McWilliam v. Toronto Police Services Board, 2016 HRTO 801

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather McWilliam

Applicant

-and-

Toronto Police Services Board and Angelo Costa

Respondents

-and-

Toronto Police Association

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: June 14, 2016

Citation: 2016 HRTO 801

Indexed as: McWilliam v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Heather McWilliam, Applicant

Kate Hughes and Nadia Lambek, Counsel

Toronto Police Services Board and Angelo Costa, Respondents

Amandi Esonwanne, Counsel

Special Investigations Unit, Third Party

Emtiaz Bala and Nansy Ghobrial, Counsel

1This Interim Decision addresses the third party Request for Order During Proceedings (“RFOP”) filed by the respondents seeking materials from the Special Investigations Unit (“SIU”).

2By Application dated September 3, 2014, the applicant alleged that the respondents discriminated and reprised against her contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Specifically, she alleged that she was subject to a poisoned work environment, sexual harassment and sexual solicitation or advances. She also alleged that the organizational respondent did not adequately investigate her complaints and subjected her to reprisals for enforcing her rights under the Code. The respondents deny all of the applicant’s allegations.

3One of the allegations made by the applicant against the personal respondent was investigated by the Special Investigations Unit (“SIU”). As part of its investigation the SIU interviewed the applicant and four employees of the organizational respondent.

respondents’ Production request

4The respondents requested production from the applicant of the statement she made to the SIU as well as the complete file relating to the SIU investigation of her allegation against the personal respondent. In Interim Decision, 2016 HRTO 449, I found that at least some of the materials relating to the SIU investigation are arguably relevant to the issues in dispute in this proceeding. I found that this was the case in particular, with respect to prior statements made by the applicant and other witnesses to the SIU. I noted that credibility will be a significant issue in this case. Therefore any prior statement by the applicant or other witnesses is at least arguably relevant to this proceeding.

5In the Interim Decision, I found that it was not appropriate for only the applicant’s statement to be produced in isolation without other witness statements also being produced. Since the SIU is an independent third party, I directed the respondents to file a third party production request and serve it on the SIU if it wished to obtain production of materials in the possession of the SIU.

6The respondents did so. The SIU did not oppose the production of the materials in its file relating the applicant’s complaint against the personal respondent except for the following:

a. The SIU Director’s Report to the Attorney General;

b. All witness statements including any derivative records therefrom; and

c. A Freedom of Information (“FOI”) Request relating to the SIU’s file and any correspondence related thereto.

Findings

7It is well-established that the basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

8In paragraphs 12 and 13 of McKay v. Toronto Police Services Board, 2009 HRTO 1220, the Tribunal set out the appropriate analysis as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLII 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: […]. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

9As noted above, I have already found that at least some of the materials relating to the SIU investigation are arguably relevant to the issues in dispute in this proceeding. In particular, I found that the statements made by the applicant and other witnesses to the SIU are arguably relevant to the issues in dispute before this Tribunal.

10The remaining issues I must decide are (1) whether the two other sets of records that the SIU has declined to produce are also arguably relevant and (2) whether there any other issues or concerns, such as privilege or privacy, which may make production inappropriate or require a determination of terms and conditions upon which production should be ordered.

Arguable Relevance of Two Other Set of Records

SIU Director’s Report

11The SIU submitted that the Director’s Report is not arguably relevant to this proceeding because it is a restatement of all the witness statements and an analysis of why the prosecution was not commenced against the personal respondent. The SIU relies upon decisions in which courts have refused to order production of the SIU Director’s Report. In these decisions, courts refused to order production on the basis that the Report was derivative of other sources of information in the investigation file and that the analysis in the report was not relevant to the issues arising the civil proceedings in which production of the Report was sought. See, for example, Stein v. Windsor Police Services Board, 2013 ONCA 323.

12The respondents submit that the Director’s Report is arguably relevant to the issues in dispute in this case on the basis that the applicant has put in issue the investigations conducted by the SIU. The respondents point to a statement in the applicant’s Reply in which she states that the SIU investigation was inadequate, untimely and cannot be relied upon. The respondents state that the applicant has made allegations of collusion between the respondents and the SIU which could lead to an assessment of damages against the organizational respondent. Finally, the respondents submit that the SIU appears to have reached the same conclusion that the organizational respondent’s Professional Standards unit (“PRS”) reached. As a result, they submit that the lead investigator's assessment of the case and the Director's analysis are relevant comparators in helping the Tribunal determine the standard that the PRS investigation should have met.

