Wright v. Dhawan, 2011 HRTO 739

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: April 18, 2011

Citation: 2011 HRTO 739

Indexed as: Wright v. Dhawan

WRITTEN SUBMISSIONS

Shannon Wright, Applicant ) Natash Parsaud, Counsel

Love Dhawan, Respondent ) Richard Macklin, Counsel

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 personal respondent. The respondent denies the allegations.

3The matter has been set down for hearing on May 30 and 31, 2011.

4On March 15, 2011, the respondent filed a Request for an Order During Proceedings (“Request”) seeking the production of documents relating to other, similar complaints filed by the applicant. The respondent wrote:

Richard Goldman, defence counsel tot he Respondent in criminal charges laid by Shannon Wright (the “applicant/complainant”), that were withdrawn, has in his possession documents from the Crown brief pertaining to the complainant from the Toronto Police Service, detailing approximately fifty (50)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.

5The applicant opposes the Request. She argues that whether or not she has made fifty similar complaints to police is irrelevant to the issue raised in this Application.

6The purpose of this Interim Decision is to request further submissions from the parties.

ISSUES

7The Request raises the following issues:

a. are the documents sought arguably relevant to these proceedings?

b. if so, ought they to be disclosed in the circumstances?

ARGUABLE RELEVANCE

8The applicant argues that the Crown Brief is not arguably relevant to the proceedings. She argues that whether or not she has made fifty previous criminal complaints is not relevant to whether or not the sexual harassment alleged in the Application occurred.

9The principal argument in favour of production of these records, however, is that they may demonstrate a pattern of behaviour by the applicant that suggest that the allegations that form the basis of this Application are less credible and less likely to be true.

10I find that the only arguable relevance of the production sought in this case is as similar fact evidence. Similar fact evidence is, of course, an exception to the general rule that evidence of “good” or “bad” character is not admissible. I adopt the reasoning in Washington v. Toronto Police Services Board, 2009 HRTO 217, where the Tribunal held that similar fact evidence may be arguably relevant to a proceeding.

11In the circumstances, I find that the existence (or not) of a number of previous, similar complaints by the applicant is arguably relevant to the issues raised in the Application. At this stage of the proceeding, I make no finding as to whether or not the documents must be produced or whether they would be admissible at the hearing of this matter.

ADDITIONAL SUBMISSIONS

12As the Tribunal stated in Lampi v. Princess House Products Inc., 2008 HRTO 1 (at para. 10) and in Washington, supra, documents that are arguably relevant will not be disclosed if:

a. they are privileged;

b. considered in light of human rights principles, their probative value is outweighed by the potential prejudice to the party producing them; or

c. if the timing of the request risks derailing a just and expeditious hearing.

13The parties have not made submissions on these issues and, in the circumstances, It is appropriate to give them an opportunity to do so.

14Within two weeks of this Interim Decision, the respondent may file with the Tribunal and provide to the applicant written submissions in support of the Request.

15Within four weeks of this Interim Decision, , the applicant may file with the Tribunal and provide to the respondent written submissions in response.

16Within five weeks of this Interim Decision, the respondent may file reply submissions with the Tribunal and provide a copy to the applicant.

17The parties’ written submissions should address:

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. In addition to other relevant case law, the parties’ submissions in this regard ought to address Tribunal jurisprudence, including Washington, supra.

b. whether any privilege or immunity attaches to the documents sought. The parties’ submissions should address P.(D.) v. Wagg, 2002 CanLII 23611 (ON S.C.D.C.).

18The May 30 hearing date is adjourned. The Tribunal will provide further direction to the parties once the submissions have been filed. In particular, the Tribunal will provide direction regarding the May 31 hearing date and whether it is appropriate to hear oral submissions from the parties regarding the Request at that time.