Tubbs v. Universal Workers Union, LIUNA Local 183, 2006 HRTO 3

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Anthony Tubbs Complainant

-and-

Universal Workers Union, LIUNA Local 183, Daniel Avero, Roger Quinn and Tony Dioniso Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks Date: March 10, 2006 Citation: 2006 HRTO 3

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Eddie Taylor, Counsel Anthony Tubbs, Complainant ) Winston Mattis, Counsel Universal Workers Union, LIUNA Local 183, ) Ron Lebi, Counsel Daniel Avero, Roger Quinn and Tony Dioniso )

INTRODUCTION

1Counsel for the Respondents brought a contested motion for production of the entire contents of a different, closed file at the Ontario Human Rights Commission (the "Commission"), pertaining to a complaint that Mr. Tubbs made against a contractor and a personal respondent, who are not parties to this matter. The Commission has made a determination not to refer this matter to the Tribunal. Because of the broad nature of the allegations that Mr. Tubbs has made against the Respondents herein, particularly the union, they assert that this other file meets the test of arguable relevance.

BACKGROUND

2Mr. Tubbs alleges that the Respondents have violated his right to equal treatment with respect to membership in a trade union or vocational association without discrimination because of race and colour, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). Over the objections of the Respondents, the Tribunal's Interim Decision of May 25, 2005, permitted the Commission to amend the Complaint to include the ground of reprisal pursuant to section 8 of the Code, based on seven incidents of alleged reprisal, on certain terms. See: Tubbs v. Universal Workers Union (No. 1) (2005) CHRR Doc. 05-267, 2005 HRTO 16.

3Several motions were brought by all three counsel concerning the terms attached to the above-noted Interim Decision, and after hearing submissions, the Tribunal rendered an Interim Decision dated October 6, 2005. See: Tubbs v. Universal Workers Union (No.2) (2005), CHRR Doc.05-587, 2005 HRTO 39. The Respondents were partially successful on a judicial review of paragraph 39(1) of that Interim Decision, which had directed the parties to examine certain individuals and provide will says for them. The Divisional Court set that specific direction aside and substituted an order, "that the parties shall be at liberty to call only such witnesses as they choose to call in support of their respective cases," see: paragraph 18 of the decision of Mr. Justice Lane, dated January 9, 2006. See: Universal Workers Union, Labourers' International Union of North America Local 183 v. Ontario (Human Rights Commission) [2006] O.J. No. 50. This direction from the Divisional Court narrowed the scope of the proposed evidence to be heard in order to facilitate the normal adversarial model of litigation.

4The hearing on the merits resumed on November 28 and 29, 2005. During Mr. Tubbs' testimony on November 28, 2005, he brought with him an envelope of documents that he had not yet shown to his counsel, in light of previous cautions from the Tribunal about the ongoing disclosure obligations of all parties. Counsel for the Respondent asked for production of these documents before he completed his cross-examination of Mr. Tubbs.

5As a matter of natural justice and fairness, the Tribunal adjourned early on November 28, 2005 until the next day, and directed that counsel for the Complainant review these papers and produce anything to counsel for the Respondent and counsel for the Commission that met the test of arguable relevance on which no claim for privilege was being made. Counsel for the Complainant did so forthwith.

6When the hearing resumed on November 29, 2005, counsel for the Respondent cross-examined Mr. Tubbs on some of these documents, which included some documents from a different human rights complaint that Mr. Tubbs had made against a contractor and a personal respondent. The Tribunal asked Mr. Tubbs to step out of the room and heard submissions as to why the Section 36 Case Analysis Report from the other matter should be shown to Mr. Tubbs during cross-examination. After hearing submissions, and over the objection of Commission counsel, the Tribunal permitted counsel for the Respondents to question him on the Section 36 Case Analysis from the other matter filed by Mr. Tubbs with the Commission but never referred (Exhibit 31), including the other complaint against Riverfield Homes and John Pimentel (Exhibit 30), ruling that it would reserve on what weight to give this evidence. Mr. Mattis said that his client had been notified by the Commission that this other matter would not be referred to the Tribunal some time ago. There is no dispute that this other matter is OHRC File No. JBAT-45UP9K.

