Payne v. Ontario (Human Rights Comm.)

2000-05-09

Ontario Court of Appeal

Stephnie Payne

Applicant / Appellant

and

Ontario Human Rights Commission

Respondent

Date of Decision:

May 9, 2000

Before:

Ontario Court of Appeal, Abella, O'Conner and Sharpe JJ.A.

Decision No.:

C31619

Appeal from:

(1999), CHRR Doc. 99-238 (Ont. Ct. (Gen.Div.))

Appearances by:

Geri Sanson and Mark Hart, Counsel for the Appellant

Anthony D. Griffin, Counsel for the Respondent

HUMAN RIGHTS COMMISSIONS — appointment of board/tribunal reconsidered — discretion to dismiss complaint — authority to discontinue proceedings — authority to reconsider decision to appoint board/tribunal — deliberative secrecy — fairness in investigation of complaint — human rights commission's refusal to supply information from investigator's report — role of human rights commission — sufficient reasons for decision — APPEALS AND JUDICIAL REVIEW — human rights commission's decision to dismiss complaint

EVIDENCE — affidavit evidence — examination for discovery in judicial review proceedings — examination of witness in judicial review proceeding — PRODUCTION OF DOCUMENTS — production of documents in judicial review proceedings — examination for discovery — investigation file — PROCEDURE — examination for discovery of human rights commission member — procedural fairness — CONFIDENTIAL RECORDS — human rights commission's deliberation record

Summary: In a split decision the Ontario Court of Appeal ruled that Stephnie Payne was entitled to examine a senior Commission official to obtain further disclosure of the facts, arguments, and considerations that were presented to the Ontario Human Rights Commission when it decided not to refer her complaint to a Board of Inquiry for hearing.

Stephnie Payne, who is a black woman, was an employee of Youth Clinical Services Inc. ("YCS"), a counselling organization serving young people in Toronto. In early 1993, Ms. Payne was active in leading opposition to the musical Showboat, scheduled for the opening of the North York Centre for the Performing Arts later that year. Many people in the local black community opposed the staging of this musical on the grounds that it portrayed black people in a negative way. In a television interview, Ms. Payne said: "Most of the plays that portray Blacks... in a negative way is always done by a white man, and always usually a Jewish person is doing plays to denigrate us." Ms. Payne subsequently apologized publicly for her anti-Semitic remark. However, she refused to apologize to her Jewish co-workers at YCS or to deny the veracity of her comment.

Because Ms. Payne's remarks received considerable publicity, and Ms. Payne had conducted the interview at YCS, some colleagues at YCS were concerned about her comment's effect on the organization and its relations with the people it served. Tension ran high among Ms. Payne's co-workers. The Board and senior staff attempted to address concerns by conferring with staff members and by holding a day-long anti-racism workshop. Eleven months after the incident, when efforts to improve the divisive atmosphere had failed, the Board terminated Ms. Payne's employment.

Ms. Payne filed a human rights complaint alleging that there was an environment of systemic racism at YCS, that she was fired because she was a black woman, and that her termination constituted a reprisal against her for claiming her human rights.

In September 1996, the Commission considered a case analysis of Ms. Payne's complaint prepared by the staff. This report concluded that the evidence did not support a finding of systemic racism, but recommended that the allegations of termination based on race and reprisal be referred to a board of inquiry for hearing. At this meeting, however, Ms. Payne's complaint was "pulled" and staff were directed to undertake further investigation. At a subsequent meeting in March 1997, the Commission considered a second case analysis prepared by staff, which recommended that the case be referred to a board of inquiry, but only on the issue of whether Ms. Payne's termination was a reprisal for making a human rights complaint. The Commission decided not to refer the complaint for hearing. In March 1998, at Ms. Payne's request, the Commission reconsidered this decision. The Commission confirmed its 1997 decision not to refer.

Ms. Payne then sought judicial review of the Commission's decisions not to refer her complaint for hearing. In a related action, Ms. Payne sent a notice of examination under r. 39.03 of the Rules of Civil Procedure to the Registrar of the Ontario Human Rights Commission directing her to attend for examination and to bring with her all documents, notes, letters, records, etc. that pertained in any way to Ms. Payne's complaint and the Commission's consideration of it, including any documents relating to the temporary loss of Ms. Payne's file.

With her motion for an order that the examination take place, Ms. Payne filed an affidavit from St. Clair Wharton, who was a Human Rights Commissioner at the time that Ms. Payne's complaint was considered in 1996, though not at the times when decisions were made in 1997 and 1998. In his affidavit, Mr. Wharton stated that his recollection was that at the 1996 meeting the Commission decided to refer Ms. Payne's complaint for hearing. He also stated that staff put pressure on the Commission to decide on cases in certain ways, and that considerations other than the merit of a complaint were taken into account, including the costs of a hearing and "strategic concerns".

Since Ms. Payne was already in possession of all the documents that were before the commissioners in 1997 and 1998, the motions judge in the Divisional Court ruled that the scope of the examination of the Registrar should be limited to any documents and answers relating to the temporary loss of Ms. Payne's file, and to documents and answers relating to the September 1996 consideration of her file. Ms. Payne's motion to have this matter reconsidered by a full panel of the Divisional Court was dismissed. This is an appeal from that decision.

The issue before the Court of Appeal is the scope of r. 39.03 on an application for judicial review of a Commission decision.

The majority of the Court of Appeal found that the only legitimate factor to be considered by the Commission when deciding whether to refer a complaint for hearing is the merit of the complaint. If the Commission were to base its decision on some extraneous factor, such as cost or "strategic concerns", the court would intervene on judicial review. Further, if the Commission were to decide based on factors or considerations not disclosed to the parties, there would be no opportunity to respond and the right to fairness would be infringed. The complainant has a statutory right to be given the Commission's reasons for refusing to refer a complaint to hearing. It would make a mockery of that right if the complainant were told that the complaint was dismissed for want of merit, while the commissioners' real reasons were different ones.

Rule 39.03 permits a person to be examined as a witness before the hearing of a judicial review application if the evidence sought is relevant to an issue raised in the review, and if the examination is not being used for an ulterior or improper purpose and does not constitute an abuse of process of the court.

There are limits, however, on the right to conduct an examination. There is no provision for examination for discovery on an application for judicial review. Consequently, the purpose of a r. 39.03 examination cannot be to conduct a general discovery. The proposed scope of the examination in the present case ran afoul of this principle, the Court found, because the list of documents requested was sweeping and unfocussed. However, the Court determined that a more focussed examination should be permitted.

A second limit on the right to a r. 39.03 examination arises from the doctrine of deliberative secrecy. The practical concern here is that, if no limit were imposed, administrative tribunal members would spend more time testifying about their decisions than making them. There is a need for finality. The decision should rest on the reasons given and not on the success or failure of a cross-examination. Also, there should be a shield to protect the process of debate, discussion and compromise that is inherent in collegial decision-making.

However, the majority of the Court found that these limitations must be balanced against the interests of an affected citizen to effective judicial review. Commissioners do not have an unqualified right to shelter their decision-making process from scrutiny.

In this case, Ms. Payne presented an objectively reasonable concern that the process followed may not have complied with the principles of fairness and that the Commission failed to provide the Court with a record that completely revealed all the facts, arguments and considerations that were presented to the commissioners. The majority of the Court concluded that Ms Payne was entitled to examine the Registrar as to what documents, facts, considerations or recommendations, not already revealed by the record, were before the commissioners, to inquire as to whether "strategic concerns" formed a basis for the commissioners' decision, and to inquire whether there were any reasons for the determination that were not revealed in the Commission's reasons.

The majority of the Court awarded Ms. Payne costs of this appeal as well as costs in the Divisional Court.

In dissent, Abella J.A. found that there is a heavy onus on the applicant, Ms. Payne, to justify production beyond the usual judicial review record, namely, beyond the material before the Commission when the decision was made. Allegations of breaches of natural justice do not automatically open the door to examinations under rule 39.03. There is a high threshold in cases of judicial review and an even higher one when there is a need to protect deliberative confidentiality. In this case, Abella J.A. considered that there was no reasonable, reliable, relevant evidence to meet the high threshold for judicial review proceedings. Unlike her colleagues, Abella J.A. found that the affidavit of St. Clair Wharton did not provide the necessary factual foundation for the examination. The affidavit said nothing about what occurred at the 1997 and 1998 meetings where the decision not to refer was actually taken. Mr. Wharton's affidavit provided only conjecture and speculation, not fact or evidence.

Abella J.A. would dismiss the appeal from the Divisional Court with costs.

CASES CITED

Agnew v. Ontario Assn. of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.): 91, 124, 167

Battaglia v. British Columbia (Workmen's Compensation Board) (1960), 1960 334 (BC SC), 22 D.L.R. (2d) 446 (B.C.S.C.): 161

Bettes v. Boeing Canada/de Havilland Div. (1992), 1992 7789 (ON SC), 10 O.R. (3d) 768, 8 Admin. L.R. (2d) 232 (Ont. Ct. (Gen.Div.)): 65, 124, 171

C.W.U. v. Frankel Structural Steel Ltd. (1976), 1976 829 (ON SC), 12 O.R. (2d) 560 (Div. Ct.): 161

Cadillac Fairview Corp. Ltd. v. Saskatchewan (Human Rights Comm.) (1999), 1999 12358 (SK CA), 34 C.H.R.R. D/133, [1999] S.J. No. 217 (QL) (C.A.): 154

Canada Metal Co. v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (Ont. C.A.): 76, 124, 163, 167

Cook v. Ip (1985), 1985 163 (ON CA), 22 D.L.R. (4th) 1 (Ont. C.A.): 90

Ellis-Don Ltd. v. Ontario (Labour Relations Board) (No. 1) (1992), 1992 6320 (ON SC), 95 D.L.R. (4th) 56 (Ont. Div.Ct.): 84, 94, 165, 167, 175

Ellis-Don Ltd. v. Ontario (Labour Relations Board) (No. 2) (1994), 1994 10531 (ON SC), 110 D.L.R. (4th) 731 (Ont. Div.Ct.): 88, 165

F.G. Spencer Ltd. v. Prince Edward Island (Labour Relations Board) (1970), 1970 960 (PE SCAD), 16 D.L.R. (3d) 670 (P.E.I.S.C.): 161

Fort Norman Explorations Inc. v. McLaughlin (1982), 1982 2086 (ON SC), 36 O.R. (2d) 787 (H.C.J.): 77, 170

Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1993), 1993 9434 (ON SCDC), 99 D.L.R. (4th) 682, var'd (1993), 1993 9435 (ON SCDC), 99 D.L.R. (4th) 706 (Ont. Ct. (Gen.Div.)): 180

Glover v. M.N.R. (1980), 1980 63 (ON CA), 113 D.L.R. (3d) 161 (Ont. C.A.); aff'd 1981 64 (SCC), [1981] 2 S.C.R. 561: 90

I.W.A., Local 2-69 v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, 68 D.L.R. (4th) 524: 121

Iona Corp. v. Aurora (Town) (1991), 1991 7278 (ON SC), 3 O.R. (3d) 579 (Gen.Div.): 170

Jazairi v. Ontario (Human Rights Comm.) (1997), 1997 12445 (ON SC), 146 D.L.R. (4th) 297, 29 C.H.R.R. D/428 (Ont. Ct. (Gen.Div.)): 155

Jazairi v. Ontario (Human Rights Comm.) (No. 1) (1999), 1999 3744 (ON CA), 36 C.H.R.R. D/1, [1999] O.J. No. 2474 (QL) (C.A.): 155

Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781: 154

Payne v. Ontario (Human Rights Comm.) (No. 1) (1998), CHRR Doc. 01-009 (Ont. Ct. (Gen.Div.)): 63, 65

Payne v. Ontario (Human Rights Comm.) (No. 2) (1999), CHRR Doc. 99-238 (Ont. Ct. (Gen.Div.)): 3, 68

Québec (Comm. des affaires sociales) v. Tremblay, 1992 1135 (SCC), [1992] 1 S.C.R. 952: 168, 171

R. v. Medical Appeal Tribunal, Ex parte Gilmore, [1957] 1 Q.B. 574 (C.A.): 161

R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, [1952] K.B. 338 (C.A.): 161

Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468: 154

Singh v. Canada (Minister of Employment and Immigration), 1985 65 (SCC), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422: 155

Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 7258 (ON SC), 27 O.R. (3d) 291, 46 C.P.C. (3d) 110 (Gen.Div.): 77, 170

Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs) (1994), 1994 NSCA 58, 129 N.S.R. (2d) 298 (C.A.): 171

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 15: 64

Ontario

Architects Act, 1984, S.O. 1984, c. 12: 91

Human Rights Code, R.S.O. 1990, c. H.19

s. 30: 81, 97, 173

s. 33: 150

s. 33(1): 72

s. 34: 151

s. 34(1): 72

s. 36: 42, 70, 73, 119, 152

s. 37: 44, 70, 73, 153

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10: 79, 160

Labour Relations Act, R.S.O. 1990, c. L.2, s. 111: 86, 94, 175

Rules of Civil Procedure

r. 39.03: 50, 65, 80, 84, 138, 162, 165, 167, 173

r. 39.03(1): 70

r. 68.01(1): 160

AUTHORITIES CITED

Brown, Donald J.M. & John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998): 162, 171

Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977): 155

ABELLA J.A. (DISSENTING)

[1] During a television interview about her opposition to the musical Show Boat, Stephnie Payne made what she subsequently acknowledged to be an anti-Semitic remark. She apologized publicly for this statement, but refused to do so to her co-workers, creating tension in the workplace.

