HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrea Pearson
Applicant
-and-
George Brown College
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Pearson v. George Brown College
WRITTEN SUBMISSIONS
Andrea Pearson, Applicant
Self-represented
George Brown College, Respondent
Patricia Murray, Counsel
1This is an Application filed on October 15, 2014 alleging discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The purpose of this Interim Decision is to address the applicant’s Request for Order dated August 26, 2015 seeking production of certain documents and information from the respondent. For the purpose of this Interim Decision, I also have reviewed and considered the respondent’s Response dated September 11, 2015.
3At the end of this decision, I also will address certain procedural matters relating to the upcoming hearing.
Applicant’s request for production
4The applicant first requests production of “a list of formal and informal complaints made to the disability services about the AEIP and/or instructors who teach in the AEIP in relation to accommodations (specifically being refused or given a hard time about being given access to their accommodations) and being questioned about being a ‘disabled’ student”. The respondent objects to making this disclosure.
5The test for production of documents is whether the documents sought are arguably relevant to a matter at issue in the proceeding. In relation to the documents sought by the applicant, these would fall into the category of potential similar fact evidence that may support the applicant’s allegations. Similar requests have previously been addressed by this Tribunal, in the context of requests for production of previous complaints against police officers and others on the ground alleged in the proceeding: see for example Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18; McKay v. Toronto Police Services Board, 2008 HRTO 98; Washington v. Toronto Police Services Board, 2009 HRTO 217; King v. Toronto Police Services Board, 2009 HRTO 644; Ogunyankin v. Queen’s University, 2010 HRTO 2248 (“Ogunyankin”); Bangura v. Ontario (Community and Social Services), 2012 HRTO 1459; Marshall v. Toronto Police Service, 2012 HRTO 1776.
6As I have previously stated in Ogunyankin, above, the consensus of this Tribunal is that disclosure of prior complaints generally will be ordered where they have been made against one of the personal respondents and relate to same ground of discrimination as being alleged by the applicant, although the nature of the issues raised in the specific proceeding may make a broader production order appropriate. In each case, the Tribunal will endeavour to balance the probative value of the material sought against the potential prejudicial impact on the respondent and/or the proceeding itself. In appropriate circumstances, this Tribunal may utilize an “O’Connor”-type procedure, whereby the documentation is produced initially only to the Tribunal for review and assessment as to arguable relevance before being disclosed to the requesting party.
7In objecting to making this type of disclosure, the respondent relies upon Labao v. Toronto Police Services Board, 2013 HRTO 723 (“Labao”). In that case, and unlike the authorities referenced above, the applicant was not seeking production of prior complaints about any specific individual on the basis of the ground alleged. Rather, the applicant was making a broad request for the respondent to review the personnel files of some 600 employees in order to compile certain information that she wanted. That is the nature of the request that was denied.
8The respondent also appears to rely upon the Labao decision and others to suggest that a production request of the nature made by the applicant in this proceeding will be denied when the Application does not allege “systemic discrimination”. In my view, that is not an accurate reflection of this Tribunal’s case law. I appreciate that the instant Application alleges that the applicant’s individual rights under the Code have been infringed due to her disabilities and does not allege systemic discrimination. At the same time, for all of the reasons set out in the authorities cited above, evidence of prior complaints relating to disability may provide similar fact or pattern evidence that is arguably relevant to the issue of whether the applicant’s personal rights were infringed.
9Having said that, the applicant’s request as framed is over-broad, as it would appear to capture any concerns raised with the respondent’s Disability Services department by any student in the AEIP (referring to the respondent’s American Sign Language English Interpreter Program). The respondent has indicated that it does not compile, track or keep records of complaints made to its Disability Services department.