MOTION

7Counsel for the Respondents brought a motion for production of the Commission's complete file in respect of Mr. Tubbs' complaint against Riverfield Homes and Mr. John Pimentel, OHRC File No. JBAT-45UP9K, which was not referred to the Tribunal. Counsel for the Commission opposed this motion. Counsel for the Complainant did not take any position. The Tribunal heard the motion on December 20, 2005, and reserved.

ISSUES

8The Tribunal considered the following issues:

(1) Whether the Tribunal has the jurisdiction to order production of a file that the Commission has already decided not to refer to the Tribunal and has closed

(2) Whether that other file in question is arguably relevant to the matters in issue herein

DECISION

9The motion is dismissed because the Tribunal lacks the jurisdiction to make the order sought. Moreover, the information contained in the Commission's other, unreferred, closed file meets the Wigmore test and ought to remain confidential.

EVIDENCE ON THE MOTION

10Mr. Tubbs testified on November 29, 2005 at length. He was asked a number of questions during cross-examination about what happened during the fall of 1998 at the construction site run by Riverfield Homes.

11He made allegations that the union behaved unfairly with respect to the monies paid into it by the workers, versus the benefits they received in return, which he said was the catalyst for the creation of United Framing, which he described as a "non-profit" organization for pieceworkers.

12He was working for United Framing while at the Riverfield Homes jobsite in September 1998. He said that he felt belittled about various comments that were allegedly made to him and the incidents that allegedly occurred there, including the improper locking of a trailer and the denial of access to the telephone. There are no allegations made against the union contained either in that complaint or in that Section 36 Case Analysis.

13In terms of the union's involvement in his issues with Riverfield Homes, he testified that he believes Tony Dionisio did not want "Pieceworkers United" to succeed, since it was competing with the union. He said that he believes he became the target of the union as a result of this situation. He wrote to the Office of the General Counsel of the union and received a reply, dated February 24, 2003, from Ronald Pink, in which the union determined that its Canadian Ethical Practices Code had not been violated, without stating detailed reasons but citing the significant lateness of his complaint (Exhibit 29). He said that Tony Dionisio and the business manager both told him not to go to work. Nevertheless, he identified a letter that the union sent to Riverfield Homes, dated March 25, 1999, written on his behalf by Mark Lewis, General Counsel, outlining the poor treatment that he received at that job site, and demanding that they refrain from future practices of intimidation against framers (Exhibit 32).

14Mr. Tubbs testified that when he attended the December 20, 1998 union meeting, he went up to the microphone and was describing the situation at Riverfield Homes and the lack of support he received from the union, and then made the human rights allegations at issue herein, when the altercation broke out between himself and Daniel Avero. He testified that on December 20, 1998, he was threatened by the union President, Tony Pinto. He testified that Mr. Pinto, "rushed me, said that he would 'fuck me up real bad' and would 'silence' me because I have a big mouth." He said that Mr. Pinto ordered that Mr. Chaunderpaul be thrown out of the meeting, and that "big goons went up and threw him out like a rag doll, like a piece of garbage." Mr. Tubbs said that, "my life is at stake," that this is "not a joke" and that he takes "it serious, dead serious." He added that he believes that the police cannot protect him. He said that he wrote to the international office of the union in Washington, but that they would not help him.

15During the course of his testimony on November 29, 2005, he identified a letter that the union sent on March 17, 1999 in connection with a grievance flowing from Mr. Tubbs's work for Riklis Construction Ltd. ("Riklis") to a different carpentry employer (Exhibit 24). He also identified a letter sent by the union to the Ontario Labour Relations Board, dated June 15, 1999, indicating that the union was filing further particulars in relation to that grievance against Riklis (Exhibit 25).

