Williams v. Toronto Transit Commission, 2014 HRTO 327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Williams

Applicant

-and-

Toronto Transit Commission, Lori MacGregor and Nick Valente

Respondents

-and-

Amalgamated Transit Union, Local 113

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 11, 2014

Citation: 2014 HRTO 327

Indexed as: Williams v. Toronto Transit Commission

APPEARANCES

Donald Williams, Applicant

Harry Kopyto, Representative

Toronto Transit Commission, Lori MacGregor and Nick Valente, Respondents

Lucy Siraco, Counsel

Amalgamated Transit Union, Local 113, Intervenor

Robert Whillans, Counsel

Introduction

1This Interim Decision addresses the respondents’ request that the Tribunal dismiss the Application, or strike portions of it, on the basis that the Application is founded upon confidential and improperly obtained information.

Summary of Procedural History

2The applicant filed the Application on June 28, 2010 alleging that the respondents discriminated and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that he experienced discrimination and reprisal in the workplace because of his association with one of his co-workers, EM, who is a person allegedly identified by a Code ground. EM had filed a grievance against the Toronto Transit Commission (“TTC”) alleging unfair dismissal after raising human rights concerns in the workplace. This grievance was referred to arbitration before arbitrator Louisa Davie.

3By way of Interim Decision, 2011 HRTO 1241, the Tribunal deferred the Application pending the conclusion of a motion to dismiss the grievance made by the TTC in the arbitration proceeding. The TTC sought a dismissal of the grievance due to EM’s dissemination of confidential information in breach of her non-disclosure obligations.

4By decision dated June 17, 2012, arbitrator Davie found that EM had improperly disseminated confidential information. However, the arbitrator denied the TTC’s request to dismiss the grievance. The applicant’s allegations in the Application rely heavily upon the confidential information disclosed by EM.

5By Interim Decision, 2012 HRTO 1982, dated October 18, 2012, the Tribunal granted the applicant’s request to re-activate his Application. It also ordered a preliminary hearing by teleconference to address the respondents’ request that the Application should be dismissed.

6The preliminary hearing was held on January 14, 2014.

7Although I have doubts as to the applicant’s testimony and written representations about how he obtained the documents referenced in his Application, I conclude that I cannot dismiss the Application, or strike parts of it, on any of the grounds raised by the respondents.

Respondents’ Request to Dismiss/Strike

8The respondents requested that the Tribunal dismiss the Application in its entirety because it was triggered by, and based upon, confidential and improperly obtained information. Alternatively, the respondents requested that the Tribunal strike the paragraphs of the Application relating to the confidential and improperly obtained information.

Factual Background

Arbitrator Davie’s Orders and Decision

9The grievance filed by the applicant’s co-worker, EM, proceeded to arbitration sometime in or around 2010. An issue arose at the arbitration with respect to EM’s breach of the implied undertaking rule which prohibited her from using any of the documents produced at the arbitration for any purpose unrelated to the arbitration. In November 2010, arbitrator Davie issued an oral ruling specifically prohibiting any party from disclosing documents produced as a result of the arbitration proceedings or during the course of the hearing. Arbitrator Davie also ordered all parties and participants to the hearing not to discuss the evidence and submissions made at the hearing with persons who were not parties or participants to the arbitration proceeding.

10In May 2012, the TTC brought a motion to summarily dismiss EM’s grievance. According to the arbitrator’s decision, the basis of the motion included EM’s alleged breach of the implied undertaking rule and the arbitrator’s confidentiality order, an alleged abuse of process, and alleged intimidation of witnesses.

11During the hearing of the motion, EM admitted that she had discussed the documents produced by the TTC with the applicant. Specifically, she admitted to discussing with the applicant the contents of interviews conducted by the TTC’s Human Rights Unit (“HRU”) during EM’s internal human rights complaint against the two personal respondents to this Application. EM admitted that she discussed with the applicant the testimony given by the personal respondent, Lori MacGregor, at the arbitration. She also admitted that she discussed with the applicant an occurrence report filed by Ms. MacGregor and that she provided the applicant a copy of the occurrence report.

