HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Persaud
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Toronto District School Board, Anthony Masciello, Harry Rosen, Paul Corner, Roy Evely, and Suzana Greenaway
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Persaud v. Toronto District School Board et al. (No. 2)
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
APPEARANCES
Ontario Human Rights Commission ) Prabhu Rajan, Counsel
Andrew Persaud, Complainant ) Tamara Joseph, Counsel
Toronto District School Board, Anthony Masciello, ) Harry Rosen, Paul Corner, Roy Evely, ) John Bell and Sheila M. and Suzana Greenaway, Respondents ) MacKinnon, Counsel
Introduction
1This Interim Decision addresses motions brought by the respondents for various relief, including a request for further particulars regarding the allegations raised by the Commission and the complainant, a request for an order requiring the complainant to submit to a medical examination, a request to strike certain paragraphs of the pleadings filed by the Commission and the complainant, and a request for an order for further disclosure from the Commission and the complainant.
BACKGROUND
2The complaint in this matter was filed on October 10, 2005 and alleges discrimination on the basis of race and colour in relation to the complainant’s treatment at and eventual suspension from Vaughan Road Academy and transfer to another school in the respondent School Board. The complaint was subsequently amended on May 23, 2006 to reflect the correct legal name of the respondent School Board.
3The complaint was referred by the Commission to the Tribunal by letter dated April 30, 2007 and received by the Tribunal on May 2, 2007.
4A previous Interim Decision was released in this matter on November 8, 2007 requiring the respondents to file their pleading prior to bringing any preliminary motions in this proceeding. In accordance with this decision, the respondents filed their pleading on November 23, 2007 and replies were received from the Commission and complainant on November 30, 2007.
5After pleadings were complete, a Pre-Hearing Conference Call in this proceeding was held on December 7, 2007. On this call, a timetable was established for the parties to bring all preliminary motions in this matter.
6On December 21, 2007, the Commission advised that it had no further preliminary issues at that time that needed to be addressed by way of motion. No preliminary motions were filed by the complainant.
7The respondents filed their motions and supporting materials on December 21, 2007. Responding materials were received from both the Commission and the complainant on January 15, 2008, and the respondents’ reply was filed on January 22, 2008.
8In this decision, I will deal with each of the specific requests raised by the respondents in their motions, as well as the responses from the other parties and any relevant reply, and will provide for the disposition of each request.
DISCUSSION AND ANALYSIS
1. Request for Further Particulars
9The respondents’ first request is for an order requiring the Commission and the complainant to provide the respondents, in precise language, with a statement of which actions of the respondents are alleged to constitute discrimination against the complainant.
10The Commission’s pleading contains 78 paragraphs of facts. The Commission’s position is that “the overall treatment of the complainant by the TDSB and its agents, including over-scrutiny, a rush to judgment, inadequate and unfair investigation, disproportionate discipline, differential treatment and inappropriate comments, was contrary to the Code”. The Commission states that it is relying upon the overall pattern of treatment of the complainant against the “backdrop of contemporary race analysis and racial discrimination principles and caselaw” to support its allegation that the Human Rights Code, R.S.O. 1980, c. H.19, as amended (the “Code”) has been violated.
11The Commission states generally that the complainant’s race and colour were factors in his treatment in the various non-exhaustive categories of conduct identified (over scrutiny, a rush to judgment, inadequate and unfair investigation, disproportionate discipline, differential treatment and inappropriate comments), but takes the position that there is no requirement for the Commission or the complainant to explain how each alleged fact relates to each alleged violation of the Code.
12The respondents take the position that a respondent is entitled to know, in precise terms, the case against them, so as to enable full and necessary preparation for the hearing, and state that without such disclosure a fair hearing is impossible. The respondents also take issue with the fact that the Commission has not provided a complete or exhaustive list of the ways in which they are alleged to have violated the Code and further state that they are entitled to know which of their specific actions are alleged to fall within the general categories of conduct identified by the Commission.
13The respondents rely upon the interim decision of the Board in Bhaduria v. Toronto Board of Education (1987), 1987 CanLII 8498 (ON HRT), 9 C.H.R.R. D/4501 (Ont. Bd. Inq., Knopf). The complaint at issue in the Bhaduria case involved an allegation of racial discrimination in relation to certain criteria used by the school board in making promotion decisions for Vice Principal positions. Part of the relief sought by the respondent in that case was information regarding the “nexus” between certain criteria alleged to have been used and persons of South Asian origin generally and Mr. Bhaduria in particular. Further, in Bhaduria (as in the instant case) the Commission provided the respondent with a non-exhaustive list of criteria which was expressed as “including” the listed criteria. While the Board did not order the Commission to provide the “nexus” between the listed criteria and the alleged racial discrimination, the Board did find that the Commission should not be allowed to hide behind the use of the word “include” and ordered the Commission to provide as comprehensive a list of criteria as possible in advance of the hearing.
14The respondents also rely upon the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil Ltd. (2000) 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18, in which the Court was critical of the Board of Inquiry because it allowed a hearing under the Code to become a “moving target” for the respondent, and where the Court further stated that “ordinarily hearings proceed much more efficiently and effectively when the parties know what the issues are at the outset” (at para. 58). In this case, the Court further observed that “under s. 36(1) [of the Code] the Commission may refer ‘the subject matter of the complaint’ to a board of inquiry and thus that “the board of inquiry's jurisdiction is circumscribed by ‘the subject matter of the complaint’” (at para. 46).