[2] Eleven months after she made the remark, Ms. Payne was dismissed from her employment. As a result, she complained to the Human Rights Commission alleging discrimination on the grounds, among others, that she was a black woman.

[3] The Commission investigated her complaint and decided not to refer it to a Board of Inquiry for a full hearing. Ms. Payne initiated judicial review proceedings of the Commissions decision. In addition, she sought to examine the Registrar of the Commission extensively about all aspects of her complaint. This is an appeal by Ms. Payne from a decision of the Divisional Court [(1999), CHRR Doc. 99-238] upholding a decision of the motions judge that prevented her from undertaking a wide-ranging examination of the Commissions Registrar.

BACKGROUND

[4] Youth Clinical Services Inc. ("YCS") is a publicly funded, non-profit counselling organization serving young people in the Jane-Finch and surrounding communities in Toronto. It is managed by an Executive Director who reports to a volunteer Board of elected directors.

[5] Stephnie Payne was hired by YCS in 1987 as a part-time counsellor, then promoted to Community Outreach Group Worker and School Group Co-ordinator. She was also a Trustee for the North York Board of Education.

[6] In early 1993, Ms. Payne was active in leading the opposition to the musical Show Boat, scheduled for the opening of the North York Centre for the Performing Arts later in the year. Several of her co-workers at YCS, including the Executive Director, supported Ms. Payne's opposition to Show Boat in principle.

[7] During a television interview conducted on the premises of YCS which aired on March 7, 1993, Ms. Payne said:

Most of the plays that portray Blacks or any other ethnic groups in a negative way is always done by a white man, and always usually a Jewish person is doing plays to denigrate us.

[8] These remarks attracted intense public criticism. The Mayor of North York called for Ms. Payne's resignation as a School Board Trustee, and she was censured by the North York Board of Education.

[9] Three days after the television show, fearing the potential impact of Ms. Payne's statement on the credibility of YCS, the Executive Director relieved her of her responsibilities as School Group Co-ordinator. She continued in her position as Community Worker.

[10] At a press conference on March 10, 1993, Ms. Payne issued a formal public apology, acknowledging that her remarks were anti-Semitic. Her apology included the following comments:

My purpose at this Press Conference is to try to apologize for remarks which I made which can be correctly characterized as anti-Semitic. I say "try to apologize" because mere words cannot fully describe the depth of sorrow I feel for those hurtful comments.

They are offensive, in particular, to members of the Jewish community. My comments are, as well, offensive to members of other communities: to members of the Black community, and also to constituents of my ward who placed their trust in me when they elected me.

I wish to state as clearly as words would allow, that such comments are out of character with me. I am, and have been a staunch opponent of all forms of negative discrimination. I have worked long and hard to help create a better climate of tolerance and mutual respect in the community of North York, and I hope to be able to continue doing so, and with sensitivity, with greater sensibility in the future.

[11] Despite requests at YCS that she also apologize personally to her co-workers, especially those who were Jewish, Ms. Payne refused either to apologize for, or deny, the veracity of her comments.

[12] Her refusal to apologize to her YCS colleagues created palpable and polarizing tensions at YCS. The situation was sufficiently serious that the Executive Director sought the assistance of the YCS Board of Directors. In a May 4, 1993, report to the Board, he made the following plea:

There have been rather serious problems in the clinic around racism and I would like the Board to discuss this issue. I would also like the Board to consider a policy for the clinic which clearly states that there is Zero Tolerance to racism and that racism will be dealt with by immediate dismissal. Since the statement around "Show Boat" there has been a polarization among staff that is uncharacteristic of The Clinic. Prior to this statement the clinic seemed to function rather well in terms of racial harmony. Now it is tense and the voices of reason and moderation seem afraid to speak out. We cannot let this continue. We cannot allow racism and/or intolerance in any form to rear its ugly head in this clinic.

[13] The Board responded by forming a sub-committee to look into the problem. It also asked the Executive Director to inform the employees of its concern. As a result, in a memorandum dated May 11, 1993, the Executive Director told the staff:

The Board wishes me to convey to all of you that they understand that morale is low and that your jobs are made more difficult by this. They would also like you to understand that your contribution to the clinic is valued and that they will do everything possible to deal with the situation.

[14] As part of the ongoing effort to deal with the tension generated by Ms. Payne's remarks, YCS held a day-long anti-racism workshop at the beginning of June 1993. The effectiveness of this session was, according to the Executive Director in a letter he sent to the Board the next day, inconclusive.

[15] Sometime after this workshop took place, YCS established a policy to deal with racism, diversity, and discrimination.

[16] In November 1993, a Toronto magazine published an article about the Show Boat controversy. While the article noted that Ms. Payne had support from some members of the black community, it also mentioned Ms. Payne's anti-Semitic comments. She was referred to as being employed by YCS as a counsellor.

[17] As a result of this article, six YCS employees, including a black employee, wrote to the Executive Director with the following concerns:

We are concerned that Ms. Payne's identification as a counsellor and the continuing close identification of Ms. Payne with the Clinic, including making her controversial remarks to reporters at the Clinic, undermines Youth Clinical Services' credibility as a counselling service provider in the community. It is crucial that our counselling staff be seen to be unbiased, unprejudiced and open to serving clients of all ethnic and religious backgrounds.

Given that her controversial views were shown as being connected (to) her work at the Clinic, and that the community is now being led to believe that someone with these views occupies a position as a counsellor, it is reasonable to assume that members of the community who are deeply offended by those views will not feel comfortable using our counselling services.

They sent a copy of their letter to Ms. Payne.

[18] After receiving this letter, the Executive Director wrote to the magazine, explaining that Ms. Payne was a Community Outreach Worker, not a counsellor. He added:

I wish to make it clear that counsellors at Youth Clinical Services have no biases or prejudices that would interfere with the provision of services.

[19] Ms. Payne did not receive a copy of the Executive Director's letter to the magazine for about three weeks. The day after she received it, however, she requested – and obtained – a meeting with the Executive Director to complain about not immediately having received a copy of his letter.

[20] A second meeting took place with the Executive Director on December 22, 1993. This time, a Board member was also present. Ms. Payne complained about what she called the systemic racism and the poisoned environment she was experiencing at YCS.

[21] Shortly after this second meeting, Ms. Payne filed an internal complaint of discrimination under the new YCS policy. A committee was set up to deal with her complaint, consisting of both YCS staff and Board members. The committee met with Ms. Payne and her representative on January 18, 1994. At this meeting, Ms. Payne outlined her concerns, including her feeling that she was excluded and harassed by the staff. This was her only meeting with this committee.

[22] On February 2, 1994, the Executive Director sent a letter to Ms. Payne telling her that her employment with YCS was terminated. She received seven months severance pay. At the time of her dismissal, Ms. Payne had been an employee of YCS for just under six and a half years.

[23] On August 2, 1994, Ms. Payne filed a complaint with the Ontario Human Rights Commission. Her complaint was against YCS and three directors of the YCS Board, including the then Chair and Vice-chair. She alleged that systemic discrimination and a poisoned, racially-charged atmosphere had existed at YCS throughout the years of her employment. She also alleged that she was either subjected to unequal treatment or was terminated because of race, colour, place of origin, ethnic origin, and/or sex in violation of the Ontario Human Rights Code, R.S.O. 1990, c. H.19. Finally, she asserted that she was fired as a reprisal for filing an internal complaint of discrimination at YCS.

[24] In her complaint, Ms. Payne stated that her anti-Semitic comments, which she did not deny making, were taken out of context. She defined that context in her complaint to the Commission as follows:

The context of this comment is as follows: I discussed with [the interviewer] the relationship between African and Jewish people and the commonality of oppression experienced by these groups historically. I conveyed to the interviewer my dismay at the fact that Drabinsky, a Jewish White Male, was insistent on the production of Show Boat despite the fact that many members of the African Canadian community believed Show Boat to promulgate racist stereotypes about African people and to grossly misrepresent a period of genocide and racist oppression of African Americans.

[25] She explained that the "cold shoulders" she received from YCS staff after her comments caused her "a great deal of stress, anxiety, loss of sleep, stomach upset and emotional turmoil". She attributed this treatment by her co-workers to discrimination:

... because of my race, colour and ethnic origin and a specific negative aspect of stereotyping based on the fact that I am also a Woman. I believe that this treatment of me was triggered as a backlash against me because I attempted to enforce my human rights as a Black African Canadian Woman in speaking out publicly against the anti African racism I believe is inherent in the production of Show Boat.

I further believe that the underlying basis of the staff's continued treatment to me, which was actively supported by management and at least some members of the Board of Directors of Youth Clinical Services, Inc., was because of a work environment that was poisoned by discrimination against Black African Canadian employees.

[26] The essence of Ms. Payne's complaints were summarized by her as follows:

I believe that my employment was terminated at Youth Clinical Services, Inc., because I filed a complaint of discrimination.

I also believe that the termination of my employment resulted because of a work environment poisoned by anti African Canadian systemic racism; and my involvement in the protest to stop anti African racism inherent in the production of Show Boat.

I further believe that I was demoted because of discriminatory treatment by Youth Clinical Services, Inc. because I am a Black African Canadian Woman who was seeking to enforce her human rights.

[27] As is customary, an officer of the Ontario Human Rights Commission investigated the complaint and prepared a Case Analysis Report for use by the commissioners in deciding whether to refer the complaint to a board of inquiry under s. 36 of the Ontario Human Rights Code. In the Report, dated April 4, 1996, the officer extensively reviewed Ms. Payne's employment history with YCS.

[28] Although the April 4, 1996, Case Analysis Report is not itself the subject of judicial review, its contents are germane because the Report was reviewed by the commissioners at a meeting in September 1996 when the Payne complaint was first discussed.

[29] The officer set out the following three issues as forming the basis of the Report:

1 Does the evidence indicate the existence of systemic racism or a poisoned environment in the workplace?

2. Does the evidence indicate that the complainant was subjected to unequal treatment or that her employment was terminated because of race, colour, place of origin, ethnic origin, and/or sex?

3. Does the evidence indicate that the complainant was subjected to reprisal?

[30] The Report concluded that the complaint should not be referred to a Board of Inquiry on Issue 1, but that a referral was appropriate under Issues 2 and 3.

[31] On the first issue, the Report concluded that "the evidence does not indicate the existence of systemic racism or a poisoned environment based on race". While the hiring practices of YCS were found to be "problematic", the evidence did not indicate the existence of systemic racism related to staff recruitment.

[32] The Report also found that there was no merit to Ms. Payne's allegation of a poisoned environment. The conclusion on this issue was that:

... the evidence does not support the existence of a poisoned environment for Ms. Payne because of her race based on the specific allegations she raised. However, it appears that the situation at the Clinic was not always healthy for either her or other staff and conflicts did arise. There is an acknowledgement by staff members of the existence of a strained relationship between Ms. Payne and many other staff. However, this was after she publicly made a statement which some staff found discriminatory and other staff found inappropriate.

[33] The officer was, however, far more sympathetic to Ms. Payne's grievances about the reaction at YCS to her Show Boat comments. He describes her views as follows:

It appears that Ms. Payne's comment was reflective of her belief that African Americans/Canadians have been historically disadvantaged and exploited by the White male population for economic gains, and she wished to bring what she saw as an ongoing historical fact to the public's attention. The comment was made in the context of her role as an (unofficial) spokesperson for members of the Black community who opposed the production of Show Boat. Ms. Payne states that it was never her intention to discriminate against the Jewish race or any other race, but to state a historical fact, which was subsequently taken out of context.

[34] After noting the furor caused by her comments, the officer describes the public reaction as a divided one:

Those reportedly in favour of Ms. Payne's statement praised her courage for speaking out on behalf of the Black community. Those opposed to the statement accused her of making a racist comment against one race under the disguise of defending her own race. Several articles and opinions about the statement and its impact were published in the printed media over a period of several months.

While there appears to have been support for the position that African Americans/Canadians, have historically been disadvantaged and exploited at the hands of the White (European) race; and while there appeared to have been support for Ms. Payne's opposition to the production of Show Boat, it is not clear if this included support for the specific comment she made about white Jewish males, although this could be implied.

[35] The Report noted that the remarks caused particular strain at YCS:

Given the nature of the statement made by Ms. Payne, the nature of the services provided by the Clinic and the Jewish representation on staff, it can be seen how a fallout could occur. Although Ms. Payne made a public apology for the statement, it appears the relationship between her and some staff members did not improve because she refused to personally apologize to them. In particular, she was asked to apologize to her Jewish colleagues who were particularly offended by the statement, but she allegedly refused to do so. It appears that other staff members isolated Ms. Payne for the sake of their Jewish colleagues and/or because they were concerned about the impact the statement could have on the Clinic's credibility in the community because of Ms. Payne's continued association therewith.