12In her decision, the arbitrator noted that, in his Application, the applicant used direct and verbatim quotes from the HRU’s interviews with the personal respondents to this Application. The arbitrator also noted that the applicant referenced the occurrence report filed by Ms. MacGregor which he said he “had the opportunity to review”.

13Overall, the arbitrator found that EM’s attempts to justify her conduct were self-serving and that her evidence was unreliable and, at times, subject to a number of deficiencies including evasiveness, and a general lack of candor and honesty. The arbitrator found that EM’s testimony that she only discussed the HRU investigative files with the applicant, but did not give him a copy of them, “stretche[d] credulity”. Among other things, the arbitrator found it likely that EM had filed, and then abandoned, a frivolous human rights complaint against the personal respondents to this Application as a reactive and retaliatory measure after her dismissal.

14In the end, the arbitrator denied the TTC’s request to summarily dismiss EM’s grievance. However, she did agree with the TTC that EM had violated the implied undertaking rule by communicating the contents of the HRU investigative file to the applicant. The arbitrator found that this violation was not sufficient to warrant the summary dismissal of the grievance, especially since the applicant disclosed these documents prior to the arbitrator’s oral confidentiality order. The arbitrator stated that she was not prepared to impute knowledge of the implied undertaking rule to the applicant.

15The arbitrator held that EM’s disclosure of the occurrence report to the applicant was a breach of her confidentiality order. The arbitrator noted that, even absent her order, EM knew or should have known that the occurrence report and the investigative file were to be kept confidential as they were marked “strictly confidential”. The arbitrator noted that EM should have cautioned the applicant about maintaining the confidentiality of the documents that she had disclosed to him. The arbitrator found that serious consequences should flow from this breach. However, she found that the summary dismissal of her grievance was too severe a consequence in the circumstances.

16The arbitrator also held that EM’s most serious breach of confidence occurred when EM sought to have Ms. MacGregor charged under the union’s constitution. According to the arbitrator, EM and the applicant attached the occurrence report to an affidavit sworn by the applicant and circulated to union members. The arbitrator found that this was a serious breach of confidence. However, as with the other breaches set out above, she found that the breach did not warrant a summary dismissal of EM’s grievance.

17In reaching her decision, the arbitrator stated that she had to balance and weigh various factors and interests including the labour relations community’s interest in the integrity of the grievance arbitration process, the job interests of EM, the interests of the witnesses and the employer’s entitlement to a fair hearing. Ultimately, after having balanced these factors, she was not satisfied that EM’s behaviour warranted summarily dismissing her grievance, or that her breaches of confidentiality made a fair hearing impossible.

Applicant’s Use of Information from EM

18In his Application, the applicant claims that the respondents denied him overtime as a reprisal and due to his association with EM. The applicant is licensed as a paralegal and had provided legal assistance to EM at various points in time. In the Application, the applicant quotes directly from the interviews that the HRU conducted with the personal respondents as part of its investigation of EM’s complaint. He also attached to his Application an affidavit in which he stated that EM told him about Ms. MacGregor’s testimony at the arbitration. He also stated that he “was given” a copy of the occurrence report filed by Ms. MacGregor and he attached a copy of the occurrence report as an exhibit to his affidavit.

19In his Reply filed with the Tribunal, the applicant claimed that at no time did he state whether he had copies of the personal respondents’ interviews with the HRU. He also claimed that at no time had he stated that he received the occurrence report from EM. I find that these statements are misleading in light of EM’s evidence accepted by arbitrator Davie and the applicant’s testimony at the preliminary hearing.

20In the preliminary hearing, I placed the applicant under oath and asked him direct questions about how he obtained the occurrence report and the information about the contents of the HRU interviews. I also permitted the respondents’ counsel to cross-examine the applicant on how he obtained this information.

