HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Steele
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services
Respondent
interim DECISION
Adjudicator: Faisal Bhabha
Indexed as: Steele v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS BY
Richard Steele, Applicant ) Selwyn Pieters, Counsel
Ministry of Community Safety and ) Jinan Kubursi, Counsel
Correctional Services, Respondent )
1In a previous Interim Decision in this matter, 2010 HRTO 1019 (dated May 6, 2010), I directed that records of complaints filed in respect of staff or inmates at the Maplehurst facility between January 2006 and May 2010 in which allegations are made of discrimination, profiling or harassment based on race, colour or ethnicity, including any conclusions reached and discipline imposed, be produced by the respondent to the Tribunal. The Interim Decision held that the Tribunal would review the records and determine what would be produced to the applicant. The deadline for production was June 7, 2010.
2The respondent produced a total of 48 responsive records. These, along with submissions from the parties, have been reviewed by the Tribunal. This Interim Decision relates to which records, if any, must be produced to the applicant.
Inmate Records
3These records relate to allegations by inmates of discrimination or harassment on the basis of race, colour or ethnic origin. The bulk of the responsive records produced, 31 in all, fall into this category. The respondent does not oppose producing these records to the applicant, subject to certain conditions, described as follows:
I. The records be produced to applicant’s counsel only;
II. The names and personal information of any inmate referred to in the records be redacted and anonymized;
III. The records are produced solely for the purposes of this proceeding;
IV. The information contained in the records will not be disclosed or referred to for any other purpose;
V. The records not be copied or further disclosed for any other purpose.
4The applicant agrees with conditions I-III, and argues that IV and V are unnecessary. I find that IV and V are encompassed in conditions II-III, and it is unnecessary to address them separately.
5Therefore, on the basis of the parties’ submissions, it is clear there is no substantial disagreement with respect to the production of the inmate records. I agree with the parties that these records are arguably relevant to the issues in dispute between them and should be produced, subject to stipulated conditions.
WDHP and Grievance Records
6These records relate to allegations by the respondent’s employees regarding discrimination or harassment on the basis of race, colour or ethnic origin in the workplace. There are nine records of such allegations made under the Workplace Discrimination and Harassment Prevention Policy (WDHP). There are eight responsive records arising from the grievance procedure pursuant to the collective agreement. The WDHP complaints appear to involve allegations between staff, while the grievance reports concern disputes between management and unionized employees.
7The respondent opposes the production of these records on the basis that they are not arguably relevant to the Application. The respondent argues that the records relate exclusively to employee issues, which the respondent submits are not helpful in resolving the allegations of systemic racism, inmate discrimination and harassment, and the failure by the respondent to properly address inmate allegations of discrimination and harassment. The applicant submits that these records are arguably relevant.
8The test for ordering production is summarized in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at paragraphs 8:
The 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.
9The applicant has not, at this time, established the arguable relevance of these records. His submissions fail to establish a nexus between allegations of racial or ethnic discrimination and harassment by the respondent’s employees, and the issues raised in the Application.
10Even if the documents were arguably relevant, they might still be excluded from a production order if they are privileged, the probative value is outweighed by potential prejudice, or the timing of the request risks derailing a just and expeditious hearing: Lampi, supra at para. 10. I find that ordering production of the WDHP and grievance records at this stage would potentially distract from the central issues of the proceeding and could adversely affect third-party privacy interests. For this reason, I am not satisfied the potential probative value of producing these records would outweigh their potential prejudice.
Admissibility and Bifurcation
11An order for production does not mean that the evidence would be admissible at the hearing: Lampi, supra at para. 9. I am not, at this time, deciding the question of the admissibility of any evidence.
12The respondent requests that the hearing be bifurcated in order for the Tribunal to determine, first, whether the applicant has established that his rights under the Code have been breached. Only then would the hearing consider evidence addressing the systemic aspect of the Application, which the respondent submits would only be relevant to determining appropriate remedies.
13The applicant opposes bifurcation on the basis that it is not the most fair, just and expeditious manner of proceeding.
14I agree with the applicant. Bifurcation of the evidence relating to the individual and systemic aspects of the Application is not an efficient way of proceeding. As a practical matter, the applicant must of course establish that his rights have been personally affected by the respondent’s actions. In so doing, evidence of systemic issues may be raised. At the conclusion of the applicant’s evidence, I must be persuaded that a prima facie case of discrimination has been made out. The onus for establishing a prima facie case rests with the applicant
ORDER
15The Tribunal orders as follows:
I. Within seven days of the date of this Interim Decision, the respondent shall produce the Inmate Records to the applicant’s counsel, subject to the following conditions:
They shall be produced to the applicant’s counsel only;
The names and personal information of any inmate referred to in the records will be redacted and anonymized;
They shall be kept confidential and used solely for the applicant to determine if the records contain evidence that he will seek to have admitted as evidence in this proceeding.
II. The WDHP and Grievance records shall be returned to the respondent by the Registrar and be removed from the Tribunal file:
III. The Registrar shall schedule a teleconference to hear submissions from the parties on what evidence to admit and for what purpose, and to discuss case management.
Dated at Toronto, this 14th day of September, 2010.
“Signed by”
Faisal Bhabha
Vice-chair