SUBMISSIONS

16In Schedule "A" to his Notice of Motion, counsel for the Respondents states in earlier correspondence to the Commission, his reasons for wanting full production of this other matter. He states, in part:

In the current proceeding, Tubbs says that he complained about the alleged discrimination by Riverfield Homes at the December 20, 1998 union meeting and that the events that followed the meeting were directly related to his speaking out about this alleged discrimination. Tubbs has also complained that the Union ignored the alleged discrimination experienced by Tubbs at this very job site. An independent assessment of the alleged discrimination prepared by Commission staff has come to a very different conclusion about whether there was any improper or unlawful discrimination at that job site.

With respect, Tubbs' [sic] credibility with respect to this allegation is an issue in this proceeding. So, too, is his credibility with respect to similar allegations against other contractors. In order to more fully explore that matter and to better understand the evidentiary basis for the Case Analysis Report, we request that we be provided with a copy of the Commission's complete file (File Number JBAT-45UP9K), including witness statements, interview notes, memos, correspondence and representations. Our clients want to know specifically what Tubbs had to say to the Commission about Riverfield Homes (and, quite possibly, about other contractors or even the Union) and what various individuals interviewed by the Commission had to say about the matter of discrimination on the job site, as well. Apart from the specific issue of credibility regarding allegations of discrimination against Tubbs by construction contractors, there is also the issue of "reprisal" that is now squarely before the Tribunal. Thus, it is alleged that various contractors treated Tubbs badly because of his Complaint against the Union. The Respondents ought to be able to explore not only whether Tubbs was actually treated badly, as alleged, but also, assuming bad conduct by the contractors, whether contractors may have been motivated by other considerations, such as the Human Rights Complaint against another contractor, Riverfield Homes.

17At the hearing of the motion, counsel for the Respondents expanded on the above-noted submission, and argued that he requires full production of OHRC File No. JBAT-45UP9K ("the unreferred other file"), because he states there are a number of credibility issues at stake with the Complainant's evidence, both in chief and during cross-examination. He submits that the Complainant has alleged a pattern of discrimination and harassment by a number of contractors, and has indicated that he believes the Respondents are responsible for the harassment and discrimination alleged to have taken place. He maintained that the Complainant has alleged that whether or not the environment was unionized or non-unionized, the union failed to deal appropriately with the alleged improper conduct. He stated that this other file was "part of the whole narrative and context" of the matter before the Tribunal.

18He submits that the unreferred other file was filed as a complaint in May 1999, and the Complaint filed against his clients was filed in June 1999. He believes that he is entitled to know what "Mr. Tubbs and others may have said about discrimination at this work site and any other worksite" to test those allegations. He asserts that in order to know what may have been said by Mr. Tubbs or others, he requires full production of all those other interview notes. Metaphorically, he argued that it is of "no consequence" whether or not information is in the "Commission's top drawer, middle drawer or bottom drawer," because whichever file may contain such allegations, if any, he submits that it meets the test of arguable relevance.

19Counsel for the Respondents noted that in Commission counsel's letter of December 15, 2005 indicating opposition to this motion, Mr. Taylor stated, amongst other things, that since the unreferred other file is not before the Tribunal, that "the Tribunal has no jurisdiction to inquire into that complaint." Mr. Lebi said that while "strictly speaking, that is so," the Tribunal should nevertheless require production of this file, and argues that subsection 30(2) of the Code only pertains to the non-compellability of Commission staff. In anticipation of Mr. Taylor's arguments, he said that the Tribunal cannot rely on the Court of Appeal's decision in Payne v. Ontario (Human Rights Comm.) (2000), 2000 CanLII 5731 (ON CA), 38 C.H.R.R. D/367 (Ont. C.A.). Mr. Lebi provided the Tribunal with a brief of statutory provisions from other statutes so that the Tribunal could compare the different forms of testimonial and evidentiary immunity provided by statute, and indicated that some other statutes have a broader immunity than is provided by the Code, which he submits reflects the intention of the Legislature.

20Mr. Taylor argued that if the Respondents have the right to see a closed file simply because it has Mr. Tubbs's "name on it," that he should be entitled to production of any closed or active litigation files with the names of any of the Respondents on them. Simply put, he argued that the Commission's closed files concerning other Respondents are not relevant to the matter before the Tribunal.

