Williams v. Children’s Aid Society of Toronto, 2010 HRTO 658

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roshika Williams

Applicant

-and-

Children’s Aid Society of Toronto,

Carol Manak and Pam Dawe

Respondents

A N D B E T W E E N:

Roshika Williams

Applicant

-and-

Alliance Youth Services Inc.,

Steve Catney and Ed Barron

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 25, 2010

Citation: 2010 HRTO 658

Indexed as : Williams v. Children’s Aid Society of Toronto

1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, both dated February 19, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on March 2, 2007.

2The hearing in this matter commenced on November 23, 2009, and is continuing on March 25 and 26, 2010.

3The purpose of this Interim Decision is to address the applicant’s request for an order requiring the Ontario Human Rights Commission to produce certain documents from its investigation file and to address the scope of the allegations at issue in this proceeding in light of certain new information and documents that have come to light.

4The applicant’s Request for Order was filed with the Tribunal on March 23, 2010, and was served on the Commission. At the Tribunal’s request, the Commission responded by letter dated March 24, 2010, identifying certain records sought by the applicant that were in its possession, but stated that it would not produce these records without an order from this Tribunal.

5At the outset of the hearing on March 25, 2010, the parties were provided with a copy of the Commission’s letter and the respondents were asked to check their files to ascertain whether they had received certain documents identified by the Commission. Both counsel for the Children’s Aid Society of Toronto (“CAST”) respondents and for the Alliance Youth Services (“AYS”) respondents were able to confirm that they had in fact received a copy of an amended complaint from the Commission on or about September 7, 2008. Counsel for the CAST respondents states that he has no record of having received a draft witness statement for the personal respondent Pamela Dawe following the fact finding conference held with the Commission on May 12, 2008, and Ms. Dawe stated that she had not received any such document.

6The parties then were afforded an opportunity to make submissions regarding the applicant’s request for production and regarding the proper scope of the proceeding in light of the documents which had now come forward. The Commission was on notice of the hearing, but indicated to the Tribunal that it would not be appearing.

7After hearing submissions from the parties, I made the following oral ruling at the hearing on March 25, 2010:

1. On March 23, 2010, the applicant filed a Request for Order seeking production of certain documents from the Commission. In particular, the applicant seeks production of the following documents: the witness statement of Pamela Dawe as taken at the fact-finding meeting held by the Commission on May 12, 2008; the amended complaint that was signed in the Commission’s offices in September 2008; any report prepared by the Commission investigator; and notes relating to the Commission’s handling of the file following the departure of the Commission investigator.

2. On March 24, 2010, the Tribunal sent a letter to the parties and to the Commission requesting a report regarding the existence of the documents sought by the applicant, to which the Commission responded by letter dated March 24, 2010, in accordance with the Tribunal’s request. A copy of the Commission’s letter was shared with the parties at the commencement of the hearing on March 25, 2010.

3. Both sets of respondents were able to locate a copy of the amended complaints that were served by the Commission on or about September 7, 2008. The only changes to the amended complaint as against the CAST respondents was to change the social area in which discrimination was being alleged from employment to services and contract, and to add breach of association as a contravention ground. Counsel for the CAST respondents states that the amended complaint does not change the nature of the allegations that these respondents understood were being raised in this proceeding, and takes no objection to the matter proceeding on the basis of the allegations as set out in the amended complaint.

4. The amended complaint as against the AYS respondents sets out more significant changes. Counsel for the AYS respondents acknowledges having received this amended complaint prior to the filing of the application with this Tribunal and so raises no objection to the allegations in the amended complaint being within the proper scope of the allegations that I can deal with in this proceeding.

5. However, these respondents raise the issue of delay in relation to the new allegations set out in the amended complaint. There are some new allegations raised as a result of a document dated February 7, 2007 from Ed Barron of AYS to Greg Daly of the Ministry of Children and Youth Services. The amended complaint states that this document was only shared with the applicant on September 5, 2008, which resulted in certain new allegations being raised in the amended complaint.

6. This e-mail is alleged to set out the reasons for the termination of the applicant’s contract with AYS. In my view, the disclosure of this e-mail on September 5, 2008, provides a good faith reason as to why the applicant had not raised these allegations at an earlier time. I further find that no substantial prejudice is caused to the AYS respondents in having to respond to and account for statements made in an e-mail created by Mr. Barron, particularly since they have been on notice of these allegations now for almost a year and a half. As a result, I deny these respondents’ request to dismiss the allegations in the amended complaint specifically related to the February 7, 2007 e-mail on the basis of delay.