15I agree with the Board’s decision in Bhaduria that a respondent is entitled to a complete and exhaustive recital of the ways in which the respondent is alleged to have violated the Code. At this stage of the proceeding, where the Commission had the complaint in its process for over a year and a half, where the Commission conducted an investigation, where pleadings at the Tribunal have been completed and where we are on the verge of setting dates for the hearing in this matter, it is not appropriate for the Commission to continue to assert that the allegations “include” certain categories of conduct or to provide a “non-exhaustive” list. As the respondents ask rhetorically in their submissions, if they aren’t entitled to a complete and exhaustive list now, then when? The answer is, they are entitled to such a list now, in advance of the commencement of the hearing on the merits in this matter.
16I have reviewed the pleadings carefully, and profess to having some confusion as to what precisely is being alleged as a violation of the Code. For example:
a. In paragraph 8 of the Commission’s pleading, reference is made to the use of the terms “the Persaud Boys” or “the Persauds”. Is this merely a background fact, or is this part of the general allegation of “inappropriate comments”?
b. In paragraph 9, it is alleged that the respondent Corner supported an attempt to impeach the complainant and the other non-white elected executive member from student council. Is this an allegation of a violation of the Code upon which the Commission and the complainant are asking the Tribunal to make a ruling?
c. Paragraphs 11 to 13 of the Commission’s pleading refer to a concern about the “teaching methods” of the respondent Rosen and the respondent Greenaway’s alleged failure to consider and address concerns raised by the complainant’s mother. Is this an allegation of a violation of the Code upon which the Commission and the complainant are asking the Tribunal to make a ruling?
d. In paragraph 15, reference is made to the respondent Greenaway allegedly failing to appropriately consider and address concerns raised by the complainant, his brother and another student regarding the broken lock on the yearbook office door. Again, is this an allegation of a violation of the Code upon which the Commission and the complainant are asking the Tribunal to make a ruling?
e. Paragraph 53 of the Commission’s pleading makes reference to a comment allegedly made by a teacher to the respondent Greenaway about it being “interesting” that someone named Luc Persaud was a senior officer with the Air Cadets, where the complainant and his brother were members. Is this an allegation of a violation of the Code by the respondents and, if so, how?
f. In paragraph 74, reference is made to certain unidentified students making inappropriate comments about the complainant on an internet chat forum. Is this an allegation of a violation of the Code by the respondents and, if so, how?
17I also am aware that the Commission has raised as an issue in this proceeding that the complainant was discriminated against and harassed contrary to s. 12 of the Code because of his relationship, association and dealings with his brother, a racialized person. The Commission and the complainant both have clarified that the complainant’s brother is not a party to this proceeding and no remedy is being sought on his behalf. Nonetheless, the Commission’s pleading contains numerous references to incidents that appear to relate solely to the Complainant’s brother: see, for example, paras. 21 to 25, 27, 28, 29 and 60. The Commission has indicated that it intends to rely upon the treatment of the complainant’s brother (and other family members) as “similar fact” evidence in support of the allegation that the complainant experienced racial discrimination. What is not clear, however, is what specifically is being relied upon by the Commission and the complainant in support of the alleged violation of s. 12 of the Code.
18For all of these reasons, I require the Commission and the complainant to provide to the respondents a complete list of all of the categories of conduct or means by which the respondents are alleged to have violated the Code, and then under each category of conduct or means by which the respondents are alleged to have violated the Code to provide a complete and exhaustive list of the specific material facts, events or incidents which are relied upon. As the fact, event or incident under each category or means should already be set out in the Commission’s and complainant’s pleadings, the Commission and the complainant need not repeat all of the details of the fact, event or incident, but should briefly indicate how the particular fact, event or incident is alleged to fall within the relevant category of conduct or means of a Code violation.
19In this regard, I note that the Commission has proven able to do this in its reply with regard to some alleged incidents: see for example, paras. 10, 12 and 13. What I am requiring is simply that the Commission to do this for all alleged incidents and not just some.
2. Request for the complainant to submit to a medical examination
20The respondents’ second request is for an order requiring the complainant to submit to an examination by a duly qualified medical practitioner chosen by the respondents. The purpose of this request is for the respondents to contest the basis for the remedy being sought by the complainant, specifically in relation to his claims for mental anguish, general damages, and pain and suffering.
21All parties make reference to the decision of this Tribunal in Davis v. Toronto (City), [2005] O.H.R.T.D. No. 7, 2005 HRTO 7, in which it was held that this Tribunal does not have jurisdiction to require a complainant to submit to a medical examination due to a lack of express statutory authority to do so. In dealing with the respondents’ request, I do not find it necessary to rely on this aspect of the Davis decision.
22Even if this Tribunal does have implied jurisdiction to make such an order (as do labour arbitrators who often deal with issues of discrimination, as noted by the respondents), I agree with the decisions of human rights tribunals in other jurisdictions that such an order should be made only in the clearest of circumstances: see Cucek v. British Columbia (Ministry of Children and Family Development) (No. 1) (2003), 47 C.H.R.R. D/245, 2003 BCHRT 44; and Rogers v. Deckx Ltd. (No. 2) (2002), CHRR Doc. 02-096 (C.H.R.T.).
23I adopt the following observations made by the Tribunal in the Cucek case:
[23] The act of compelling an individual to undergo a medical examination is inherently coercive. Even assuming the Tribunal had the authority to make such an order, I would be hesitant to do so unless it were abundantly clear that the evidence sought is critical to a determination of the matter, and cannot be obtained in a less intrusive manner. That is not the case here.
[24] In this case, there is existing medical evidence available. Nothing in the respondent's submissions indicates that there is reasonable cause to conclude that the existing medical evidence is unclear or ambiguous, or that further medical evidence is required for any reason. While the respondent argues that it would be inherently unfair not to allow James to be examined by its own experts, I am not convinced by this argument. Based on the order with respect to document disclosure, the respondent's experts will have full access to James's medical and educational records, and the ability to assess those records.
