ONTARIO BOARD OF INQUIRY
Date: 19960621 File No.: 93-0067 Decision No.: 96-021-1
BETWEEN:
Ontario Human Rights Commission
Commission
AND:
Alfred Abouchar
Complainant
AND:
Ontario Human Rights Commission
Commission
AND:
Metropolitan Toronto School Board and Conseil des Écoles Françaises de la Communauté Urbaine de Toronto
Respondents
Adjudicator:
Katherine Laird
Counsel for the Commission:
Catherine Osborne
Counsel for the Complainant:
Maurice Green
Counsel for the Respondent Metropolitan Toronto School Board:
Brian Kelsey and Eric Gillespie
Counsel for the Respondent Le Conseil des Écoles françaises de la communaute urbaine de Toronto:
Richard Evenson and Drew Atkins
INTERIM DECISION
1This hearing was reconvened on April 22, 1996, following a decision by the Ontario Court of Justice (Divisional Court) upholding the reassignment of the hearing to me by the Chair of the Board of Inquiry. The Court found on the facts that the adjudicator previously appointed was unable to complete the hearing within a reasonable time, and that the Chair had the authority to reassign a hearing panel in these circumstances: Le conseil des écoles françaises de la communauté urbaine de Toronto and the Metropolitan Toronto School Board v. Gerry McNeilly et al. (unreported decision, April 15, 1996 [CHRR Doc. 96-212]).
2At the re-commencement of the hearing, the Metropolitan Toronto School Board (the "Metro Board") and Le Conseil des Ecoles françaises de la communaute urbaine de Toronto ("CEFCUT") brought a motion for a ruling:
- holding that the Board of Inquiry Interim Rules of Practice do not apply to this hearing;
- setting aside summonses served on the Director of Education at each of the respondent school boards.
3I reserved on the motion, but in order to proceed efficiently with the scheduled hearing days, I ruled orally on my authority to control the conduct of the hearing whether or not the Board of Inquiry Interim Rules of Practice apply. Relying on Re Metropolitan Toronto Board of Commissioners of Police et al. and Ontario Human Rights Commission et al. (1979), 1979 CanLII 1840 (ON HCJ), 27 O. R. (2d) 48 (Div.Ct.), followed in Nimako v. CN Hotels (1985), 1985 CanLII 5248 (ON HRT), 6 C.H.R.R. D/2894 (Ont. Board of Inquiry), I held that I had exclusive jurisdiction over the conduct of the proceedings. Further, I indicated to counsel that, in ruling on disputed procedural issues, I consider the Board of Inquiry Interim Rules of Practice as a useful point of reference,regardless of whether I subsequently found the rules to be directly applicable.
4This decision deals with the two issues raised by the motion.
Application of Board of Inquiry Interim Rules of Practice
5In seeking a ruling that the Interim Rules of Practice do not apply to the current proceedings, the respondents relied on s. 65(11) of the Statute Law Amendment Act, 1994, (S.O. 1994, c.27, Part III). The Amendment Act is omnibus legislation which amended a number of Ontario statutes. Of relevance to this hearing are the amendments made to the Human Rights Code (the "Code") and to the Statutory Powers Procedure Act (R.S.O. 1990, c.S.22, as amended), (the "S.P.P.A. "). Section 65(11) of the Amendment Act is a transitional provision dealing with the impact of Code amendments on continuing hearings.
6Section 65(11) provides:
Any hearing commenced by a board of inquiry appointed under the Human Rights Code as it read immediately before the coming into force of subsection (10) of this section may be continued to its conclusion as if subsection (10) were not in force.
7Section 65(10), referred to in s. 65(11) above, is the provision in the amending legislation which revises s. 35 of the Code and establishes the Board of Inquiry as an independent administrative tribunal with members appointed by the Lieutenant Governor in Council (s. 35(1)). Among other things, the amendments to s. 35 of the Code create the position of Chair (s.35(3)); authorize the new Board to make rules regulation its practice and procedure (s. 35(5)); allow the Chair to appoint hearing panels (s. 35(6)); and provide that, "where a panel is unable for any reason to exercise the powers under section 39 or 41 [to hold a hearing and make a determination], the chair of the board of inquiry may assign another panel in its place" (s. 35(8)). Section 35(8) was considered by the Divisional Court in determining whether the Chair of the Board of Inquiry had authority to re-assign this hearing following the resignation of the adjudicator appointed under the previous legislation.
