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: January 17, 2012

Citation: 2012 HRTO 103

Indexed as: Wright v. Dhawan

WRITTEN SUBMISSIONS

Shannon Wright, Applicant ) No submissions

Love Dhawan, Respondent ) Daniel McConville, Counsel )

Toronto Police Service ) Sie-Wing Khow, Counsel

Attorney General of Ontario ) Judith Parker, Counsel

[1] The Tribunal has issued a number of Interim Decisions in this matter addressing the disclosure of documents contained in a Crown Brief: see 2011 HRTO 739, 2011 HRTO 1047, and 2011 HRTO 1807.

[2] In Interim Decision 2011 HRTO 1807, the Tribunal ordered that the Crown Brief be produced to the parties, subject to the redaction of certain information and provided that the parties not disclose the documents outside the proceedings before the Tribunal.

[3] The purpose of this Interim Decision is to address a Request for an Order During Proceedings (“Request”) filed by the respondent seeking the production of documents in the Crown Brief that have not been disclosed (“Undisclosed Documents”) because the Toronto Police Service (“Police”) and/or the Crown deemed them to be irrelevant to the Application.

[4] For the reasons that follow, the respondent’s Request is denied. Based on the materials now before the Tribunal, I find that the Undisclosed Documents are not arguably relevant to the proceedings before the Tribunal. For this reason, they need not be disclosed.

OVERVIEW

[5] The 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 as well as reprisal or threat of reprisal. In essence, the applicant alleges that she was sexually harassed by the respondent in late 2008 and early 2009. The respondent denies the allegations.

[6] The applicant contacted police regarding the incidents that gave rise to this Application. Documents respecting the applicant and her interactions with police have been amassed in a Crown Brief. Based on the materials that have now been disclosed by the Crown, it is clear that the Crown Brief contains information regarding the incidents that gave rise to this Application as well as a number of documents relating to other interactions between the applicant and police.

[7] A portion of the Crown Brief was produced to the respondent’s criminal counsel in the course of criminal proceedings. The Undisclosed Documents were not, however, disclosed in the course of the criminal matter.

[8] The criminal proceeding has now concluded and any criminal charges laid against the respondent have been withdrawn.

[9] On March 15, 2011, the respondent filed a Request seeking the production of documents in the Crown Brief relating to what he understood to be other, similar complaints allegedly filed with police 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.

[10] The applicant originally opposed the Request.

[11] After considering submissions from the parties, the Tribunal concluded 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: 2011 HRTO 739 at paragraph 11. It then sought submissions from the parties, the Crown and the Police regarding, among other things, whether any privilege or immunity attaches to the Crown Brief in light of P.(D.) v. Wagg, 2002 CanLII 23611 (ON S.C.D.C.), 2004 CanLII 39048 (ON CA) (“Wagg”).

[12] The Crown and Police filed submissions and participated in a brief telephone conference, which was also attended by the parties. The Crown and Police indicated that, pursuant to the screening process established in Wagg, they did not object to the disclosure of the Crown Brief provided that certain personal information was redacted.

[13] During the conference call hearing, the applicant indicated that she was now prepared to consent to the disclosure of the Crown Brief. The Tribunal issued an Interim Decision, 2011 HRTO 1807, ordering production of the Crown Brief subject to certain conditions.

[14] One of the challenges of dealing with this type of disclosure request is that the Tribunal and the parties did not have access to the Crown Brief until its disclosure was actually ordered. Thus, the Tribunal’s finding regarding the arguable relevance of documents in the Crown Brief was made without the benefit of viewing the documents it contains.

[15] In response to the Tribunal’s Interim Decision requiring production of the Crown brief, the Crown disclosed a number of documents. In addition, the Crown has provided (to the Tribunal and to the parties) a list of the Undisclosed Documents, which they had identified as irrelevant to these proceedings. These latter documents have not been disclosed pursuant to the Tribunal’s Interim Decision, nor were they disclosed to the respondent in the criminal proceeding.

REQUEST FOR UNDISCLOSED DOCUMENTS

[16] On November 11, 2011, the respondent filed a Request seeking production of the documents contained within the Crown Brief that were not disclosed pursuant to the Interim Decision 2011 HRTO 1807 (the Undisclosed Documents).

[17] The respondent initially served his Request only upon the applicant. The applicant has not filed a Response to the Request and the time for doing so under the Tribunal’s Rules of Procedure has elapsed.

[18] In a Case Assessment Direction (“CAD”) dated November 22, 2011, the Tribunal directed that the respondent’s Request also be served upon the Crown and Police. The Crown and the Police were given an opportunity to respond in writing to the Request; they have now done so.

[19] The list of Undisclosed Documents provided by the Crown contains some descriptive information, including, for each document, the reason police were contacted and the applicant’s role in that contact. I am mindful of the applicant’s privacy and will therefore not describe the documents in question in more detail than is necessary. It is sufficient to say that the list of Undisclosed Documents shows that between 1996 and 2008, the applicant was a complainant (or in some cases a witness) in a number of matters involving police. Based on the descriptive information contained in the list, it appears that none of the Undisclosed Documents relates to a complaint of sexual harassment in the workplace. The vast majority of the Undisclosed Documents concern domestic incidents.

