Nelson v. Durham Board of Education (No. 1)
1997-01-29
Ontario Board of Inquiry
Maxwell B. Nelson Complainant
and
Ontario Human Rights Commission Commission
v.
Durham Board of Education, Don Peel and Chuck Powers Respondents
Date of Complaint: July 13, 1989
Date of Decision: January 29, 1997
Before: Ontario Board of Inquiry, Gerry K. McNeilly
Decision No.: 97-001-I
Appearances by: Anthony D. Griffin, Counsel for the Commission Cynthia Petersen, Counsel for the Complainant Patricia Murray, Counsel for the Respondents
EVIDENCE — availability of witness — HUMAN RIGHTS COMMISSIONS — human rights commission's refusal to supply information from investigator's report — PROCEDURE — examination for discovery of human rights commission investigator
Summary: This is a decision on a preliminary motion by the respondent Board of Education. The Board requested that the Board of Inquiry issue an order compelling the Ontario Human Rights Commission to provide access to the investigator who investigated Mr. Nelson's complaint after the Commission initially refused to do so. The Commission changed its decision and permitted the Board of Education to have the access it requested, however, the respondent asked for a written ruling on this issue.
The Board of Inquiry finds that the Commission should make its investigator available since the investigation conducted by the Human Rights Commission is non-partisan and conducted without prejudice to all parties. There is therefore no compelling reason why the results of the investigation or the investigator, as witness for discovery purposes, cannot be made available to all parties involved in the proceeding.
Cases Cited
Hay v. University of Alberta Hospital, 1990 CanLII 2619 (AB QB), [1990] A.J. No. 333 (Alta. Q.B.): 7
Ontario (Human Rights Comm.) v. Ontario (Human Rights Board of Inquiry) (1993), 1994 CanLII 10981 (ON CTGDDC), 115 D.L.R. (4th) 279, 1993 CanLII 16421 (ON CTGDDC), 20 C.H.R.R. D/498 (Ont.Ct. (Gen.Div.)): 9
R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326: 8
Legislation Cited
Ontario
Occupational Health and Safety Act , R.S.O. 1990, c. O.1: 8
Rules of Civil Procedure, r. 194: 7
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.1: 5
Authorities Cited
Law Society of Upper Canada, Professional Conduct Handbook (Toronto: 1995): 12
Williston W.B. and R.J. Rolls, The Conduct of an Action (Toronto: Butterworths, 1982): 7
FACTS
1As a result of a telephone conference call of December 2, 1996, submissions were made by respondents' counsel to allow her to interview one of the Commission's investigators about his evidence.
2The Human Rights Commission through its legal counsel took the position that respondents' counsel was not entitled to interview one of the Commission's investigators who participated in the investigation of this complaint. Respondents' counsel brought a motion before the Board of Inquiry seeking an order of the Board to:
compel Commission counsel to permit access to the Commission investigator/witness (Mr. Kelly); and
a further order that Mr. Kelly be advised by Commission counsel that he is not prohibited from speaking to counsel for the respondents about his evidence.
3Subsequently, Commission counsel took the position that Mr. Kelly could now speak to any counsel in the case and therefore the issue in the motion was moot. Respondents' counsel asked the Board to issue a written ruling.
RULING
4Despite the Commission's position that Mr. Kelly was free to speak to respondents' counsel and thereby making issue number 2 a moot one, the first issue of whether respondents' counsel is legally entitled to interview a Commission witness is still relevant.
5Section 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, empowers a tribunal to make rules regarding its practices. The Board of Inquiry has drafted its own Rules of Practice (the "Rules"). Rule 42 provides:
- At any time in a proceeding, a panel may order any party to deliver to any other party further particulars, physical or documentary evidence, expert(s) reports, lists of witnesses and witness statements for the purposes of the hearing, and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding. [Emphasis added.]
6Since it is clear that the Board has jurisdiction to issue such an order, the only issue is whether respondents' counsel is legally entitled to interview a Commission investigator/witness.
A. No Property in a Witness
7Although the Rules of Civil Procedure, r. 194 and civil case law are not binding on the Board of Inquiry, we often analogize to the civil rules. It is a well settled principle in civil practice that there is no property in a witness. In Hay v. University of Alberta Hospital, 1990 CanLII 2619 (AB QB), [1990] A.J. No. 333 (Alta. Q.B.) the Court quoted Williston and Rolls, The Conduct of an Action (1982) at p. 8:
... There is no property in a witness; it is always permissible to interview a witness and take a statement from him so long as no attempt is made to persuade him to misstate his evidence. This rule is equally true in criminal cases because there is no such thing as a "Crown Witness". However, great caution must be used to avoid any suggestion of tampering: no attempt may be made to intimidate or influence any witness to say anything which is not an honest reflection of his memory.
8The principle that there is no property in a witness applies equally to criminal proceedings. Although the Criminal Rules and case law is also not binding upon administrative tribunals, when dealing with an investigative arm of a government with wide powers such as the Human Rights Commission or, for example the Ministry of Labour's powers with respect to the Occupational Health and Safety Act [R.S.O. 1990, c. O.1], courts and tribunals have applied the Supreme Court of Canada's seminal decision on the topic of disclosure in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 ("Stinchcombe"). In that case, the Supreme Court of Canada stated the following at p. 332 with respect to the principles of Crown disclosure:
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.
Mr. Justice Sopinka speaking for the majority stated further at p. 333:
It is difficult to justify the position which clings to the notion that the crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour are, in my view, overwhelming.
9In Ontario (Human Rights Commission) v. Ontario (Human Rights Board of Inquiry) (1993), 1994 CanLII 10981 (ON CTGDDC), 115 D.L.R. (4th) 279 [1993 CanLII 16421 (ON CTGDDC), 20 C.H.R.R. D/498], the Court upheld the application of the Stinchcombe approach to the Human Rights Commission and further stated that the role of Commission counsel is analogous to that of the Crown in criminal proceedings. The Divisional Court stated the following at pp. 284–85 [D/500, para. 16]:
R. v. Stinchcombe also recognized that the "fruits of the investigation" in the possession of the Crown "are not the property of the Crown for use in securing a conviction but are the property of the public to be used to ensure that justice be done" ... We are of the opinion that this point applies with equal force to the proceeding before a Board of Inquiry and that the fruits of the investigations are not the property of the Commission.
10Further, the investigation conducted by the Human Rights Commission investigator is non-partisan and is conducted without prejudice to all parties. There is therefore no compelling reason why the results of the investigation or the investigator, as witness for discovery purposes cannot be made available to all parties involved in the proceeding.
11The Board of Inquiry's Rules of Practice, and both the civil and criminal case law support the proposition that disclosure including in this case the right to discover a Commission witness in advance of litigation is the appropriate practice.
B. Rules of Professional Conduct
12The only remaining question is whether there is any principle in the Law Society of Upper Canada's Rules of Professional Conduct that precludes respondents' counsel from interviewing the Commission's witness. Rule 10, para. 4 of the Rules of Professional Conduct provides:
The lawyer may properly seek information from any potential witness (whether under subpoena or not) but should disclose the lawyer's interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.
13Given r. 10 and the principles enunciated above, the Board holds that respondent's' counsel is entitled to interview Commission witnesses and in particular, Mr. Kelly.