Ms. Payne alleges that her race, colour, sex, ancestry, place of origin and ethnic origin were factors in the treatment she experienced at YCS and the subsequent decision to dismiss her from employment. It is true that the statement was reflective of how she felt her race had been treated historically by white men for economic gain. Subsequent to the statement, Ms. Payne was somewhat isolated by some of her colleagues because they perceived her statement as racist and anti-semitic. It is apparent that members of the Jewish community, including staff at YCS were offended by the statement.

[36] The decision of the Board of Directors to approve Ms. Payne's dismissal was, according to the Report, based on the tension evident at the January 18, 1994, meeting, as well as on the fact that ongoing efforts at YCS to "redress the problems occurring since the ... remarks," had been unsuccessful. Two of the Board members explained their decision in the Report separately as follows:

It came down to either having an uprising of staff who were disgruntled that she was there ... It showed a lack of sensitivity and staff was saying either she goes or we go. I think this was particularly highlighted with staff because she would not back down from her position that white Jewish males consistently put down black people.

Stephnie had not made an active role in trying to remedy her relationship with staff or apologizing about her comment that she had made about Show Boat. In light of that, we knew that the schools would not change their thoughts about having her work with them.

[37] The Report recommended, however, that the complaint be referred to a board of inquiry with respect to Issues 2 and 3 – the termination and the reprisal issues – for the following reasons:

In order to establish whether the decision to terminate Ms. Payne's employment amounts to discrimination under the Code, it is important to consider whether her comment was reflective of the Black Community, which she represented, and if so, whether the respondents appropriately addressed the workplace environment that resulted from the public statement.

In examining whether the statement is reflective of the Black Community and whether it is based on historical fact, members of the Black Community have expressed the view that black people have experienced oppression at the hands of the Jewish Community, and that the Show Boat is an example of that oppression. For example, one prominent member of the Black Community noted that the Show Boat book was written by a Jewish person (Edner Faber [sic]), the musical was written, scored and produced by Jewish people (Jerome Kern and Oscar Hammerstein), the Toronto production was being produced by a Jewish person (Garth Drabinsky) and a Jewish politician (Mel Lastman) was opening the doors of the theatre to the production.

There has continued to be conflict, opposing views, and differing opinions on the relationships between the Black Community and the White Jewish Community. Ms. Payne's statement amounts to a serious allegation against the White Jewish male and whether this allegation is representative of the Black Community's perspective becomes important in analyzing whether her statement was inappropriate or whether the respondent's response to the issue was inappropriate.

The analysis has already addressed the support Ms. Payne received from the Black Community, especially from prominent leaders in the Community, although some felt that she had "inadvertently shifted the spotlight from Show Boat to herself and the relations between blacks and Jews". In this respect, it does not appear that her statement was seen as inappropriate from the Black Community's perspective; it was seen as historically factual. The evidence also indicates that the statement was offensive to the Jewish Community, including some members of YCS staff, which resulted in poor relations between Ms. Payne and those staff.

Ms. Payne's statement was reflective of her belief that members of her own race were historically exploited by the white male, and that Jewish white males usually portrayed her race in a disparaging way as a form of entertainment. In this respect, it appears that her race, colour, and ancestry, and ethnic origin were the context of her statement and thus, factors in the ultimate decision to terminate her employment.

In light of the above, while the evidence does not indicate that Ms. Payne's sex or place of origin were factors in the decision to terminate her, it appears that she was subjected to unequal treatment in employment and was subsequently terminated from employment because of her race, colour, ancestry, and ethnic origin. [Emphasis added.]

[38] This April 1996 Report was forwarded to both Ms. Payne and to YCS for their written replies. These replies, along with the Report, were given to the commissioners before the September 10–11, 1996, meeting, when Ms. Payne's complaint was first discussed.

[39] According to the minutes of this meeting, the Payne complaint was "pulled" and no decision about Ms. Payne's case was made. Ms. Payne was informed by letter dated October 2, 1996, that further investigation and analysis were required before a decision could be made by the commissioners.

[40] A second Case Analysis Report, dated January 29, 1997, was prepared and circulated to the parties for reply before the March 1997 Commission meeting.

[41] This second Report agreed with the first that there was no evidence of systemic discrimination or of a poisoned work environment. Unlike the April 1996 Report, however, it found that there was insufficient evidence to conclude that Ms. Payne's termination was based on race. It did recommend that the complaint be referred to a Board of Inquiry, but only on the issue of whether Ms. Payne's dismissal was an act of reprisal for the complaint of discrimination she initiated internally at YCS.

[42] At its March 18–19, 1997, meeting, pursuant to s. 36 of the Code, a majority of the commissioners decided not to refer Ms. Payne's complaint to a board of inquiry. The following were the recorded reasons for the decision of four of the seven commissioners present at the meeting (three commissioners dissented):

... [M]oved and seconded that pursuant to Section 36(2) of the Human Rights Code, the Commission decide not to refer the subject matter of this complaint to the Board of Inquiry for the following reasons:

1. The evidence does not indicate that the complainant, when demoted from her position as Group Co-ordinator to that of Community Worker, was discriminated against because of her sex, race, colour, ancestry, place of origin or ethnic origin. Rather, the evidence indicates that the complainant was demoted due to a comment she made, which was interpreted as being anti-Semitic.

2. The evidence does not indicate that systemic racism was present at Youth Clinical Services Inc. (hereinafter "YCS"). Further, the evidence indicates that the recruitment and promotion practices of YCS did not result in an adverse impact or effect upon individuals at YCS, including the complainant.

3. There is insufficient evidence to indicate that the termination of the complainant's employment was a reprisal for having claimed and enforced her rights under the Code, as set out in Section 8 thereof.

For the above reasons, the Commission is of the view that the evidence in this matter does not warrant the referral of the subject matter of the complaint to the board of inquiry.

[43] In a letter dated March 26, 1997, Ms. Payne was advised of the Commission's decision and reasons, and of her right to request a reconsideration of this decision.

[44] Ms. Payne sought such a reconsideration under s. 37 of the Code. As a result of her request, a reconsideration report was prepared by the Commission. This report was given to the parties for their reply in July 1997.

[45] The reconsideration report, the replies from Ms. Payne and YCS, along with 200 pages of documents, were before the commissioners when they decided the reconsideration request on March 30, 1998. At this meeting, a majority of the commissioners present decided to uphold the original decision not to refer the complaint to a Board of Inquiry. The reasons recorded in the minutes of that meeting were:

1. The application for reconsideration does not set forth material facts that:

(a) were previously unavailable, and are pertinent to the original decision made in this matter; or

(b) indicate that circumstances have changed since the Commission's original decision; or

(c) raise issues as to the integrity of the Commission's procedures in this matter.

2. The Commission remains of the view that the complainant was demoted as a result of a comment she made, which was interpreted as being anti-Semitic; that the evidence does not support the existence of systemic racism at YCS; and that there is insufficient evidence to indicate that the termination of her employment was a reprisal for having claimed and enforced her rights under the Code.

3. Accordingly, the application for reconsideration fails to raise sufficient material facts to permit a reversal of the Commission's original decision.

PRIOR PROCEEDINGS

[46] On July 9, 1998, Ms. Payne brought an application for Judicial Review, seeking to quash both the Commission's original decision made in March 1997 not to refer her complaint to a board of inquiry, and its subsequent reconsideration decision a year later. She also sought an order referring her complaint directly to a board of inquiry or, in the alternative, an order remitting her complaint back to the Commission for "proper consideration".

[47] The challenge to the Commission's original decision was based on numerous grounds, including the following:

Ӣ the Commission exceeded its jurisdiction by usurping the board of inquiry's function when it determined the issues arising from the complaint;

Ӣ the Commission exceeded its jurisdiction by failing to ask itself the proper question, namely, whether there was a reasonable evidentiary basis to justify sending Ms. Payne's complaint to a full hearing before a board of inquiry;

Ӣ the Commission exceeded its jurisdiction by weighing the evidence;

Ӣ the Commission failed to provide sufficient reasons for its decision;

Ӣ the Commission denied Ms. Payne fairness by refusing to disclose relevant information to her relied on by the Commission, by assessing her credibility unfavourably without an oral hearing, by interfering in the investigation of her complaint, and by its delay in dealing with the complaint;

Ӣ the Commission exceeded its jurisdiction by basing its decision on irrelevant or improper considerations, such as inadequate resources, the possibility of being accused of anti-Semitism, and the loss of its investigative file; and

Ӣ the Commission erred in failing to find that Ms. Payne's complaint warranted a referral to a Board of Inquiry.

[48] The Commission's reconsideration decision was challenged for the same reasons, but with the additional criticisms that:

Ӣ the Commission improperly exercised its statutory reconsideration obligations by applying the wrong legal test, by unduly restricting its reconsideration powers, by failing to review the full investigative file when it reconsidered its original decision by losing its investigative file; by not conducting a sufficient reconsideration investigation; and by considering YCS' judicial review application as part of its reconsideration process; and

Ӣ the Commission denied Ms. Payne fairness by failing to give Ms. Payne sufficient reasons for the reconsideration decision; by refusing to disclose investigation material to Ms. Payne, including YCS' response to Ms. Payne's request for reconsideration; and by its delay.

[49] In support of the application for judicial review, two affidavits were filed, one from Ms. Payne and one from Professor Frances Henry. Neither affidavit had been before the Commission when it made its two decisions. Ms. Payne's forty-five-page affidavit outlines her version both of the circumstances underlying her complaint with YCS and her problematic dealings with the Ontario Human Rights Commission. Professor Henry's affidavit sets out the indicia for determining whether racism exists in a workplace, then outlines the arguments in favour of concluding that the Commission should have referred Ms. Payne's complaint to a Board of Inquiry.

[50] On July 10, 1998, a Notice of Examination under r. 39.03 of the Rules of Civil Procedure was sent by Ms. Payne to the Registrar of the Ontario Human Rights Commission. The Registrar was directed to bring the following material with her to the examination:

1. the Commission's complete investigation file(s) in the matter of the complaint by Stephnie Payne against Youth Clinical Services, Inc., Dr. Len Grover, Jane Adams and Anthony Crossley dated August 2, 1994, being Complaint No. TW-998 (the "Complaint"), and any copies of said file(s) or any separate file(s) or records (including draft documents) maintained by the investigating officers, Case Co-ordinator(s), Regional Manager(s) or Director of Regional Services and Systemic Investigations in respect of the Complaint, including all letters, memos, notes, telephone records, witness statements, documents, draft documents, audiotape or videotape recordings or material of any nature whatsoever;

2. the Commission's complete reconsideration file(s) in the matter of the Complaint, and any copies of said file(s) or any separate file(s) or records (including draft documents) maintained by the reconsideration officer(s) or any other person involved or consulted on the reconsideration... including all letters, memos, notes, telephone records, witness statements, documents, draft documents, audiotape or videotape recordings or material of any nature whatsoever;

3. the Commission's complete Legal Services Branch file in the matter of the Complaint and/or in matter of an application for judicial review commenced by Lynne Mitchell, Naomi Campbell, Jan Steele, Clinton Campbell, Jungle Ling, Soula Dimitrey and Youth Clinical Services, Inc., against the Ontario Human Rights Commission, being Divisional Court File No. 699/96 (the "Judicial Review"), including all letters, memos, notes, telephone records, witness statements, documents, draft documents, audiotape or videotape recordings or material of any nature whatsoever;

4. the agenda and minutes of any and all Senior Management Committee meetings at which the Complaint and/or Judicial Review were discussed, and any and all documents or draft documents distributed at or for said meetings, and any notes or notations on documents or draft documents made by any and all attendees at said meetings;

5. the agenda and minutes of any and all meetings with the Chief Commissioner at which the Complaint and/or Judicial Review were discussed, and any and all documents or draft documents distributed at or for said meetings, and any notes or notations on documents or draft documents made by the Chief Commissioner and any and all other attendees at said meetings;

6. the agenda and minutes of any and all Commission or panel meetings at which the Complaint and/or Judicial Review were discussed, including

a. the meeting at which the Commission's decision of March 24, 1997 in respect of the Complaint was made,

b. the meeting at which the Commission's decision on reconsideration dated April 15, 1998 was made,

c. the meeting on or about September 10–11, 1996 or any other meeting between April 4, 1996 and October 31, 1996 at which the Complaint was considered or discussed,

and the complete Commission packages distributed for said meetings, and any and all other documents or draft documents (including management or staff memos or reports, legal opinions, reasons or draft reasons) distributed at or for said meetings, and any notes or notations on documents or draft documents made by any and all Commissioner or staff attendees at said meetings;

7. any and all letters, memos, notes, telephone records, documents, draft documents or material of any nature whatsoever pertaining to the loss of the Commission's investigation file in the matter of the Complaint, including any and all documents or material pertaining to the ongoing Ombudsman investigation;

8. any and all letters, memos, notes, telephone records, documents, draft documents or material of any nature whatsoever pertaining to the Complaint or the Judicial Review or any other matter in issue in this proceeding maintained by any Commissioner, employee or agent of the Commission.

