BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended; AND IN THE MATTER OF the complaint by Bonnie Seguin dated July 28, 1999 alleging breach of settlement and reprisal.
B E T W E E N:
Ontario Human Rights Commission
-and-
Bonnie Seguin
Complainant
-and-
The Ininew Friendship Centre and Doris Louttit
Respondents
INTERIM DECISION
Board of Inquiry: Mary Anne McKellar
Board File No.: BI-0365-00
Decision No.: 01-004-I
Board of Inquiry (Human Rights Code)
505 University Avenue
2nd Floor, Toronto ON M5G 2P3
Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743
TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168
AP P E A R A N C E S
Ontario Human Rights Commission ) Cathryn Pike
Bonnie Seguin, Complainant ) Bonnie Seguin
Ininew Friendship Centre and Doris ) Alan Pope, Counsel
Louttit, Respondent
INTRODUCTION
This decision disposes of a motion brought by the Ontario Human Rights Commission (“the Commission”) seeking to have the Respondents, the Ininew Friendship Centre (“the Friendship Centre”) and Doris Louttit disclose certain documents pursuant to Rule 42 of the Board of Inquiry’s Rules of Practice.
BACKGROUND
The Complaint before the Board of Inquiry (“the Board”) is dated July 28, 1999. It alleges that the Respondents are in breach of the written settlement of a previous complaint by the Complainant, Bonnie Seguin, that they contravened the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”) by discriminating against her in respect of her employment with the Friendship Centre. As set out in the Complaint, the terms of settlement required the Friendship Centre to employ the Complainant for a period of time and thereafter to make “all reasonable efforts to secure continuing, permanent employment” for her with the Friendship Centre. The Complaint alleges that the Respondents failed to comply with the terms of the settlement pertaining to continuing permanent employment, thus breaching the settlement. Additionally, the Complaint alleges that the Respondents’ actions constituted reprisal under the Code.
THE MOTION
In its Notice of Motion, the Commission seeks to have the Board order the disclosure of the following documents:
Minutes of the meetings of the Board of Directors of the Friendship Centre from May 1992 to the present.
Job descriptions (and job postings, where applicable) for all positions, whether contract, part-time or permanent at the Friendship Centre from January 1998 to the present, along with the names of the various incumbents, dates that the incumbents held those positions, resumes of the incumbents as well as applications for the positions held, source of funding for the positions, and applications/proposals for the funding.
Counsel for the Respondents agreed to provide the documents requested in paragraph 2 above, so the motion did not proceed with respect to them. The Board understood Commission counsel to be reserving the right to question the sufficiency of the Respondent’s compliance with her request once the documents in question have been provided to her and she has had an opportunity to review them.
With respect to the documents itemized in paragraph 1 above, the Commission’s submissions in support of their disclosure may be briefly summarized:
The Board has the ability to order production under Rule 42 of its Rules of Practice;
Documents will be ordered produced pursuant to this rule when they are arguably relevant to the issues in dispute, and their probative value is not outweighed by considerations of prejudice to the party producing them;
Preliminary orders for production expedite the hearing process by allowing for the “up front” disclosure of documents that could otherwise be sought from witnesses during the hearing itself, and which might necessitate adjournments while the documents are located;
The fact that a document is arguably relevant for the purposes of a disclosure order does not meant that it will be determined to be in fact relevant and admissible at the hearing;
The Commission ought not to be placed in the position of relying on the Respondents to tell them which documents are relevant to the issues in dispute, but must be able to make that assessment for itself; and
The documents in question are arguably relevant to the issues in dispute because they may assist the Commission in determining: how the Friendship Centre normally went about obtaining funding for positions and how it filled positions, and in assessing whether it followed its normal practices in the case of the Complainant; whether members of the Board of Directors manifested a hostile or punitive attitude towards the Complainant, which would be significant to the reprisal complaint; and whether the original settlement was entered into in bad faith, having regard to the Personal Respondent’s assertions that she did not have authority to execute it and there was some misunderstanding as to its contents.
The Complainant supported the request for disclosure, noting that some extracts of the documents in question have already been produced, and that they reveal that the Complainant has been the subject of discussion at board meetings. She is unwilling to accept the Respondents’ assurances that the documents in question do not touch on matters arguably relevant to these proceedings.
The Respondents opposed the request. Once again, Counsel’s submissions may be briefly summarized:
The Commission has already investigated this matter and the Respondents cooperated with that investigation;
The documents that the Respondents have already agreed to provide address the issue of how positions are normally funded and filled;
The Friendship Centre is a corporation and cannot be said to evidence an attitude relevant to the issue of reprisal;
The Respondents are not taking the position that the terms of settlement were not binding on them; and
It would be oppressive for the Board to order the production of nine years of minutes when the Commission has already had an opportunity to obtain them through its investigation process.
Respondent’s Counsel had not reviewed the requested minutes. This fact seriously undermines certain of his positions. First, none of his arguments could be premised on any prejudicial effects the disclosure of the minutes might have. Second, although he asserted that the disclosure requested was excessive and would be oppressive, that assertion was not substantiated by any indication of the volume of the minutes requested, which presumably could only have been offered if they had been reviewed. Third, he could not reasonably assert that the issues of funding and job posting were not addressed in the minutes when he had not reviewed them. Having already conceded that documentation pertinent to these issues was arguably relevant, the Respondents cannot therefore rely on this submission to argue that the minutes ought not be produced
In answer to the Respondent’s submission that a corporation cannot have an attitude, Commission counsel suggested that the attitude of any member of the board of directors can bind the corporation. Without deciding that point, the Board merely notes that the Code itself in s. 45(1) makes corporations liable for the actions of its officers. The Respondents cannot therefore rely on this submission to argue that the minutes are not arguably relevant and ought not be produced.
Although the Respondents’ Counsel indicated that his clients would not be taking the position at the hearing that the settlement was not binding on them. The Commission nevertheless asserted that it was making an issue of the Personal Respondent’s previously stated positions on this matter, because in its view they were indicative of her bad faith in entering into the settlement, which is presumably relevant to the complaint of reprisal.
Finally, with respect to the Respondents’ submission that the Commission had already had an opportunity to gather relevant documentation during its investigation of the Complaint, Commission Counsel noted simply that evidence sufficient to warrant referral of a complaint to the Board for hearing will not necessarily be sufficient to succeed before the Board in that hearing.
CONCLUSION AND ORDER
In the Board’s view, the Commission in its submissions has correctly stated the considerations applicable to a motion for disclosure pursuant to Rule 42 of the Board’s Rules of Practice. The Board is satisfied that the documents sought are arguably relevant to the issues in dispute and that no circumstances exist militating against their disclosure.
The Board orders that the Respondents provide the Commission with copies of the minutes of the meetings of the Board of Directors of the Friendship Centre from May 1992 to the present. Such documents are to be provided to the Commission on or before February 16, 2001.
Dated at Toronto, Ontario, this 30th day of January, 2001.
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair