Biederman v. Banfai, 2000 CanLII 49403

Biederman v. Banfai

2000-10-19

Ontario Board of Inquiry

Barbara Biederman Complainant

and

Ontario Human Rights Commission Commission

v.

Julius Banfai Respondent

Date of Complaint: September 6, 1996

Date of Decision: October 19, 2000

Before: Ontario Board of Inquiry, Matthew D. Garfield

Decision No.: 00-018-I

Appearances by: Sharon Ffolkes Abrahams, Counsel for the Commission Cecil Norman, for the Complainant William Anderson, Counsel for the Respondent

PRODUCTION OF DOCUMENTS — procedure for production of documents — company records — medical file — CONFIDENTIAL RECORDS — medical records and principle of confidentiality

Summary: An Ontario Board of Inquiry ordered further disclosure of business documents by Barbara Biederman who alleged that Julius Banfai sexually harassed her.

The Board of Inquiry had previously ordered disclosure of some business and medical records. However, the respondent contended that this order did not go far enough. The Board of Inquiry agreed that disclosure of all contracts, invoices, financial statements, and receipts, as well as documentation relating to Ms. Biederman's efforts to obtain alternative employment, and particulars of other income received between 1995 and 1999 was relevant to the issue of the nature and quantum of damages claimed by the complainant. It ordered Ms. Biederman to disclose these documents.

However, the Board of Inquiry declined to order further disclosure of Ms. Biederman's medical and psychiatric records. The Board determined that the respondent was not entitled to an Ontario Hospital Insurance Plan summary from 1993–1999 or to records relating to the complainant's psychiatric or psychological condition during this period. To go beyond the original order would be overkill. There was no evidence that Ms. Biederman suffered from a psychiatric illness before the alleged harassment took place, and even assuming that she did, this could not be relevant to assessing credibility as it would be highly prejudicial to assume that a person with a psychiatric history is not to be believed.

CASES CITED

Abouchar v. Toronto (Metro) School Board (No. 2) (1996), C.H.R.R. NP/96-50, [1996] O.H.R.B.I.D. No. 21 (QL): 14

Cook v. Ip (1985), 1985 CanLII 163 (ON CA), 5 C.P.C. (2d) 81 (Ont. C.A.): 15

Jeffrey v. Dofasco Inc. (No. 1) (1999), CHRR Doc. 00-178 (Ont. Bd.Inq.): 14

Ontario (Human Rights Comm.) v. Dofasco Inc. (2000), CHRR Doc. 00-177 (Ont. Sup.Ct.): 14

M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157: 16

R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411: 15

LEGISLATION CITED

Ontario

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

s. 35(5): 13

s. 41(1)(b): 19

Board of Inquiry Rules of Practice, r. 42: 13

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 5.4(1): 13

INTRODUCTION

1These are my reasons for decision on that aspect of the motion for production of documents on which I reserved on June 28, 2000.

ISSUES

2Are the documents arguably relevant to issues in dispute before me? Does the balancing of the need to have probative evidence outweigh the privacy rights of and prejudicial effect to the complainant?

DECISION

3The moving party/respondent succeeds in part. The complainant shall produce the business records and documents sought. However, further production of medical/psychiatric documents is not ordered.

BACKGROUND

4Barbara Biederman, the complainant, filed a complaint with the Ontario Human Rights Commission ("Commission") dated September 6, 1996, alleging discrimination and harassment in employment on the basis of sex, and sexual solicitation by the respondent. The subject-matter of the complaint was referred to the Board. The Board's initial conference call occurred on February 17, 2000.

5The Commission and complainant are seeking general damages, damages for lost wages and commissions in the amount of $149,600 and other unparticularized special damages in the amount of $11,700.

6The respondent brought a motion to dismiss the complaint based on lack of jurisdiction and abuse of process and in the alternative, a motion for production of documents. The motion to dismiss was adjourned on consent to a new date. I heard argument regarding the motion for production of documents and issued the following Order on June 28, 2000:

On consent of all the parties, the Board ordered that Ms. Biederman produce to the parties the following: her T1 income tax returns and notices of assessment for the years 1992–99; all information with respect to employment and job searches for the years 1995–99, including self employment; and all medical opinions, doctors' reports and clinical notes relating to allegations of sexual harassment and discrimination as stipulated in the complaint. Documents relating to income tax, job search and employment matters mentioned above shall be produced by July 31, 2000. Medical documents mentioned above shall be produced by September 1, 2000. The Commission shall bear the costs of production.

On consent of all the parties, the deadlines in the Order were extended to October 2, 2000.

THE PARTIES' POSITIONS

The Moving Party / Respondent

7The respondent wants me to go further in ordering production, than what the parties consented to in my Order, regarding business and medical documents. Specifically, he wants me to order the production of contracts, subcontracts, invoices, financial statements, expense receipts, relevant receipts and invoices relating to Ms. Biederman's claims for special damages, documentation relating to Ms. Biederman's attempts to locate alternative employment, particulars of any other income or monies received by Ms. Biederman between 1995 and 1999 and other relevant documentation pertaining to Ms. Biederman's claim for damages.

8Regarding the production of medical documents, the respondent is seeking an order requiring Ms. Biederman to produce an OHIP summary from 1993–99, and any clinical reports or records relating to the psychiatric or psychological condition of the complainant from 1993–99.