[20] The respondent argues that the Undisclosed Documents must be produced pursuant to the Tribunal’s earlier Interim Decision and given its ruling the Crown Brief is arguably relevant to this proceeding. He argues that his natural justice rights require production of the Undisclosed Documents and, further, that they are necessary in order for him to fully answer and defend against the allegations brought by the applicant. The respondent argues that the “inclusion of documents evidencing excessive police complaints made by the Applicant will assist the Tribunal in deciding the complaint”. In any event, he says that the Tribunal has already ruled that the documents in the Crown Brief are arguably relevant and the applicant has already consented to their disclosure.

[21] On November 23, 2011, counsel for the Crown wrote to counsel for the respondent in response to the CAD. This document was not filed with the Tribunal until December 23, 2011. The Crown takes the position that the Undisclosed Documents are not arguably relevant to the Application. Crown counsel wrote:

[22] I can advise that at this time, the Crown would oppose an order for the production of these records, as there is no foundation for their relevance. These were documents that were presumably found to be irrelevant to your client’s defence of criminal charges against him, with Charter rights engaged and criminal jeopardy, and the ruling in R. v. Stinchcombe controlling disclosure. It is difficult to see why they would now be relevant to a Human Rights complaint.

[23] Counsel for the Police has filed written submissions concurring with the Crown’s position. The Police also states that it objects to production of the Undisclosed Documents because they are not relevant to the Application.

[24] On January 16, 2012, as the Tribunal was preparing to issue this Interim Decision, the Crown filed additional written submissions opposing the Request. Counsel for the Crown stated that she had misunderstood the timeframe for filing her submissions. I have considered the Crown’s January 16, 2012 submissions in rendering this Interim Decision.

[25] In the Request, counsel for the respondent states that the criminal charges were withdrawn against the respondent before it was necessary to request additional documents. I understand that there has been no judicial determination of the arguable relevance of the Undisclosed Documents to the criminal proceedings.

ANALYSIS

[26] As I have indicated, the Tribunal has concluded that the existence (or not) of a number of previous, similar police complaints by the applicant is arguably relevant to the issues raised in the Application: 2011 HRTO 739 at paragraph 11. I note that the Tribunal’s finding of arguable relevance relates specifically to complaints by the applicant of a similar nature to those she has made against the respondent (i.e. sexual harassment).

[27] The respondent argues that the Tribunal has effectively concluded that the entirety of the Crown Brief is arguably relevant and ought to be disclosed. I do not accept that my finding of arguable relevance extends as far as the respondent suggests: see 2011 HRTO 739 at para. 11. Nor do I accept that the applicant’s interactions with police that are not of a sexual nature and/or do not relate to the workplace are arguably relevant to the allegations contained in the Application.

[28] The principles set out in King v. Toronto Police Services Board, 2009 HRTO 644 (“King”) regarding the arguable relevance of similar fact evidence in human rights proceedings are applicable here. See also Washington v. Toronto Police Services Board, 2009 HRTO 217 (“Washington”).

[29] Both King and Washington involve fact scenarios that are quite different from the one here. In those cases, the applicants alleged that they had been discriminated against because of the behaviour of police officers. Mr. King alleged discrimination based on sexual orientation. Mr. Washington alleged discrimination on the basis of race. Each applicant sought the disclosure of information contained in the personnel files of police officers. More specifically, they sought production of information relating to any other complaints made against the officers based on the Code-related ground identified in the application.

[30] Here, it is the respondent who is seeking disclosure of complaints the applicant made to police. Further, as I explain below, the scope of the respondent’s request for disclosure is broader than what was at issue in King or Washington. Here, the respondent is seeking the disclosure of all police complaints made by the applicant, not only those that are of a sexual nature or that relate to the workplace or to the ground of sex.

[31] In King, the Tribunal held that, in the human rights context, the potential relevance of similar fact evidence must not be approached narrowly. The Tribunal wrote (at para. 29):

[32] The term “similar fact evidence” has been afforded a much broader interpretation in the context of human rights proceedings, and may extend to evidence relating to other incidents of alleged discrimination on the same ground as alleged in the instant proceeding but which may not meet the traditional test for admissibility as “similar fact” evidence as that term has been interpreted and applied in the criminal law context. Such evidence may nonetheless be considered relevant and admissible in a human rights proceeding as evidence which reveals a discriminatory bias or prejudice on the part of the officer, provided that the probative value outweighs the prejudice, as considered in light of human rights values.