21Mr. Taylor submitted that the Tribunal lacks the jurisdiction over any other complaint except for the one before it.

22Moreover, he argued that it is "pure speculation" to expect that there is anything in the other unreferred file that is relevant. He said that the Respondents have seen the other complaint, and it is clear on its face that it is irrrelevant to the union and to the Personal Respondents herein. In fact, paragraph 1(f) of the other complaint indicated that if there was any animosity directed at the union, it was allegedly from a respondent in that matter, and not from Mr. Tubbs.

23He argued that in terms of the timing of events, this must be so, because the unreferred other file, in its entirety, predated the issues properly before the Tribunal, which commenced on December 29, 1998. He added that if the matters had been related somehow, and not about entirely different respondents, the Commission would have joined them together.

24He referred to the Tribunal's Rules of Practice, July 2004, particularly Rule 41, and highlighted that the Commission's duty only relates to the matter it has referred to the Tribunal, and that it has fulfilled its obligation. Otherwise, he argued that the Commission would be "backing up trucks here" if the obligation under Rule 41 or 47 entails files not before the Tribunal.

25He argued that the Commission has a public policy interest in protecting the privacy of individuals and the access to information of data collected during the course of their investigations. He said that information collected by the Ontario Government is generally protected by the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F.31, as amended ("FIPPA"). He said that FIPPA prevents the Commission from disclosing personal information about others to third parties except in limited circumstances.

26Mr. Taylor argued that Mr. Lebi's Notice of Motion was not served on Riverfield Homes and Mr. Pimentel, and that the Tribunal has no knowledge of what they would say about full production of their closed file. He argued that if respondents dealing with the Commission do not feel confident that their information will be kept confidential, that a chilling effect will occur, and they will avoid participating in the process, or limit their participation due to their lack of confidence in the system. Mr. Taylor argued that, hypothetically, a large employer could be the subject of many different, unrelated human rights complaints and it would be unfair if "fishing expeditions" were allowed that permitted other parties to introduce unrelated material into other unrelated matters.

27Mr. Taylor maintained that section 30 of the Code protects everyone, including the parties, from having to disclose information obtained in the course of an investigation, and relied on Payne, supra, at paragraphs 98 and 174. He argued that in this instance, unlike Payne, supra, the Respondents in this matter are not parties to the other matter to which they seek production.

28He also argued that if the Respondents are entitled to full production of any files with the Complainant's name on it, then this is tantamount to saying that each person is only entitled to one complaint. He maintained that the Respondents have sufficient opportunity to test Mr. Tubbs's credibility based on the information presented in the matter before the Tribunal.

29Mr. Taylor argued that the right to provide an answer and defence does not give the Respondents the right to compel Mr. Tubbs to provide an answer about everyone and everything.

30In the alternative, he argued that rather than have the Respondents receive a copy of the entire file, the Commission could deliver to the Tribunal only the portion of the file that related to Mr. Tubbs and ask the Tribunal to inspect it and determine if it is arguably relevant, noting that the Tribunal has done this in other matters relating to sensitive medical data.

31In reply, Mr. Lebi stressed that the other file is relevant because of Mr. Tubbs's testimony about the behaviour of various contractors and the union's response. Moreover, Mr. Lebi argued that subsection 64(2) of FIPPA does not affect the power of a court or tribunal to compel production of a document or compel someone to testify. If the material is arguably relevant, then it ought to be disclosed. He submitted that the context of Payne, supra, was different because it centred on testimonial immunity. He states that subsection 30(2) of the Code is irrelevant to his request to have access to this material. He maintains that if the Legislature wanted to create a blanket immunity for access to information under the Code, it would have incorporated language such as "other than a proceeding under this Act, " or "no information shall be disclosed, " or "certain individuals are not competent or compellable," as examples. He said that there is no blanket public policy interest that applies to investigators that enforce various statutes, and that the different rules flow from the statutes that they administer.

32He said that whether or not the Commission chose to combine these files is not the beginning and end of the inquiry about production.