24In the instant case, the complainant has made very large claims for mental anguish, general damages, and pain and suffering, which include allegations that the complainant “demonstrated signs of stress and depression” and “experienced difficulty coping”. While these claims have been expressed in medical terms, no medical evidence has yet been disclosed by the complainant to support these claims. The complainant has agreed to disclose any such medical evidence if and when it is obtained, and indeed is obligated to do so under the Rules. If and when such evidence is disclosed, the respondents will have the opportunity to have this material reviewed and assessed by any expert they may choose to retain, and to cross-examine the complainant on this evidence. As a result, I find that a medical examination of the complainant is not required in order to provide fairness to the respondents.
25I also find that the respondents’ request is premature. The complainant’s medical condition will only become relevant if the Commission and the complainant are successful in establishing that the Code has been violated, and then only if the complainant chooses to submit and rely upon medical evidence at the hearing in support of his claim for damages. The mere fact that the complainant has attached large monetary amounts to his claim and has expressed his claim using medical terminology is not determinative; any quantum of damages to be awarded will be assessed by the Tribunal on the basis of the evidence actually led at the hearing, and not on the basis of mere assertions or claims in the pleadings.
26Further, unless and until the complainant discloses any medical documentation, there is no basis upon which to make any assessment as to whether, to use the language expressed by the Tribunal in Cucek, there is reasonable cause to conclude that the existing medical evidence is unclear or ambiguous, or that further medical evidence is required for any reason.
27Accordingly, this aspect of the respondents’ motion is dismissed.
3. Request to remove personal respondents
28The respondents request an order dismissing the proceeding against the personal respondents.
29The respondents take the position that the only proper respondent to this complaint is the corporate respondent. The respondents assert that, at all material times, the personal respondents acted within the scope of their duties as employees of the corporate respondent and that there is absolutely nothing on the face of the pleadings that alleges otherwise. In particular, the respondents state that there is nothing in the pleadings that allege that the personal respondents exhibited a “separate identity of interests” from the corporate respondent. Relying upon a series of court decisions in civil actions, the respondents contend that in such circumstances a claim against an individual for actions taken in the name of a body corporate is improper.
30Under the Code, the fact that a corporate respondent may also be liable for the conduct of an employee is not a basis upon which to insulate that employee from personal liability for her or his own conduct that violates the Code. Section 9 of the Code states that “no person shall infringe or do, directly or indirectly, anything that infringes a right under this Part” (emphasis added). It is this provision that provides the basis of the Tribunal’s requirement under section 39(1) of the Code to hold a hearing “to determine whether a right of the complainant under this Act has been infringed” and “to determine who infringed the right”.
31At the same time, the unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution.
32In their submissions in support of the motion, the respondents have closely examined the allegations against each of the individual respondents and have taken the position that, in many instances, the sum total of the allegations for each individual, even if accepted, do not provide support for a finding of a Code violation. In response, the Commission has taken the position that each individual’s actions cannot be viewed in isolation, but must be looked at in the context of the overall pattern of discrimination alleged.
33Certainly, for the corporate respondent, the alleged facts, events and incidents must be reviewed and assessed in their totality in order to determine whether there has been a violation of the Code by the corporate respondent. In addition, when assessing the potential liability of each of the individual respondents, the Tribunal would have regard to the totality of the relevant evidence in order to determine whether that individual’s own actions violated the Code. However, at the end of the day, in order to establish the personal liability of an individual respondent, the Commission and the complainant will have to prove that the actions of that individual respondent violated the Code. It would not be sufficient to merely establish that the individual respondent was involved in some way in a larger chain of events that may constitute or may have led to a Code violation by the corporate respondent or by someone else.
34In this regard, consistent with the earlier order I have made, I am requiring the Commission and the complainant to clearly indicate for each personal respondent the particular means by which it is alleged that each of these individuals personally violated the Code.
35In the interest of simplifying what is already proving to be a complex proceeding and which promises to be a lengthy proceeding, I encourage the parties to consider whether the continued participation of some or all of the personal respondents is truly necessary, or whether some agreement can be reached between the parties to release some or all of these personal respondents on the basis of the respondents’ admission that at all material times they were acting in the course of their employment by the corporate respondent.
4. Request to strike paragraphs from Commission’s pleading
a) Paragraphs 5 and Public Interest Remedy (vi): The International Baccalaureate Program
36The Respondents seek to have paragraph 5 of the Commission’s pleading and paragraph (vi) of the Commission’s public interest remedies regarding the International Baccalaureate (“IB”) program struck, on the basis that neither the issue of the IB program nor the alleged treatment of the Complainant in the IB program formed part of the original complaint nor was it the subject-matter of the complaint referred to the Tribunal.
37There are two aspects of paragraph 5 of the Commission’s pleading. First, the Commission makes general comments about the IB program, its budget, and its racial composition. This aspect of paragraph 5 is amplified by the public interest remedy sought by the Commission in paragraph (vi), which seeks an order monitoring the racial diversity of the IB program and, if not sufficiently diverse, requiring the corporate respondent to implement a special program to improve diversity. The combination of these two paragraphs in the Commission’s pleading indicates that the Commission is seeking a finding from the Tribunal that the IB program generally is being operated in violation of the Code in order to sustain the remedy sought.
38The second aspect of paragraph 5 relates to the alleged treatment of the complainant by one of the personal respondents in 2002-2003 and 2003-2004 when the complainant was in the IB program.
39The Commission and the complainant take the position that the IB program is part of the factual context of the case and also forms part of the continuum of events that ultimately led to the complainant’s suspension and transfer. The Commission also takes the position that the IB program created a hierarchy of students within the school wherein the IB students, who were almost all white, were treated more favourably than the non-IB students. The Commission contends that it is critical for the Tribunal to fully understand and appreciate this dichotomy in order to understand the systemic discriminatory environment within which the complainant’s conduct was over-scrutinized and over-punished.
