HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shannon Wright Applicant
-and-
Love Dhawan Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty Date: October 5, 2011 Citation: 2011 HRTO 1807 Indexed as: Wright v. Dhawan
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") alleging discrimination on the basis of sex in employment. She also alleges reprisal or threat of reprisal.
2In essence, the applicant alleges that she was sexually harassed by the respondent. The respondent denies the allegations.
3On March 15, 2011, the respondent filed a Request for an Order During Proceedings ("Request") seeking the production of documents relating to other, similar complaints allegedly filed by the applicant. The respondent wrote:
Richard Goldman, defence counsel to the Respondent in criminal charges laid by Shannon Wright (the "applicant/complainant"), that were withdrawn, has in his possession documents from the Crown brief pertaining to the complainant from the Toronto Police Service, detailing approximately fifty (50) criminal investigations, many of which have involved complaints of a sexual nature. The Respondent seeks to have such information put before the Tribunal.
4The applicant originally opposed the Request. She disputed making such complaints and, in any event, argued that whether or not she has made similar complaints to police is irrelevant to the issue raised in this Application.
5In an earlier Interim Decision, 2011 HRTO 739, the Tribunal held that the documents contained in the Crown Brief are arguably relevant to the proceedings. The Tribunal sought further written submissions from the parties on the following issues:
a. whether, considered in light of human rights principles, the probative value of the documents is outweighed by the potential prejudice to the party producing them; and
b. whether any privilege or immunity attaches to the documents sought in light of P.(D.) v. Wagg, 2002 CanLII 23611 (ON S.C.D.C.) and 2004 CanLII 39048 (ON CA).
6The parties filed written submissions in response to the Interim Decision. The Tribunal then held a brief telephone conference call on May 31, 2011. Counsel for the respondent stated that he had communicated with the Crown and the Toronto Police Services ("Police") regarding the requested disclosure of the Crown Brief and had provided each of them with a sealed copy of the documents at issue. As of the May 31, 2011 conference call, neither the Crown nor the Police had formally advised of its position on the proposed disclosure.
7At the May 31, 2011 conference call, the parties agreed to a procedure for addressing the respondent's Request for production. See the Tribunal's Interim Decision, 2011 HRTO 1047. In this Interim Decision, the Tribunal directed the Crown and the Police to advise the Tribunal and the parties of their position regarding the proposed disclosure.
8The Crown and Police filed written submissions in response to the Interim Decision. Both indicated that they consent to the production of the Crown Brief provided the following information is redacted:
a. fingerprint service number;
b. third party names, dates of birth, and contact information;
c. police identifier codes;
d. names and telephone numbers called on arrest; and
e. licence plate number.
9The parties, the Crown and the Police participated in a brief conference call hearing on September 12, 2011.
10At the conference call hearing, the applicant indicated that she consented to the disclosure of the Crown Brief. I advised her that, by consenting to the disclosure of the Crown Brief to the respondent, the applicant is not consenting to it being tendered as evidence. I explained that while the Tribunal has concluded that the Crown Brief is arguably relevant for the purposes of the production Request, at this stage of the proceeding, the Tribunal has made no finding regarding whether the Crown Brief is admissible as evidence at a hearing on the merits of this matter.
11On September 30, 2011, the respondent submitted a draft order to the Tribunal and indicated that the applicant had consented to the order.
12The parties invite the Tribunal to, among other things, order that the respondent pay the Crown and the Police reasonable costs of assembling and producing the documents contained in the Crown Brief. It is not clear to me that the Tribunal has jurisdiction to order this remedy and I decline to do so. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405; and M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174.
ORDER
Disclosure of the Crown Brief
13A copy of this Interim Decision will be delivered to the parties, the Crown and the Police.
14The Crown Brief shall be redacted to remove any: (a) fingerprint service numbers; (b) third party names, dates of birth, and contact information; (c) police identifier codes; (d) names and telephone numbers called on arrest; and (e) licence plate numbers.
15Production of the Crown Brief pursuant to this Interim Decision is subject to the following conditions:
a. all documents contained in the Crown Brief ("Documents") shall only be used and disclosed by the parties and their counsel for the purposes of the within proceeding;
b. the parties and their counsel shall not disclose the Documents, copies of the Documents, or any information contained in the Documents to any other person, except within this proceeding and as provided above.
16Within thirty days of the date of this Interim Decision and subject to the redactions and conditions set out above, the Ministry of the Attorney General shall produce a copy of the Crown Brief to counsel for the respondent.
17Within three days of receipt of the Crown Brief, counsel for the respondent will deliver a copy of the Crown Brief to the applicant.
Next step
18This matter had previously been scheduled for a hearing on the merits. The hearing dates were adjourned in order to address the respondent's Request for production. New hearing dates will be scheduled and the Tribunal will issue a revised Notice of Hearing.
Dated at Toronto, this 5th day of October, 2011.
"signed by"
Michelle Flaherty Vice-chair