21At the hearing the applicant admitted that EM had discussed the personal respondents’ HRU interviews with him. He testified that EM read the notes from the interviews in the HRU investigative file and that he recorded her reading of them on an audio tape. The applicant initially stated that he did not know that the interviews were made in the context of an HRU investigation. However, after the respondent’s counsel noted that the applicant himself had stated in his Application that these interviews were made in an HRU investigation, he admitted that EM had told him that the interview notes related to an HRU investigation. In the hearing, the applicant also admitted that he had received a copy of the occurrence report from EM. He also admitted that EM had discussed with him the testimony that Ms. Macgregor gave at the arbitration hearing. The applicant testified that EM gave him an envelope of documents at the same time that she gave him a copy of the occurrence report but he stated that he did not actually view these documents.

22The applicant testified that he was unaware of arbitrator Davie’s confidentiality order. He testified that EM had not told him that the information and documents were subject to arbitrator Davie’s confidentiality order. The applicant testified that EM had only told him that he was not to discuss the information with anyone but did not say why.

Parties’ Submissions

23The respondents requested that the Tribunal dismiss the Application or strike the paragraphs referring to the confidential information that the applicant obtained from EM. The respondents submitted that it would constitute an abuse of process to permit the applicant to rely upon this improperly obtained information. In addition, the respondents submitted that the Tribunal should dismiss the Application, or strike parts of it, because the disclosed information was subject to the doctrine of absolute privilege and/or the equitable doctrine of confidentiality.

24The applicant opposed the respondents’ request. He argued that he was unaware that the information and documents disclosed by EM were subject to orders against disclosure made by arbitrator Davie at the time EM gave him this information and documents. He also argued that the implied undertaking rule which applied to the arbitration documents and evidence did not apply to him as he was not a party to, or participant in, the arbitration. For these reasons, he submitted that it would not be an abuse of process to permit him to continue with this Application. He also submitted that neither the doctrine of absolute privilege nor the equitable doctrine of confidentiality apply to the information in question.

25I have doubts about the applicant’s credibility in the preliminary hearing. In my view, he was evasive in his testimony. He also made potentially misleading statements in the Reply he filed with the Tribunal as he sought to finesse the issue of how he had obtained copies of the investigative interviews and whether he had obtained the occurrence report from EM. Based on his testimony in the hearing, and also on EM’s evidence accepted by arbitrator Davie in her June 17, 2012 decision, it is clear that EM provided the applicant information about Ms. MacGregor’s testimony in the arbitration. EM also read to the applicant the verbatim contents of the personal respondents’ interviews with the HRU and told him that the interviews formed part of the HRU’s investigation. Finally, it was EM who provided the applicant with a copy of the occurrence report filed by Ms. MacGregor. As noted above, the arbitrator held that EM violated the implied undertaking rule as well as the arbitrator’s confidentiality order when she provided this confidential information to the applicant.

26The question before me is whether the applicant’s Application should be dismissed or parts of it struck due to his reliance on this information and documentation which was improperly disclosed to him by EM.

Analysis and Findings

Abuse of Process

27On the evidence before me at this point, I cannot conclude that permitting the Application to continue would be an abuse of process.

28The Tribunal has the power to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes: Rule A 8.1 of the Tribunal’s Rules of Procedure and s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.

29The doctrine of abuse of process engages the inherent power of a court or tribunal to prevent the misuse of its procedures in a way that would be manifestly unfair to a party in the litigation or would in some way bring the administration of justice into disrepute. See Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 at para. 37 and Waterloo (City) v. Wolfraim, 2007 ONCA 732 at para. 5.

30In the circumstances of this case, I have insufficient evidence to conclude that it would be an abuse of process to permit the applicant to rely upon documents and information disclosed to him by EM in breach of her confidentiality obligations. Although the respondents argued that to allow the Application to proceed in these circumstances would be an abuse of process, they have provided no caselaw in which any court or tribunal has dismissed a case as an abuse of process in circumstances such as those arising in this case. The rights protected under the Code are quasi-constitutional rights. In my view, there is insufficient evidence of wrongdoing on the applicant’s part to dismiss his Application as an abuse of process.

