Morgan v. University of Waterloo, 2011 HRTO 2071

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Morgan

Applicant

-and-

University of Waterloo and David Mackay

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: November 15, 2011

Citation: 2011 HRTO 2071

Indexed as: Morgan v. University of Waterloo

1This Interim Decision is issued in relation to the request made to the Waterloo Regional Police Services (“WRPS”) to disclose certain documents in its possession and control that are arguably relevant to the Tribunal’s decision in this matter.

2On October 5, 2010 the Tribunal issued a Case Assessment Direction (“CAD”) in which it directed the WRPS to respond to the parties’ joint request for the production of certain documents in its possession and control. The CAD invited the WRPS to make submissions in response to this request. The CAD indicated that the Tribunal would allow the parties the opportunity to respond to any such submissions before it made a determination as to whether to order the production of these documents.

3The Tribunal received submissions from the WRPS on October 18, 2011 and submissions from the respondent on October 28, 2011. The Tribunal has not received submissions from the applicant.

BACKGROUND

4The Tribunal’s hearing of the applicant’s Application began on September 27, 2011. On September 29, 2011 Detective Constable Ranta of the WRPS testified about an investigation she conducted that relates to a number of the allegations made by the applicant in her Application. During her testimony Detective Constable Ranta identified a number of documents that were in the possession of the WRPS that the parties argued should be disclosed before Detective Constable Ranta continued with her testimony as they were relevant to the issues to be determined by Tribunal. These are:

1. A DVD recording of Detective Constable Ranta’s interview with Dr. Tracey Morgan, the applicant (already disclosed to the applicant);

2. A written statement by Tracey Morgan

3. A DVD recording of Detective Constable Ranta’s interview with Dr. Kathy Winter;

4. A typed summary of the interview with Dr. Winter;

5. A DVD recording of Detective Constable Ranta’s interview with Mr. David Logan;

6. Scribe notes of the interview with Mr. Logan;

7. Detective Constable Ranta’s Notebook entries for a telephone interview conducted with Mr. McCurdy Myers;

8. A general report of investigation prepared by Detective Constable Ranta sometime after July 31, 2009;

9. Further notebook entries by Detective Constable Ranta related to the investigation, for example, her dealings with the personal respondent;

10. Notebook entries by Detective Constable Ranta of a meeting held with Dr. Morgan on June 25, 2010.

5The applicant took the position that the notebook entries by Detective Constable Ranta of a meeting held with Dr. Morgan on June 25, 2010 (Item #10) related to Detective Constable Ranta’s possible role as witness for the applicant and should therefore be considered privileged. In my October 5, 2011 CAD I determined that Item #10 was subject to litigation privilege, and consequently there was no basis for requesting this particular document from the WRPS.

SUBMISSIONS

6The WRPS states in its October 18, 2011 submissions that it did not object to the direction provided by the Tribunal but that it did wish to make submissions on the process and terms of production. The WRPS asks that the request for documents made by the Tribunal in its October 5, 2011 CAD be amended so that the it conforms to the “Standard Terms for an Order or Summons per D.P. v. Wagg” which it states is the document is used by courts and tribunals pursuant to the Ontario Court of Appeal decision in D.P. v. Wagg when seeking the production of police records. A copy of this document was provided by the WRPS with its submissions. It sets out nine conditions or limitations about how the requested records will be prepared and used by the receiving parties.

7The WRPS also submits that Detective Constable Ranta’s notes from the meeting held with Dr. Morgan on June 25, 2010 (Item #10) are not protected by litigation privilege. The WRPS submits that while the notes of the applicant from this meeting could be covered by litigation privilege, any notes taken by Detective Constable Ranta would not be as these notes result from her duty to record her dealings with the public. The WRPS further submits that Detective Constable Ranta was not retained by nor was an agent of the applicant and that there is no ownership of a third party witness or of the information they provide.

8The respondents state in their October 28, 2011 submissions that they do not object to the WRPS request that the Tribunal amend its request and rely on the “Standard Terms for an Order or Summons per D.P. v. Wagg” document. They suggest one minor amendment to one of the conditions set out in section 2(i) of the document.

9The respondents also submit that the DVD recording of Detective Constable Ranta’s interview with Dr. Tracey Morgan (Item #1) should be disclosed to them on the grounds that it is arguably relevant. The DVD has already been disclosed to the applicant. The respondents further submit that Detective Constable Ranta’s notebook entries from her meeting with Dr. Morgan on June 25, 2010 (Item #10) should be ordered disclosed arguing that these notes are not subject to litigation privilege given that they were not prepared under the applicant’s direction and were not principally prepared for the purposes of litigation. They submit that Detective Constable Ranta was not retained by nor an agent of the applicant and that her notes were made pursuant to Detective Constable Ranta’s duty to record her dealings with the public.

DECISION

10The Tribunal agrees to amend its request to the WRPS for the production of certain documents by using the “Standard Terms for an Order or Summons per D.P. v. Wagg” provided by the WRPS with several small modifications (noted below).

11The request includes the DVD recording of Detective Constable Ranta’s interview with Dr. Tracey Morgan, the applicant (Item #1). I agree with the respondents’ submissions that this document is arguably relevant and should be disclosed to the respondents.

