondent refused to produce documents are to apply for a search warrant, or to request the Minister to appoint a board of inquiry. In cases in which the most cogent evidence, or the largest part of the evidence, is likely to be found in the documentary form, the Commission may have difficulty in either obtaining a search warrant or in appointing a board.

To date, two boards have maintained that section 12 [of the S.P.P.A.] is not to be used for discovery purposes. Both have apparently contemplated the appointment of a board of inquiry at an early stage of the investigation if permission to view documents is refused. In Ryckman v. Board of Commissioners of Police (Kenora) (1987), 1987 CanLII 8510 (ON HRT), 8 C.H.R.R. D/4138, the board noted that in cases of this type, the Commission need not take steps to complete its investigation nor to "endeavor to effect a settlement" as required by subsection 33(1) of the Code ...

In Johnson v. East York (Board of Education) (1988), 1988 CanLII 8872 (ON HRT), 9 C.H.R.R. D/4791, the board, while approving Ryckman, did not address the implications of proceeding with a board of inquiry when the investigation of the complaint is not complete. The board was not willing to require a witness to produce documents that had been subpoenaed by the Commission at a hearing preliminary to the presentation of the Commission's case. The board based it[s] decision on the phrase "in evidence at the hearing" as used in section 12 of the S.P.P.A., and on the fact that no factual basis for the introduction of these documents has been established at this stage".

The Johnson decision does not specify how much of the Commission's case would have to be presented to support an application for a subpoena duces tecum, nor address the difficulty that will arise for the Commission, in some cases, in identifying the appropriate person to be subpoenaed, without having seen the documents in question. Nor does it address the appropriate approach to be taken by a board in determining whether the subpoena describes the documents too broadly. On this latter point, presumably the board would have regard to the second and fourth points of the test in Dalgliesh v. Basu, 1974 CanLII 913 (SK QB), [1975] 2 W.W.R. 326 (Sask. Q.B.):

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. The issues involved in the proceedings must be considered. The broader the scope of the hearing, "the greater should be the permissible breadth of the subpoena duces tecum". [Emphasis in original.]

32While it may be an unconventional method of investigating a complaint, it appears that the Commission is entitled to simply have a hearing set up before the board of inquiry when documents are refused. I have carefully examined the portions of the summons in light of the considerations outlined in the above discussion — the fact that documents were refused by the City, the fact that the complaint is one that alleges constructive discrimination over a long period of time culminating in the denial of two positions to the complainant in 1988, and the fact that the requested documents are described with as much specificity as can be expected under the circumstances — and I have concluded that, in the absence of any other considerations that would compel me to quash the summons, the Commission is entitled to use the summons to compel disclosure of these documents.

33An obvious question is why it apparently took several years for the Commission to decide on this route of appointing a board of inquiry in order to complete its investigation. However, this question is an aspect of the delay and procedural unfairness argument that the City has not yet made. I agree with Commission counsel that disclosure of the documents sought in the summons cannot by itself prejudice the City, if the documents still exist. This, though, does not answer the question of whether the City is prejudiced by the entire process of having to reconstruct job competitions that now go back twelve years. Again, the City has reserved its right to make that argument later in the hearing.

34I conclude, then, that the Commission is entitled to pursue its investigation through the use of a summons such as this. However, the documents sought must still meet the test of relevance, and there is an issue regarding the fairness of seeking documents that have never been requested, as well as confidentiality concerns. I will deal with these issues below.

USE OF THE SUMMONS TO COMPEL DOCUMENTS THAT HAVE NEVER BEEN REQUESTED

35The City argues that it is unfair and an abuse of process for the Commission to seek documents through the summons that it has never requested. The Commission acknowledges that it has never requested most of the information in Parts V and VI of the summons, but essentially argues that this would have been a futile gesture when the City was already refusing several requests for documents that clearly have a direct bearing on the case.

36In my view, it is understandable that the Commission would not have bothered requesting the documents in Parts V and VI of the summons. It appears that it would have been futile. A respondent should not be able to benefit from a refusal to co-operate with an investigation by later being able to claim that the Commission cannot request documents by summons unless it has requested them earlier, when it is clearly very unlikely that the documents would have been given at the earlier stage.

37I conclude that in these circumstances it is not improper for the Commission to seek through the summons documents it has never requested.