10From the material filed by the respondent for the hearing in this matter, it is clear to me that the Disability Department does keep detailed records of its interactions with individual students who utilize its services, which (at least in the applicant’s case) include records of at least some of her complaints and concerns about discrimination or a failure to provide appropriate accommodation. However, in the absence of the identification by the applicant of any specific student who raised complaints or concerns similar to hers, the only reasonable way for the respondent to produce the documentation requested appears to be to require the respondent to conduct a detailed review of the communications by the Disability Services department with every student in the AEIP who utilized its services to see whether they had made a complaint about the program or any AEIP instructor in relation to accommodation of, or being questioned about, their disability. In my view, requiring the respondent to undertake such an extensive and time-consuming task in the absence of any specific student being identified by the applicant as the source of any such complaints would be disproportionate and prejudicial and would outweigh the potential probative value of any such material. As a result, the applicant’s first request is denied.
11The applicant next requests “a list of formal and informal complaints made to the college’s Human Rights Office regarding discrimination and bullying within the AEIP and/or against the instructors who teach in the program”. The respondent submits that “bullying” is not a human rights issue and therefore not relevant to this proceeding. While I agree that “bullying” unrelated to any Code-protected ground is not within this Tribunal’s jurisdiction, bullying that is related to a protected ground could amount to discrimination or harassment in violation of the Code. In any event, the applicant has expressly requested “discrimination” complaints in addition to her reference to “bullying”.
12From the materials filed by the parties, I am aware that the respondent has a formal complaint procedure under its Prevention of Discrimination and Harassment Policy. In my view, formal complaints under this policy are analogous to the kind of complaints that have been ordered disclosed in the authorities cited above, and may be arguably relevant to an issue raised in this proceeding.
13In this proceeding, the allegations raised by the applicant pertain not to the AEIP generally, but to the coordinator of the program specifically. While initially named as a personal respondent to this proceeding, this individual was removed as a personal respondent by Interim Decision dated July 16, 2015 (2015 HRTO 936), on the basis that the organizational respondent was prepared to assume liability for the actions of this individual and there was no compelling reason to continue the proceeding against this person as a party. At the same time, the Interim Decision recognized that it was the actions of this specific individual that formed the basis of the applicant’s allegations of a violation of the Code because of her disabilities. Accordingly, if a formal complaint of discrimination because of disability has been made by a student against this specific individual under the respondent’s Prevention of Discrimination and Harassment Policy, in my view any documentation pertaining to that complaint is arguably relevant to the applicant’s allegations and ought to be disclosed. The existence of any such formal complaint(s) should be readily ascertainable, as they are required under the policy to be made to the Chair responsible for the AEIP and are provided to the respondent’s Diversity, Equity & Human Rights Services department.
14I am aware that an internal complaint procedure is generally a confidential process, and concerns may arise regarding the privacy of the student who made the complaint. As a result, if any such formal complaints of discrimination because of disability have been made under the respondent’s policy against this specific individual, it is my view that an O’Connor-type procedure may be appropriate. Accordingly, within 14 calendar days of the date of this Interim Decision, the respondent is directed to advise this Tribunal whether any such formal complaint(s) have been made against this specific individual and file only with the Tribunal any documents pertaining to any such complaint(s) for review and consideration as to arguable relevance. If there are any such documents, I will establish an appropriate process to invite submissions from the parties prior to making any final determination on this issue.
15With regard to the applicant’s request for “informal complaints”, under the policy these are identified as verbal discussions directly with the person who is alleged to have violated the policy in an effort to see if the matter can be successfully resolved. It does not appear that any records are required to be maintained by the respondent regarding this informal process, apart from a notation of any resolution and the date on which it occurred. In my view, notes of resolution of any informal complaints would not be arguably relevant to the issues in this proceeding, as they would not disclose the nature of the allegations raised in order to provide a foundation for potential similar fact or pattern evidence. As a result, this aspect of the applicant’s request is denied.