13I am not persuaded that the Director’s Report is arguably relevant to the issues I have to decide in this case. While the respondents distinguished the cases relied upon by the SIU, they have not pointed to any cases in which courts or tribunals have found an SIU Director’s Report to be arguably relevant and ordered its production. I am also not persuaded that the SIU’s assessment or the procedures it used during the investigation have any relevance as comparators for an investigation into discrimination complaints under the Code. In determining whether the organizational respondent responded appropriately to the applicant’s complaints, I must apply the analysis found in the case law decided by the Tribunal and courts under the Code. In addition, I am not bound by the Director’s assessment of the applicant’s complaint and must make my own determination of the allegations raised in the Application.

14Finally, and parenthetically, I note that it appears from para. 20 of the respondent’s Response that the PRS received a copy of the SIU’s investigative report prior to the filing of the Response. If this is accurate, this factor too would weigh against ordering disclosure.

15For the above reasons, I find that the SIU Director’s Report is not arguably relevant to the issues in dispute in this case and therefore it need not be produced.

Reference to Freedom of Information Request

16The SIU submitted that the FOI request and correspondence related to it is subject to the protection for personal information contained in the Freedom of Information and Protection of Privacy Act, R.S.O. 1990 c. F.31.

17I am not persuaded that the name of the FOI requester and any associated correspondence has any arguable relevance to the issues in dispute in this proceeding. Therefore, it does not have to be produced.

Confidentiality Concerns re. Arguably Relevant Documents

18In its Response to the respondents’ production request, the SIU opposed production of the witness statements and any derivative records on the basis that the witnesses did not provide their consent to the disclosure of the statements. The SIU submitted that all witnesses were provided with a confidentiality assurance. It submitted that its ability to secure the cooperation of witnesses could well be impaired if the Tribunal were to order the release of the statements.

19I do not accept these submissions. A review of the case law from courts in civil proceedings reveals that, in several cases, the courts have ordered the production of witness statements despite the confidentiality concerns asserted by the SIU. See, for example, Mcgillivary v. Toronto Police Services Board, 2014 ONSC 865; Kennedy v. Petrucci, 2013 ONSC and Stafford v. Adams, 2009 CanLII 40561. Courts have also declined to order the production of witness statements in other cases. In all cases, the courts have weighed the needs of the parties seeking production against the interests of any non-party witnesses.

20In this case, as I have already found, the witness statements are arguably relevant, as they were provided in the investigation of one of the allegations raised in the applicant’s Application to this Tribunal. This case will turn on credibility. Therefore, prior statements provided by the applicant and witnesses who will appear before this Tribunal are arguably relevant to testing the testimony provided in this proceeding. In my view any impact of the disclosure of the witness statements and derivative records is outweighed by the importance of disclosure in ensuring the Tribunal has access to relevant evidence to make an appropriate decision in this case. In my view, any confidentiality assurances must be understood to be subject to the operation of law, whether in courts or administrative tribunals such as this one.

21For these reasons, I find that the witness statements and derivative records associated with these statements must be produced to the parties in this case.

replies to RFOPs

22The parties should take note that the Tribunal’s Rules of Procedure do not provide for the filing of replies to RFOPs. The parties should refrain from continuing to file correspondence replying to the correspondence filed by the other party. If the Tribunal’s requires a reply from a party, it will direct that party to file a reply. Otherwise, the parties should limit themselves to the request/response procedure set out in the Tribunal’s Rules of Procedure.

order

23For the above reasons, the Tribunal orders as follows:

a. Within 14 days of the date of this Interim Decision, the SIU shall produce to the respondents, the applicant and the intervenor a copy of its investigation file relating to the applicant’s complaint against the personal respondent with the exception of the following records:

i. the SIU Director’s Report; and

ii. the FOI request made by for the file and any correspondence related to this request.