[51] Ms. Payne had already been given the entire record that had been before the commissioners when they made the decisions being judicially reviewed, consisting of the sixty-nine pages from the March 1997 meeting and the 339 pages from the March 30, 1998, meeting. It was the Commission's position that Ms. Payne was entitled only to these materials, as well as relevant portions of the agendas and minutes of those meetings.

[52] On August 4, 1998, the Commission sent a letter to Ms. Payne's counsel, advising that portions of the two affidavits filed in support of the judicial review application would be challenged, as would the Registrar's examination, except for questions about a temporary loss of the Payne file at the Commission.

[53] The Commission then brought a motion on August 25, 1998, seeking to strike portions of Ms. Payne's affidavit, to have Dr. Henry's affidavit removed entirely from the record, and to set aside the Notice of Examination of its Registrar.

[54] Ms. Payne brought a cross-motion for the production of documents and for an order directing that the examination of the Registrar take place. In support of her cross-motion, Ms. Payne filed an affidavit sworn on September 22, 1998, by St. Clair Wharton, a former commissioner of the Ontario Human Rights Commission, whose term ended in February 1997.

[55] Mr. Wharton was not a commissioner when either of the decisions being judicially reviewed were made. Although he was not present at either the March 1997 meeting when the Commission decided not to refer Ms. Payne's case to a board of inquiry, or the April 1998 meeting when it decided not to reverse its original decision, he was still a commissioner when Ms. Payne's complaint was first discussed at the Commission's September 1996 meeting.

[56] In his affidavit, he said he had expressed the view at that September meeting, based on his expertise and on the April 6, 1996, Case Analysis Report, that the complaint should be referred to a board of inquiry. His recollection of that meeting includes a discussion he claims was generated by a staff member, about the potential public reaction to a referral of the complaint to a board of inquiry, given Ms. Payne's comments. Mr. Wharton characterized these comments as ones "alleged to have been anti-Semitic".

[57] The result of the discussion in September, as he remembered it, was that a consensus was reached that the Payne complaint be referred to a board of inquiry, but that the staff be directed to clarify in writing that the Commission did not condone or support Ms. Payne's comments.

[58] The affidavit generally challenges the legitimacy of the deliberative process of the commissioners. Mr. Wharton alleges that he, and therefore by implication other commissioners, had no knowledge or understanding of the test for making their decisions and could not make up their own minds or reach their own decisions because of a sense of pressure to defer to the opinions of the Commission's legal or investigative staff.

[59] He states that as a result of shrinking resources, fewer cases were being referred to boards of inquiry than earlier in his tenure, and that sometimes the commissioners have discussed whether a particular complaint raises matters of sufficient public importance to warrant the public expense of a board of inquiry.

[60] Mr. Wharton also attacks the validity of the Commission's reasons for deciding not to refer a case to a board of inquiry, saying that the reasons are not drafted by the commissioners themselves and do not reflect the entirety of the discussion.

[61] Near the end of his affidavit, Mr. Wharton offers his opinion about what disclosure should be made to Ms. Payne and suggests that there must have been collusion between Commission staff and YCS.

[62] Finally, even though he was not present at either meeting, and even though earlier in his affidavit he decried the apparent tendency of commissioners to follow unquestioningly any staff recommendations, he is persuaded that this time, the commissioners must have considered inappropriate information since they did not follow the staff's recommendation.

[63] The motion was heard by Bell J. Those portions of Ms. Payne's affidavit in which she set out her circumstances at YCS and her problems with the Commission, including the effect on her of the Commission's handling of her complaint, were struck. The Commission's motion requesting an order striking Professor Henry's affidavit was adjourned, to be heard by the Divisional Court panel hearing the actual judicial review.

[64] In addition, she granted an order amending the Notice of Application for Judicial Review to include the following allegations:

Ӣ the Commission had previously decided at a meeting held on September 10 and 11, 1996, to refer Ms. Payne's complaint to a board of inquiry;

Ӣ the Commission exhibited bias; and

Ӣ the Commission's decisions were not made in accordance with s. 15 of the Charter of Rights and Freedoms.

The Commission did not object to these amendments.

[65] Bell J. noted in her reasons that Ms. Payne was seeking documentary production of everything related to her case under r. 39.03(1). She disagreed with Ms. Payne's submission that the only test under this rule is relevance. She relied instead on the test set out in Bettes v. Boeing Canada/de Havilland Division (1992), 1992 7789 (ON SC), 8 Admin. L.R. (2d) 232 (Ont. Div.Ct.), holding that the right to examine witnesses under r. 39.03 must be based not only on relevance, but additionally on a reasonable evidentiary foundation.

[66] She therefore, with the Commission's agreement, limited the scope of the Registrar's examination to an examination of documents and answers related to the Commission's temporary loss of Ms. Payne's file, and to documents and answers about the Commission meeting on September 10 and 11, 1996.

[67] The order permitting an examination in connection with the September 1996 Commission meeting was based on the allegations raised in the affidavit of Mr. Wharton.

[68] The Divisional Court dismissed Ms. Payne's application to vary or set aside the order of Bell J. restricting the scope of the Registrar's examination and striking portions of Ms. Payne's affidavit. Its reasons were:

We are not persuaded that the order under appeal should be interfered with. Appeal dismissed.

[69] This is an appeal by Ms. Payne from that dismissal.

ANALYSIS

[70] The issue in this appeal is the scope of r. 39.03 on an application for judicial review of a decision of the Ontario Human Rights Commission not to refer a complaint to a board of inquiry under ss. 36 and 37 of the Ontario Human Rights Code. Rule 39.03(1) states:

39.03(1) Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

[71] At the outset, the importance of the right to pursue a human rights complaint must be stressed. But it is worth noting that the process under the Code does not grant the right to have a complaint heard by a board of inquiry. instead, the scheme of the Code gives a complainant, in most circumstances, the right to have a complaint investigated. When the investigation has been completed, a decision is then made about whether to refer the complaint to a board of inquiry. Under the Code, this gatekeeping function is assigned to the Commission.

[72] The section of the Code which articulates the right to have a complaint investigated is s. 33(1). Section 34(1) sets out which complaints need not be investigated:

33(1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement.

34(1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the complaint.

(2) Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered. [Emphasis added.]

[73] The continuation of a complaint to a board of inquiry is subject to the screening process found in ss. 36 and 37 of the Code. These sections state:

36(1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.

(2) Where the Commission decides not to refer the subject-matter of the complaint to the board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered.

37(1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.

(2) Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.

(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final. [Emphasis added.]

[74] It is up to the Commission to determine whether to refer an investigated complaint to an oral hearing by the Board of Inquiry. It is not an automatic right. It is an exercise of discretion based on the Commission's determination that "the procedure is appropriate and the evidence warrants an inquiry". The Commission, in other words, may refer a complaint if it considers it appropriate to do so and the evidence supports such a decision, but it is not obliged to do so.

[75] It was the view of counsel for Ms. Payne that although the Registrar was the focus of the Notice of Examination considered by Bell J., r. 39.03 also permits the examination of any members of the Commission staff who were involved in the investigation of the Payne complaint or present at the relevant Commission meetings.

[76] The main jurisprudential foundation upon which the appellant bases her argument is Canada Metal Co. v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (Ont. C.A.), which held that if the evidence sought to be elicited is relevant to the issue on the motion, there is a prima facie right to resort to r. 39.03. The only limit on the right, aside from the relevance of the evidence sought, is that it not be an abuse of the process of the court.

[77] The onus, according to the appellant, is on the party challenging the examination to establish either an absence of relevance or an abuse of process (see Fort Norman Explorations Inc. v. McLaughlin(1982), 1982 2086 (ON SC), 36 O.R. (2d) 787 (H.C.J.)). The party seeking to conduct the examination, therefore, is required to show only that the proposed examination deals with a relevant issue and that the person to be examined can offer relevant, as opposed to helpful, evidence (Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.(1995), 1995 7258 (ON SC), 46 C.P.C. (3d) 110 (Ont. Ct. (Gen.Div.)).

[78] Moreover, because the Registrar and other members of the Commission staff do not have statutory decision-making authority (unlike the commissioners), the appellant argues that she has a prima facie right, based on the foregoing authorities, to examine Commission staff about issues surrounding the investigation of the complaint which do not involve the deliberations of the commissioners.

[79] The Commission, in response, argues that on judicial review of a Commission decision, what comes under primary scrutiny is the record that was before the commissioners when they made their decision. The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, itself requires that only the "record of the proceedings in which the decision was made" be filed. Section 10 of that Act sets out this obligation:

10. When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application, the record of the proceedings in which the decision was made.

[80] The test under r. 39.03 in cases of judicial review, the Commission therefore argues, is not mere relevance, but requires as well a reasonable evidentiary foundation. Moreover, when what is being sought is information normally protected by the requirement for deliberative confidentiality, the threshold is even higher.

[81] In addition, the Commission staff is protected from discovery by s. 30 of the Ontario Human Rights Code, which states:

30(1) No person who is a member of the Commission shall be required to give testimony in a civil suit or any proceeding as to information obtained in the course of an investigation under this Act.

(2) No person who is employed in the administration of this Act shall be required to give testimony in a civil suit or any proceeding other than a proceeding under this Act as to information obtained in the course of an investigation under this Act.

[82] For the reasons which follow, I agree with the Commission's submissions.

[83] Dealing finally with the portions of Ms. Payne's affidavit struck originally by Bell J., it is my view that since the information in the struck paragraphs was not before the Commission when it made its decision, the paragraphs were properly struck.

[84] The Commission relies on the decision of the Divisional Court in Re Ellis-Don Ltd. v. Ontario Labour Relations Board (1992), 1992 6320 (ON SC), 95 D.L.R. (4th) 56, for the proposition that s. 30 of the Code immunizes its personnel from an examination under r. 39.03. In Ellis-Don, a r. 39.03 motion was brought for production of Ontario Labour Relations Board files. On the original motion, Steele J., at p. 59, had held that, "There is no independent right of production on judicial review".

[85] This part of Steele J.'s judgment was not appealed and his conclusion on the issue of documentary production is, in my view, conceptually unassailable. This does not mean that there is no right to production in cases of judicial review. It means that, contrary to the position advanced by the appellant, there is a heavy onus on the party seeking it to justify production beyond the usual judicial review record, namely, beyond the material before the administrative agent or agency when the decision was made.

[86] Steele J. nonetheless directed that the Labour Board's Registrar and other Board members be examined pursuant to r. 39.03. This order, which was challenged before the Divisional Court, was made notwithstanding that s. 111 of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, protects all Labour Board personnel from having to give testimony about work-related information. Section 111 states:

111. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil suit or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

[87] Steele J. held that this provision could not be used to deny information going to the issue of natural justice. In his words, at p. 62:

Where the denial of natural justice is alleged, the purported violator cannot hide behind procedural legislation to deny the claimant the right to investigate whether or not he has been wronged.

[88] The order directing the examination of the Board personnel was set aside by the Divisional Court (1994), 1994 10531 (ON SC), 110 D.L.R. (4th) 731 (leave to appeal to the Ontario Court of Appeal and leave to appeal to the Supreme Court of Canada refused, [1994] S.C.C.A. No. 318 (QL), (1994) 118 D.L.R. (4th) vi).

[89] The Divisional Court explicitly rejected Steele J.'s conclusion that the protection from discovery in s. 111 of the Labour Relations Act must yield to the requirements of natural justice. The Divisional Court defined the purpose of the immunization in the following way, at p. 741:

... to insulate board officials from the distraction, the expenditure of time, and the potential intimidation associated with testifying about their board-related activities in other legal proceedings. From this perspective and from the point of view of how the term "testimony" is used in the rules of court, s. 111 ought to be given a broad and purposive construction.

[90] In the course of its reasons, the Divisional Court reviewed cases in which similar provisions were judicially considered. It was clear from this review that such statutory shields had the effect of insulating employees from documentary or viva voce discovery. In Cook v. Ip(1985), 1985 163 (ON CA), 22 D.L.R. (4th) 1 (C.A.); aff'd (1986), 55 O.R. (2d) 288n (S.C.C.), the Court held that the Legislature was entitled to enact provisions prohibiting employees from being required to give information related to their work. Similarly, in Glover v. Minister of National Revenue (1980), 1980 63 (ON CA), 113 D.L.R. (3d) 161 at 165 (Ont. C.A.) (confirmed on appeal, 1981 64 (SCC), [1981] 2 S.C.R. 561) it was held that notwithstanding the compelling nature of the circumstances, legislatures can enact a "comprehensive code designed to protect the confidentiality of all information" obtained by a public or civil servant in the course of employment.

[91] In Agnew v. Ontario Association of Architects(1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.), the focus was on a provision of the Architects Act, 1984, S.O. 1984, c. 12 guaranteeing workplace confidentiality. Campbell J. found that the provision protected members of a committee under the Act from being examined in connection with their decision to deny an architect's licence.

[92] Campbell J. was of the view, as I am, that even without such explicit insulating provisions, the right of administrative decision-makers to be presumptively free from discovery should be similar to that given to judicial decision-makers. Neither should be examined unless the party seeking discovery has satisfied the required onus to "demonstrate that the evidence sought does not seek to penetrate the mental process" by which the decision was made (at pp. 13–14).

[93] His subsequent comments at pp. 14, 16 and 17 are particularly apt in the case before us:

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination. In the case of a specialized tribunal representing different interests the mischief would be even greater because of the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

The applicant's counsel says he does not propose to delve into the mental processes of the members or their decision-making process but seeks rather to explore a distinct and different area; whether they considered the material that was put before them, whether they made their decision on the basis of the material before them, whether they each made their decision as individuals or deferred to the views of someone else, whether they prejudged the matter.

I see no distinction or difference between questions directed to those matters and questions directed to the decision process. The matters sought to be asked are at the heart of the decision-making process and are directly within the mischief sought to be prevented by the rule against penetrating the mind of the decision-maker. [Emphasis added.]

[94] Based on the foregoing jurisprudential review, the Divisional Court in Ellis-Don concluded, at p. 747, that allegations of breaches of natural justice cannot justify piercing the statutory protection from discovery found in provisions like s. 111 of the Ontario Labour Relations Act:

In our opinion, the facts of this case are precisely governed by s. 111. This provision, which was not present in Tremblay, supra, is designed to protect deliberative secrecy and guard against the chilling effect on the decision-making process which the potential of compellability to testify would engender. A legislature clearly has the jurisdiction to modify the common law requirements of natural justice. Here, it has specifically and clearly prohibited one way in which a party might seek to establish a breach of natural justice. An exception for natural justice cannot reasonably be read into the section without undermining to a substantial degree its central purpose.

[95] The Court observed, however, that if it was in error in concluding that breaches of natural justice create no exception to such insulating provisions, then the threshold should in any event be sufficiently high to reflect the public policy importance of protecting deliberative secrecy.

[96] I agree with the Divisional Court in Ellis-Don that, based both on the legislative protection from discovery and the need to protect deliberative confidentiality, allegations of breaches of natural justice do not automatically open the door to examinations under r. 39.03. There is a high threshold in cases of judicial review generally, and an even higher one when there is, in addition, either legislated protection from discovery or the need to protect deliberative confidentiality.

[97] In my view, the application of these principles to the circumstances of this case leads to a dismissal of Ms. Payne's appeal. Section 30 of the Ontario Human Rights Code is almost identical to s. 111 of the Labour Relations Act. Although the wording is not identical, in my view the result should be the same.

[98] Section 30 protects information obtained in the course of an investigation. Part IV of the Code deals with the enforcement of rights. The first part of Part IV, ss. 32–37, deals exclusively with the initiation and investigation of a complaint. The latter part, ss. 39–45, deals with the hearing before a board of inquiry. The complaint process in Part IV leads to ss. 36 and 37, where the fruits of any investigation are evaluated by the Commission to determine whether there should be a board of inquiry. Since the entire process up to and including that determination relates to the investigation of a complaint, it follows that s. 30 protects from discovery of anything or anyone connected to that investigation or its evaluation, including any decisions based on such investigations.

[99] Based on the conclusions in Ellis-Don, therefore, s. 30 acts as a statutory shield and neither the Registrar nor any other Commission personnel can be compelled to provide further information under r. 39.03.

[100] If I am wrong about s. 30 of the Code acting as a complete bar to further documentary or testamentary disclosure by Commission staff, I am nonetheless of the view that there is no reasonable, reliable, relevant evidence to meet the high threshold for judicial review proceedings, let alone the higher one required to violate the confidentiality of the deliberative process in ordering a r. 39.03 examination. In fact, in my opinion, even if the threshold is simple relevance, there is virtually no evidence, let alone any relevant evidence, available to justify a r. 39.03 examination.

[101] The foundation for the assertion by Ms. Payne that the evidence sought through the r. 39.03 examination is relevant, is the September 22, 1998, affidavit of former commissioner St. Clair Wharton.

[102] It is, with respect, difficult to understand why or how Mr. Wharton felt entitled to engage in such an astonishing breach of his duty to protect the confidentiality of the Commission's deliberations, and to so sweepingly assault the commissioners' integrity and their capacity for independent decision-making. He smears by innuendo the bona fides of the Commission's staff and process and, inferentially, the legitimacy of every Commission decision made during his six-year tenure. It is not at all surprising that the Commission refused to exacerbate or appear to condone the impropriety by cross-examining Mr. Wharton.

[103] There is nothing in the record to indicate whether at any time in his six years as a commissioner Mr. Wharton ever raised these concerns either with fellow commissioners, the chief commissioners, or Commission staff, or, if he did not, why he chose to raise them so publicly when he did.

[104] There is no doubt that Mr. Wharton disagrees with and is upset by the commissioners' decision not to refer Ms. Payne's complaint to a board of inquiry. This may explain his swearing the affidavit, but it in no way justifies this extraordinary, selective breach of his duty to protect the confidentiality of the Commission's deliberative process. The Commission, by its nature, is frequently called upon to deal with highly sensitive matters of intense public interest. Not unlike judicial deliberations, it would totally undermine the required frank exchange of competing views to render the deliberations routinely subject to public disclosure by disaffected Commission members or staff or, for that matter, through r. 39.03 examinations.

[105] More importantly, however, the affidavit says nothing about what happened at the meetings at which the decisions being judicially reviewed took place. At its highest, Mr. Wharton's affidavit offers conjecture and speculation rather than fact or evidence.

[106] First, he suggests that at the September 1996 meeting, Ms. Payne's complaint was referred to a board of inquiry. The minutes of that meeting, however, say that the Payne complaint was "pulled". These minutes were approved by Mr. Wharton. On October 2, 1996, a letter was sent to Ms. Payne stating:

Please be advised that after reviewing the investigation report and the submissions made on that report, the Commission is of the view that this matter requires further investigation and analysis, as well as further opportunity for conciliation, before a decision is made whether to refer the matter of the complaint to the Board of Inquiry.

[107] It is clear that at the time, no one, including Mr. Wharton, thought the Payne complaint had been referred to a board of inquiry. Mr. Wharton's affidavit does no more than give his "recollection" that a consensus was reached to refer the complaint to a board. This may in fact have been his recollection, but that does not change the reality of the minutes he approved, the letter Ms. Payne received, or the fact that everyone – the parties and the Commission – proceeded in accordance with the decision reflected in the minutes, namely, that no final decision had been taken at the September meeting.

[108] Mr. Wharton also states in his affidavit that at the September meeting he thinks a staff member mentioned the potential public reaction to a board of inquiry, given Ms. Payne's anti-Semitic remark. The heated public reaction to Ms. Payne's comments was referred to in the April 1996 Case Analysis Report. Far from being an extraneous consideration, the fact that the comments generated controversy, both at YCS and in the public domain, was a central feature of the circumstances surrounding the complaint and the contents of the April Report.

[109] As for his observations that the Commission sometimes discussed cost and strategic decision-making in connection with board of inquiry referrals, three responses come to mind. Firstly, there is no evidence that these considerations were part of the decision-making at the March 1997 or April 1998 meeting. Secondly, there is no evidence that these considerations were even part of the discussions at the September 1996 meeting. And thirdly, there is no evidence that any discussions about cost or public interest strategies ever led to a Commission decision not to refer a meritorious complaint to a Board.

[110] What we are left with in Mr. Wharton's affidavit, therefore, is a repetition of conjecture and argument, but no facts relevant to the arguments advanced in the judicial review proceeding. Conjecture does not, by virtue of its repetition, thereby transform itself from theory into evidence.

[111] There is, moreover, a more plausible explanation evident from the record itself for the Commission's decision in September 1996 not to proceed with the Payne complaint. The Commission's discussions under s. 36 and s. 37 are based largely on the Case Analysis Reports reflecting the results of the staff's investigation of a complaint. The April 4, 1996, Report reviewed by the commissioners at the September meeting is so analytically aberrant in parts, that the Commission's inability to make a decision is transparently explicable.

[112] The Report concluded that since Ms. Payne's comments were "reflective of the black community's views about white Jewish males", her race, colour and ethnic origins were factors in the poor relationship she had with her Jewish co-workers at YCS. This conclusion appears to flow from the application of what is, with respect, a completely novel test for determining discrimination under the Code.

[113] The proposition that behaviour or language by a member of a minority, however offensive, attracts the protection of the Ontario Human Rights Code if it is supported by other members of the same minority, is, to say the least, bizarre. Not surprisingly, I have been unable to find support for this proposition in any reported Canadian case.

[114] The Report's conclusion about whether Ms. Payne's dismissal represented an act of reprisal is also difficult to follow. In concluding that Ms. Payne's dismissal was based on her race, colour and ethnic origins, the Report observed that "the evidence does not indicate that YCS made sufficient attempts to resolve the resulting conflicts at the workplace before deciding to dismiss Ms. Payne from employment". Yet, in dealing with Ms. Payne's allegations of reprisal, the officer observes:

... Her dismissal came about after it appeared to the Executive Director that her complaint could not be adequately addressed, and that her relationship with staff would not improve as long as the issue of her public statement and its impact on staff was not resolved. It appears that YCS took appropriate steps to attempt to address the strained staff relationship, to the point of developing and implementing a Discrimination Policy. However, this alone did not resolve the issue and YCS avoided addressing the issue further by dismissing Ms. Payne from employment. This action appears to be contrary to the spirit of the Code which guarantees the rights of individuals to address concerns of discrimination without fear of reprisal.

In summary, the evidence indicates that Ms. Payne filed an internal complaint of harassment in accordance with YCS' policy, and met with a committee to discuss how her complaint could be resolved. Two weeks later, she was terminated from her employment on the basis that she was not willing to resolve the conflict between her and staff members, so it was best to let her go. [Emphasis added.]

[115] These observations represent inconsistent findings. It cannot reasonably be the case that on the one hand YCS took "appropriate steps" to address the problem created by Ms. Payne's remarks and refusal to apologize, but on the other hand was liable for not continuing to take these steps indefinitely until the issue was fully resolved. It is difficult to understand why Ms. Payne's dismissal two weeks after an unsuccessful attempt to resolve her internal complaint was found to be the determinative timeframe for concluding that insufficient efforts had been made by YCS, rather than the eleven previous months of ongoing attempts to resolve the situation.

[116] Accordingly, there was, in my view, ample justification on the record for the Commission to defer its decision in September until it had the benefit of a more rigorous Report. There is no basis for attributing anything sinister to this obvious, and obviously responsible, request by the Commission for a new Case Analysis Report and further investigation.

[117] There is, in short, no evidence to suggest any impropriety in the deliberations that led the Commission to conclude, as its reasons stated, that it was not Ms. Payne's race, but her anti-Semitic comments which led to her demotion, that there was no systemic discrimination at YCS, that her termination was not an act of reprisal, and that, therefore, the evidence did not warrant a referral to a board of inquiry. Accordingly, there is no foundation for a r. 39.03 examination.

[118] Ms. Payne seems to suggest that there is something suspicious in the refusal of a majority of the commissioners to follow the recommendation in the two Case Analysis Reports that her complaint be referred to a board of inquiry. At the same time, she speculates that the commissioners' negative decision may have been the result of the presence at the two meetings of Commission staff whose comments might have tainted the commissioners' judgment. These are, at heart, inconsistent conclusions. On the one hand, Ms. Payne criticizes the Commission's independence in not following the staff's recommendation; on the other hand, she asserts that the Commission was overly influenced by comments from staff.

[119] The statutory duty to decide whether to refer a complaint to a board of inquiry is assigned by s. 36 of the Code to the Commission. The fact that a staff member – either in person or through a report – recommends one course of action and the commissioners decide on another, is, by itself, arguably more reflective of the proper interplay between discrete and independent institutional functions within the Commission than of a tainted decision-making process.

[120] The staff, who are responsible for investigating complaints, are not discouraged from offering their opinions at Commission meetings. This, it seems to me, is a salutary part of informed decision-making. So is the Commission's ultimate duty to make a decision regardless of these opinions. It may be that a consensus regularly emerges between staff opinions and the commissioners' decisions, but this should be no more surprising among people who share the same statutory and policy expertise than is the occasional difference of opinion.

[121] Nor can it be said that there is anything inappropriate in having the staff participate in discussions about cases. In Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69(1990), 1990 132 (SCC), 68 D.L.R. (4th) 524, the Supreme Court of Canada held that discussions with persons who do not have decision-making responsibility in a particular case, do not automatically pollute the final decision. As Gonthier J. stated, at p. 561:

... discussions with colleagues do not constitute, in and of themselves, infringements on the panel members' capacity to decide the issues at stake independently. A discussion does not prevent a decision-maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom. Whatever discussion may take place, the ultimate decision will be that of the decision-maker for which he assumes full responsibility.