8Counsel for the respondents submitted that s. 65(11) of the Amendment Act has the effect of suspending the application of the amended s. 35 to this hearing, including the rule-making powers, with the result that the Interim Rules of Practice of the new Board of Inquiry are also not applicable. In making this submission, the respondent school boards relied on the interpretation of s. 65(11) adopted by Mr. Justice O'Leary of the Divisional Court in considering the reassignment of this hearing. At page 4 of the unreported decision, Mr. Justice O' Leary considers the interpretation of s. 65(11) as follows:
In my view, s. 65(11) of the Statute Law Amendment Act, 1994 relates only to the manner in which a pre-April 14, 1995 hearing is to be conducted, and not to the manner of appointment or replacement of the hearing officer.
9Both Mr. Justice McRae and Mr. Justice Saunders write separate concurring reasons. Mr. Justice Saunders writes as follows on this point:
While s. 65(11) of the amending legislation may only relate to the manner in which a pre-April 1995 hearing is to be conducted, I think there is a further reason why the subsection does not apply to the situation. Picher was appointed under the old Code as a board of inquiry. His sole jurisdiction was to hold a hearing (s.39) and to exercise the powers conferred by s. 41. If he was unable to exercise those powers, the Commission had the discretion to appoint a new board of inquiry in its place. If Picher was unable to complete the hearing, it seems to me that the hearing that he was conducting was over and if there was to be further processing of the complaint, it would have to be carried out by a new board. Subsection 65(11) refers to the hearing commenced by Picher and has nothing to do with the appointment of Laird.
10I interpret Mr. Justice Saunders to say that the amendments to s. 35 of the Code would not apply to this hearing had it continued before the board of inquiry appointed under the "old Code". However, given that the hearing is now re-assigned to a panel of the newly-established Board of Inquiry, s. 65(11) of the Amendment Act has no application. I adopt Mr. Justice Saunders' interpretation on this point and hold that s. 65(11) does not apply to this hearing as it is presently continued and that the amendments to s. 35 of the Code have application.
11Accordingly, I find that, having been assigned by the Chair under s. 35(8) to replace a previously appointed adjudicator, I am sitting as a hearing panel of the newly-established Board of Inquiry. The Board of Inquiry has authority, under s. 35(5) of the amended Code, to establish rules of practice and procedure and did adopt Interim Rules of Practice on August 1, 1995. I find that have authority to apply the Board of Inquiry Interim Rules of Practice to this hearing. The rules provide that a panel has discretion to waive or vary their application (Rule #6). It goes without saying that, on any disputed procedural point, determinations will be made after considering the submissions of counsel, the particular circumstances at issue and the law.
Validity of the Summonses
12The respondents' motion asked that summonses served by the Commission on the Directors of Education at both school boards be quashed as speculative. Both school boards took the position that the relevance of the material sought had not been established and that the summonses were an attempt to obtain pre-hearing disclosure to which the Commission was not entitled under either the Code or the S.P.P.A. prior to the Amendment Act revisions. Additionally, counsel for CEFCUT argued that privileged information was being sought and that compliance with the summons would be oppressive to this client.
13Having determined that my jurisdiction to hear this complaint is as a panel of the Board of Inquiry established under the amended s. 35(1) of the Code, I am able to consider the respondents' motion in the context of the amendments to the Code and the Interim Rules of Practice. Also relevant are the amended disclosure provisions in the S.P.P.A. which apply to the new Board of Inquiry as a tribunal with rule-making authority. However, in the event that I am incorrect in my preliminary determination that the amendments to the Code and the S.P.P.A. have application to this proceeding, I will give alternate reasons for my finding on the motion to quash the summonses.
14By way of background, it may be useful to consider the human rights jurisprudence on pre-hearing disclosure prior to the 1994 S.P.P.A. amendments. Prior to passage of the Amendments Act, if a party in a human rights proceeding sought disclosure of information from another party, they had to rely on s. 8 or s. 12(1) of the S.P.P.A. Section 8 was unaffected by the Amendment Act and s. 12(1) was only revised to reflect the new provisions on electronic hearings. The sections are set out below.
Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the parry is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. R.S.O. 1990, c. S.22, s. 8.
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 a hearing. R.S.O. 1990, c. S. 22, s. 12(1); 1994, c. 27, s. 56(23).
15Section 8 would sometimes assist respondents in obtaining disclosure of the- case against them, but most often s. 12 was the section used by either party in seeking material from the other side. If a party believed that relevant documents had not been voluntarily disclosed, the way to obtain disclosure was to rely on the authority of the board to require production by summons. However, if a party wished to obtain the material in advance of the hearing in order to determine if it was relevant or useful, boards of inquiry were often reluctant to use the summons power to order such prior disclosure in view of the statutory language directing the person summoned to "produce in evidence" at the hearing: Guru v. McMaster University (1980), 1980 CanLII 3915 (ON HRT), 2 C.H.R.R. D/253; Joseph v. North York General Hospital et al. (1982), 1982 CanLII 4876 (ON HRT), 3 C.H.R.R. D/854; Salamon v. Searchers Paralegal Services et al (1986), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162; Johnson v. East York Board of Education (1984), 1988 CanLII 8872 (ON HRT), 9 C.H.R.R. D/4791. A practice developed of having the summoned witness appear to produce and identify the material required by the summons, and then adjourning so that the party issuing the summons could consider how and if the material could be used in making their case: Olarte et al. v. Commodore et al. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705; Ahluwalia v. Metropolitan Toronto Board of Police Commissioners (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757, upheld in Re Metropolitan Toronto Board of Commissioners of Police et al. and Ontario Human Rights Commission et al.(1979), 1979 CanLII 1840 (ON HCJ), 27 O.R. (2d) 48 (Div. Ct.). Several board of inquiry decisions commented on the difficulty of conducting an efficient hearing in the absence of adequate pre-hearing discovery procedures and on the unfortunate delays which resulted when adjournments were required: Niedzwiecki v Beneficial Finance System (1982), 1981 CanLII 4321 (ON HRT), 3 C.H.R.R. D/1004 as quoted in Bezeau v. Ontario Institute for Studies in Education (1982), 1982 CanLII 4870 (ON HRT), 3 C.H.R.R. D/874 at D/878; Gohm v. Domtar Inc. et al. (1989); 1989 CanLII 9020 (ON HRT), 11 C.H.R.R. D/420.
16Consider now s. 5.4 of the amended S.P.P.A., a provision enacted by the Amendment Act.
5.4(1)
At any stage of the proceeding before completion of the hearing, the tribunal may, if its rules made under section 25.1 deal with the matter, and subject to the Act under which the proceeding arises, make orders for,
(a)
the exchange of documents;
(b)
the oral or written examination of a party;
(c)
the exchange of witness statements and reports of expert witnesses;
(d)
the provision of particulars;
(e)
any other form of disclosure.
17Section 25.1 of the amended S.P.P.A., referred to in s. 5.1 above, provides authority for disclosure rules, in addition to any authority derived from the statute under which a particular tribunal functions.
25.1(1)
A tribunal may make rules governing the practice and procedure before it.
(2)
The rules may be of general or particular application.
(3)
The rules shall be consistent with this Act and with the other Acts to which they relate.
(4)
The tribunal shall make the rules available to the public in English and in French
(5)
Rules adopted under this section are not regulations as defined in the Regulations Act.
(6)
The power conferred by this section is in addition to any power to adopt rules that the tribunal may have under another Act.
18The Board of Inquiry has established procedural rules as it is authorized to do by s. 25.1 above and by s. 35(5) of the amended Code. Disclosure is dealt with in Rules #47 — #51.
The Human Rights Commission, or the complainant where the Commission has withdrawn, shall provide full disclosure of the information, witness statement, documents and evidence relating to the complaint to the party who is alleged to have infringed a right under the Code, and to any other person the panel directs, at least 10 days prior to the first scheduled mediation date or 30 days before the prehearing if no mediation is scheduled.
