HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Svetlana White
Applicant
-and-
National Committee on Accreditation
Respondent
Interim decision
Adjudicator: David Muir
Indexed as: White v. National Committee on Accreditation
1This is an Application filed on January 9, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with three Requests for Order During Proceedings (“Requests”) filed by the applicant.
2The applicant alleges that she has been subject to discrimination in goods and services on the basis of ethnic origin and place of origin. The applicant alleges that the criteria used by the respondent to assess her educational credentials are discriminatory in that they are based solely on country of origin. The respondent states that the criteria used to assess her educational credentials were not country of origin but rather the nature of the legal education received by an applicant and relied upon by them for accreditation by the respondent.
Request for Tribunal Ordered Inquiry/Production
3This was filed with the Tribunal on August 19, 2009. It appears to largely reiterate the substance of a Request for Order During Proceeding filed on July 23, 2009 and will be dealt with in that context. A Tribunal Ordered Inquiry will not be ordered where a production order will suffice. The request for a Tribunal Ordered Inquiry is refused.
4To the extent that the requests for production were modified in the Request for a Tribunal Ordered Inquiry, they have been considered in the context of the production request.
5The applicant’s requests for production and the respondent’s response to each of them are set out below:
a. The applicant seeks the production of 367 files evaluated in 2003 and 348 files from 2004. The applicant is content that most of the personal information be redacted and states that the documents she is requesting are necessary to prove differential treatment and discrimination between the applicant and others on the basis of country of origin.
The respondent states that in order to be producible, it must be prima facie demonstrable that what is sought is relevant and likely probative. The respondent states that because the country of origin is not the criteria used evidence of the country “having no implications insofar as the application of the criteria are concerned” such evidence is not demonstrably relevant or likely to be probative.
b. The applicant seeks the production of the official records of the NCA Meeting Minutes for 2003 and 2004 regarding evaluation of foreign credits from different countries, or a statement that such documents are not in the possession of the respondent.
The respondent states that such material is only relevant insofar as it relates to the Application and all such material has been produced.
c. The applicant seeks the production of the Minutes of her appeal of the assessment on July 22, 2004.
The respondent states that all materials related to the applicant’s appeal have been produced.
d. The applicant seeks the production of statistics for the years 2003- 2004 of the numbers of applicants from common law countries educations, countries with hybrid legal systems and others showing how many in each category were certified or denied certification in the period.
In its initial response to this request the respondent indicated that this information was readily available on the internet. It apparently no longer is. In its response in the Request for a Tribunal Ordered Inquiry, the respondent stated that such material is not relevant or probative and that it should not be required to create evidence that is would be neither probative nor relevant.
6With respect to each of these requests, I am not satisfied that, to the extent that such material has not already been provided, these additional materials are arguably relevant to the issues in dispute. The applicant states that it is necessary to have this information in order to determine whether or not these applicants were treated equally. That is not the issue for determination in this case. Rather, the allegation is that the applicant was denied accreditation in whole or in part because she was from Russia. It is the criteria used to assess her academic credentials and how those were applied to her case that should be at the centre of the factual dispute between the parties. The applicant states that the production of this material will show that applications from “other countries” were ignored. Again, this is not the issue; rather the material sought would have to be arguably relevant to in establishing that because the applicant is from Russia her application was ignored.
7The request for production is rejected at this time.
Request for Affidavit
8In this request, the applicant requests that the former Executive Director of the respondent produce a written statement which can be entered in evidence at the hearing.
9The request is denied at this stage. The former Executive Director is not a party to this proceeding but an obvious potential witness. The applicant may summons him to a hearing, as may the respondent. The Tribunal’s Rules require that the parties disclose their witnesses and what they are expected to say at least 20 days prior to the hearing. In the event that the respondents do not elect to call this individual or someone else who can speak to how the applicant’s application was assessed, she will be entitled, as indicated above, to summons witnesses with relevant evidence to give.
10I am not seized of this Application.
Dated at Toronto, this 24th day of September, 2009
“Signed by”
David Muir
Vice-chair