[122] The spectre of impropriety is not raised by the presence and participation of staff members. There is no evidence that any member of the staff made inappropriate comments at the relevant meetings, made comments that were not based on information contained in the Reports, or made any comments that unduly influenced or interfered with the Commission's ability to make up its own mind based on relevant and appropriate factors.

[123] I cannot accept the submission that the commissioners should be presumed collectively to be so completely weak and vulnerable to the importunings of staff that the presence of staff impairs their capacity for independent decision-making, or that any decision diverging from a staff recommendation reflects the application of inappropriate considerations. Yet this is in essence what the appellant is arguing: by looking at the result in this case, we are invited, in the absence of evidence, to conclude that something sufficiently improper has taken place to invoke the otherwise uninvocable r. 39.03.

[124] In my view, the appellant's proposed r. 39.03 examination is essentially, like the circumstances in Agnew, supra, an attempt through examinations of the Commission Registrar and staff to ascertain how the deliberative process worked in this case. It is, with respect, difficult to see this as anything other than a fishing expedition (Canada Metal, supra; Bettes, supra).

[125] A r. 39.03 examination is not justified in the circumstances of this case. I would therefore dismiss the appeal from the Divisional Court without costs.

SHARPE J.A.

[126] I have had the advantage of reading the reasons of Abella J.A. I agree with my learned colleague that the appeal from the decision of the Divisional Court striking certain portions of the appellant's affidavit should be dismissed. However, I respectfully disagree with the conclusion she has reached as to the main issue in this appeal, namely, the propriety of the appellant's proposed examination of a witness pursuant to r. 39.03. As I take a different view as to what facts are pertinent to this appeal and as I differ to some extent as well with respect to the characterization of the issue raised, I find it necessary to provide my own brief account of the background.

OVERVIEW

[127] The appellant made a complaint to the respondent Ontario Human Rights Commission (the "Commission") alleging that she had been the victim of discrimination at the hands of her employer. The Commission staff investigated her complaint. A report of the investigation recommended that the Commission refer the appellant's complaint to a board of inquiry. The matter was considered at three meetings of the Commission. In the end, the Commission decided not to request the minister to appoint a board of inquiry and, in effect, dismissed the appellant's complaint.

[128] The appellant brought an application for judicial review, challenging the decision dismissing her complaint on the grounds, inter alia, that it was made on inappropriate grounds and that she had been denied procedural fairness. The appellant filed the affidavit of a former member of the Commission who had been present at the first of the three meetings at which the appellant's complaint had been considered. The former member swore that when the complaint was considered, Commission staff members made recommendations to the commissioners that the complaint not be referred to a board of inquiry based on facts or considerations that ought not to have been taken into account by the Commission. The statements or recommendations of the Commission staff were not revealed in the record filed by the Commission for the judicial review application.

[129] The principal issue on this appeal is whether the appellant is entitled to full disclosure and production of all facts, arguments and considerations that were presented to the Commission when it considered her complaints.

FACTS

[130] The appellant is a black, African-Canadian woman born in Barbados. She complains that she is the victim of discrimination on grounds of both race and gender at the hands of her former employer, Youth Clinical Services Inc., a government-funded organization, the mission of which is "to provide mental and medical heath care to adolescents, young adults and their families; specifically in the areas of psychosocial counselling, family planning and prevention". The appellant also alleged reprisal in connection with the termination of her employment as well as systemic discrimination and a poisoned work environment in relation to a prior demotion.

[131] In her professional life, the appellant has devoted herself to community work. She was actively involved in organizing opposition to the theatrical production of the musical Show Boat in Toronto in 1993. At that time, she was a member of the North York Board of Education. She believed that Show Boat portrayed blacks in a negative way. In connection with her activities opposing Show Boat, the appellant made the following statement during an interview with a journalist:

Most of the plays that portray Blacks or any other ethnic groups in a negative way is [sic] always done by a White man, and always usually a Jewish person, is doing plays to denigrate us.

[132] Within a few days, the appellant held a press conference and apologized for the anti-Semitic remarks she had made. The appellant was demoted and eleven months later, her employment was terminated, and her complaints to the Commission followed.

[133] I pause here to make the following observation. The application for judicial review has yet to be heard by the Divisional Court. As this matter arises by way of judicial review, and in light of the specific procedural issue that is raised on this appeal, neither party made submissions before this Court as to the merits of the appellant's complaints that she has been the victim of discrimination. In these circumstances, I find it neither necessary nor appropriate to consider the merits of the appellant's complaint of discrimination. The issue of whether there are grounds for judicial review of the decision of the commissioners not to refer the complaint to a board of inquiry should be conducted in the usual course by the Divisional Court after appropriate submissions have been made. It is particularly important to postpone judgment as the very matter that brings the parties before this Court is whether a proper record disclosing all relevant factors has been presented. The question on this appeal is whether the appellant is entitled to have production of a fuller record of what transpired before the Commission. Until that issue has been resolved, it would be premature to express any view as to the merits of her application for judicial review.

[134] The appellant filed a complaint with the Commission dated August 2, 1994. The appellant's complaints were investigated by the Commission staff and a Case Analysis Report was prepared. The Case Analysis Report, dated April 4, 1996, recommended that her complaints of racial discrimination and reprisal in relation to her termination be referred [to] a board of inquiry for a hearing. The appellant was advised of that recommendation. The appellant and her former employer were provided with a copy of the Case Analysis Report and each made submissions to the Commission. The case was considered at a meeting of the Commission held on September 10 and 11, 1996. There is some dispute as to precisely what transpired at that meeting. According to the formal minutes prepared by the Commission, the complaint was "pulled". According to the affidavit of St. Clair Wharton, who was present at the meeting as a member of the Commission, there was a consensus that the appellant's complaint should be sent to a board of inquiry, but that certain matters had to be clarified.

[135] On October 2, 1996, the appellant was advised by the Commission staff that further investigation and analysis were required as well as further opportunity for possible reconciliation before a decision was made whether to refer the matter to a board of inquiry. A second Case Analysis Report, dated January 29, 1997, was prepared. It recommended referral to a board of inquiry for a hearing of the appellant's complaint of reprisal. The appellant's complaint was considered by the Commission at its meeting of March 18 and 19, 1997. The Commission decided, by a majority of four to three, to reject the recommendations of the Case Analysis Reports and not to refer the complaint to a board of inquiry. In its reasons, the Commission stated as follows:

1. The evidence does not indicate that the complainant, when demoted from her position as Group Co-ordinator to that of Community Worker, was discriminated against because of her sex, race, colour, ancestry, place of origin or ethnic origin. Rather, the evidence indicates that the complainant was demoted due to a comment she made, which was interpreted as being anti-Semitic.

2. The evidence does not indicate that systemic racism was present at Youth Clinical Services Inc. (hereinafter "YCS"). Further, the evidence indicates that the recruitment and promotion practices of YCS did not result in an adverse impact or effect upon individuals at YCS, including the complainant.

3. There is insufficient evidence to indicate that the termination of the complainant's employment was a reprisal for having claimed and enforced her rights under the Code, as set out in section 8 thereof.

[136] The appellant was advised of that decision and, on April 9, 1997, she requested reconsideration of that decision. Just over one year later, on April 16, 1998, the appellant was informed that the Commission had upheld its earlier decision not to refer the complaint to a board of inquiry. It gave the following reasons:

1. The application for reconsideration does not set forth material facts that:

(a) were previously unavailable, and are pertinent to the original decision made in this matter; or

(b) indicate that circumstances have changed since the Commission's original decision; or

(c) raise issues as to the integrity of the Commission's procedures in this matter.

[137] On July 9, 1998, the appellant commenced an application for judicial review of the decision of March 24, 1997, refusing to refer the complaints to a board of inquiry and of the decision of April 15, 1998, declining the request for reconsideration of the earlier decision. The application for judicial review alleges a wide variety of grounds, including the following:

1. That the Commission exceeded its jurisdiction and usurped the role of the board of inquiry by asking itself the wrong question, by weighing the evidence, and by basing its decision upon irrelevant considerations including lack of adequate funding, an unfounded concern about being accused of anti-Semitism, and the loss of its own investigative file;

2. That the Commission failed to provide sufficient reasons;

3. That the Commission denied the appellant fairness by failing to disclose relevant evidence and material or information relied upon or considered by the Commission.

[138] On July 10, 1998, the appellant's counsel served a Notice of Examination on the Commission's registrar, pursuant to r. 39.03, requiring the registrar to attend an examination to answer questions and, in effect, make full production of all documents in the possession of the Commission related to the appellant's complaints. The scope of the proposed examination and documentary production was broad. The appellant asked for production of the entirety of the Commission's files and disclosure of all communications between Commission staff and the members of the Commission who considered the appellant's complaint.

[139] It would appear that no immediate steps were taken to enforce the Notice of Examination. However, after the Commission's record was filed, the Commission moved to set aside the Notice of Examination and to strike from the record affidavit material advanced by the appellant that was not before the Commission when it considered the complaint. The appellant brought a cross-motion to enforce the Notice of Examination.

[140] In support of her cross-motion, the appellant filed the affidavit of St. Clair Wharton. Mr. Wharton served as a commissioner of the Commission for six years from February 1991 to February 1997. Based on this experience, Wharton provided a detailed account of the Commission's practices and procedures. He explained that when a complaint is made, the Commission opens an investigation file. Commission staff collect and record information relating to the complaint. After the complaint has been investigated, the staff prepare a Case Analysis Report, which summarizes the evidence that has been gathered, comments on the sufficiency of the evidence, and recommends whether or not the Commission should request that the matter be referred to a board of inquiry. The Case Analysis Report is disclosed to the parties who are entitled to make submissions in writing to the Commission before it decides how to dispose of the complaint.

[141] Before the matter is presented to the Commission members, a senior management meeting is held to review the file. Recommendations made by the staff in the Case Analysis Report may be over-ridden by senior management, in which case the Commission would be presented with a different recommendation. The conclusions reached at this senior management meeting are then shared with the chief commissioner at what is called a "brief the chief" meeting.

[142] Members of senior management and other Commission staff attend the Commission meeting where decisions are made. Wharton deposes that senior managers and other staff members freely offer their views and opinions at Commission meetings. These views and comments, which are expressed orally to the commissioners, are not disclosed to the parties. Wharton deposes that the comments and views expressed by members of the Legal Services Branch during Commission meetings are particularly persuasive even on non-legal points. He states as follows:

I believe that the extent of involvement of Commission staff in the decision-making process of the Commissioners, in the context of the institutional practices and systemic pressures described in this affidavit, impeded my ability and the ability of other Commissioners to make up our own minds and reach our own decisions.

[143] Wharton deposes that factors other than the merits of the particular complaint of discrimination were often taken into account in determining whether or not to refer a complaint to a board of inquiry:

I understood that even though the evidence in the case might show a violation of the Code and even if the Commissioners were of the view that the case was "winnable" at a board of inquiry hearing, the Commissioners nonetheless should not refer the case to a board of inquiry hearing unless the case was "strategic". In considering whether a case was "strategic", the Commissioners would consider whether the case would have a big impact or raise systemic issues, while considering the Commission's limited financial resources. It is my view that introducing consideration of whether a case was both "strategic" is a factor in the Commissioners' decision-making was used by the Commission as a means of referring less cases to the board of inquiry for hearings.

[144] Wharton states that the commissioners did not draft reasons for decisions but rather that the reasons were pre-drafted by the legal staff and that standard forms were used. He identifies certain standard phrases in the reasons given to the appellant for refusing to reconsider the original decision not to refer her complaint to a board of inquiry specifically deposes as follows:

In my experience as a Commissioner, the reasons created by Commission staff which we were asked to endorse rarely reflected the actual discussion that took place during the Commission meetings or the true substance of the Commissioners' reasons for their decision.

[145] Mr. Wharton was present when the appellant's complaint was first considered by the Commission on September 10 and 11, 1996. He states that he specifically recalls the complaint because of his experience in race cases and because of the recommendation in the Case Analysis Report that the complaint be referred to a board of inquiry. He provides the following account of the discussion at the meeting:

At the meeting I recall that some Commission staff voiced the concern that if the Commission sent the complaint to a board of inquiry the Commission might be viewed as supporting an alleged anti-Semitic comment. The source of the staff concern was a comment made by Stephnie Payne which was alleged to have been anti-Semitic and the discussion surrounding that comment which was contained in a written report disclosed to the parties.

[146] It is his recollection that: "[a]s a result of the concern expressed by staff, the Commissioners directed the staff to clarify, by way of writing, that the Commission did not condone or support the anti-Semitic comment that was made by Stephnie Payne". Wharton states that the letter addressed to the appellant dated October 2, 1996, indicating that the Commission was of the view that the matter required: "further investigation and analysis" does not reflect the direction given by the commissioners to the Commission staff at the September 10 and 11 meeting. It is his recollection that there was a consensus that the matter should go to a board of inquiry but that the staff was directed to clarify that this did not indicate the commissioners' support for the comments the appellant had made.