Any party who is alleged to have infringed a right under the Code shall provide to the other parties full disclosure of the information and evidence it will rely on to support its response to the complaint at least five (5) days prior to the fast scheduled prehearing.
At any time in a proceeding, a panel may order any party to provide to any other party further particulars, physical or documentary evidence, expert(s)' reports, lists of witnesses and witness statements as the panel considers necessary.
A panel may order a party to provide to the other parties witness statements signed by the witnesses, or where such a document does not exist, a summary of the evidence that the witness is anticipated to give at the hearing.
If a party fails to disclose in accordance with these Rules, the panel may at its discretion, determine on what terms, if at all, the party may introduce that evidence.
19The Rules give a hearing panel of the Board the power to order disclosure of any party at any time during the hearing. The provisions in the Rules are consistent with s. 5.4 of the S.P.P.A. Accordingly, if I am correct in determining that the amendments to the Code and S.P.P.A. apply to this hearing, there can be no question that I have authority to order the disclosure which is sought by the Commission.
20Alternatively, if the amended provisions of the Code and S.P.P.A. do not apply to this hearing, I would rely on Ontario Human Rights Commission v. Jeffry House, Northwestern General Hospital et al. (1993), 1993 CanLII 16421 (ON CTGDDC), 20 C.H.R.R. D/498 (Div.Ct.) in determining that I otherwise have authority to order the disclosure sought. In Northwestern Hospital, the Divisional Court upheld a board of inquiry decision (under the Code prior to the Amendment Act) refusing a motion to quash a respondents' summonses seeking disclosure of the Commission. The Commission in that case argued that the summonses should be quashed as premature and an attempt to obtain pre-hearing discovery.
21The respondents before me argued that the decision in Northwestern General Hospital was authority for the right of a respondent to obtain full disclosure of the Commission file, but did not speak to the right of the Commission to obtain disclosure of a respondent. The Court compares the role of Commission counsel to the role of prosecuting counsel in criminal matters, and compares the duty of the Commission to disclose to the similar duty of the Crown. However, in my view, the focus in the decision on the Commission's duty to disclose is simply because that was the issue before the Court. The Court cites with approval the following passage from R. v. Stinchcombe (1991) 3 S.C.R. 328; (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.), relied upon by the board of inquiry in ordering disclosure of the Commission file:
Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. Surprisingly, in criminal cases in which the liberty of the subject is usually at stake, this aspect of the adversary system has lingered on.
After quoting the passage above; the Court in Northwestern General Hospital goes on the state at D/500:
"The Applicant [the Commission] equates proceedings under the Human Rights Code to the civil rather than the criminal process. It is in our view significant that in civil proceedings the "full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice". The important principle enunciated by Mr. Justice Sopinka is that "justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met (emphasis added by Div. Ct.)
22In my view, this passage establishes that the Court intended disclosure to be mutual between the parties in human rights proceedings, not simply a requirement imposed on the Commission as was urged by the respondents in this case. Further, the decision of the Divisional Court in Northwestern General Hospital, in upholding disclosure ordered pursuant to s. 12 of the S.P.P.A. (prior to the Amendments Act ) made a break with prior human rights jurisprudence limiting the use of the summons power in s. 12 to obtain pre-hearing disclosure. On the basis of the Northwestern General Hospital decision, I find that I have authority to order disclosure without reliance on the Board of Inquiry Interim Rules of Practice and the amended provisions of the Code and the S. P. P.A.
23Having found that I have authority to order the respondents to make appropriate disclosure, I must now deal with the specific objections raised by the respondents with respect to the scope of the disclosure sought by the Commission pursuant to the summonses.
Is the Material Sought Relevant to the Issues in Dispute?
24Counsel for the school boards submitted that much of the material sought pursuant to the summonses had already been disclosed to the Commission during the investigation of the complaints, to the extent that it was and is available, and that an evidentiary basis had not been established for further disclosure. It was their position that the relevance of the summoned material had not been demonstrated and that it would therefore be premature to order production.