16The applicant also has requested production of “any letters sent to the college to complain about the treatment of students in the AEIP (formal, informal, and anonymous)”. In response to this request, the respondent has disclosed one anonymous letter dated December 18, 2013 and states that, in the absence of any further specifics as to the date, sender or intended recipient of any such letter(s), this is the only letter of complaint that has come to the respondent’s attention. The applicant states that she has been informed that additional letters were sent by “other people”, but does not identify who these other people are, to whom they are alleged to have sent any such letters, or when. In the absence of any such specifics, in my view there is an insufficient basis to support this request. Accordingly, the request is denied.
17The applicant next requests information regarding “how many students in the program on average are registered with the office for students with disabilities” and “of those students how many actually graduate from the program”. The respondent objects to this request on the basis that it does not understand what the applicant means as “on average”, such information is not readily accessible in a retrievable format, and the information is not relevant or useful.
18The applicant takes the position that, at the very least, information about the graduation rate for the AEIP should be available. The problem with this is that general information about the graduation rate, while it may indicate how difficult the program is, is not arguably relevant to the issues that are before this Tribunal for determination.
19The applicant next takes the position that, if the graduation rate for the AEIP is as low as indicated by the respondent, it should be easy to determine whether any program graduates were registered with Disability Services. The problem with this submission is that determining whether any program graduates were registered with Disability Services would provide no useful information in the absence of any comparative information regarding the number of such persons in the program as a whole. Even if such comparative information were available, in my view it would not assist this Tribunal in determining whether the applicant personally experienced discrimination in the manner alleged in the Application. There could be many reasons why students with disabilities were unable to complete the program, and the information sought would not be relevant one way or another to the applicant’s own allegations. Accordingly, this request is denied.
20Finally, the applicant requests a class list with students’ names and e-mail addresses which she says was passed around on the first day of a class being taught by the program coordinator. The respondent states that it has previously advised the applicant that it does not have any such list. The applicant notes that, at the time the respondent advised her of this, the instructors were still on vacation. She requests that the respondent look further into whether any such list exists once the AEIP instructors return. In my view, if any such list exists, it would be arguably relevant to an issue raised in the Application, and as such would be producible. The respondent is directed to make further inquiries of its AEIP instructors and to either produce any such document or confirm that it does not exist within 14 calendar days of the date of this Interim Decision.
Procedural matters
21The hearing in this matter is scheduled to proceed in Toronto on October 8 and 9, 2015. The parties have filed their hearing materials, which I have reviewed. Having reviewed the witness statements and letters filed by the applicant, I am concerned about the admissibility and relevance of the evidence proposed to be given by Andrew Mindszenthy, Sair Korb and Breanne Richards. These witnesses are not required to attend the hearing on the first hearing day, at which time I will invite submissions from the parties regarding these proposed witnesses and consider whether their testimony is admissible and relevant.
22Finally, as a matter of practice, I routinely offer the parties the opportunity to participate in mediation / adjudication at the outset of the hearing, which is a highly successful process implemented by the Tribunal whereby the assigned adjudicator, with the consent of the parties, engages in discussions with the parties to try to resolve the matter before proceeding with the hearing. This is done on the basis of the parties’ agreement that no objection will be taken to my ability to continue to hear and determine the matter on the basis of what occurred during the mediation phase of the process. The parties can advise at the outset of the hearing whether they agree to engage in this process.
ORDER
23For the foregoing reasons, I hereby make the following order:
a. Within 14 calendar days of the date of this Interim Decision, the respondent shall advise the Tribunal whether any formal complaints of discrimination because of disability have been made by a student under the respondent’s Prevention of Discrimination and Harassment Policy against the individual previously identified as a personal respondent to this proceeding, and file only with the Tribunal any documents pertaining to any such complaint(s);
b. The respondent shall make further inquiries of its AEIP instructors and, within 14 calendar days of the date of this Interim Decision, shall produce a class list with students’ names and e-mail addresses which was passed around on the first day of a class being taught by the AEIP coordinator or confirm that this document does not exist; and
c. In all other respects, the requests made by the applicant for production of documents and information are denied.
Dated at Toronto, this 18th day of September, 2015.
“Signed By”
Mark Hart
Vice-chair