40All parties refer to this Tribunal’s decision in Toneguzzo v. Kimberly-Clark Inc., 2005 HRTO 45. This decision confirms several fundamental principles relating to motions to strike paragraphs of pleadings on the basis that they were not included in the original complaint document, including: that pleadings in a human rights proceeding ought not be scrutinized in the same manner as pleadings in civil proceedings; that the “subject matter of the complaint” is not restricted to the specific factual allegations set out in the original complaint form; that a human rights complaint is not in the nature of a criminal indictment, but rather is a notice to a respondent of the commencement of an administrative proceeding; that the wording of the Code makes clear that the Tribunal has the broad jurisdiction to inquire into all aspects of a matter referred to it; and that the defining of the case and scope of the inquiry before the Tribunal occurs at the point the complaint is referred to the Tribunal and during the period in which the Tribunal’s pre-hearing processes are engaged, not when a complaint is drafted (see paras. 53 to 59).
41However, the Tribunal in Toneguzzo also observes that “this is not to say that the complaint form filed with the Commission is completely irrelevant in determining the ‘subject matter of the complaint’ within the meaning of Sections 36 and 39 of the Code” (para. 60). The Tribunal further states: “Each case will turn on an assessment of what constitutes the real issue(s) in dispute between the parties and an assessment of whether the pleadings filed in fact seek to expand the nature of that dispute. The determination of that question will turn on, in part, a consideration of the original complaint.” (para. 63)
42The Toneguzzo decision further refers to the Board’s decision in Odell v. Toronto Transit Commission (No.1) (2001), 2001 CanLII 26210 (ON HRT), 39 C.H.R.R. D/200 (Ont. Bd. Inq.), where the Board dealt with a motion to strike pleadings filed by a complainant which alleged inadequacies in the Wheel-Trans service as well as general inaccessibility of the conventional transit system operated by the TTC. The basis of the original complaint filed with the Commission and referred to the Tribunal was whether it was a violation of the Code for the TTC to implement an interview process and registration fee for persons with disabilities who applied to use the Wheel-Trans service. In deciding to strike the pleadings filed by the complainant, the Board in Odell states:
In determining whether to strike those pleadings or permit them to stand, the Board must address the following questions:
Do the allegations form part of the continuum of facts of the complaint?
Would an amendment to the complaint to include these allegations be appropriate in the circumstances?
Do the allegations provide a useful context for considering the legal issues in the case?
43In reaching the opposite conclusion in Toneguzzo, the Tribunal found that the impugned paragraphs were part of the continuum of events and related to a single issue over a continuing time. The real issue in dispute between the parties or the ”essence of the complaint” in Toneguzzo was the alleged failure of the respondent to accommodate the complainant, a long service employee who suffered from a variety of chronic health problems. The Tribunal found that none of the impugned paragraphs sought to expand the scope of the complaint, and the vast majority of these paragraphs simply detailed when and to whom the complainant provided medical notes and information or had discussions related to her chronic health problems and on-going efforts to seek accommodation.
44In the instant case, the essence of the complaint that was referred to the Tribunal relates to certain events that occurred during the 2004-2005 school year when the complainant was in grade 11, and which ultimately led to the complainant’s suspension and forced transfer to another school in the fall of 2005. No allegations are raised in the original complaint in relation to either the IB program generally or the complainant’s treatment while in the IB program during the 2002-2003 or 2003-2004 school years.
45Based on the above analysis I do not find that the allegations regarding the IB program can fairly be considered to be within the scope of the complaint or to be part of the continuum of events that led to the complainant’s suspension or forced transfer. Nor do I find that it would be appropriate to permit an amendment of the complaint at this late stage to permit the Commission and the complainant to proceed with such allegations. The allegations relating to the IB program generally would greatly expand the scope of a hearing that is already complex and prolonged. The allegations pertaining to the complainant’s alleged treatment during the IB program would not only expand the scope of the hearing, but would require the respondents to respond to allegations being raised for the first time some three to five years after they occurred. As a result, in this hearing, I will not make any finding as to whether the IB program generally is in violation of the Code or whether the alleged treatment of the complainant when he was in the IB program was in violation of the Code.
46This leads to the final question: whether the allegations in paragraph 5 provide a useful context for considering the legal issues in the case. As I understand this question, it relates to whether the allegations in paragraph 5 of the Commission’s pleading set out material facts which may provide a relevant context in which to assess whether or not the events surrounding the suspension and forced transfer of the complainant in the fall of 2005 were in violation of the Code.
47The Commission takes the position that the lack of racial diversity in the IB program created a racialized hierarchy among students at the school, which is relevant to the allegations that the complainant was over-scrutinized and over-punished. I am not prepared to rule on the relevance of this evidence in a vacuum. This determination will be made at the hearing. As a result, the first three sentences of paragraph 5 will not be struck from the pleading, as they are allegations of material facts that may provide relevant context for considering the issues in this case.
48For the same reason I am not prepared to strike the remainder of a paragraph concerning the respondent Masciello’s treatment of the complainant while he was in the IB program. However, the lateness at which not only these allegations but proper particulars of these allegations were provided to the respondents concerns me, and will be considered in assessing the weight, if any, given to this evidence.
49However, as I have determined that the general allegations about the IB program are beyond the proper scope of this hearing, I will strike the public interest remedy sought at para. (vi) of the Commission’s pleading.
b) Paragraph 30 (Natasha) and Paragraph 60 (Raymond)
50The respondents seek to strike paragraphs 30 and 60 of the Commission’s pleading on the basis that they allege discrimination against the complainant’s sister and brother, neither of whom is a party to this proceeding, and are therefore irrelevant. The respondents also express concern that the allegation respecting the brother is raised for the first time in the pleading some two years after it is alleged to have occurred.