33Finally, in terms of the alternative suggestion that the Tribunal read part of the file and then decide if it meets the test of arguable relevance, he said that he could not accept this suggestion unless the Tribunal reviewed the whole file and not part of it. There has been no suggestion that parts of the file are arguably sensitive in the same way that medical data may be.

RULES OF PRACTICE AND RELEVANT STATUTORY PROVISIONS

34On the face of this motion, the Tribunal must ask itself if it has any jurisdiction to require production of a closed file at the Commission, which the Commission has already chosen not to refer to the Tribunal.

35The Introduction to the Tribunal's Rules of Practice, July 2004, states:

The Human Rights Tribunal of Ontario hears and decides complaints made pursuant to the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended. Complaints are referred to the Tribunal by the Ontario Human Rights Commission... [emphasis added]

36Similarly, Rule 2 – Definitions, defines "proceeding" as follows:

"proceeding" means the proceeding before the Tribunal and includes all steps in the disposition of a complaint from the receipt of its referral; [emphasis added]

37Further, Rule 41 states:

41. Within thirty (30) days of the Initial Conference Call, the Commission shall provide full disclosure and production of the results of its investigation including, but not limited to, witness statements, documents, and evidence relating to the complaint, along with any other relevant document in its possession, to all parties and to any other person the panel directs. [emphasis added]

38Finally, Rule 47 states:

At any time in a proceeding, subject to determining any claim of privilege asserted, a panel may order any party to deliver to any other party particulars, physical or documentary evidence, expert reports, lists of witnesses and witness statements for the purpose of the hearing and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding. [emphasis added]

39Thus, it is clear from the Rules of Practice that the matter intended to be before the Tribunal is the matter referred to it by the Commission, stemming from the complaint referred to it, and not to other matters.

40The relevant provision concerning disclosure within the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), as amended, states as follows:

Disclosure

5.4(1) If the tribunal's rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, 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.

Other Acts and regulations

(1.1) The Tribunal's power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding.

Exception, privileged information

(2) Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.

41The Tribunal interprets subsection 5.4(1)(e) of the SPPA as permitting it to make an order for "any other form of disclosure" provided that the order complies with the Code and with FIPPA, as per subsection 5.4(1.1), and provided that the information is not privileged, as per subsection 5.4(2).

42Further to the arguments of both counsel for the Commission and counsel for the Respondents, the relevant provisions contained in FIPPA state:

Information otherwise available

64. (1) This Act does not impose any limitation on the information otherwise available by law to a party to litigation. [emphasis added]

Powers of courts and tribunals

(3) This Act does not affect the power of a court or a tribunal to compel a witness to testify or compel the production of a document. [emphasis added]

43Thus, the Tribunal is satisfied that FIPPA neither thwarts nor furthers this request for production. The Code is the Tribunal's primary source of statutory authority, and its key provisions are reproduced below for guidance.

44The pertinent provisions of the Code are set out below:

30. (1) Evidence obtained in the course of the investigation - No person who is a member of the Commission shall be required to give testimony in a civil suit or any proceeding as to information obtained in the course of an investigation under this Act.

(2) Idem – No person who is employed in the administration of this Act shall be required to give testimony in a civil suit or any proceeding other than a proceeding under this Act as to information obtained in the course of an investigation under this Act.

33. (1) Investigation of complaints - Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.

34. (1) Decision to not deal with complaint – Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject-matter of the complaint is trivial, friviolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the complaint.

(2) Notice of decision and reasons - Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered.

36. (1) Referred to Tribunal – Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the Tribunal. [emphasis added]

(2) Notice of decision not to appoint inquiry - Where the Commission decides not to refer the subject-matter of a complaint to the Tribunal, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered.

37. (1) Reconsideration - Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.

(2) Notice of application – Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.

(3) Decision – Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.