25In view of the fact that the Commission conceded that the summonses were overly broad, it is unnecessary to consider the relevance of the information sought therein. The Commission clarified that it was now seeking disclosure of any material in the possession of the respondents relating to the two disputed job competitions which has not already been disclosed. The Commission proposed that new summonses be prepared and listed, as examples of what was being sought, scoring sheets, interview questions, interview notes, information on candidate evaluation, as well as the minutes of school board and committee meetings at which the job competitions were discussed. Counsel expressed disbelief that there were no further undisclosed materials, particularly scoring sheets and interview notes, and noted that CEFCUT had acknowledged in its response to the complaint that it knew in advance that there was a possibility of a human rights complaint arising out of the second job competition. She asked how it could be that interview notes and scoring sheets were not retained in these circumstances.
26In considering the relevance of documents which are sought for disclosure, the standard to be applied is not the same as is applicable when the issue is admissibility into evidence at the hearing. The Pay Equity Hearings Tribunal has held that documents are subject to disclosure if "arguably relevant" to the issues in dispute at the hearing: Kingston and Frontenac Children's Aid Society (1990), 2 P.E.R. 31; Windsor (Huron Lodge) (05 October 1995), (0504-94;0544-95). Given my finding that disclosure can be ordered under s. 5.4 of the S.P.P.A. and under Rule #48, without the necessity of requiring production in evidence at the hearing pursuant to s. 12 of the S.P.P.A., I find that "arguable relevance" is the appropriate standard to apply. It is premature to consider whether an evidentiary basis for admissibility has been established.
27I do not think that there can be any question that documents relating to the disputed job competitions are arguably relevant to the issues under consideration at this hearing. The primary issue in dispute is whether or not the complainant was unsuccessful in the job competitions for reasons related to a prohibited ground of discrimination. All documents relating to recruitment policies, selection criteria, interview questions, interview assessment, candidate scoring and candidate evaluation are relevant and should be disclosed, if not already disclosed. For greater certainty, all documents relating to the application of such policies, procedures and protocols in this case, the process and the content of the actual selection decision in second competition, and the decision not to fill the position in the first competition, should be disclosed to the Commission if not already disclosed. This would include memoranda and correspondence relating to the decisions in the two disputed job competitions, and minutes of any meetings at which the relevant job competition decisions were actually made, confirmed or ratified.
28It appeared from the materials before me that the disclosure made by CEFCUT to date may be more extensive than the disclosure made by the Metro Board, but both boards did disclose material during the investigation of the complaints. The Commission and the complainant are entitled to disclosure of any further documentation relating to the job competitions, subject to any valid claim of privilege.
Is the Disclosure Sought by the Commission Oppressive?
29This objection was argued by counsel for CEFCUT and focussed on the Commission's request in the CEFCUT summons for "all records of discussions and documents including tapes of Board meetings where Alfred Abouchar or any of Mr. Abouchar's Ontario Human Rights Commissions complaints were discussed". Counsel for CEFCUT stated that monthly meetings of the full board, as well as numerous regular committee meetings, were all taped throughout the more than six year period since the filing of the complaint against CEFCUT. He argued that it would be oppressive to require his client to review tapes created over such a lengthy period of time. He also asked that the tribunal consider the cost of transcribing and translating the taped recording of any meetings at which the complaints had been discussed. Finally, counsel asked what relevance any board discussions of the complaints over the six year period would have to the issues before this inquiry.
30In response, counsel for the Commission submitted that disclosure of board minutes was necessary because of the position taken by CEFCUT that it was not responsible for any events which took place prior to it taking office on December 1, 1988. Commission counsel specified that she was seeking evidence that CEFCUT ratified or accepted the results of the pre-December 1988 job competition. She also stated that she was seeking disclosure of discussions at both CEFCUT and the Metro Board which might provide a rationale for the decision not to hire the complainant.
31I accept the position of counsel for CEFCUT that it would be oppressive to require either school board to review the minutes and recordings of board and committee meetings for a six year period. I have already found that the respondents should disclose the minutes of the meetings at which the actual job competition decisions were made, confirmed or ratified. It appeared from the material before me that such decisions would have been made at meetings in June, July or August 1988, in the case of the Metro Board, and in December 1988, or January and February 1989, in the case of CEFCUT. If there was any discussion of the job competitions at school board meetings during the period in which the competitions were held, and the decisions made, the minutes of the meetings would meet the standard of arguable relevance and should be disclosed. If privilege is claimed in respect of any portion of the minutes, the basis on which privilege is claimed should be stated, and the issue can be argued before me.
