HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jacqueline Visconti
Applicant
-and-
Great-West Life Assurance Company, London Life Insurance Company
and Freedom 55 Financial
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Date: February 16, 2010
Citation: 2010 HRTO 338
Indexed as: Visconti v. Great-West Life Assurance Company
[1] This is an Application filed March 25, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment and reprisal on the basis of sex. The purpose of this Interim Decision is to address the applicant’s Request for an Order during Proceedings seeking a Tribunal Ordered Inquiry.
[2] Mediation is scheduled for February 25, 2010 and the hearing is scheduled for April 13, 2010.
[3] The applicant asks that the Tribunal appoint an investigator to review the documents over which the respondents are claiming solicitor-client privilege.
[4] The Tribunal has the authority to order an inquiry by section 44 of the Code in certain circumstances:
At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,
(a) an inquiry is required in order to obtain evidence;
(b) the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and
(c) it is appropriate to do so in the circumstances.
[5] The Tribunal has not yet exercised the power granted in this section of the Code and has yet to determine the circumstances where such an inquiry will be appropriate. However, a Tribunal ordered inquiry will not be a routine event and will not be a substitute for the usual production process contemplated by the Rules. In the normal course the parties are required to produce all arguably relevant documents in their possession. If the parties cannot agree or if one party has reason to believe that there are documents in the possession of a party or other person that have not been produced, the Tribunal has the authority to order the production of materials.
[6] In any event, I am not satisfied the Tribunal can order the production of privileged documents.
[7] Section 5.4 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) provides:
(1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,
(a) the exchange of documents;
(b) the oral or written examination of a party;
(c) the exchange of witness statements and reports of expert witnesses;
(d) the provision of particulars;
(e) any other form of disclosure.
(2) Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.
[8] The Request for a Tribunal Ordered Inquiry is denied. If the applicant intends to argue that the withheld documents are not privileged, she may file submissions on that point within seven days of the date of this Interim Decision.
Dated at Toronto, this 16th day of February, 2010.
“Signed by”