39. (1) Hearing - The Tribunal shall hold a hearing,

(a) to determine whether a right of the complainant under this Act has been infringed;

(b) to determine who infringed the right; and

(c) to decide upon an appropriate order under section 41,

and the hearing shall be commenced within thirty days after the date on which the subject-matter of the complaint was referred to the Tribunal. [emphasis added]

(2) Parties - The parties to a proceeding before the Tribunal are,

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the Tribunal to have infringed the right;

(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 5(2) or of alleged conduct under section 7, any person who, in the opinion of the Tribunal, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct. [emphasis added]

ANALYSIS

45On examining the plain meaning of the relevant sections of the Code, it is clear that the Legislature only intended the Tribunal to have the "subject-matter of the complaint" referred to it by the Commission, and did not intend the Tribunal to have access to closed files at the Commission if it has chosen not to refer those complaints to the Tribunal. According to Sullivan and Driedger on the Construction of Statutes, 4th edition, Butterworths Canada Ltd., 2002, at page 8, the current theory and practice of the "plain meaning rule" is as follows:

If the legislative text seems clear, if its meaning appears to be "plain", then a pragmatic judge assigns significant weight to this apparent meaning. The clearer it is, the greater the weight it receives. The weight accorded to the text is also affected by factors such as the following:

• how the text is drafted and in particular how detailed it is, how concrete and precise the language is
• the audience to which it is addressed, whether the public in general, a narrow and specialized section of the public, or those charged with the administration of the legislation
• the importance of certainty and predictability in the context

If the text is precise and is addressed to a specialized audience that would understand it in a certain way and reasonably rely on that understanding, then the apparent meaning of the text appropriately receives significant weight. If the consequences of rejecting that meaning would create serious and harmful uncertainty, it appropriately receives even greater weight.

46It is important, as Ruth Sullivan writes, for there to be certainty and predictability in the manner in which the Code is interpreted vis-à-vis the respective and distinct powers bestowed on the Commission and the Tribunal to make key decisions. To do otherwise would cause serious harm and uncertainty.

47The case law supports this "plain meaning" interpretation.

48The Commission is the "statutory decision-maker," with "neither a trust relationship with," nor "a fiduciary duty to" the parties appearing before it, see: Pritchard v. Ontario (Human Rights Commission) [2004] 1 S.C.R. at paragraph 25.

49A complaint belongs to the complainant, who alleges that his or her right has been infringed, although the Commission has "carriage" of it. It is only the complainant who has the statutory right to ask the Commission for a reconsideration of its "no board" decision, as per section 37 of the Code. Respondents do not have a statutory right to seek reconsideration of the decision to refer the matter. See: McKenzie Forest Products Inc. v. Tilberg (2000), 2000 CanLII 5702 (ON CA), 37 C.H.R.R. D/316 (Ont. C.A.), at paragraph 13. The Tribunal does not have jurisdiction to exercise review judgment as to what the Commission decides under section 36 or 37 of the Code, as per the Divisional Court's decision in Payne v. Ontario (Human Rights Board of Inquiry) (No.2) (2000), CHRR Doc. 00-120 at paragraph 5; leave to appeal refused (October 18, 2000) (Ont. C.A.); leave to appeal dismissed [2000] S.C.C.A. No. 635 (S.C.C.).

50Once a file has been closed for some time at the Commission without a referral to the Tribunal, respondents have, as a matter of natural justice and fairness, the right to believe that the matter has ended, since it is settled law that there is no overlapping jurisdiction between the Commission and the Tribunal under the Code in terms of which body makes statutory decisions and which body makes adjudicative decisions. As the Court of Appeal held in Tilberg, supra, at paragraph 40, the (then) Board of Inquiry is "...an autonomous tribunal independent of the Commission."

51If the respondents to the other matter had been given notice of this motion, which they were not, the Tribunal anticipates that they might have argued that their right to confidentiality as an equitable doctrine ought to apply to prevent the Tribunal from ordering production of their closed, unreferred file, when they are separate respondents who had different issues with Mr. Tubbs, beyond the obvious issue of the Tribunal's lack of jurisdiction to require such production.