[147] Although he was not at the subsequent meetings of the Commission, he has examined the record prepared by the Commission and deposes that it does not include all of the material contained in the Commission files nor does it record any of the comments that would typically be made at the meetings. Based upon his recollection, a decision taken by the commissioners on September 10 and 11, 1996, and based upon his experience of six years as a commissioner, Wharton deposes that as the Commission dismissed the appellant's complaint despite the recommendations in the Case Analysis Report that a board of inquiry be appointed:

[I]t is my view that there is a legitimate basis for concern that at least some of the Commissioners involved in making the negative decisions could have relied on information not contained in the Commission package. Only complete disclosure of the Commission's files and of information as to what was said by staff during the various meetings of the Commission's proceedings would shed light on whether or not this occurred and if occurred, what was the nature of the information that was relied on.

He further states:

[T]he reasons offered by the Commission do not shed any light or any meaningful light as to why the Commissioners arrived at a negative decision. Complete disclosure of the file and what was said by staff at the Commission meetings would shed light on why the complaint's rights were brought to an end.

[148] The Commission did not object to the admissibility or use of Mr. Wharton's affidavit in these proceedings. The Commission chose not to cross-examine Mr. Wharton on his affidavit. Nor did the Commission introduce any evidence to contradict the facts deposed to by Mr. Wharton. As Mr. Wharton's evidence has been admitted and stands unchallenged and uncontradicted, I can see no basis in law to refuse to accept at face value his account of the Commission's practices or his account of the treatment accorded the appellant's complaint. Nor do I see any reason to doubt the reason he offers for affirming an affidavit in these proceedings: "... as a Commissioner, I understood that I had a public duty to ensure that all complaints that come before me during my tenure as Commissioner were dealt with fairly".

[149] The Commission's motion was allowed in part. The motions judge, Bell J., struck out extensive portions of the appellant's affidavit filed in support of her application for judicial review in which she set out at some length her own version of the facts giving rise to her complaints. The motions judge adjourned for determination by the panel hearing the application for judicial review the motion to strike out the affidavit of an anthropologist and expert in race relations, alleged by the appellant to relate to the jurisdiction of the Commission. The appellant's cross-motion was allowed in part only. The Commission did not resist the appellant's right to examine the Registrar with respect to the loss of the appellant's file. The motions judge ruled that the Wharton affidavit provided an adequate basis to allow the appellant to examine the Registrar regarding the meeting of September 10 and 11, 1996, and to production of the documents provided to the commissioners for that meeting. The motions judge ruled, however, that there was not a sufficient evidential basis to warrant any order with respect to the other meetings. The appellant's motion to have the matter reconsidered by a full panel of the Divisional Court was dismissed.

ANALYSIS

(a) Statutory Framework

[150] To assess whether the appellant is entitled to the production of further information relating to the manner in which her complaint was dealt with by the Commission, it is necessary to review, at the outset, the statutory framework within which the Commission carries out its important mandate. The Human Rights Code, R.S.O. 1990, c. H.19, s. 33 requires the Commission to "investigate a complaint and endeavour to effect a settlement". Investigations are to be conducted by a member or employee of the Commission. The Code provides for a board of inquiry to hear and determine complaints that cannot be resolved by way of settlement and that are referred to the board by the Commission.

[151] The decision-making powers of the Commission in relation to complaints are defined in ss. 34 and 36. Section 34 sets out the circumstances in which the Commission may decide not to deal with a complaint:

34(1) Where it appears to the Commission that,

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

(b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith;

(c) the complaint is not within the jurisdiction of the Commission; or

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay,

the Commission may, in its discretion, decide to not deal with the complaint.

(2) Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered.

1981, c. 53, s. 33; 1994, c. 27, s. 65(12).

[152] Section 36 deals with the power of the Commission to refer or not refer a complaint to a board of inquiry:

36(1) Where the Commission fails to effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.

(2) Where the Commission decides to not refer the subject-matter of a complaint to a board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered.

1981, c. 53, s. 35; 1994, c. 27, s. 65(13).

[153] Where the Commission decides not to request the appointment of a board of inquiry, s. 37 gives the complainant the right to apply for reconsideration:

37(1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based.

(2) Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies.

(3) Every decision of the Commission on reconsideration together with the reasons therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.

1981, c. 53, s. 36.

(b) Role of the Human Rights Commission

[154] When considering the Code, the powers it confers, and the practices and procedures that are appropriate, it is important to bear in mind the nature and significance of the Commission's responsibilities. The rights conferred by the Code "are fundamental, quasi-constitutional rights which embody fundamental values of public policy" (Saskatchewan Human Rights Commission v. Cadillac Fairview Corporation Ltd., 1999 12358 (SK CA), [1999] S.J. No. 217 (QL) at § 14 [reported 34 C.H.R.R. D/133 at D/136] (Sask. C.A.); see also Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 15 (SCC), [1982] 1 S.C.R. 202 [3 C.H.R.R. D/781]). The Code lies at the very heart of the legal arrangements designed to ensure that all members of our society enjoy the essential right to be free from discrimination on racial and other grounds. The Commission has been entrusted with exclusive jurisdiction to determine that fundamental human right: Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181 [2 C.H.R.R. D/468]. If the Commission refuses to proceed with a complaint, the individual who claims that his or her fundamental human rights have been infringed has no recourse other than judicial review to challenge the Commission's decision.

[155] The decision-making powers of the Commission in relation to complaints are cast in ss. 34, 36 and 37 in terms of a discretion. The Divisional Court has held that the exercise of the Commission's discretion necessarily involves consideration of the evidence: Jazairi v. Ontario Human Rights Commission(1997), 1997 12445 (ON SC), 146 D.L.R. (4th) 297 [29 C.H.R.R. D/428] (Div.Ct.) (aff'd. on other grounds [1999] O.J. No. [2474] (QL) [reported 1999 3744 (ON CA), 36 C.H.R.R. D/1] (C.A.) leave to appeal dismissed May 3, 2000, [1999] S.C.C.A. No. 448 (S.C.C.)). As I see it, the only legitimate factor to be considered by the Commission in the exercise of its discretion is whether there is any merit in the complaint. If the Commission were to base its decision on some extraneous factor, the court would intervene on judicial review. I did not understand counsel appearing on behalf of the Commission to dispute this basic point which flows from the nature of the Commission's statutory mandate. The decision not to refer a complaint puts an end to an allegation that a fundamental human right has been violated. In my opinion, it would be entirely inconsistent with the nature of a fundamental human right if the Commission were, as is alleged in the Wharton affidavit, to dismiss a complaint for reasons of cost or because of "strategic concerns": see, for example, Singh v. Canada (Minister of Employment and Immigration)(1985), 1985 65 (SCC), 17 D.L.R. (4th) 422 at 469 (S.C.C.) per Wilson J.; Dworkin, Taking Rights Seriously (1977), at pp. 90–100.

[156] In any event, procedural fairness dictates that the complainant and other parties who may be affected by a decision of the Commission be given notice of the facts, arguments and considerations upon which the decision is to be based and an opportunity to make submissions. Under the procedures adopted by the Commission, the complainant and others who may be affected by the decision are not entitled to attend the meeting at which the complaint is considered by the commissioners. In advance of that meeting, they are provided with a copy of the Case Analysis Report that will be put before the commissioners and are given an opportunity to make written submissions. If the Commission were to proceed on a different recommendation or to base its decision on factors or considerations undisclosed to the complainant and the others, there would be no opportunity to respond and the right to fairness would be infringed.

[157] Finally, the complainant has a statutory right to be given the Commission's reasons for refusing to proceed with the complaint or for refusing to refer it to a board of inquiry. It would make a mockery of that statutory right if the complainant were told that the complaint was dismissed for want of merit while the commissioners' real reason was want of resources or some other unexplained strategic concern.

[158] The procedures of the Commission must be designed, and its practices conducted, in a manner commensurate with the nature and importance of the rights placed in its hands. With this background in mind, I proceed to consider the precise issues presented on this appeal.

(c) Position of the Parties

[159] The appellant's position is that she has a prima facie right to conduct an examination of the Registrar under r. 39.03. The appellant also submits that even if, as the Commission submits, it is necessary to establish "a reasonable evidentiary foundation" for the examination, the evidence adduced, in particular, the Wharton affidavit satisfies that test. The Commission submits that it is necessary to establish an evidentiary foundation to justify an examination under r. 39.03 in an application for judicial review, and that the appellant has failed to do so in this case. The Commission does not, however, dispute before this Court the correctness of the motions judge's order permitting the appellant to have full disclosure of what was said or put before the commissioners by Commission staff in relation to the appellant's complaint at the September 10 and 11, 1996, meeting.

(d) The "Record" on Judicial Review

[160] The content of the court record for an application for judicial review is defined by the Judicial Review Procedure Act, R.S.O. 1990, c. J-1 and by the Rules of Civil Procedure. The process begins with the notice of application: r. 68.01(1). Upon being served with the notice of application for judicial review, the decision-maker is required by s. 10 of the Judicial Review Procedure Act, to file with the Divisional Court "the record of the proceedings in which the decision was made". The "record" is not defined by the Act.

[161] An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court's inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in R. v. Medical Appeal Tribunal ex p. Gilmore, [1957] 1 Q.B. 574 at 583 (C.A.): "The court has always had power to order an inferior tribunal to complete the record ... [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order". See also R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1952] K.B. 338 at 352–54 (C.A.); Canadian Workers Union v. Frankel Structural Steel Ltd. (1976), 1976 829 (ON SC), 12 O.R. (2d) 560 at 577 (Div. Ct.) per Reid J.; F.G. Spencer Ltd. v. Prince Edward Island (Labour Relations Board) (1970), 1970 960 (PE SCAD), 16 D.L.R. (3d) 670 (P.E.I.S.C.); Battaglia v. British Columbia (Workmen's Compensation Board) (1960), 1960 334 (BC SC), 22 D.L.R. (2d) 446 (B.C.S.C.). A statutory body subject to judicial review cannot immunize itself or its process by arriving at decisions on considerations that are not revealed by the record it files with the court.

(e) Examination of Witnesses

[162] Rule 39.03 provides that a person may be examined as a witness before the hearing of a pending motion or application. Rule 39.03 applies to applications for judicial review. The leading Canadian text on administrative law, Brown and Evans, Judicial Review of Administrative Action in Canada (updated June 30, 1999) at § 6:5530, states: "A witness may be summoned to give evidence under oath in support of an application for judicial review and any transcript of that evidence is to be included in the Application Record". This proposition is borne out by the authorities that have considered the Rule in relation to applications for judicial review. As I explain below, these authorities hold that a party to an application for judicial review is entitled to adduce evidence by way of examination, provided the evidence sought to be adduced is relevant to an issue properly raised on the judicial review application and is not specifically excluded by statute or by some applicable legal principle, and provided that the examination is not being used for an ulterior or improper purpose and does not constitute an abuse of process of the court.

[163] The leading case is the decision of this Court in Canada Metal Co. Ltd v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185. That case dealt with former r. 230, the predecessor to r. 39.03 in relation to an application for prohibition, one of the common law remedies that preceded the Judicial Review Procedure Act. An applicant for the writ of prohibition alleged that the members of a tribunal had made statements indicating disqualifying bias. The applicant issued subpoenas to the members of the tribunal and to certain journalists who had heard the statements relied upon as exhibiting bias. The Divisional Court struck out the subpoenas directed to the journalists on the ground that they were premature and that the applicant had first to examine the Board members. The Divisional Court held that there was an onus on the party issuing the subpoena to justify it. Writing for this Court, Arnup J.A. rejected that proposition and held that the applicants were entitled to maintain the subpoenas and examine to [sic] the journalists. In a passage that is frequently quoted as correctly stating the law, Arnup J.A. wrote as follows at pp. 191–92:

Rule 230 [now r. 39.03] requires no prior leave or order of the Court. It has been suggested in some decisions that it is for the person issuing the subpoena under that Rule to satisfy the Court that his resort to it is reasonable [citations omitted]. We do not think it is appropriate or helpful to declare that when such a subpoena is attacked, an onus of proving justification arises against the party issuing it.

The evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to resort to Rule 230. That right must not be so exercised as to be an abuse of the process of the Court. There will be such an abuse if the main motion is itself an abuse, as by being frivolous and vexatious, or if the process under rule 230, while ostensibly for the purpose of eliciting relevant evidence, is in fact being used for an ulterior or improper purpose, or if the process is being used in such a way as to be in itself an abuse (as for example, by issuing subpoenas to every member of the House of Commons to prove a defamatory statement shouted out by a spectator in the gallery). The list is not exhaustive.

[164] Accordingly, Canada Metal establishes that there is a prima facie right to conduct a r. 39.03 examination in relation to an issue relevant to the application for judicial review, but that the right is subject to certain limits, to which I now turn.

(f) Limits on the Right to Examine Witnesses in an Application for Judicial Review

(i) No Right of Discovery

[165] The first limit applicable to the circumstances of the present case is implicit in the fact that neither the Rules of Civil Procedure nor the Judicial Review Procedure Act provide for examination for discovery on an application for judicial review: Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1992), 1992 6320 (ON SC), 95 D.L.R. (4th) 56 at 59 (Div.Ct.), varied on another point (1994), 1994 10531 (ON SC), 110 D.L.R. (4th) 731 (Div.Ct.). It follows, in my view, that a r. 39.03 examination may not be used where the purpose is simply to conduct a general discovery. That would amount to an "ulterior or improper purpose" contemplated by Canada Metal and should not be allowed.