32Following review of the minutes ordered disclosed pursuant to this order, the Commission may renew its request for further disclosure of minutes or taped recordings, keeping in mind the finding that the full disclosure sought in the summons to the Director of Education at CEFCUT would be oppressive to the respondent board.
Does Privilege Attach to Materials Sought by the Commission?
33This argument was advanced only by counsel for CEFCUT. "Social privilege" was claimed in respect of meetings of the school board on the basis of the "Wigmore conditions" as applied in the arbitration decision in Canadian Broadcasting Corp. and C.U.P.E. (1991), 1991 CanLII 13372 (CA LA), 23 L.A.C. 63 >at 75. Counsel argued that the minutes of school board meetings were privileged in that they meet the following four conditions as set out in that case:
- The communication originated in a confidence that it would not be disclosed;
- The element of confidentiality was essential to the full and satisfactory maintenance of the relation between the parties;
- The relation between the parties was one which in the opinion of the community ought to be sedulously fostered, and
- The injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit of disclosure for the correct disposal of the litigation.
34These four conditions, referred to in the Canadian Broadcasting Corp. case as the "Wigmore conditions", are taken from Wig more, Evidence in Trials at Common Law, 3rd ed., vol. 8 (Boston: Little, Brown & Co., 1961), para. 2285. The conditions have been applied in considering claims of privilege in a variety of legal contexts in Canada. In the employment law context, the Wigmore conditions have been applied to protect from disclosure the confidential internal communications of a party where it is established that disclosure would damage the ongoing labour relations between the employer and the union.
35Frankly, it is difficult to see on what basis it could be claimed that any of the four conditions are met on the facts in this case. Counsel for CEFCUT conceded that meetings of the school board were public when the board was sitting as a board; there could be no expectation of confidentially in such circumstances. Further, although counsel pointed out that the Education Act (R.S.O. 1990, c. E.2) provided for school board committee meetings, including meetings of the board sitting as a committee of the whole, to be closed to, the public, there was no suggestion that any of the meetings of which disclosure was sought were in fact closed meetings.
36With respect to the second condition, it was not shown that confidentiality is essential to the communications which take place at school board meetings, whether open or closed, or to the proper functioning of the school board. With respect to the third and fourth factors, there was no attempt to demonstrate that there was a community opinion supporting the confidentiality of discussions at school board meetings, or that the operations of the school board would be injured by disclosure of minutes of school board meetings. Accordingly, I find that CEFCUT has not established a basis for its claim of "social privilege" in respect of the minutes of school board meetings.
37Additionally, CEFCUT claimed solicitor-client privilege in respect of any school board discussions of the disputed job competitions which took place after the complaint was filed with the Commission. Without specifying if his client was claiming litigation privilege or legal advice privilege, and without addressing the constituent elements of either head of solicitor-client privilege, counsel asked that I rule that privilege attaches to any school board discussions of the filed complaint, whether or not, a solicitor was in attendance at the meeting. I decline to do so. If CEFCUT at any later stage seeks to claim solicitor-client privilege in respect of any documents or other evidence, the nature of the privilege claimed will have to be specified, and the basis for the claim specifically addressed before me.
The "Speculative Discovery" Objection
38It was strongly argued by counsel for both the school boards that the Commission did not know how to argue its own case, and was seeking additional material in an effort to obtain inappropriate and speculative discovery of the respondents' case, and in order to gauge the strength of that case. This was particularly objected to because the complaints had been in the investigation stage at the Commission for more than three years. It was argued that investigation of a complaint ends once the Commission makes a decision to refer the matter to the Board of Inquiry and that the Commission should not now be allowed to supplement its investigation by using the Board to obtain further material. Counsel submitted that it would be unfair to allow the Commission to obtain documents by disclosure which it had failed to obtain in its investigation despite extensive interviewing of respondent witnesses. This would give the Commission an unfair advantage over respondents, who had no opportunity to obtain examination for discovery of the complainant or other Commission witnesses.