31My conclusion may have been otherwise if there was sufficient evidence that the applicant was aware that EM had disclosed the information to him in breach of her confidentiality obligations. Although, as I have noted, I have doubts about the applicant’s credibility, he testified that EM never told him she was breaching confidentiality orders by disclosing the information to him. I also note that arbitrator Davie appears to have accepted EM’s evidence that she did not tell the applicant that the information was to be held confidential. The arbitrator found in her decision that EM should have warned the applicant that the information was confidential. Moreover, I have been provided with no evidence that the applicant filed his Application simply as an attempt to intimidate the personal respondents or for some other vexatious purpose.

32I have made clear above that I have doubts about the applicant’s credibility due to his evasiveness both in his testimony and in his Reply filed with the Tribunal. However, in my view, these doubts about his credibility are not sufficient to dismiss his Application as an abuse of process.

33I note parenthetically that arbitrator Davie refused to dismiss EM’s grievance despite her breaches of confidentiality. According to the respondent, the basis for the TTC’s motion to dismiss the grievance related to an alleged intimidation of witnesses rather than abuse of process. However, one of the grounds for the motion stated in arbitrator Davie’s decision was abuse of process. As well, it is clear from arbitrator Davie’s decision that she balanced various factors including the integrity of the grievance process before deciding not to summarily dismiss EM’s grievance. In my view, EM’s breach of the arbitrator’s confidentiality order was more serious than the applicant’s reliance upon the information improperly disclosed by EM.

34For all the reasons set out above, I cannot conclude that it is an abuse of process to permit the Application to proceed and for the applicant to rely upon the information improperly disclosed to him by EM.

Absolute Privilege

35I find that the documents and information that EM disclosed to the applicant are not covered by the doctrine of absolute privilege.

36Absolute privilege is a common law principle that prohibits legal proceedings that are based on statements set out in writs, pleadings, or affidavits, or statements made by an adjudicator, counsel, or witness in a legal proceeding. See Hall v. Baxter, [1992] O.J. No. 525 at para. 10 and Dooley v. C.N. Weber Ltd. (1994), 1994 CanLII 7300 (ON CTGD), 19 O.R. (3d) 779 at para. 12 (Gen. Div.) (“Dooley”).

37One of the purposes of the privilege is to permit all persons taking part in legal proceedings to speak freely without fear that legal actions will be brought against them for statements made when fulfilling their role in the administration of justice. See Carlos v. 1174364 Ontario, 2009 HRTO 311 at para. 16 (“Carlos”) and Dooley, above, at paras. 13-20. Although absolute privilege is most often applied to protect against defamation suits, the privilege has been applied to other proceedings. This Tribunal has applied the doctrine of absolute privilege to dismiss human rights allegations that are based on statements made in legal pleadings or in the context of legal proceedings. See, for example, Ornelas v. Casamici Restaurant, 2010 HRTO 1078 and Carlos, above.

38In my view, the statements made by the personal respondents in the HRU investigation and the occurrence report are not covered by absolute privilege for two reasons. First, these statements were not made during, or incidental to, a judicial or quasi-judicial proceeding. Second, the cause of action in this case is not founded upon the statements. Instead, the applicant seeks to rely upon the statements as evidence to support his claim of discrimination and reprisal.

39On the first point, the respondents’ counsel sought to argue that the doctrine of absolute privilege should apply in this case because it has been applied to proceedings other than court or administrative tribunal proceedings. She noted that, in Byrne v. Maas, 2007 CanLII 49483 (ON SC), [2007] O.J. No. 4457, the Superior Court held that a letter of complaint, a statement during an investigation under the Police Services Act (“PSA”) and testimony as part of a proceeding under the PSA were all covered by absolute privilege. However, I note that the reason for this conclusion was the Court’s finding that the process under the PSA was a statutorily-mandated quasi-judicial process.