9The respondent says that the test of arguable relevance has been met here. The business documents are arguably relevant to the issues of special damages and damages for loss of wages and commissions, including the question of to what extent, if any, the complainant mitigated. The respondent points out that the Commission and complainant have claimed substantial damages. The documents ordered on consent on June 28, 2000, do not go far enough in addressing these arguably relevant issues. The respondent requires them to make a full answer and defence.

10The respondent also submits that the medical records requested are arguably relevant. They address issues before the Board, specifically dealing with causation, i.e., whether any psychiatric condition was pre-existing the allegations and what it was caused by, and to the issue of the complainant's credibility and damages.

The Commission and Complainant

11The complainant agrees with the Commission's submissions. The Commission says that my June 28th Order properly addresses the disclosure and production concerns. To go further is merely allowing the respondent to go on a "fishing expedition". The Commission says that the respondent's request is a speculative discovery exercise which is not provided for in the Board's Rules of Practice. The documents requested are not arguably relevant to issues before me.

12In the alternative, if they are arguably relevant, the Board should determine that the complainant's privacy rights and prejudicial effect outweigh the probative value of the documents requested to be produced. On the issue of medical/psychiatric reports and records pre-dating the allegations or not even concerning the allegations, the Commission says that they are not relevant. The Commission submits that the "thin skull doctrine" – you take the plaintiff as you find him/her – is applicable in human rights proceedings.

THE LAW

13Section 35(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), empowers the Board to make rules regulating its practice and procedure. Section 5.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, confers on tribunals the power to make rules allowing for broad disclosure and production. Rule 42 of the Board's Rules of Practice confers on me the power to order disclosure of "... anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding".

14The threshold for production and disclosure of documents before the Board, like the civil courts in Ontario, is "arguable relevance" – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Board. Abouchar v. Metropolitan School Board (No. 2), [1996] O.H.R.B.I.D. No. 21 (QL) at § 26 [C.H.R.R. NP/96-50] (Laird); Jeffrey v. Dofasco Inc. (No. 1) (unreported, December 16, 1999 [CHRR Doc. 00-178] (Garfield); judicial review application dismissed August 21, 2000, by Divisional Court [CHRR Doc. 00-177]; leave to appeal granted October 13, 2000, by Court of Appeal).

15If the document sought is arguably relevant and other issues arise, such as privacy, then the adjudicator must determine if and under what conditions, the document will be produced. This involves a balancing of the privacy rights, the prejudicial value of the production to the producing party, the probative value of the document and the right of the respondent to make full answer and defence. R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. The courts have consistently said that it is in the public interest to get all the relevant evidence before the trier if justice is to be done. Cook v. Ip(1985), 1985 CanLII 163 (ON CA), 5 C.P.C. (2d) 81 at 86.

16The court or tribunal hearing such a motion must also consider, if applicable, the issue of privilege as it relates to the document sought. This involves applying the principles for case-by-case privilege, sometimes called the "Wigmore test". The test and process were set out in M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 at 171. I note that no claim of privilege was asserted with respect to the documents ordered, on consent, to be produced on June 28, 2000, or the ones on which I had reserved. Notwithstanding, the possibility of claiming privilege with respect to any of the documents ordered to be produced, on consent or otherwise, is not foreclosed. Of course, if the document does not pass the arguably relevant threshold, it becomes unnecessary for me to deal with the privilege question and the Wigmore test.

SHOULD THE DOCUMENTS BE PRODUCED?

Business Documents

17I am convinced that the business records and documents sought by the respondent are arguably relevant to issues before me. Specifically, they are arguably relevant to the issue of the nature and quantum of damages claimed.

18No claims of privilege were asserted by the complainant or the Commission on behalf of the complainant regarding the business records and documents agreed to in the consent Order or the ones further requested by the respondent. Accordingly, I will not apply the test in Ryan. With regards to the balancing process in O'Connor, I find that the need to get all the relevant evidence before the Board and the right to make full answer and defence outweigh any right of privacy of, or possible prejudicial effect to, the complainant from these business records. Accordingly, the complainant shall gather those documents and produce them to the parties.

Medical/Psychiatric Documents

19The respondent has not convinced me that the medical/psychiatric records and documents sought to be produced are arguably relevant. The medical records ordered, on consent, to be produced are sufficient to address issues before me, such as the existence and degree of "mental anguish" pursuant to s. 41(1)(b) of the Code.

20To go beyond that Order would, in my opinion, be overkill. There is no evidence before me that Ms. Biederman suffered from a psychiatric condition before the events in question took place. In that sense, the request for production is overly speculative. Regarding the issue of credibility, it is my job as trier to assess Ms. Biederman's and other witnesses' credibility. Assuming that Ms. Biederman did suffer from a psychiatric condition pre-existing the alleged events (and again there is no evidence to suggest this), it would be highly prejudicial and stereotypical to suggest that a person suffering from a psychiatric condition is prima facie not to be believed or is less believable.

21As I have found the medical/psychiatric documents requested are not arguably relevant, I shall not deal with the question of their privilege and any balancing of rights concerns.

ORDER

221. Barbara Biederman shall produce to the other parties by November 2, 2000, copies of all contracts, subcontracts, invoices, financial statements, expense receipts, relevant receipts and invoices relating to her claims for special damages, documentation relating to Ms. Biederman's attempts to locate alternative employment, particulars of any other income or monies received by Ms. Biederman between 1995 and 1999 and other relevant business documentation pertaining to Ms. Biederman's claim for damages. The other parties may see the originals of said productions at a time and place to be agreed to by the complainant.

2. The complainant shall bear the cost of the production.