Human Rights Tribunal of Ontario
B E T W E E N:
Tarek Ibrahim
Applicant
-and-
Hilton Toronto
Respondents
Interim decision
Adjudicator: Alison Renton
Date: November 22, 2011
Citation: 2011 HRTO 2109
Indexed as: Ibrahim v. Hilton Toronto
[1] This file is scheduled for hearing on January 20, 2012 pursuant to a Notice of Confirmation of Hearing dated July 19, 2011 (“the hearing notice”).
[2] On October 27, 2011, the respondent filed a Request for Order During Proceedings (“RFOP”) seeking production of the applicant’s arguably relevant documents. The respondent notes that in an email to the respondent dated August 8, 2011, the applicant acknowledged that there are documents in his possession that are arguably relevant, specifically: (1) sound recording of witnesses; (2) witness’ statements; (3) personal notes; and (4) picture from the men’s washroom. The respondent alleges that apart from disclosing the picture, the applicant has refused to disclose the remaining documents and has claimed privilege over them, although he has not set out the reason for claiming privilege. The respondent submits that it is prejudiced in preparing for the hearing without disclosure of these documents.
[3] The applicant filed a Response to the RFOP in which he states, “I am afraid that if I produce these documents, or name the witnesses, the respondent may intimidate them, so that they change their testimony, and/or are fearful to come forward, as has happened in the past, and is currently still happening”. The applicant provides what appear to be further allegations against the respondent in relation to events that occurred in September and October 2011.
Pre-Hearing Disclosure under the Rules of Procedure:
[4] Rules 16 and 17 of the Tribunal’s Rules of Procedure deal with parties’ pre-hearing disclosure obligations as follows:
RULE 16 DISCLOSURE OF DOCUMENTS
16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.
16.2 Unless otherwise ordered by the Tribunal, not later than 45 daysprior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of documents upon which the party intends to rely; and
b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.
16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:
a) a list of documents upon which the party intends to rely; and
b) a copy of each document contained on the list.
16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.
RULE 17 DISCLOSURE OF WITNESSES
17.1 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.
17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.
17.3 A copy of an expert witness’ written report, or full summary of proposed evidence, and curriculum vitae must accompany the witness list.
17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.
[5] Neither party has provided the Tribunal with a copy of the applicant’s August 8, 2011 email although the Tribunal did receive a copy of the applicant’s Form 23, dated August 8, 2011, indicating that he sent the respondent’s counsel disclosure of his arguably relevant documents. Rule 16.1 only requires that the list of arguably relevant documents and copies of such documents, except for material over which privilege is claimed, be delivered to the other party. At this point, neither the list nor the documents is required to be filed with the Tribunal. A list of witnesses and a statement of their anticipated evidence is not required to be delivered to the other party and filed with the Tribunal until 45 days before the hearing.
[6] In the Tribunal’s Guide for Preparing for a Hearing before the Human Rights Tribunal of Ontario (“the Guide”), at p. 3, and in relation to a party’s obligation to list and disclose arguably relevant documents, the Tribunal states, “Where privilege is claimed over any document, the party must describe the nature of the document and the reason for claiming that the document is privileged (e.g. the document is a communication between the party and its lawyer for the purpose of getting legal advice)…”. This is consistent with Rule 16.1(a).
[7] In Gorgani v. Sybase Canada, [2011 HRTO 415](https://www.minicounsel.ca/hrto/2011/415), in addressing issues pertaining to solicitor and client privilege, the Tribunal stated at paras. 24 and 25:
The purpose of Rule 16 and of disclosure requirements, generally, is to ensure a fair process. Arguably relevant documents must be available to the parties in advance of the hearing. This has the effect of facilitating settlement discussions and allowing the parties to adequately prepare for the hearing. It means that parties will not be surprised by information presented at the hearing and it does away with any “trial by ambush”.
There is no dispute that documents that fall within the solicitor-client privilege are the exception to this and need not be disclosed. While the privilege that exists between a party and its lawyers is closely protected, a claim of solicitor-client privilege may be challenged and can be subject to scrutiny. When an opposing party disputes a claim of solicitor-client privilege, the party seeking to rely on the privilege has the burden of establishing that it applies. Once the privilege is established, the documents enjoy broad protection from disclosure: Pritchard v. Ontario (Human Rights Commission), (2004) 2004 SCC 31, 238 D.L.R. (4th) 1 [(SCC)].
[8] The Tribunal has recognized different types of privilege such as solicitor-client, but has ordered production of documentation where documents are not privileged. See, for example, Leblanc v. Toronto Transit Commission, [2011 HRTO 1538](https://www.minicounsel.ca/hrto/2011/1538).
[9] The Tribunal directs the applicant to deliver to the respondent within three days from the date of this Interim Decision a description of the privilege that he asserts over each of the items identified in his list of arguably relevant documents over which he is claiming a privilege. If the respondent challenges the ground(s) of privilege, within three days of the date it receives the applicant’s description, it is directed to deliver to the applicant and file with the Tribunal the applicant’s privilege description and the reasons why the privilege claim is being challenged. The Tribunal will consider that information and may issue further case directions on this issue.
[10] The parties are not required to identify their witnesses and provide a summary of their witnesses’ anticipated evidence until 45 days before the hearing, as set out in Rule 17. Pages 4 – 6 of the Guide describe the requirements a party has to disclose their witnesses and ways of ensuring that they appear to testify, such as subpoenaing the witness to compel their attendance at a hearing. The parties are reminded that the Human Rights Code, R.S.O. 1990, c. H.19 contains an anti-reprisal section (section 8) and on its application form contains “association with a person identified by a ground listed above” under the grounds of discrimination.
Order
[11] Therefore, the Tribunal orders that:
within three days of the date of this Interim Decision, the applicant shall deliver to the respondent a description of the privilege(s) that he asserts over the items described in his list of arguably relevant documents over which he is claiming a privilege;
if the respondent challenges the ground(s) of privilege, within three days of the date it receives the applicant’s material, it is directed to deliver to the applicant and file with the Tribunal the applicant’s privileged description and the reasons why the privilege claim is being challenged.
Dated at Toronto, this 22nd day of November, 2011.
“Signed by”
Alison Renton
Vice-chair