40Similarly, in Carlos, above, the Tribunal held that absolute privilege applied to statements made in Notices of Termination filed by the respondents with the Landlord Tenant Board. The reason for this conclusion was that such Notices of Termination commenced the proceeding before the Landlord Tenant Board. Unlike the circumstances in Byrne v. Maas and Carlos, the statements at issue in this case were not made during, or in any way incidental to, a legal proceeding. They were made in the context of an investigation by the TTC’s Human Rights Unit. I have been provided with no authority for the proposition that the doctrine of absolute privilege has ever been stretched to apply to this type of investigation. In the absence of any authority on point, I decline to extend the doctrine of absolute privilege so far as to apply to the HRU investigation.

41Second, as noted above, the doctrine of absolute privilege prohibits individuals from founding their causes of action upon statements made in the context of a legal proceeding. The respondent’s counsel submitted that the doctrine should apply in this case because the applicant’s cause of action is founded on the documents at issue. I cannot accept this submission. Unlike in the caselaw on absolute privilege, the applicant’s cause of action is not founded on the statements made by the personal respondents to the HRU or Ms. MacGregor’s statements in the occurrence report.

42As I understand it, the applicant’s claim is based instead on his allegation that he was denied overtime by the respondents. The statements by the personal respondents and the occurrence report are key pieces of evidence he seeks to rely upon to support his discrimination and reprisal claims. However, these claims of discrimination and reprisal are not founded upon any statements made in the documents in question. That is, the applicant is not claiming that any of the statements made in the HRU interviews and in the occurrence report are discriminatory in themselves. His claim is instead that they provide evidence to support his allegation that he was discriminated and reprised against by being denied overtime.

43For the reasons above, I find that the statements made by the personal respondents in the context of the HRU investigation and the occurrence report filed by Ms. MacGregor are not covered by absolute privilege.

Equitable Doctrine of Confidentiality

44I do not accept the respondents’ submissions that the Application should be dismissed, or portions of it struck, due to the application of the equitable doctrine of confidentiality.

45The respondents relied upon the Supreme Court of Canada’s decision in Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254 (“Slavutych”). In Slavutych, the appellant professor was asked to provide his written opinion of a colleague whose tenure was under consideration. His employer assured him strict confidentiality and told him the tenure sheet he was asked to complete would be destroyed at the end of the process. The employer ended up dismissing the professor because of the statements he made in the tenure sheet. An arbitration board upheld the dismissal. The Supreme Court allowed the professor’s appeal finding that the tenure sheet was inadmissible based on the well-known four part Wigmore test. The court also held that no charge against the professor could be based on the document.

46The respondents also sought to rely upon the Tribunal’s decision in Tubbs v. Universal Workers Union (Labourers' International Union of North America, Local 183), 2006 HRTO 3 (“Tubbs”). However, that decision dealt, not with a request to dismiss an Application, as in this case, but instead with a production request. The respondents in Tubbs sought production of the contents of a closed Ontario Human Rights Commission file pertaining to a complaint that the applicant had made against a different respondent. The Tribunal denied the production request in part due to the equitable doctrine of confidentiality. The Tribunal held that this doctrine ought to apply to prevent production of the Commission’s separate, closed and unreferred files involving different respondents.

47In my view, the facts of this case are clearly distinguishable from those in Slavutych and Tubbs. In Slavutych, the Court ruled that the tenure sheet in question was confidential and the equitable doctrine of confidentiality prevented its use to support the dismissal of the professor who filled it out. Instead, the respondents in this case are seeking to have the applicant’s Application dismissed because he is seeking to rely upon documents they claim would be confidential under the Wigmore test to make out his claim that he was discriminated or reprised against by being denied overtime. This is very different from a case, like Slavutych, where a party is seeking to rely upon a confidential document authored by another party to found a legal claim against that other party. The respondents have not provided me with any caselaw in which the Supreme Court’s reasoning in Slavutych has been applied to a case with facts that bear any similarity to those in this case. In my view, to apply the equitable doctrine of confidentiality in the circumstances of this case would be an unwarranted extension of the finding in Slavutych.

48I also find that the Tribunal’s decision in Tubbs does not support the respondents’ request to dismiss this case. As noted above, the issue in that case was a production request not a request to dismiss a human rights complaint.