51The Commission’s position is that these allegations are relevant as “similar fact” evidence, as the complainant’s siblings are of the same racial background as he is and whterhallegedly were similarly treated. They provide evidence of the broader context of how racialized students were treated at the school which may be relevant to the assessment of whether or not the complainant experienced racial discrimination. For the reasons given above, I am not prepared to rule on the potential relevance of this evidence in a vacuum, outside of the broader context of the evidence led at the hearing. These paragraphs will not be struck.
5. Request to strike parts of paras. 1, 2 and 3 of the complainant’s remedies
52The respondents seek to strike the parts of paragraphs 1, 2 and 3 of the complainant’s remedies contained in his Statement of Fact, Issues and Remedies which refer to the mental anguish, hurt feelings, humiliation, loss of respect, dignity, self-esteem, confidence, stress, depression and difficulty coping experienced by the complainant’s mother, brother and sister. In the alternative, the respondents seek production of all medical records, notes, and reports relevant to the allegation of mental anguish of these persons and an order requiring them to submit to a psychiatric examination by a duly qualified medical practitioner chosen by the respondents.
53The complainant’s mother and siblings are not parties to this proceeding, and the complainant and the Commission have confirmed in the pleadings that there is no allegation that the complainant’s siblings experienced discrimination nor any claim for damages on their behalf. While not expressly stated by the complainant and the Commission, there also is no allegation within the scope of this proceeding that the complainant’s mother experienced discrimination nor are any damages being sought on her behalf in this proceeding.
54The remedies claimed by the complainant include compensation for ongoing mental anguish to the complainant “and his family members” and repeated references to the impact of the alleged discrimination against the complainant on the complainant’s siblings, including allegations that, not only the complainant, but also the complainant’s siblings demonstrated signs of stress and depression and experienced difficulty coping.
55At the end of the day, any assessment of general damages and/or mental anguish damages will be made on the basis of the well-established principles in the caselaw. The extent, if any, of whether the alleged impact on the complainant’s siblings is relevant to the assessment of the claim for damages is a matter best left for the hearing. Accordingly, I am not prepared to strike these paragraphs from the remedies sought by the complainant.
56In dealing with the respondents’ alternative requests, and for the reasons articulated above, I will not order the complainant’s mother or his siblings to submit to a medical examination. I also will not compel the complainant to produce medical records relating to his mother and siblings, unless the complainant intends to rely upon such records at the hearing in support of any of his claims for damages. It is up to the complainant to determine what evidence he wishes to submit in support of his claims for general damages and mental anguish damages, and the assessment of any such damages will be made on the basis of any evidence submitted, rather than on unproven allegations in the pleadings.
6. Request to strike the complainant’s claim for legal expenses
57The respondents request an order striking paragraph 6(iii) of the complainant’s remedies contained in his Statement of Fact, Issues and Remedies on the basis that there is no authority in the Code for the Tribunal to award the complainant his legal fees and that it would unduly lengthen the hearing to deal with this issue which is not permitted in law.
58Under the current Code, the Tribunal is bound by the decision of the Divisional Court in Karumanchiri v. Ontario Liquor Control Board (1988), 1988 CanLII 8926 (ON HCJDC), 25 O.A.C. 161, which held that the Legislature has excluded the ability of the Tribunal to award costs under the Code except to “the person complained against” under s. 41(4). This was recently re-confirmed by the Divisional Court in Quereshi v. Ontario (Human Rights Commission) (2006), 2006 CanLII 63704 (ON SCDC), 268 D.L.R. (4th) 281, O.J. No. 1782, which also dismissed a challenge to the restrictive costs provisions in the Code pursuant to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.
59I am prepared to permit the complainant’s claim for legal expenses to remain in the pleadings for the sake of the record, in the event that this case finds its way to a higher court and the complainant wishes to challenge the existing caselaw. However, in light of the current state of the law, I will not make any such award to the complainant and will not hear evidence or further submissions on this issue.
7. Request to strike public interest remedy of complainant regarding suspension appeal procedure
60The respondents seek to strike the further public interest remedy sought by the complainant relating to the corporate respondent’s suspension appeal procedures, on the basis that this remedy is not within the jurisdiction of the Tribunal to grant.
61The remedy sought by the complainant is a review of the corporate respondent’s suspension appeal procedures “to verify whether the Board’s appeal procedures accord with the principles of fundamental justice, fairness and natural justice”. The complainant then proceeds to articulate his position that these procedures do not accord with the principles of fundamental justice, fairness and natural justice on the basis that: there is no legislative duty to provide disclosure nor are there any timelines set for disclosure or the commencement or completion of the appeal hearing; the procedures require the presentation of evidence first by the student, which puts the onus on the student to disprove the allegations against him; and the trustees who hear the appeals are in a conflict of interest.
62Nowhere in any of the pleadings filed either by the complainant or by the Commission is any connection made between the allegations of discrimination raised in this proceeding and the complainant’s critique of the corporate respondent’s suspension appeal procedures.
63Under s. 41(1)(a), the Tribunal has broad remedial authority to direct a party who has been found to have infringed a right under the Code “to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices”. While this remedial authority is extraordinarily broad, it is circumscribed by a requirement that any remedies awarded be directed towards achieving compliance with the Code, as opposed to achieving compliance with other principles such as fundamental justice, fairness or natural justice which operate in the administrative law sphere. As a result, the basis and rationale for the remedy sought by the complainant as currently framed is beyond the Tribunal’s jurisdiction.
64Accordingly, I will grant the respondents’ motion to strike paragraphs 29 to 33 of the complainant’s reply. However, I will grant leave to the complainant to amend his pleading: to indicate whether he is alleging that the corporate respondent’s suspension appeal procedures discriminate against him on the basis of race or colour; if so, to articulate specifically on what basis he is making any such allegation; and to seek any appropriate remedy that arises out of any such allegation.