39In so far as this objection depends on a characterization of the disclosure sought as a "fishing expedition", it will be clear from the determinations made above that I have decided that there is a distinct body of material which should be disclosed as arguably relevant, if not already disclosed. I can nonetheless appreciate the respondents' frustration with the process, given the lengthy period of investigation of this complaint. Moreover, it appeared that the school boards did attempt to co-operate in releasing material to the Commission during investigation of the complaint, but that the Commission did not accept that some documentation was no longer available or never existed in the first place.
40Having said that, I would like to address briefly the suggestion that the human rights enforcement process is unbalanced if the Commission can investigate the complaint, conduct interviews equivalent to examination for discovery as part of the investigation process, and then be permitted to obtain further disclosure at the hearing stage. The Commission has more than one role to play in the enforcement process established under the Code, but it must be recognized that at the investigation stage, the human rights officer is charged with responsibility to investigate both sides of a complaint in a neutral fashion. When an officer interviews persons who are named as respondents in a complaint, the process is not comparable to an examination for discovery in civil proceedings in that the Commission itself is not at that stage adverse in interest to any party. It is only after the investigation that the Commission loses its neutrality vis a vis the respondent if a recommendation is made as to refer the complaint to a hearing. If an officer's recommendation to go to a hearing is accepted by the appointed Commissioners, the Commission takes on a new role as the party representing the public interest and having carriage of the complaint before the Board of Inquiry. In this role as a party to the hearing, the Commission has the same rights as any other party to seek an order for further disclosure.
41In fact, it is not unusual for the Commission, at the hearing stage, to request disclosure of materials which have not been obtained during investigation. Other board of inquiry decisions have commented on the fact that the Commission's investigation powers are not always effective and should not be a reason for refusing to allow the Commission to obtain further disclosure at the hearing stage in appropriate circumstances: Gohm v. Domtar Inc., supra at D/421; Bezeau v. O.I.S.E., supra at D/877. In some cases, a Commission request for further disclosure will be necessitated by the refusal of a respondent to participate in the investigation of the complaint. In other circumstances, Commission counsel, upon receiving the file to prepare for hearing, will identify information necessary to the complainant's case which was not identified by the investigating officer. In my view, if arguably relevant material has not been disclosed, it matters little whether this is because of an unco-operative respondent or an investigating officer's oversight. It is the task of a hearing panel to determine if a right of the complainant under the Code has been infringed, and to that end, justice will be better served if the element of surprise is eliminated and the parties are prepared "to address the issues on the basis of complete information of the case to be met": per Sopinka, J. in R. v. Stinchcombe, supra, at p. 6.
Order
42The Board of Inquiry Interim Rules of Practice have application to this hearing, and will be considered in making procedural rulings on the conduct of the hearing.
43The summonses served by the Commission on the Directors of Education at the Metro Board.and CEFCUT are set aside.
44CEFCUT is ordered to disclose to the Commission by August 12th, 1996, the following materials:
- the minutes of any meeting of the school board or a committee of the board, including the committee of the whole, at which the decisions were made in the disputed job competitions, including confirmation or ratification of a decision made by another committee or body;
- the minutes of any meetings of the full school board or the committee of the whole at which the disputed job competitions were discussed during December 1988, and January 1989 to. May 1989;
- any other documents not already disclosed which relate to the determinations made in the disputed job competitions, including memoranda and correspondence discussing the decision, and recruitment policies, selection criteria, interview questions, interview assessment sheets, candidate scores and candidate evaluation sheets.
45The Metro Board is ordered to disclose by August 12th, 1996, the following material:
- the minutes of any meeting of the school board or a committee of the board, including the committee of the whole, at which decisions were made in the disputed job competitions, including confirmation or ratification of a decision made by another committee or body;
- the minutes of any meetings of the full school board, or the committee of the whole at which the disputed job competitions were discussed during the six month period from June to November 1988;
- any other documents not already disclosed which relate to the determinations made in the disputed job competitions, including memoranda and correspondence discussing the decisions, and recruitment policies, selection criteria, interview questions, interview assessment sheets, candidate scores, candidate evaluation sheets and candidate selection sheets, as well as documents relating to the decision not to select a candidate in the first job competition.