RELEVANCE OF THE DOCUMENTS

38The summons is valid only if the documents requested are relevant to the subject matter of the proceeding (s. 12(1) of the S.P.P.A.). The City has raised the question of relevance and has argued, correctly, I believe, that if the documents requested in the disputed portions of the summons do not meet the test of relevance, I should quash these portions of the summons.

39In defence of the request for the documents, Commission counsel notes that the complaint alleges constructive or adverse effect discrimination under what is now s. 11 of the Human Rights Code. The Commission is alleging that there is a pattern of events in the hiring and promotion of men in financial managerial positions in the City that results in a negative impact on women. Relevant to this allegation, the Commission says, are details of job competitions in which men were successful — including the qualifications of the men who successfully applied for the various positions, the qualifications of those who were unsuccessful, and the criteria used for screening applications. An inquiry into the complaint requires an examination of hiring practices both before the complaint arose, and after, the Commission argues.

40The City attacks the relevance of the information sought, saying it is either too old — having arisen up to five years before the complaint was filed — or too new, having arisen up to five years after the complaint was filed.

41If this complaint were simply an allegation of direct discrimination, I would agree with the City that job competitions before and after 1988 would be irrelevant. However, a complaint of adverse effect discrimination necessarily involves an inquiry into a wider range of events than does a complaint of direct discrimination. The complaint does not simply allege that Ms. Potocnik was denied the two senior positions in 1988 because she is a woman, although it certainly does include that allegation. It also alleges that the entire hiring system in the City of Thunder Bay's financial department is loaded against women, and that this may be the reason she was denied the jobs. She is, of course, entitled to make this allegation under what is now s. 11 of the Code, and the Commission is entitled to investigate it and bring the allegation to a board of inquiry hearing.

42In this context, I have little trouble deciding that evidence of job competitions dating back to 1983, as requested in the disputed portions of the summons, are "relevant to the subject matter of the proceeding", to use the words of the S.P.P.A., s. 12.

43Somewhat more difficult is the question of relevance for documents relating to competitions arising after the complaint was filed. If Ms. Potocnik's complaint is that she was improperly denied two positions in 1988, how can a job competition in the same department four years later be relevant to an examination of that denial?

44Commission counsel argues that the course of conduct essential to support the allegation of adverse effect discrimination under s. 11 of the Code can continue long after the complaint is lodged. The only test, he said, is relevance, and in an allegation of adverse effect discrimination where the system of hiring is under scrutiny, events after the complaint was lodged may be relevant to prove the existence of the flawed system, even if those events have no involvement of the complainant.

45In support of this argument, Commission counsel cited legal texts and cases on the law relating to acceptance of similar fact evidence. This is a useful exercise, since in any case where an individual is trying to prove that a system is biased against a group of which he or she is a part, that undertaking will necessarily involve evidence that is akin to similar fact evidence. The test for acceptance of similar fact evidence in all cases is relevance to the issues being decided. It does not appear to make a difference whether the facts arose after the actual events being complained of, as long as it is relevant to an issue being decided. Counsel pointed to the following passage in a civil case involving allegations of fraudulent misrepresentations (MacDonald v. Canada Kelp Co. Ltd. (1973), 1973 CanLII 1087 (BC CA), 39 D.L.R. (3d) 617 at 626 (B.C.C.A.)):

When there is a real and substantial nexus or connection between the act or allegation made, whether it be a crime or a fraud (but not, of course, limited to those), and facts relating to previous or subsequent transactions are sought to be given in evidence, then those facts have relevancy and are admissible not only to rebut a defence, such as lack of intent, accident, mens rea and the like, but to prove the fact of the act or allegations made.

46Commission counsel also drew my attention to Entrop v. Imperial Oil Ltd. (Ont. Bd.Inq., October 21, 1994 [reported 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186]), in which an interim ruling discusses evidence arising after the complaint was filed. The Board allows the evidence (however, in circumstances quite different from the present case), saying that it "simply relates to a single issue over a continuing time" (at p. 2 [D/187, para. 4]).

47I also note that in her discussion of the use of similar fact evidence in human rights hearings, Ms. Keene (Human Rights in Ontario), supra, at 342) says that in the case of Olarte v. Commodore Business Machines (1984), 1984 CanLII 2017 (ON HCJ), 49 O.R. (2d) 17 [1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833] (Div.Ct.), similar fact evidence of sexual harassment subsequent to the time frame referred to in the complaint was admitted.

