Lampi v. Princess House Products Canada Inc., 2008 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Lampi

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Princess House Products Canada Inc. and James B. Smith

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: January 3, 2008 Citation: 2008 HRTO 1 Indexed as: Lampi v. Princess House Products Canada Inc.

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@ontario.ca Website www.hrto.ca

INTRODUCTION

1This interim decision deals with a request by the Respondents for production of the will of Darlene Lampi, who died on August 14, 2006. Prior to her death, the deceased had filed a complaint with the Ontario Human Rights Commission (the Commission) against the Respondents, alleging discrimination on the basis of sex and other violations of the Human Rights Code, R.S.O. 1990, c. H.19. This complaint was referred to the Tribunal for hearing on October 17, 2006.

2Steve Zullo and Linda Lennard claim to be the executors of the estate of Darlene Lampi, and wish to participate at the hearing of the complaint on behalf of the estate. The Respondents requested documentary evidence to support the request to participate. They were provided with portions of the will of the deceased, but seek to have the entire document. The Commission, Mr. Zullo and Ms. Lennard oppose this request.

3The portions of the will produced to the Respondents, and which are also before me, consist of the first and last pages. The first page appoints Steven Zullo to be the Estate Trustee, Executor and Trustee. Linda Lennard is appointed to act in the event that Steven Zullo is unable or unwilling to. The last page bears the signature of the deceased and two witnesses. Also produced is an affidavit from one of these witnesses attesting to having been present when the will was signed.

4The parties were given the opportunity to file written submissions. Only the Respondents and the Commission provided submissions, most of which I find unnecessary to detail here. For present purposes, it is sufficient to state that the Respondents question the “standing” of Mr. Zullo and Ms. Lennard, their motivation in wishing to participate in the proceedings, and their authority to act on behalf of the estate.

5The Commission states that production of the entire will is unnecessary and would also be a significant invasion of the deceased’s privacy. Further, it states that the will has nothing to do with the Respondent’s ability to make full answer and defense. The only relevance of the will is in the determination of who has the authority to appear on behalf of the estate. The Commission submits that the relevant portions, showing the appointment of Mr. Zullo as executor, have been disclosed.

6Further, the Commission submits that if the Tribunal finds the document arguably relevant, it can order it to be produced to the Tribunal for inspection for relevance.

7Rules 41 to 48 of the Tribunal's Rules of Practice, dated July 2004, set out the obligation to make disclosure as between the parties. In particular, the Tribunal has the discretion to direct further disclosure under Rule 47 which 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.

8The threshold for production and disclosure of documents before the Tribunal 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 Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

9Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

10Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

11The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.

DECISION

12I find that the will ought to be produced in its entirety. The document is arguably relevant to a preliminary issue in this proceeding, which is the authority of Mr. Zullo and Ms. Lennard to participate in the hearing on behalf of the estate. The Respondents are thus entitled to disclosure of the document. Although the pages already disclosed seem to cover the issue of the appointment of the executor, parties cannot normally produce only those portions of a document they deem to be relevant. I see no reason why the Respondents should not be able to view the entire will.

13Further, it is not necessary for the Tribunal to view or redact the document before it is produced to the Respondents. The Commission submitted generally that production of the will would lead to a “significant invasion of the deceased’s privacy”, but provided no further detail or reasons to support this position. This broad assertion of a privacy interest would apply to a lesser or greater degree to many documents relevant to proceedings before the Tribunal. Although some, such as medical records, may warrant special attention and procedures, no reason has been given to support the application of such procedures to the document at issue here.

14I conclude by repeating that the preliminary issue pertinent to this production order is the authority of Mr. Zullo and Ms. Lennard to participate in the hearing of this complaint, on behalf of the estate of the deceased. Put another way, may Mr. Zullo and Ms. Lennard make submissions, call evidence and conduct cross-examination of the Respondent’s witnesses, if they wish to? This is a different, and arguably narrower issue, than whether they ought to be added as parties (which they do not, but on which the Respondent provided submissions), or whether they have the authority to receive and distribute assets of the estate (on which the Respondents also provided submissions).

15In the conference call with the parties, I stated that after I determined whether to order further production, the Respondents could indicate whether they continue to challenge Mr. Zullo and Ms. Lennard’s authority to act on behalf of the estate in this complaint, and would be given an opportunity to provide submissions. In this order, I will set a date for the Respondents to provide any additional submissions after they have reviewed the will, if they wish to supplement those already before me.

ORDER

16The Tribunal orders the estate of the Complainant to produce, by January 11, 2008, the last will and testament of Darlene Lampi in its entirety.

17Additional submissions from the Respondents, if any, on the issue of Mr. Zullo and Ms. Lennard’s authority to act on behalf of the estate in this complaint shall be delivered to the Tribunal by January 18, 2008. Dates for submissions from the other parties will be set if necessary.