Ontario Human Rights Commission v. Dofasco Inc.
Ontario Human Rights Commission v. Dofasco Inc. et al. [Indexed as: Ontario Human Rights Commission v. Dofasco Inc.]
57 O.R. (3d) 693
[2001] O.J. No. 4420
Docket No. C35181
Court of Appeal for Ontario
Morden, Abella and Rosenberg JJ.A.
November 16, 2001*
- Note: This judgment was recently brought to the attention of the editors.
Administrative law -- Boards and tribunals -- Jurisdiction -- Rules of procedure -- Discovery of documents -- Power of tribunal to order discovery and production of documents -- Scope of documentary discovery -- Human Rights Code, R.S.O. 1990, c. H.19 -- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 5.4
CJ, whose employment with Dofasco Inc. had been terminated, complained to the Ontario Human Rights Commission ("the commission") that Dofasco had discriminated against her on the basis of a physical handicap contrary to ss. 5 and 9 of the Human Rights Code. The commission applied to a board of inquiry for, amongst other things, compensation for her lost wages and benefits. The commission and Dofasco exchanged pleadings in accordance with the board's rules of practice. Dofasco's pleading raised the issue of whether CJ was medically fit to work, and Dofasco pleaded that it had requested but not received an explanation from CJ as to the circumstances of her having received benefits under the Canada Pension Plan ("CPP"); these benefits were available only to a person "incapable of regularly pursuing any substantially gainful occupation". After the exchange of pleadings, Dofasco brought a motion for production of, amongst other things, CJ's medical files, her Workplace Safety and Insurance Board file, her CPP file and her income tax returns.
Pursuant to s. 5.4(1) of the Statutory Powers Procedure Act ("SPPA"), a tribunal with rules of practice may make orders for the exchange of documents and for any other form of disclosure. However, s. 5.4(2) of the SPPA provides that s. 5.4(1) does not authorize the making of an order requiring the disclosure of privileged information. Having rules of practice for disclosure and acting pursuant to s. 5.4(1) of the SPPA, the board ordered CJ to provide consents to her doctors and to request production of her files. Paragraph 2 of the board's order required her to provide Dofasco's counsel a document setting forth all medical practitioners not mentioned in para. 1 who treated CJ between March 22, 1990 to the present, their area of expertise or speciality, the date of the visits and the ailment or condition treated. Paragraph 5 of the board's order required CJ to provide a sworn affidavit of documents including a section listing documents not provided to Dofasco for reason of not being arguably relevant. The board ordered copies of documents to be provided to Dofasco. The commission brought an application for judicial review of the board's decision. The Divisional Court dismissed the application. With leave having been granted, the commission appealed to the Court of Appeal for Ontario.
Held, the appeal should be allowed in part.
Contrary to the submission of the appellant commission, the board made no error by not confining its order only to documents on which CJ intended to rely to support her case. The recognized purposes of discovery include not only enabling a party to know the case he or she has to meet but, also, to obtain documents which may enable the party either to advance his or her own case or damage the case of the adversary. However, under s. 5.4(2), the board did not have the power to order the production of privileged documents. The board also did not have the power to order the production of documents that are not arguably relevant. The exercise of such a power would invade a party's privacy rights without any countervailing advantage to the administration of justice. The key provision in the board's order was para. 5, the provision about the affidavit of documents. Although the Divisional Court construed the order as requiring CJ to produce all of the documents sought by Dofasco, properly interpreted, para. 5 was meant to require CJ to swear an affidavit and only to provide copies of documents for which there was: (a) no claim for privilege; and (b) no claim for irrelevance, that is, no listing of the document on the list of documents said to be not arguably relevant. Interpreted in this way, para. 5 was within the power of the board. Paragraph 2, however, was not within the power of the board because in complying with the order, CJ would risk providing to Dofasco information of a most intimate nature that was unrelated to her claims in the proceeding. This part of the order, which contained no terms or conditions to protect CJ's privacy interests, exceeded the board's powers under the SPPA and its own rules. Accordingly, the appeal should be allowed in part and para. 2 of the board's order should be set aside.
APPEAL from an order of the Divisional Court.