8. Request for list of documents over which the complainant claims privilege
65The respondents seek an order of the Tribunal requiring the complainant to provide the respondents with a list of documents over which the complainant is claiming privilege and the grounds for the privilege asserted. The respondents believe that there are a significant number of privileged documents in the possession and control of the complainant which are relevant to the proceedings and to the issues under consideration, and in particular the respondents believe that there are communications which would challenge the impartiality of the investigation by the Commission and indicate that the complaint should never have been referred and that it was trivial, frivolous, vexatious or made in bad faith.
66In response, the complainant has indicated that he does not claim privilege over any documents apart from private communications between his legal counsel and himself and his family members.
67While Rule 44 of the Tribunal’s Rules permit the Tribunal to make an order requiring a party to provide a list of documents over which the party claims privilege, the Tribunal must be satisfied that there are good reasons for doing so.
68In this case, the complainant has indicated that the only documents over which he is claiming privilege are private communications between his legal counsel and himself and his family members. I see no good reason to require the complainant to list these documents, when such communications are clearly privileged.
69This request is denied.
9. Request for further production from the Commission
70The respondents request an order for the production of the following documents from the Commission or confirmation that no such documents exist:
(a) any and all internal directions, instructions, communications, opinions etc. among Commission staff relevant to this complaint, including any general directions, policies etc., pertaining to referrals to a Tribunal;
(b) all documentation with respect to the case analysis reports, responses received and replies, whether this is in the form of draft reports, handwritten notes, emails etc.;
(c) briefing documents considered by the Commission in its decision to refer the matter to a Tribunal;
(d) all notes, records, memoranda and/or emails in the investigators’ files or on their computers;
(e) any and all documents, memoranda or other communications exchanged between the policy department, the investigators and the Commission;
(f) all documents created or received by all Commission staff in response to the receipt of the various communications from Respondents’ counsel;
(g) any and all documents pertaining to the Reprisal Complaint and the investigation of same;
(h) any and all documents pertaining to the public interest remedies;
(i) any and all documents and correspondence in any form to and/or from Roger Rowe, the Complainant, Patricia Persaud, Raymond Persaud, Natasha Persaud or any other person;
(j) all documents, correspondence, notes, etc. regarding the IB program; and
(k) all correspondence in any form between the Complainant, Patricia Persaud, Raymond Persaud and/or Natasha Persaud and any of the staff of the Corporate Respondent.
71In response, the Commission states that it has provided all disclosure and production in accordance with the Tribunal’s Rules, and that it has no further disclosure or production to make. The respondents take issue with this response, as it does not answer the question as to whether any documents within any of these categories exist and thereby prevents a proper adjudication of this issue.
72Rule 43 of the Tribunal’s Rules provides that “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”. In addition, pursuant to Rule 47, the Tribunal has the power to order any party to deliver to any other party documentary evidence the Tribunal considers appropriate for a full and satisfactory understanding of the issues in the proceeding.
73As a result, I need to determine whether the various categories of documents identified by the respondents are “relevant” to the matters at issue in the proceeding or may be required for “a full and satisfactory understanding of the issues in the proceeding”. The caselaw has established that the threshold for disclosure of documents or information in matters before the Tribunal is “arguable relevance”, which is not a particularly high bar. However, 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: 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.
74The documents identified in categories (a), (b), (c), (e) and (f) relate to the Commission’s internal processing of the complaint and internal communications between various branches of the Commission. I am not prepared to order such production at this time. The Tribunal does not sit in review of the Commission’s processes. I appreciate that the respondents have put the Commission on notice that they intend to seek costs under s. 41(4) of the Code in the event that the complaint is dismissed; however, consideration of this issue at this stage of the proceeding, where no evidence on the merits of the complaint has yet been heard, is premature. In the event that the complaint is ultimately dismissed, the respondents will be afforded an opportunity to assert their claim for costs, which may include consideration of further production which is relevant to such claim.
75With regard to the respondents’ request in category (d) for “all notes, records, memoranda and/or emails in the investigators’ files or on their computers”, I do not regard these documents as potentially relevant to the allegations of discrimination and harassment raised in this proceeding, but only as being potentially relevant to any claim for costs against the Commission. As a result, this request is also premature and might be considered again in the context of the respondents’ claim for costs if the complaint is dismissed. The only exception would be any documents, whether printed or on computer, which record statements made by any of the parties or their witnesses or which are relevant to the allegations of discrimination and harassment, and which have not already been disclosed by the Commission. Within one week of the release of this decision, I require the Commission to confirm either that all such documents already have been disclosed or do not exist, or to produce copies of any such documents to the parties.
76With regard to the respondents’ request under point (g) for “any and all documents pertaining to the reprisal complaint and the investigation of same”, I understand that the complainant has filed a reprisal complaint against some or all of the respondents that has not yet been referred to the Tribunal. Although the Commission’s pleading at paragraphs 76 to 78 includes all or part of the allegations raised in the reprisal complaint, the Commission indicated that it would not pursue those allegations in this proceeding. As a result, any documents pertaining to the reprisal complaint or its investigation are not relevant to this proceeding and need not be produced or disclosed. However, if documents relevant to the allegations of discrimination and harassment raised in this proceeding are in the Commission’s files relating to the reprisal complaint, these should already have been disclosed as relevant documents pursuant to Rule 43. Once again, within one week of the release of this decision, I require the Commission to confirm either that no such documents exist, or to produce copies of any such documents to the parties.
77Finally, with regard to categories (h) to (k) of the respondents’ request, I do regard these categories of documents as being arguably relevant to the matters at issue in these proceeding, except to the extent that they are merely internal communications between Commission staff, and I would have expected these documents to have been included in the disclosure already made by the Commission. Within one week of the release of this decision, I require the Commission to confirm either that all documents in these categories already have been disclosed, or to produce copies of any such documents to the parties.
