Osmand Bangura v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, 2012 HRTO 1459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Osmand Bangura

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: July 26, 2012

Citation: 2012 HRTO 1459

Indexed as: Bangura v. Ontario (Community and Social Services)

1The applicant filed an Application on June 23, 2010, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination (including harassment) in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, sex and marital status. A grievance before the Public Service Grievance Board (PSGB) was withdrawn prior to a hearing on its merits.

2Hearing dates are set for August 15, 16 and 17, 2012. The date for disclosure of witness statements and documentary evidence was June 4, 2011. Both parties have filed witness statements and documents that may be relied upon as the hearing.

3On July 3, 2012, the applicant filed a Request for Order During Proceedings, asking that the respondents be ordered to produce the following:

a) all notes, e-mails/correspondence and other documents related [to] the impetus for commencing the investigation of the applicant as described in paragraph 15 of the Response

b) all notes, e-mails/correspondence and other documents related to the investigation and or discipline of “other FRO employees” referred to in paragraph 15 of the Response

c) all notes e-mails/correspondence and other documents related to the investigation and/or discipline of other employees who sent and received the e-mails, described in paragraph 16 of the Response, for which the applicant was disciplined, and

d) all notes, e-mails/correspondence and other documents related to the investigation and/or discipline of Robert Rotondo for his failure to seek a Conflict of Interest Determination/Declaration (“COID”) in a timely manner.

4In its response to the request for an order, the respondent also filed a request for an order that the tribunal prohibit the applicant from calling seven of the witnesses listed by the applicant as witnesses he was likely to call. I will deal with these two matters separately.

Applicant’s Request for Production of Documents

5The respondent agrees to disclose any additional documents related to the impetus for commencing the investigation of the applicant. However, the respondent objects to disclosing anything else would respond to the applicant's Request, citing considerations of privacy, alleging that the applicant is on an impermissible fishing expedition, and stating among other things that some of the material requested would constitute “impermissible similar fact evidence”, that there would be no probative value in evidence relating to other racialized employees because the Application “is not about systemic discrimination” and because the applicant has not particularized or alleged sufficient evidence that their situations were comparable.

6In my view, the applicant has confined the Request to matters properly within the scope of the Application, as the context of the request is clearly the investigation and discipline referred to in the Response. The crux of the Application is the applicant’s allegation that he was treated differently from non-racialized others in circumstances sufficiently similar to be appropriately comparable. This by its nature involves a comparison, and most of the information relevant to the comparison exercise is obviously in the hands of the respondent. Documents related to how other employees were dealt with in the investigation and discipline that is the subject of the Application is at least arguably relevant to the subject matter of the Application. The respondents may wish to establish that other non-racialized individuals were treated similarly, and/or that the non-racialized individuals treated differently were treated differently for reasons that rebut the applicant's allegations of discrimination. However, this cannot be done without evidence.

7I agree with previous Tribunal jurisprudence that “[i]t would be objectionable for a tribunal to uphold a complaint based on past conduct alone and similar fact evidence must never become a substitute for evidence supporting the allegations themselves … . The absence of similar fact evidence should not be fatal to a complaint, nor should the reception of similar fact evidence, without more, be determinative of one”: Hewstan v. Auchinleck (1997), 1997 CanLII 699 (CHRT), 29 C.H.R.R. D/309 (C.H.R.T.), referred to in Jeffrey v. Dofasco, 2001 CanLII 26216, 39 C.H.R.R. 500 (ON H.R.T.). Having said this, there is ample authority for its admissibility where probative value outweighs prejudicial effect; see for example Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252. In Washington v. Toronto Police Services Board, 2009 HRTO 217 at para. 18, the Tribunal reviewed the law on balancing probative value and prejudicial effect in relation to this type of evidence, in the context of human rights adjudication and values, which are different than those applied in criminal proceedings.

8In the alternative, the respondent has requested that the documents that would respond to the Request be subjected to the O’Connor-type (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411) production procedure ordered in the Washington decision (above), whereby the records are produced first to the Tribunal for review and balancing of probative value versus potential prejudice.

9The Tribunal has considered this type of request in decisions such as Marshall v. Toronto Police Services, 2012 HRTO 966 , and King v. Toronto Police Services Board, 2009 HRTO 644 , 2009 HRTO 644. At this point, because of the differences between the human rights process and the process of a criminal trial that was the origin of O’Connor-type production, a number of factors are considered in deciding whether to depart from the ordinary principles that apply to production and disclosure in a human rights proceeding. In this case, the applicant has not requested a general review of employees’ files, but rather has confined the Request to documents related to a specific time period and a specific investigation. I do not think that departure from the ordinary principles that apply to production and disclosure in a human rights proceeding is warranted in this case. Having said that, some privacy protection measures will be included in the Order below.

The Respondent’s Request that the Applicant be Prohibited from Calling Witnesses

10I have dealt with the respondent’s argument about particularization. The respondent's other objections to certain of the applicant's proposed witnesses appear to focus on the arguments that the Application is “not about systemic discrimination”, that hearing the witnesses would make the hearing longer, and that proposed witnesses Michael Awe, Grace Ellington and Hamid Ramahani executed settlements.

11The phrase “systemic discrimination”, although considerably used in human rights discourse, is not an established term that precisely describes a particular situation. On its face, it simply indicates that discrimination is present in a system. The respondent has not explained why its view of the nature of the Application should determine what witnesses are called.

12There are certainly ways to make a hearing more efficient despite the presence of a number of witnesses. Insofar as the applicant and respondent can agree upon an agreed statement of facts, for example, this would be very helpful.

13The respondent has also not explained why the fact that the above noted witnesses executed settlements should bar them from testifying as to matters relevant to this Application. Without prejudice to the respondent’s right to argue at the hearing specifically as to why a witness might not testify, respondent's Request for an Order prohibiting the applicant from calling the named witnesses is dismissed.

ORDER

14Within two weeks of the date of this Order, the respondent shall provide the applicant and the Tribunal with the materials requested. No one in possession of these materials shall disclose them to anyone other than the parties to this proceeding or their legal counsel or publish it in any manner. As with any materials produced in a Tribunal proceeding, they may not be used for any purpose other than this litigation.

15I am not seized of this matter.