Cases referred to Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55, 52 L.J.Q.B. 181, 48 L.T. 22, 31 W.R. 395 (C.A.); Cook v. Ip (1985), 1985 CanLII 163 (ON CA), 52 O.R. (2d) 289, 22 D.L.R. (4th) 1, 5 C.P.C. (2d) 81 (C.A.); Howe v. Institute of Chartered Accountants of Ontario (Professional Conduct Committee) (1994), 1994 CanLII 3360 (ON CA), 19 O.R. (3d) 483, 118 D.L.R. (4th) 129 (C.A.) [Leave to appeal to S.C.C. refused (1995), 21 O.R. (3d) xvi, 186 N.R. 78n]; MacPhayden v. Employers Liability Assurance Corp., 1933 CanLII 128 (ON CA), [1933] O.W.N. 72 (H.C.J.); McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138, 126 N.B.R. (2d) 271, 93 D.L.R. (4th) 415, 137 N.R. 35, 317 A.P.R. 271, 12 C.C.L.T. (2d) 225, 7 C.P.C. (3d) 269; Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 1994 CanLII 10981 (ON SCDC), 115 D.L.R. (4th) 279 (Ont. Div. Ct.) Statutes referred to Human Rights Code, R.S.O. 1990, c. H.19, ss. 5, 9, 17(1), (2), 35(1), (5), 39(1), (2), (4) Statutory Powers Procedure Act, 1971, S.O. 1971, c. 47, s. 8 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 2, 5.4, 8, 12(1), 25.0.1, 25.1, 32 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.01-30.05, 30.06(d) Rules of Practice, Ontario Board of Inquiry [effective November 1, 1996], Rules 1, 35-37, 40, 41, 42, 43, 44 Authorities referred to Andrews, N., Principles of Civil Procedure (London: Sweet & Maxwell, 1994) Anisman, P., and R.F. Reid, Administrative Law: Issues and Practice (Scarborough: Carswell, 1995) Brown, D.J.B., and J.M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998- ) Holmested, G.S., and G.D. Watson, Ontario Civil Procedure (Toronto: Carswell, 1984- ) Mullan, D., Administrative Law (Toronto: Irwin Law, 2001) Task Force on Systems of Civil Justice (Toronto: Canadian Bar Association, 1996) Williston, W.B., and R.J. Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970)
Naomi Overend and Jennifer Scott, for appellant. Michael Hines, for respondent Dofasco Inc. Fiona Campbell, for complainant Catherine Jeffrey. Margaret Leighton, for Board of Inquiry.
The judgment of the court was delivered by
[1] MORDEN J.A.: -- This appeal is concerned with the nature and extent of the power of a board of inquiry under the Human Rights Code, R.S.O. 1990, c. H.19 to order a complainant, who alleges that she was discriminated against in her employment on the basis of a physical handicap, to disclose medical and other documents relating to her.
[2] I shall, shortly, describe what has taken place in this proceeding but say now that the board of inquiry ("the board") which is composed of one person, Matthew D. Garfield, made an order, on a motion by Dofasco Inc., requiring the complainant, Catherine Jeffrey, to disclose certain documents. I shall set out the terms of the order, which are considerably more complex than this brief statement indicates, later in these reasons.
[3] The appellant, the Ontario Human Rights Commission ("the commission"), brought an application to the Divisional Court for judicial review of the board's order, which the court dismissed. The commission, with leave, appeals to this court from this decision.
The Underlying Facts Relating to the Disclosure Order
[4] The facts relating to the board's disclosure order and to the judicial review proceeding, which is before the court, are, in the main, those set forth in the pleadings filed with the board. Pleadings are provided for in Rules 35 to 37 of the board's Rules of Practice.
[5] The commission's pleading alleged that the complainant was employed by Dofasco from 1976 to 1994. She worked as a crane operator. She was injured in 1988 and re-injured in 1990. She was diagnosed with chronic pain disability/fibromyositis/ fibromyalgia. This condition made her incapable of working as a crane operator.
[6] The complainant was off work between 1990 and 1994 but continued to have contact with Dofasco Inc. from time to time. On March 1, 1994, Dofasco, for the first and only time, raised the possibility of assigning her reasonably suitable alternative work, as a switchboard operator. Her response was to defer the decision on whether or not to accept this work until after she had consulted with her specialist doctor. She informed Dofasco of this. Because of her doctor's absence, she was unable to see him until April 26, 1994.