52The Wigmore test, as applied by the Supreme Court of Canada in Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254 at 260, provides four criteria to consider:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

53All four of the criteria in the Wigmore test have been met in this instance. In terms of the first and second criteria, the information communicated to the Commission's investigator by the parties to the other unreferred file would have been communicated to the Commission in the context of that potential action, with the legitimate expectation that the fruits of that investigation belonged to that specific file and were not part of an unending amorphous public record.

54With respect to the third criterion, respondents who are no longer under investigation by the Commission because the Commission has decided not to refer the matter to the Tribunal, and issued its decision and reasons under subsection 36(2) of the Code, need to know that there is certainty and finality to those matters, and that old closed files will not be dredged up later on in different proceedings. One of the main reasons why the Commission closes files is that the parties have settled during the course of mediation, as referenced in subsection 36(1).

55It is in the public interest that the confidential nature of investigations conducted by the Commission remain contained within the files to which they pertain, particularly since an important part of the Commission's public policy mandate has been to encourage settlements, see: Sopinka, J., Lederman, S. and Bryant, A. in The Law of Evidence, 2nd edition, Butterworths Canada Ltd., Toronto and Vancouver, 1999, at page 813, paragraph 14.216, where they state:

If it is accepted that the basis of the privilege is a public policy to encourage settlement, then it follows that the privilege should extend to subsequent proceedings not related to the dispute which the parties attempted to settle. Any possibility of subsequent adverse use could deter full and frank discussion.

56In terms of the fourth criterion, the Tribunal finds that the potential injury to the parties concerned in the unreferred other matter, and the potential injury to public policy considerations, outweigh the benefit to be gained in this case, since there is nothing in the other complaint or the other Section 36 Case Analysis that indicates that Mr. Tubbs made any negative allegations against the union that require further exploration here.

57The Code has been structured deliberately so that the Tribunal holds a hearing de novo and makes its own findings of fact, based on the subject-matter of the referred complaint, in keeping with the limitation period set out in subsection 34(1)(d). It could become highly prejudicial to respondents if it became apparent to the Tribunal that they were frequently the subject-matter of investigations and those other unreferred, closed files, whether current or dated, were routinely entered as evidence, even if the fruits of those investigations did not trigger hearings.

58Even when the subject-matter of the Commission's investigation is the referred complaint before the Tribunal, and therefore there is no issue of whether or not the Tribunal has jurisdiction over the matter, the Tribunal generally does not receive the Commission's investigation file and interview notes, nor for that matter, the respondent's own investigation file and interview notes, if any exist, unless the parties enter them as exhibits. The documents generated by a Commission investigation into a complaint may be compellable by the complainant him or herself, except for the Commission's own in-house legal opinions, as per Pritchard, supra. Where the individual seeking production of the file is neither the complainant nor the respondent to that matter but a non-party, the Tribunal is of the view that Pritchard is distinguishable on the facts.

59The Tribunal has also considered the notions of res judicata and issue estoppel. The doctrine of res judicata, a branch of which is "cause of action" estoppel, does not apply, because this situation does not meet the three-part test set out in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at 477, and see: Toth v. Kitchener Aero Avionics (2005) CHRR Doc.05-263, 2005 CHRT 19, at paragraph 9. While the prior decision was final, the parties are not the same, and the determination of the Commission not to refer the other matter did not deal with the same question as the matter before this Tribunal.

60Mr. Lebi himself conceded during his submissions that Mr. Taylor was correct in his statement that the Tribunal lacked the jurisdiction to inquire into the other matter, responding, "strictly speaking, that is so," but nevertheless asked the Tribunal to consider the relative brevity of section 30 of the Code compared to the testimonial and evidentiary immunity provided under other statutory regimes, and suggested that the Tribunal draw a negative inference that since the Code does not specifically exclude such an extension of the normal disclosure requirements, it ought to be available to his clients.

61The Tribunal has concluded that it lacks the jurisdiction to order the other unreferred file produced, and since it lacks that fundamental jurisdiction, it also declines his alternative request to inspect it in its entirety to determine if any of the documents within it would have met the test of arguable relevance.

ORDER

62The Tribunal orders that the motion is hereby dismissed.