7. In addition to new allegations arising out of the February 7, 2007 e-mail, the amended complaint also contains a general allegation that the applicant believes that these respondents treated her more harshly because she is South Asian, and that she does not believe that these respondents would have terminated a service agreement with a White foster parent who had advocated on behalf of racialized children and objected to discrimination. The applicant states that at the time she filed her complaint, she believed that she had experienced racial discrimination, but that she chose to focus her complaint on the ground of creed as she believed that she had documentation to support this claim. In my view, that is not a sufficient reason to justify the delay in raising this general issue. This general allegation was raised for the first time in the amended complaint in early September 2008, over a year and a half after the termination of the applicant’s service agreement on January 24, 2007, and the filing of her complaint on March 2, 2007.

8. There are some specific allegations arising from the content of the February 7, 2007 e-mail that the applicant experienced discrimination by the AYS respondents in reprisal for her having raised issues of racial discrimination and advocated on behalf of a racialized foster child with a disability that I will consider as part of the allegations I will address in this proceeding. However, beyond the specific particulars set out in the amended complaint in relation to the February 7, 2007 e-mail, I hereby dismiss the more general allegation of racial discrimination because of delay in excess of one year and the absence of a sufficient explanation or justification to support this delay.

9. With regard to the applicant’s request for production from the Commission, her request for production of her amended complaints is moot, as these documents now have been disclosed directly by the respondents. With regard to her request for production of the investigator’s report, and as stated in my previous Interim Decision in this matter, this report, if it exists, may represent the investigator’s views regarding the evidence and whether it supports the allegations raised by the applicant, and is not relevant to the determination that I must make independently as the adjudicator once I have heard all of the evidence before me. As a result, I am not prepared to order production of this document from the Commission.

10. The applicant also has requested disclosure of documents related to the Commission’s handling of her file following the departure of the original Commission investigator. Once again, as stated in my prior decision, the Commission’s handling of a file in its own process is not a matter that is relevant to my task as the adjudicator in this proceeding. As a result, I am not prepared to order disclosure of this material.

11. The final document requested by the applicant is the witness statement of the personal respondent Pamela Dawe taken at the fact finding conference held by the Commission on May 12, 2008. The CAST respondents object to the production of this document on the basis that it was not sent to Ms. Dawe. As a result, they say that they are prejudiced due to Ms. Dawe’s inability in a timely manner to review any such document as to its accuracy. These respondents also raise a concern that if there is any dispute as to the accuracy of the content of any such statement, the author of the statement, who is now a Vice-chair with this Tribunal, may not be compellable to testify as to the accuracy of the notes that he took at the fact-finding conference.

12. While I certainly understand the concerns raised by these respondents, in my view this should not affect an initial order merely requiring production of this document to the parties. In my view, any draft statement prepared by the investigator at the fact-finding conference in reality represents the investigator’s notes as to what the party said, and does not become a true witness statement until the document has been reviewed and signed by the witness. So in this case, what I am really being asked to require the Commission to produce is the investigator’s notes of Ms. Dawe’s evidence as given at the fact-finding conference. In my view, statements made by a party to this proceeding relevant to the matters at issue are sufficiently relevant at the very least to require disclosure of the investigator’s notes to the parties. Whether or not this document is admissible in evidence before me is a matter that does not need to be addressed at this stage solely for the purpose of requiring production.

13. Similarly, any issue as to the compellability of the Commission investigator is premature and would only arise if for some reason his notes are required to be tendered into evidence and can be addressed at that time. Once again, in my view, this does not prevent me from issuing an order for production at this stage.

14. Accordingly, I order the Commission to produce to the parties in this proceeding (and not to the Tribunal) a copy of any draft witness statement of Pamela Dawe relating to her attendance at the fact finding conference on May 12, 2008 as well as any documentation from the Commission’s file indicating whether this statement was sent to Ms. Dawe, the corporate respondent or her counsel.

15. The Tribunal understands that the Commission has the draft witness statement of Ms. Dawe available electronically and is in a position to produce this document today. Accordingly, the Commission is directed to produce this document to the parties as soon as possible today by sending this document to the parties care of the Registrar-Transition of the Tribunal who will then share this document with the parties. The Tribunal will not retain a copy of this document.

16. With regard to any documentation from the Commission’s file indicating whether this statement was sent to Ms. Dawe, the corporate respondent or her counsel, and if any such documentation is readily available, the Commission shall also disclose any such documentation as soon as possible today. To the extent that any such documentation may require a review of the Commission’s physical files, which I understand are off-site, the Commission shall disclose any such further documentation to the parties within one week of the date of this order or shall advise the parties that no such documentation exists.