[33] The Tribunal’s approach to similar fact evidence, generally, has been informed by the particular context of human rights proceedings. As the Tribunal explained in Washington at para. 14:

Principles of disclosure and production are particularly important in human rights adjudication. Because discrimination is often subtle, difficult to prove, and may happen behind closed doors, an applicant or complainant regularly requires information in the possession of the respondent to make his or her case. The Code, unlike the criminal law, is not about punishment but about finding and eradicating discrimination. Tribunal cases often involve a determination of whether one or more of the grounds in the Code was a factor in the respondent’s actions, and the result may depend on whether this can be inferred from circumstantial evidence. The Tribunal is sensitive to the fact that to meet their burden of proof, parties alleging discrimination must frequently put together various pieces of evidence that support the conclusion that an action was discriminatory. For these and other reasons, principles from criminal law or civil litigation cannot be directly imported into human rights without a close evaluation of the context.

[34] It is not clear to me that these considerations mean that the Tribunal must also take a broad view of disclosure in cases where it is the respondent (rather than the applicant) who is seeking to obtain the production of documents. As the Tribunal suggests in Washington, applicants and respondents in human rights proceedings are not similarly situated.

[35] It is not, however, strictly necessary for me to determine whether the same broad approach must be applied to the respondent’s request for disclosure. In the circumstances of this case, even applying the broader interpretation of “similar fact evidence” set out in King, I find that the Undisclosed Documents are not arguably relevant to the Application.

[36] The list of Undisclosed Documents show that these documents relate to complaints by the applicant to police that are unrelated in time, place or circumstance to the incident giving rise to this Application. These documents do not relate to complaints of a similar nature to those that are the subject-matter of the Application; they concern complaints to police that are not of a sexual nature and/or are unrelated to a workplace.

[37] Even in its broader terms, the scope of what is arguably relevant (and therefore within the scope of the obligation to disclose) is defined by the allegations contained in the pleadings and the grounds of discrimination alleged: see King at para. 31. As the Tribunal explained in King, similar fact evidence may extend to evidence relating to other incidents of alleged discrimination on the same ground as alleged in the application.

[38] In the King case, the applicant alleged that various police officers had used overt ephithets that demeaned him based on his perceived sexual orientation. The Tribunal ordered the production of the documents from an officer’s personnel file that related to the subject-matter of the application as well as to other complaints or allegations of sexual orientation discrimination against the officer.

[39] Similarly, in Washington, the Tribunal ordered production of all complaints against the officers alleging racial profiling, racial discrimination and/or racial harassment, which were the grounds of discrimination alleged in that case. In Washington, the Tribunal accepted that evidence of all other complaints against the officers on the same alleged grounds of discrimination were arguably relevant.

[40] In both of those cases, the disclosure was limited to complaints of a similar nature, based on the grounds alleged in the relevant application. My findings in Interim Decision 2011 HRTO 786 regarding arguable relevance are consistent with this approach.

[41] The respondent argues that the applicant has made excessive complaints to police and that this fact is of assistance to the Tribunal in determining the issues raised in the Application. The respondent argues that all of the applicant’s complaints to police (whatever their nature) are arguably relevant.

[42] I disagree. As I have indicated, the Tribunal’s decisions in King and Washington do not support the respondent’s argument in this regard. The Undisclosed Documents are “similar” to the Application only in that they show that the applicant has had other contact with police.

[43] The irrelevance of unrelated complaints to police is further illustrated by the fact that no appropriate or useful inferences could be drawn from the number of complaints the applicant has made. The number of complaints or number of contacts may a product of the applicant’s life circumstances as much as it may be what the respondent refers to as excessive recourse to police. I cannot see how this information would be of assistance to the Tribunal in determining the issues raised in the Application.

[44] The respondent also argues that the Undisclosed Documents should be produced because the applicant has consented to the disclosure of the entire Crown Brief.

[45] The applicant was self-represented at the material times. Although she may not have set this out explicitly, the applicant gave her consent to disclosure in the context of the Tribunal’s earlier ruling regarding arguable relevance and only once the Police and Crown indicated they had no objections to disclosure. I find that the applicant consented to the disclosure of information contained in the Crown Brief that related to similar complaints to police. I do not accept that she consented to the disclosure of irrelevant documents, nor do I accept that the applicant’s consent in the circumstances is a basis for ordering the production of documents that are not arguably relevant.

[46] Finally, the respondent argues that he has a natural justice right to obtain the Undisclosed Documents, which he says he requires in order to make full answer and defence to the allegations against him. I accept, of course, that a respondent must have access to arguably relevant documents in order to respond to the allegations against him or her. However, there is no natural justice entitlement to documents that are not arguably relevant to the Application.

[47] I am mindful that the threshold for arguable relevance is a low one; it is a different issue entirely from the admissibility of evidence at the hearing of this matter. However, even applying the low threshold of arguable relevance and the broad approach to disclosure set out in King, I find that the Undisclosed Documents are not arguably relevant to the Application. Therefore, they need not be disclosed.

DECISION

[48] For all of these reasons, the respondent’s request for Undisclosed Documents is denied. I am not seized of this matter.

[49] Dated at Toronto, this 17th day of January, 2012.

”signed by”

Michelle Flaherty

Vice-chair