10. Request for further production from the complainant
78The respondents further request an order for the production of the following documents from the complainant or confirmation that no such documents exist:
(a) all correspondence between Roger Rowe’s office, Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud and the Ontario Human Rights Commission relevant to all of the events in question and/or claims for relief, including responses from the Commission to Mrs. Persaud’s emails to Tara Jackson and responses from the Commission to letters dated January 18th, 2006 and March 6th, 2006, and redress document attached to Patricia Persaud’s email to Tara Jackson dated December 7th, 2005;
(b) all correspondence between Roger Rowe’s office, Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud and any of the Respondents or other past or present employee or Trustee of the Respondent school board relevant to all of the events in question and/or claims for damages;
(c) all correspondence between Roger Rowe’s office, Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud and any other individual relevant to all of the events in question and/or the relief claimed;
(d all notes, records, logs, journals, diary entries and/or calendar entries (whether paper or electronic) recording any and all of the events in question in the possession of Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud;
(e) disclosure of the contents of Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud’s computer hard drives relevant to this proceeding;
(f) the suspension letter provided to Patricia Persaud in relation to the suspension of Raymond Persaud in March 2005.
79With respect to point (a) of the respondents’ request, the complainant has indicated that there are no responses from the Commission to Roger Rowe’s letters dated January 18 and March 6, 2006 and that the redress document attached to Patricia Persaud’s email dated December 7, 2005 has already been provided to the respondents in the Commission’s disclosure. The complainant has undertaken to complete another search to locate any other communication between Roger Rowe’s office, Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud and the Ontario Human Rights Commission that has not already been provided to the respondents. I require the complainant to complete this search and either confirm that there is nothing further to disclose or provide any such further disclosure within one week of the release of this decision.
80The complainant further states that he has complied with his disclosure obligation with respect to points (b), (c), (d) and (e) of the respondents’ request.
81With regard to the request in point (e) for the contents of the computer hard drives of the complainant and his family members, the Respondents request the opportunity to inspect the computer hard drive in order to access the data, information and documents in their original electronic format. This request is made on the basis that the computer hard drive to which the complainant and his mother had access in their home has relevant information on it that is not contained in the complainant’s disclosure documents produced to date. Specifically, the respondents allege that the complainant used the school computer contrary to the school rules, including the downloading of pornography, and the respondents seek to inspect the hard drive to determine if similar pornographic images exist or existed.
82In response, the complainant has submitted the following cases from the civil courts, which provide useful guidance in relation to this issue: Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 (OSCJ); Northwest Mettech Corp. v. Metcon Services Ltd., 1996 BCSC 1056; Roeske v. Grady, 2006 BCSC 1975; and Desgagne v. Yuen et al, 2006 BCSC 955.
83As stated by Master B.M. Joyce in Northwest Mettech Corp. v. Metcon Services Ltd., supra at para 10:
In my view the plaintiff is not entitled to production of the hard drive itself. They are entitled to production of only the relevant electronic data which is resident on that hard drive. As I understand it, a computer hard drive is simply a medium on which data is stored on a semi-permanent basis in the form of electronic impulses. It may be thought of as an electronic filing cabinet which contains electronic files, each of which in turn contains electronic documents. The defendants are obliged to list all relevant documents of whatever form (including electronic documents resident on computer hard drives). In my view they are not required to list the entire contents of nor are they required to produce their entire electronic filing cabinet any more than a party is required to list or to produce the complete contents of its steel filing cabinets which house documents which are in paper format.
84To similar effect is the observation of Slade J. in Roeske v. Grady, supra at para. 32:
. . . as it is the information and not the medium for its storage that may be relevant, I see no basis for the delivery of the hard drive as a document and no basis for departure from the general rule that plaintiff’s counsel have the first opportunity to vet any information derived from it for relevance.
85Finally, the comments of Myers J. in Desgagne v. Yuen et al., supra are also pertinent (at para. 20):
It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion . . . the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party’s filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed.
86Myers J. further states (at para. 38) that the value of the production sought needs to be weighed against competing interests, which include not only the time and expense of production but also confidentiality.
87From these cases, I distill the following principles which should guide the Tribunal in dealing with requests of this nature:
a) A computer hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party’s filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed.
b) A party is not entitled to production of the hard drive itself, but to production of only the relevant electronic data which is resident on that hard drive.
c) As a general rule, the party from whom production is sought or her or his counsel should have the first opportunity to vet any information derived from a computer hard drive for relevance.
d) The value of the production sought needs to be weighed against competing interests, which include not only the time and expense of production but also confidentiality.
88The complainant has indicated that he has complied with point (e) of the respondents’ production request, which I presume means that the complainant has disclosed all relevant documents from the hard drives of his computer and the computers of his family members. I am not prepared to allow the respondents to have access to the hard drives of these computers, which presumably contain significantly more data than is relevant to this proceeding, simply for the purpose of verifying that the complainant has properly fulfilled his disclosure obligation, any more than I would allow the complainant to rummage through the hard drives of computers maintained by the corporate respondent and individual respondents to verify that the respondents have fulfilled their disclosure obligation.
89With regard to the possibility that pornographic images exist or may have existed on the complainant’s computer or the computers of any of his family members, I find this request to be highly speculative and the relevance of any such information to be tenuous at best. I appreciate that there is an issue between the parties as to whether the complainant improperly used the school’s yearbook computer to download pornography. Presumably the respondents have analyzed or could analyze the data on this computer to retrieve these images, to determine the date and time that they were downloaded, and perhaps to obtain other potentially relevant information. Even if the complainant downloaded pornographic images on his own computer or accessed the same websites that were accessed using the yearbook computer, I fail to see what reasonable inferences I could be expected to draw from this that would be relevant to the issue of whether the yearbook computer was used by the complainant improperly. I am not satisfied that sufficient relevance has been established to require production or disclosure of such information by the complainant.