[166] I agree with the submission of the Commission that the proposed scope of the examination in the present case runs afoul of this principle. The list of documents to be produced appended to the notice of examination is set out in full in the reasons of Abella J.A. and I will not repeat it here. It is so sweeping and unfocused that it is apparent that the appellant is, in effect, insisting upon a general discovery of the Commission through its registrar, hoping to uncover something that will help her case. The proposed scope of the examination is simply too broad. Subject to what follows with respect to documents or facts that were actually put before the commissioners when they decided the fate of her compliant, the appellant has no general right to rummage through the Commission's files in the hope of uncovering something helpful to her case. For reasons I will explain, however, this is not fatal to the appeal as it seems to me that a more focussed examination should be permitted.

(ii) Deliberative Secrecy

[167] A second limit on the right to resort to a r. 39.03 examination arises from the doctrine of deliberative secrecy. Several cases subsequent to Canada Metal, supra, have dealt with the problem posed by examination of tribunal members or senior officials such as registrars who are privy to the tribunal's decision-making process. These authorities indicate that additional considerations must be taken into account with respect to r. 39.03 examinations in the administrative law context in view of the doctrine of deliberative secrecy. The point was dealt with in Agnew v. Ontario Association of Architects(1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 at 14 (Div.Ct.) and in Ellis-Don, supra, holding that the prima facie right identified in Canada Metal is subject to the qualification that an examination not be used to delve into the actual decision-making process of the tribunal. In Agnew, supra, Campbell J. identified a variety of purposes underlying the doctrine of deliberative secrecy. First is the practical concern that if no limits were imposed, tribunal members would be exposed to unduly burdensome examinations and "would spend more time testifying about their decisions than making them". A second reason is the need for finality. The decision should rest on the reasons given and not on the success or failure of a cross-examination. Third is the need for a shield to protect the process of debate, discussion and compromise inherent in collegial decision-making.

[168] However, it has also been held on the highest authority that limitations on the right to conduct examinations designed to protect the interests of tribunal members must be balanced with the right of the citizen who has been affected by the tribunal's decision to effective judicial review. When applying the principle of deliberative secrecy to protect the integrity of the decision-making process, the courts must take into account the fact that administrative decisions are subject to the inherent power of judicial review. In this regard, a distinction has been drawn between the deliberations of administrative and judicial officers. The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, to the certain overarching principles. As was pointed out by Gonthier J. in Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952 at 965–66, an allegation that the right to natural justice has been infringed may require scrutiny of the decision-making process. Tribunal members do not have an unqualified right to shelter their decision-making process from scrutiny:

Additionally, when there is no appeal from the decision of an administrative tribunal, as is the case with the Commission, that decision can only be reviewed in one way: as to legality by judicial review. It is of the very nature of judicial review to examine inter alia the decision maker's decision-making process. Some of the grounds on which a decision may be challenged even concern the internal aspect of that process: for example, was the decision made at the dictate of a third party? Is it the result of the blind application of a previously established directive or policy? All these events accompany the deliberations or are part of them.

Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.

[169] In the present case, the doctrine of deliberative secrecy must be taken into account. The appellant does not seek to examine a member of the Commission as to confidential discussions with other commissioners. She does, however, seek to examine a senior official, privy to the deliberations of the Commission, and to obtain disclosure of facts and arguments that were put before the commissioners by senior staff members and considered by the commissioners in determining the fate of her complaint. I note, however, that the application of deliberative secrecy to these proceedings is not without difficulty. The commissioners apparently conduct their discussions at the same time they entertain submissions and input from staff members and it would seem difficult to identify a discrete, deliberative phase of the process. In view of that practice, it seems to me that the claim of protection for deliberative secrecy has considerable less force than in cases where tribunal members actually retire to consider the case in private. This factor must be added to what was said in Tremblay regarding the qualified protection accorded deliberative secrecy in the administrative law setting in determining the extent to which the Commission can shelter its process from disclosure.

(iii) Factual Foundation

[170] A difficult and delicate issue is the nature of the factual threshold a party must satisfy to conduct a r. 39.03 examination in support of an application for judicial review. I do not accept the argument advanced by the Commission that it is necessary in all cases to establish a "reasonable evidential foundation". Nor do I agree with my colleague Abella J.A.'s conclusion that there is a "heavy onus" or that the party seeking an examination must provide "reasonable, reliable, relevant evidence" to meet the "high threshold". In my view, language of this kind is not apt for a variety of reasons. First, it is inconsistent with Canada Metal, supra, and a long line of cases that have followed: see for example, Fort Norman Explorations Inc. v. McLaughlin(1982), 1982 2086 (ON SC), 36 O.R. (2d) 787 (H.C.J.); Iona Corp. v. Aurora (Town)(1991), 1991 7278 (ON SC), 3 O.R. (3d) 579 (Gen.Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co.(1995), 1995 7258 (ON SC), 27 O.R. (3d) 291 (Gen.Div.). Second, there is a distinct risk that if the standard is expressed in these terms, resort to r. 39.03 would become virtually redundant. Simply put, an applicant for judicial review should not have to prove his or her case before securing access to the very process designed by the Rules of Civil Procedure to adduce evidence. It is also my view that to pitch the test so high in a case such as the present one would be inimical to the inherent power of judicial review and the importance of having a full and accurate record of what transpired before the decision-maker. To fulfil their constitutionally protected mandate of ensuring that statutory procedures are followed in a manner that accords with the principles of natural justice, the superior courts must afford litigants adequate procedures to ensure that all relevant facts are presented. Accordingly, it is sufficient if the proposed examination is focussed on facts relevant to an issue properly raised by way of judicial review. I hardly need to add that facts relevant to an issue properly raised by way of judicial review is a very specific and narrowly circumscribed classification.

[171] There are, no doubt, additional factors that come into play where the examination will impinge upon deliberative secrecy. I do not doubt the importance of the doctrine of deliberative secrecy nor do I question the utility of protecting statutory decision makers from unduly burdensome examinations. However, as stated in Tremblay, supra, against those interests must be balanced the right of the individual to fairness and natural justice. In my view, requiring the applicant for judicial review to satisfy a "heavy onus" by providing "reasonable, reliable, relevant evidence" would effectively deny access to r. 39.03 to anyone who was not already in a position to prove his or her case. I do not agree that such a standard would achieve an appropriate balance. In the case at bar, the motions judge referred to the need to establish a "reasonable evidentiary foundation": see Bettes v. Boeing Canada/de Havilland Division (1992), 1992 7789 (ON SC), 10 O.R. (3d) 768 (Gen.Div.). Brown and Evans, supra, at § 6:5620 say perhaps ambiguously that the examination of a decision-maker will be allowed if "a certain threshold of evidence is met". In Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs)(1994), 1994 NSCA 58, 129 N.S.R. (2d) 298 at 303 (C.A.) Freeman J.A. suggested the following standard:

... a proper evidentiary foundation must be created, generally by affidavit evidence, to establish that valid reasons exist for concern that there has been a want of natural justice or procedural fairness, or that the discretionary authority has been otherwise exceeded.

[172] In view of these authorities and in keeping with what was said in Canada Metal and Tremblay, it seems to me that an applicant for judicial review who seeks to conduct an examination that will touch upon the deliberative secrecy of the decision maker must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. I would emphasize that, in view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed.

(iv) Statutory Exclusions

[173] I note finally that the right to conduct a r. 39.03 examination may also be limited by statute. In the present case, the Commission submits that s. 30 of the Code has this effect:

30(1) No person who is a member of the Commission shall be required to give testimony in a civil suit or any proceeding as to information obtained in the course of an investigation under this Act.

(2) No person who is employed in the administration of this Act shall be required to give testimony in a civil suit or any proceeding other than a proceeding under this Act as to information obtained in the course of an investigation under this Act.

1981, c. 53, s. 29.

[174] In my view, s. 30 does not preclude an examination along the lines I outline below. By its terms, s. 30 only protects from disclosure "information obtained in the course of an investigation under this Act". I read that provision as protecting from disclosure the product of the investigative efforts of the Commission and its staff. It does not amount to a general prohibition against examinations of members of the Commission or Commission staff, but rather represents a specific and limited curtailment of the rights of litigants to obtain evidence relevant to their cause. While I accept that this provision provides an additional reason to deny the appellant claim to general production of everything in the Commission's file, I fail to see how that language has any bearing in the right of the appellant to have produced before the Divisional Court for the purposes of the judicial review application a full account of all material presented to the commissioners when they disposed of her case. If the statute had that effect, the appellant's right to fairness would be circumscribed. I do not accept that s. 30 should be so interpreted.

[175] The circumstances in the present case may be contrasted with those presented in Ellis-Don, supra, involving a very different statutory provision. At issue there was the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, s. 111. That section explicitly provides that no member of the Board or Board official

111. ... shall be required to give testimony in any civil suit or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

[176] In view of that very different statutory language, the decision of the Divisional Court to preclude the examination of the chair, vice-chair and registrar of the board on the basis of a very different statute is readily distinguishable.

(v) Summary

[177] I would summarize the effect of these authorities and considerations in the following manner. There is a prima facie right to resort to a r. 39.03 examination in relation to an application for judicial review and there is no onus on the party seeking the examination to prove any facts as a precondition. However, as there is no general right to discovery on a judicial review application, the party serving a notice of examination may be required to specify the scope of the proposed examination. The matters intended to be covered in the examination must be relevant to a ground that would justify judicial review. The evidence must not be excluded by statute. The proposed examination will not be allowed where it is being used for some improper purpose or where the examination or the application for judicial review would constitute an abuse of the process of the court. Where it is proposed to examine a tribunal member or senior tribunal official privy to the decision-making process, the right to conduct the examination must be balanced with the principle of deliberative secrecy. The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed.

(g) Application

[178] In my view, the motions judge and the panel of the Divisional Court affirming her decision erred by imposing on the appellant an unduly burdensome onus of justification for the proposed examination. In particular, I would reject the submission that it was necessary for the appellant to adduce evidence from someone actually present at the two meetings subsequent to September 11 and 12, 1996, to justify the examination. However, the appellant is not entitled to a full discovery of the Commission, through its registrar, and the examination must be limited to facts relevant to the grounds for judicial review.

[179] The appellant seeks to examine a senior Commission official who is privy to the decision-making process and aspects of the proposed examination could well touch on the Commission's decision-making process. In my view, as the Commission has chosen to conduct it[s] deliberations with the assistance and in the presence of non-Commission members, its deliberations are necessarily more exposed to review than if they were conducted privately. Specifically, it is my view that the appellant is entitled to know the recommendations and any other facts presented to the commissioners by the Commission staff. It is, in any event, my view that the appellant has presented a basis for a clearly articulated and objectively reasonable concern that the process followed may not have complied with the principles of fairness and that the Commission has failed to provide the Court with a record that completely reveals all the facts, arguments and considerations that were presented to the commissioners when they decided not to request a board of inquiry. The Wharton affidavit gives rise to a number of related concerns regarding the practices of the Commission, namely:

1. Excessive control by the staff over the decision-making process of the Commission in general, and in particular, senior staff overriding the Case Analysis Report and putting a different recommendation to the Commission from that reflected by the Case Analysis Report;

2. Staff members urging the Commission to base decisions on legally irrelevant factors, especially strategic concerns;

3. Failure of the Commission to convey to parties affected the actual reasons for decision;

4. Failure of the Commission to provide a full and complete record for the purposes of judicial review of what facts and considerations were taken into account by the Commission.

[180] While I express no view as to whether the appellant will, in the end, succeed on any of these points, there is, in my view, a sufficient nexus between these concerns and the treatment accorded the appellant's complaint to warrant further inquiry. Mr. Wharton was, after all, a stranger neither to the practices of the Commission nor to the treatment accorded the appellant's complaint. In light of his immediate familiarity with these matters, his views as to what may have transpired at the impugned meetings of the Commission rises well above the level of speculation or mere conjecture. The case is similar to Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1993), 1993 9434 (ON SCDC), 99 D.L.R. (4th) 682, varied 1993 9435 (ON SCDC), 99 D.L.R. (4th) 706 where the Divisional Court allowed an examination to proceed in response to a "cry for help" from a concerned tribunal member.

[181] Accordingly, it is my view that the appellant is entitled to examine the registrar as to what documents, facts, considerations or recommendations not already revealed by the record filed on judicial review were before the commissioners, to inquire as to whether "strategic factors" formed a basis for the commissioners' decision, and to inquire whether there were any reasons for the determination not revealed in the reasons given the appellant.

CONCLUSION

[182] For these reasons, I would dismiss the appeal from the order striking out portions of the appellant's affidavit, but would allow the appeal to enable the appellant to conduct a r. 39.03 examination to the extent indicated in the preceding paragraph. I would also award the appellant her costs of this appeal as well as her costs of the proceedings before the motions judge and the full panel of the Divisional Court.