49For the reasons set out above, I deny the respondents’ request that I dismiss the Application, or strike parts of it, due to the application of the equitable doctrine of confidentiality.

Respondents’ Other Preliminary Issues

50In their materials filed with the Tribunal, the respondents had raised two other preliminary issues in this case, neither of which were addressed in the Tribunal’s Interim Decision, 2012 HRTO 1982. First, the respondents submitted that the two personal respondents should be removed as respondents to the Application. It also submitted that the applicant’s allegations of reprisal and association with a person identified by a prohibited ground should be struck for failure to establish a prima facie case. The respondent included submissions on both of these issues with its submissions in support of its request to dismiss.

51In light of the substantial amount of time that has elapsed in this case for various reasons, I find that the most fair, just and expeditious way of proceeding is to direct the applicant to file written submissions on these two preliminary issues. To be clear, the second issue should be reframed as a submission that the applicant’s allegations stand no reasonable prospect of success under Rule 19A of the Tribunal’s Rules of Procedure and the caselaw applying that rule. See Dabic v. Windsor Police Service, 2010 HRTO 1994. The respondents may also file any submissions that are necessary to supplement the submissions made in April 2011. The Tribunal will review the parties’ written submissions on these two issues and advise the parties of the next steps in this Application.

Applicant’s Request to Record Proceedings

52The applicant requested that the Tribunal record the preliminary hearing in this case. The Tribunal advised that it does not normally record or transcribe its proceedings unless it is necessary as an accommodation under the Code. However, in accordance with the Tribunal’s Practice Direction on the Recording of Hearings, the Tribunal granted the applicant permission to record the teleconference hearing solely with the purpose of supplementing his notes. This permission was granted on the understanding that the applicant would provide a copy of any recording or transcription to the other parties and the Tribunal.

53I consider it appropriate to remind the parties that, pursuant to Rule 3.7 of the Tribunal’s Rules of Procedure, any recordings or transcriptions will not form part of the Tribunal's record of proceedings, including the record filed in court in respect of any application for judicial review. Perhaps most importantly, given the circumstances of this case, the recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal as a supplement for written notes.

54The applicant’s representative recorded the preliminary hearing using a small audio recorder. At the end of the hearing, he indicated that the audio recorder appeared to have malfunctioned and the audio tape appeared unusable. After hearing submissions from the parties, I directed that the applicant’s representative send the audio tape(s) to the Tribunal to verify whether any portion of the recording was usable. By Case Assessment Direction dated February 4, 2014, I advised the parties that, although the recording quality of the audio tapes was poor, some parts of the hearing were recorded on the audiotapes. I returned the audiotapes to the applicant so that he could make copies of the audiotape to file with the Tribunal and to provide to the other parties as required under the Tribunal’s Practice Direction on Recording Hearings. The applicant has to date failed to provide a copy of the audio recording to the Tribunal.

ORDER/directions

55For the reasons set out above, the respondents’ request to dismiss this Application, or strike parts of it, is denied.

56The Tribunal directs as follows:

a. The applicant shall file written submissions on the respondents’ requests that (1) the two personal respondents be removed as respondents to this Application and (2) the application stands no reasonable prospect of success.

b. The respondent is permitted to supplement the submissions that it has already filed on these issues if necessary.

c. Both sets of submissions must be filed within 14 days of the date of this Interim Decision. After having reviewed the parties’ submissions, the Tribunal will advise the parties of the next steps in this case.

d. Within 14 days of the date of this Interim Decision, the applicant is directed to provide the Tribunal and the other parties with a copy of the audio recording made of the preliminary hearing. Alternatively, the applicant may destroy the originals of the audio tapes from the hearing. If he pursues this option, he shall provide a statement to the Tribunal, copied to the other parties, declaring that the audio tapes of the preliminary hearing have been destroyed and that they were not used for any purpose other than to supplement the applicant’s notes of the hearing.

e. The parties are reminded of their obligation in Rule 3.3 to not use documents obtained under these Rules for any other purpose other than this proceeding.

57I am not seized.