48I see no logical reason to label automatically as irrelevant evidence arising after this complaint was filed. In this situation, evidence relating to job competitions held in the City's finance department after the complaint was filed may be useful in assessing the complaint's allegation that the hiring and promotion system was tainted.

THE SUMMONS AS DISCOVERY

49Counsel for the City cited several authorities — including the Guru case discussed above, and labour arbitration cases — for the view that a summons cannot be used for pre-hearing discovery.

50As discussed above, the Commission is permitted to use a summons as an investigatory tool. This does not mean that the issuance of a summons in the type of circumstances we have here requires the respondent to disclose the documents before the hearing. There appears to be nothing in the S.P.P.A. or the Code giving the Commission the right to the type of pre-hearing disclosure that respondents now have. Any documents compelled by summons, assuming the summons is not quashed, need not be produced until the appropriate time in the actual hearing. Of course, the respondent may voluntarily grant prehearing disclosure of subpoenaed documents to the Commission, knowing that the documents will come out at the hearing anyway and that it would often cause a delay if the Commission had not seen the material until the hearing.

51I find support for these views in the case of Lewis v. York Region Board of Education (Ont. Bd.Inq., September 21, 1994 [C.H.R.R. NP/96-125], a detailed examination of the issue of disclosure by the respondent to the Commission. That ruling concludes that there is no right of pre-hearing discovery for the Commission similar to that given to respondents by the Northwestern Hospital case, supra. The ruling also confirms that the summons power under the S.P.P.A. requires documents to be produced only at the hearing, not beforehand, and points out that subsection 39(4) of the Human Rights Code provides a method for dealing with the fact that some documents are being seen for the first time at the hearing. That section currently reads:

39(4) Where the board [of inquiry] exercises its power under clause 12(1)(b) of the Statutory Powers Procedure Act to issue a summons requiring the production in evidence of documents or things, it may, upon the production of the documents or things before it, adjourn the proceedings to permit the parties to examine the documents or things.

52In the Lewis case, the Board refused to order disclosure by the respondent to the Commission, but added (at p. 70) that

this is not a case where it was suggested that disclosure sought was withheld or where material sought was not obtained through no fault of the Commission. If there was some indication that documents sought had not been obtained for either of the noted reasons, there would be a basis for ordering further disclosure.

53In conclusion, I agree with counsel for the City that the summons cannot be used for discovery. For that reason, I will not order pre-hearing disclosure of any of the documents described in Parts V and VI of the summons. However, for the reasons given above, I will not quash those parts of the summons.

CONFIDENTIALITY

54Counsel for the City brought to my attention the case of Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1983 ABCA 207, 1 D.L.R. (4th) 301 [1983 CanLII 4699 (AB CA), 4 C.H.R.R. D/1661] (Alta. C.A.), which deals with the issue of confidentiality of personnel files other than those of the complainant. In that case, the request was for disclosure of a much wider range of material — including the entire personnel files of employees — than in this case. The ruling said there is no blanket rule of confidentiality that applies to personnel files, but added that there may be some documents in such files that are privileged.

55Counsel for the Commission raised the issue of privacy and confidentiality, but did not go into much detail about what documents he believes should be protected and for what reason. At this point, I see no evidence that the material being sought strays into any sensitive areas where the documents cannot be disclosed for reasons of privilege. I say this particularly since the documents described in the disputed portions of the summons appear to be on their face very similar in nature to the documents in Parts I and II — except that they relate to different job competitions — and that the City has agreed to disclose the latter documents.

56However, should the City wish to bring to my attention any document it feels it should not disclose for reasons of privilege, I will hear argument on that issue.

57In addition, should the City decide that to expedite the hearing it will disclose documents described in Parts V and VI of the summons before the hearing, I order the complainant and Commission bound by the same conditions of confidentiality they agreed to respecting the documents in Parts I and II of the summons.

CONCLUSION

58For the above reasons, I will not quash the summons. I order disclosure of the Commission's record of investigation and the documents described in Parts I and II of the summons by no later than November 10, 1995, a little more than two weeks before the start of the hearing on the merits. I would also urge — although for the reasons noted above I do not believe I have the power to order it — pre-hearing disclosure by the City of the documents described in Parts V and VI of the summons the City [sic], in order to avoid the possibility of delays at the hearing stage.