90Finally, with respect to the respondents’ request in point (f), the respondents have clarified in their reply submissions that, while they do already have a copy of this letter, what they require is a copy of the student and/or parent copy of the suspension letter. This is relevant to the allegation in paragraph 29 of the Commission’s pleading, which is that the complainant’s mother was inappropriately accused of placing her copy of the suspension letter into the student file after the corporate respondent had agreed to remove it. I find that it is relevant to this allegation as to whether the complainant’s mother still has in her possession the student and/or parent copy of the suspension letter. Accordingly, I require the complainant within one week after the release of this decision to advise the respondents as to whether he or any family member still has in his or her possession the student and/or parent copy of the suspension letter relating to the complainant’s brother and if so, to produce a copy of this letter to the parties.
NEW RULES OF PRACTICE
91Effective January 31, 2008, new Rules of Practice for the Tribunal came into effect which apply to all cases currently before the Tribunal and to all cases referred by the Commission to the Tribunal before January 1, 2009. Pursuant to Rules 57 to 67 of the new Rules, the parties to a proceeding before the Tribunal no longer file “pleadings”, but instead file “hearing briefs” which contain a number of elements, including a statement of all facts upon which the party relies, a list of intended witnesses, an estimate of the number of hearing days required to present that party’s evidence, and a detailed description of the orders or remedies being sought or a response to such orders or remedies.
92As a result of the disposition of the various requests made by the respondents in their motion, there is both further information that needs to be provided by the Commission and the complainant in relation to the allegations as set out in the pleadings and some paragraphs that need to be taken out of the pleadings. In order to ensure that all relevant information relating to the allegations is contained in one place, it is my view that amended pleadings would have been required. As a result, in light of the current application of the new Rules, I am requiring that the parties file their amended pleadings in the form of the hearing briefs now required. Because much of the work entailed in preparing the hearing briefs already has been done by the parties with the filing of their pleadings, I do not believe that it is necessary to provide the parties with the full time allotment for filing the hearing briefs which is allocated under the new Rules. As a result, I am allowing three weeks from the date of the release of this decision for the Commission and the complainant to file their hearing briefs in accordance with the new Rules and the orders made as a result of the respondents’ motions, a further three weeks for the respondents to file their hearing brief, and a further one week for reply.
ORDER
93For all of the foregoing reasons, the Tribunal makes the following Order:
(1) Further disclosure
a) Within one week of the date of release of this decision, the Commission is required:
i) to confirm either that all documents in categories (h) to (k) of the respondents’ request already have been disclosed, or to produce copies of any such documents to the parties;
ii) to confirm either that all documents within category (f) of the respondents’ request which are relevant to the allegations of discrimination and harassment raised in this proceeding already been disclosed by the Commission or do not exist, or to produce copies of any such documents to the parties; and
iii) to confirm either that there are no documents which are relevant to the allegations of discrimination and harassment raised in this proceeding which are in any of the Commission’s files relating to the reprisal complaint, or to produce copies of any such documents to the parties.
b) Within one week of the date of release of this decision, the complainant is required:
i) to complete a search to locate any other communications between Roger Rowe’s office, Andrew Persaud, Raymond Persaud, Natasha Persaud and/or Patricia Persaud and the Ontario Human Rights Commission that have not already been provided to respondents and either confirm that there is nothing further to disclose or provide any such further disclosure; and
ii) to advise the respondents as to whether he or any family member still has in his or her possession the student and/or parent copy of the suspension letter relating to the complainant’s brother and if so, to produce a copy of this letter to the parties.
(2) Amended pleadings
a) Within three weeks of the date of release of this decision, the Commission and the complainant shall serve and file a hearing briefs in accordance with Rules 57 and 60 of the new Rules and in accordance with the following orders:
i) to include a complete list of all of the categories of conduct or means by which the respondents are alleged to have violated the Code, and then under each category of conduct or means to provide a list of the specific material facts, events or incidents which are relied upon;
ii) to clearly indicate for each personal respondent the particular means by which it is alleged that each of these individuals personally violated the Code;
iii) to remove the public interest remedy sought at para. (vi) of the Commission’s pleading;
iv) to remove the public interest remedies sought by the complainant as set out in paragraphs 29 to 33 of the complainant’s reply, with leave to amend his pleading to indicate whether he is alleging that the corporate respondent’s suspension appeal procedures discriminate against him on the basis of race or colour, if so to articulate specifically on what basis he is making any such allegation, and to seek any appropriate remedy that arises out of any such allegation;
v) to remove paragraphs 76 to 78 of the Commission’s pleading.
b) Within three weeks of service of the hearing briefs of the Commission and the complainant, the respondents shall have a further three weeks to serve and file their hearing brief in accordance with Rule 63 of the new Rules, and
c) A further one week shall be allowed for reply in accordance with Rule 66 of the new Rules.
(3) Pre-Hearing Conference Call
a) A further Pre-Hearing Conference Call in this matter will be scheduled for the week following the filing of any reply or the expiry of the time limit for filing reply. On this call, the parties will be expected to discuss the witnesses they intend to call to give evidence at the hearing, the nature and relevance of each witness’s evidence, and how long they expect the examination and cross-examination of each witness to take. The Pre-Hearing Conference Call also will canvass the order in which the issues in this proceeding should be considered and decided in accordance with Rule 69(d) of the new Rules. The parties will also be expected to be prepared to schedule hearing dates for this matter in the months of April, May and June 2008 so that the hearing in this matter will be completed prior to June 30, 2008.
Dated at Toronto, this 15th day of February, 2008.
“signed by”
Mark Hart
Vice-Chair