Ontario Human Rights Commission v. York Regional Police Services, 2007 HRTO 11

Human Rights Tribunal of Ontario

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Peter Wang and Rosemary Wang

Complainants

-and-

York Regional Police Services Bob Muir, Andrew Graham

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: March 20, 2007

Citation: 2007 HRTO 11

Human Rights Tribunal of Ontario 400 University Avenue, 7^th^ 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

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended ("the Code"), alleging a breach of sections 1 and 9.

2Prior to filing their pleadings, the Respondents requested the production of certain documents from the Commission. The Commission disputed the request, and the Respondents therefore sought an order from the Tribunal compelling production of the documents. After directing the parties to provide submissions on the issue, the Tribunal set a conference call hearing for March 15, 2007.

3At the telephone hearing on March 15, 2007, Counsel for all parties participated and made submissions and argument on the dispute. Several of the original production requests were no longer in issue as counsel for the Commission and the Complainants confirmed that they had produced all documents within certain of the classes sought by the Respondents.

4After hearing the parties, the Tribunal issued a brief oral decision. This decision confirms the oral decision.

ISSUES AND POSITION OF THE PARTIES

5The outstanding production requests fall into two groups of documents. First, the Respondents seek all witness statements, documents and other evidence collected by the Commission in respect of an investigation into a related complaint by these Complainants as against Newmarket Hydro. Second, the Respondents seek "all documents not previously produced by the Commission but which are in the possession of the Commission or its employees and investigators and which relate in any way to the Complaint, including the Commission's handling and processing of the file."

6The Commission did not dispute the arguable relevance of the first group of documents, but took the position that it was prevented from releasing the documents because of its obligations under the Freedom of Information and Personal Privacy Act ("FIPPA"). The documents related to a complaint which the Commission had decided not to refer to the Tribunal. In the circumstances and following decisions of the Information and Privacy Commissioner of Ontario (for example: PO-2480), the Commission stated that it was not permitted to release the contents of its investigation file. It did however agree that FIPPA did not restrict the release of the documents where the Tribunal has made an order for production, and it consented to such an order being made in this case. The Complainants concurred with the position of the Commission.

7With respect to the second group of documents, the Commission stated that it had released all documents relating to the "fruits of its investigation", but took the position that internal Commission documents were not arguably relevant and the Respondents were not entitled to an order for production. The Commission argued that internal Commission documents containing opinions of Commission staff or detailing how the Complaint was handled by the Commission were not relevant to the issues before the Tribunal.

8The Respondents submitted that they sought these documents because they had concerns about how the Complaints were handled by the Commission and how the Commission reached the determination to refer the matters. Counsel submitted that the Commission had investigated the Complaints and had concluded that there was sufficient basis for referring them to the Tribunal. Counsel argued that in a criminal proceeding or civil action it would be able to test the basis for this conclusion, and it should be able to do so in this context.

9The Respondents did concede that any documents containing opinions provided by Commission counsel would be protected by solicitor-client privilege.

DECISION

10The Tribunal is satisfied that the first group of requested documents is arguably relevant and therefore should be produced. Having regard to this determination, and the agreement of the parties, the Tribunal so orders.

11The Tribunal does not accept that there is a basis for ordering production of the second group of documents.

12It has been consistently held by the Tribunal and the Courts that the Tribunal does not have jurisdiction to review a decision of the Commission to refer a complaint under section 36 of the Code. A claim by a respondent that the Commission has acted improperly, or that the investigation was faulty, or that there was insufficient basis for referral, lies to the Divisional Court. It follows then that documents sought only for the purpose to impugn the Commission's handling of a complaint and its decision-making process are not arguably relevant.

13In addition, such documents are not relevant because the mandate of the Tribunal is to determine whether there has been a violation of the Code, and if so, by whom. The proceedings before the Tribunal are in the nature of a trial de novo. Whether and on what basis the Commission may have reached a conclusion that there has been a violation of the Code is irrelevant to the Tribunal's consideration at this point of the proceeding. (It may be relevant to a claim for costs pursuant to section 41(4)). Again, it follows that internal documents detailing the opinions of Commission staff are not relevant and need not be produced. The request for production of this group of documents is dismissed.

ORDER

14The Commission is ordered to produce forthwith all witness statements, documents and other evidence collected by the Commission in respect of the investigation of the complaint by these Complainants as against Newmarket Hydro.

15The parties also agreed to the following timelines for the exchange of pleadings: the Respondents will serve and file their pleadings and make disclosure no later than April 30, 2007. Any Reply by the Commission or the Complainants shall be served and filed no later than May 7, 2007.