Roch Longueépée v. University of Waterloo, 2015 HRTO 1016

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roch Longueépée

Applicant

-and-

University of Waterloo

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: July 30, 2015

Citation: 2015 HRTO 1016

Indexed as: Longueépée v. University of Waterloo

WRITTEN SUBMISSIONS

Roch Longueépée, Applicant

Self-represented

University of Waterloo, Respondent

Sian Williams, Counsel

Introduction

1The Application under the Human Rights Code, R.S.O. 1990, c. H.19, concerns the respondent’s decision to deny the applicant’s application for admission to an academic program at the university.

2This Interim Decision addresses the applicant’s request for the names of all of the members of the Admissions Committee – the committee that considered the applicant’s application for admission – and production of all of the documents from or to the members of the Admissions Committee relating to the applicant’s application for admission.

3The respondent objects to the applicant’s production request. With respect to the applicant’s request for production of documents from the Admissions Committee, the respondent asserts the documents are protected from production under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”), and are subject to solicitor/client or litigation privilege. The respondent agrees to provide the names of the members of the Admissions Committee, in addition to the two members that it has already identified, provided the applicant gives an undertaking that he will not harass, telephone, email or communicate by any means with any member of the Admissions Committee.

Production of Documents

4The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The applicant has the burden of demonstrating that the documents sought are “arguably relevant” to the issues in dispute in the proceeding before the Tribunal.

5A party’s obligation to disclose all arguably relevant documents is set out in Rule 16.1 of the Tribunal’s Rules of Procedure. A party is required to list all arguably relevant documents in their possession. Where privilege is claimed over any document, a party must describe the nature of the document and the reason for making the claim. A party must provide a copy of each document contained on the list, excluding any documents for which privilege is claimed.

6The respondent argues documents to and from members of the Admissions Committee relating to the applicant’s application for admission do not have to be disclosed under FIPPA and/or are protected by solicitor/client or litigation privilege.

7With respect to the respondent’s first argument, it relies on sections 13(1) and 49(c.1)(ii) of FIPPA, which state:

13(1) A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by the institution.

49 A head may refuse to disclose to the individual to whom the information relates personal information,

(c.1) if the information is supplied explicitly or implicitly in confidence and is evaluative or opinion material compiled solely for the purpose of,

(ii) determining suitability, eligibility or qualifications for admission to an academic program of an educational institution or a hospital…

8The applicant submits FIPPA specifically precludes the respondent from relying on it as a shield against its disclosure obligations, and ensures that the Tribunal retains its own jurisdiction to compel production of information and documents necessary in this proceeding. He relies on subsections 64(1) and (2) of FIPPA, which state:

64(1) This Act does not impose any limitation on the information otherwise available by law to a party to litigation.

64(2) This Act does not affect the power of a court or a tribunal to compel a witness to testify of compel the production of a document.

9I agree with the applicant that based on the clear wording of section 64(1), FIPPA does not limit my power to order disclosure of documents from the Admissions Committee. This ruling is consistent with the Tribunal’s decision in Tubbs v. Universal Workers Union (Labourers’ International Union of North America, Local 183, 2006 HRTO 3. See also Ontario Lottery and Gaming Corporation (Re), 2004 CanLII 56400 (ON IPC) at pp. 4-7

10With respect to the respondent’s second argument against production, it asserts the documents sought are protected from disclosure on the basis of solicitor/client or litigation privilege.

11A useful analysis of the issue of privilege is set out in Gorgani v. Sybase Canada, 2011 HRTO 514. As Rule 16.1 of the Tribunal’s Rules of Procedure and the analysis in that decision make clear, it is not sufficient for the respondent to simply invoke a privilege as a reason not to disclose arguably relevant documents without supplying a justification.

12The documents from or to the members of the Admissions Committee are arguably relevant to the issues in this proceeding. The Admissions Committee made the decision to deny the applicant admission to an academic program. This decision is the central issue before me. As such, the respondent must produce to the applicant and the Tribunal all of the documents from and to the members of the Admissions Committee in relation to the applicant’s application for admission, subject to any claim of solicitor/client and/or litigation privilege asserted by the respondent.

13In the event the respondent asserts privilege in relation to any of the Admissions Committee documents, the respondent is directed to provide to the applicant and the Tribunal the following information:

• the number of documents over which privilege is claimed;
• the nature of the privilege or privileges claimed and the number of documents that fall within the categories of privilege claimed;
• the nature of the relationship between the sender and receiver of the documents;
• the number of documents over which privilege is claimed that pre-date the filing of the Application;
• the number of documents over which privilege is claimed that post-date the filing of the Application.

14If, upon receiving this information, the applicant still takes issue with the assertion of privilege by the respondent, he can make a request in accordance with the Tribunal’s Rules that I review the documents in order to determine whether the claim of privilege is properly asserted. The applicant should give reasons as to why this review is required. The respondent will be able to respond to that request.

Names of the Members of the Admissions Committee

15The respondent has advised that there were seven people on the Admissions Committee that considered the applicant’s application for admission. It has disclosed two members of that committee: Samantha Murray and Eric Jardin.

16The respondent has agreed to provide the names of the remaining members of the Admissions Committee provided that the applicant, through his counsel, undertakes not to harass, telephone, email or communicate with them. As the applicant is no longer represented by counsel, I assume the undertaking requested is from the applicant himself.

17The respondent provided no explanation as to the reason for this request. In the absence of any basis for the respondent’s request that the applicant not contact the members of the Admissions Committee, I will not consider it. Given this ruling, it is not necessary for me to decide whether I have jurisdiction to require the applicant to give such an undertaking.

18The respondent is directed to provide the names of the members of the Admissions Committee to the applicant and the Tribunal. This information is arguably relevant to the issues in this proceeding.

19After reviewing the production from the respondent, the applicant may make a request in accordance with the Tribunal’s Rules to compel the attendance of other members of the Admissions Committee as witnesses in the hearing before me. The respondent will have an opportunity to respond to that request.

20In conclusion, the documents from and to the members of the Admissions Committee and the names of the members are arguably relevant to the issues in this proceeding. The applicant’s request for production of these documents and information is appropriate and not in any way frivolous or vexatious as asserted by the respondent.

ORDER

21On or before August 21, 2015, the respondent will provide to the applicant and the Tribunal the following documents/information:

a. The names of the members of the Admissions Committee;

b. The documents from or to the members of the Admissions Committee subject to the respondent’s claim of privilege. Where privilege is claimed, the respondent must provide the information set out in paragraph 13 above.