12The request includes Detective Constable Ranta’s notebook entries from her meeting with Dr. Morgan on June 25, 2010 (Item #10). I have been persuaded by the submissions before me that these notes are not protected by litigation privilege. I accept that Detective Constable Ranta’s notes are produced as part of her duties, that Detective Constable Ranta cannot be considered to be an agent for the applicant and that these notes are not properly characterized as having been produced for the purposes of litigation.

13The “Standard Terms for an Order or Summons per D.P. Wagg” provided by the WRPS has been modified in four places. The document requests the dates of birth of Tracey Morgan and David Mackay. The Tribunal is unaware of this information but does not see this as an impediment in identifying the requested records. Section 2(c) has been modified to recognize that the disclosed records can be shared with witnesses involved in the Tribunal’s proceeding. Section 2(f) has been modified to recognize that parties have requests before the Tribunal, not motions. It is also the Tribunal’s position that the reference to costs is not required in this section. Section 2(i) has been modified with the last sentence now being “The service shall be entitled to recover the reasonable costs arising from the production of the above noted documents.”

SCHEDULING OF FURTHER HEARING DATES

14The scheduling of further hearing dates has been affected by the need to resolve this disclosure issue. In order to facilitate the scheduling of further dates the parties are directed to confer after receiving disclosure materials from the WRPS, clarify whether there are any issues arising from these materials that require direction from the Tribunal, and to identify mutually available dates that they will then communicate to the Tribunal’s Registrar in order to set further hearing dates.

ORDER

15The Tribunal orders:

1. Pursuant to section 43(f)(i) and Rule 1.7(p) and (q) of the Tribunal Rules, and subject to the conditions and limitations as set out in paragraph 2 of this Order, that the Chief (or designate) of the Waterloo Regional Police Service (the "Service") produce to the requesting party/parties in this matter relating to the investigation of an incident involving the Applicant, Tracy Morgan, and the Respondent, David Mackay, on or about in the 16th day June, in the Regional Municipality of Waterloo the following records:

1. A DVD recording of Detective Constable Ranta’s interview with Dr. Tracey Morgan, the applicant (already disclosed to the applicant);

2. A written statement by Tracey Morgan;

3. A DVD recording of Detective Constable Ranta’s interview with Dr. Kathy Winter;

4. A typed summary of the interview with Dr. Winter;

5. A DVD recording of Detective Constable Ranta’s interview with Mr. David Logan;

6. Scribe notes of the interview with Mr. Logan;

7. Detective Constable Ranta’s Notebook entries for a telephone interview conducted with Mr. McCurdy Myers;

8. A general report of investigation prepared by Detective Constable Ranta sometime after July 31, 2009;

9. Further notebook entries by Detective Constable Ranta related to the investigation, for example, her dealings with the personal respondent;

10. Notebook entries by Detective Constable Ranta of a meeting held with Dr. Morgan on June 25, 2010.

2. The order of the documents listed under paragraph 1 of this Order shall be subject to the following conditions and limitations:

a) the records produced and copied shall be given directly to the requesting party/parties and shall only be used by the parties directly involved in the litigation in this matter for the full and fair disposition of the issues in this proceeding;

b) if there are records involving child abuse, sexual offences, child pornography, torture or similar conduct, any electronic, video, audio or photographic evidence shall be provided to the Tribunal in a sealed envelope and only viewable subject to subsequent Order of the Tribunal;

c) the parties directly involved in this matter shall not disclose the records produced and copied or any information there from, to any person (except for witnesses in the hearing of the Application and to any retained experts) who does not have a direct interest in this proceeding;

d) any records to be produced are those which may be in the possession and control of the Service and nothing in this Order requires the Service to search or obtain documents from any other agency or person (including where records are exhibits before the Court or subject to copyright);

e) no records containing Young Person information (as set out in the Youth Criminal Justice Act) regarding investigations, charges, sanctions or convictions of or by the Young Person will be produced unless the name and personal information of the Young Person and any information that could identify the Young Person is severed or an Order is obtained under Youth Criminal Justice Act;

f) in the event that any records are determined to be subject to statutory protections (e.g., DNA), public interest immunity and/or privilege (such as informant or investigative privilege, victim/witness safety information or plans and information that could compromise law enforcement interests or officer safety, including internal law enforcement codes, classification numbers, Information to Obtain Search Warrants, warrants and Returns to Justices - to the extent that such information has not been authorized for release or part of the public record), the Service shall so notify the requesting party/parties irnmediately upon discovery and if such claim of public interest immunity or privilege is not agreed to, a party may bring this Request for Order back on seven days notice for a determination of the issue;

g) the production of the Crown Brief and its contents is subject to a specific Order of the Tribunal upon notice to the Crown or with the consent of the Crown Attorney;

h) the records will include any names, address and contact telephone numbers provided for all involved non-parties but will not include their detailed personal health records and personal identifiers (including social insurance numbers, employment information, dates of birth, next of kin and driver's license information) unless such is directly related to the subject matter of the investigation; and

i) the Service shall make copies of the records required to be produced pursuant to paragraph 1 of this Order and shall personally serve, courier or mail such by trackable mail service to the requesting party/parties upon receipt of a copy of the Order of the Tribunal. The service shall be entitled to recover the reasonable costs arising from the production of the above noted documents..

Dated at Toronto, this 15th day of November, 2011.

”signed by”_____________

Eric Whist

Vice-chair