[7] Dofasco was unwilling to wait for this and demanded that the complainant report to Dofasco Medical Services on March 11 and report for work on March 14. She did report to Dofasco Medical Services on March 11. Despite knowing that she was unable to see her specialist until April 26, Dofasco Inc. terminated her employment forthwith after she did not report for work on March 14, claiming that her contract of employment had been frustrated because of her "prolonged and ongoing refusal to report for available and suitable work".
[8] The commission alleged that the facts disclosed the following issues:
(a) The complainant was terminated because of her handicap, which constitutes prima facie discrimination;
(b) Dofasco did not attempt to accommodate the needs arising from the complainant's handicap to the point of "undue hardship", and therefore cannot establish that the complainant was "incapable" of her essential duties;
(c) In fact, Dofasco was not engaged in a good faith process of accommodation, given the timing of its job offer, its refusal to wait for the complainant to get required medical advice, and its refusal to consider any other options;
(The commission raised additional issues in its pleading relating to harassment and reprisals on the part of Dofasco. They are not relevant to the proceeding before the court.)
[9] This is followed by the general allegation that Dofasco discriminated against the complainant on the ground of handicap contrary to ss. 5 and 9 of the Human Rights Code.
[10] The commission sought the following remedies:
(a) Compensation for lost wages and benefits for the complainant for the period March 15, 1994 to the present, less any amounts of such compensation the complainant received for this period from the WSIB or CPP;
(b) Compensation for the intrinsic value of the rights infringed in the amount of $10,000;
(c) Compensation for mental anguish suffered because of the wilful or reckless manner of infringement in the amount of $10,000;
[11] Dofasco's pleading is relatively long and detailed. A summary set forth in para. 37 reads:
To summarize, for four years the Complainant consistently asserted inability to perform productive work for Dofasco, apparently supported by her physicians, while failing to provide relevant medical information and emphasizing her desire for WCB vocational training. In the four years between her second accident and her termination, the Complainant never stated she was ready to return to work or that her physicians had cleared her to return to work. During that time period, she never suggested there were any particular jobs or bundles of duties that she could productively perform, nor, to the Respondent's knowledge, did any of her physicians. During her four year absence from work, the Complainant repeatedly took the position that (initially) she was not ready to return to work, and (later) that she was unlikely to ever be able to return to work at Dofasco. The Commission's Pleadings do not refer to any indication from the Complainant that she was, either prior to or subsequent to her termination, medically fit to return to any productive job at Dofasco. This background, coupled with her refusal to even attempt an ultra-light duty job, the WCB's concurrence that she could do the work and her clear focus on maintaining WCB eligibility, constituted ample grounds for terminating the employment relationship. For four years, the Complainant had not fulfilled the basic "essential duty" of an employee to, ie., perform productive work. Apart from wishful thinking, there was no reason to believe that, whatever accommodation Dofasco made for her, she ever would. A "window of opportunity", arising out of the broader corporate restructuring process, became accessible for a short period of time [earlier in Dofasco's pleading it was alleged that there was a "pressing" need to fill the switchboard operator's vacancy]. Dofasco acted reasonably in stating its preparedness to accept medical clearance from a doctor other than the absent specialist and its readiness to physically modify the worksite. The Complainant declined to tak e advantage of this, and the window "closed". There was no prospect that such an opportunity would arise again in the foreseeable future. Dofasco then proceeded to exercise its rights of termination under Section 17 of the Code.
Dofasco also pleaded:
Dofasco has now learned that in August, 1993, the Complainant was awarded disability benefits under the Canada Pension Plan. Dofasco has requested but has not yet received documents explaining why this decision was reached despite the findings of Dr. Darracott in November, 1992 [that "from a physical point of view, there [was] no clinical evidence to suggest she has physically disabling pathology"].
Under the Canada Pension Plan, an applicant can only receive a CPP Disability Pension if they are "incapable regularly of pursuing any substantially gainful occupation" and their disability is "likely to be long continued and of indefinite duration".
[12] Dofasco then raised the following issues:
At the time of her termination, was the Complainant capable of performing any work, or was she "incapable of pursuing any substantially gainful occupation", as her CPP Disability Pension status would suggest?
If the Complainant now claims to have been capable of performing work in March, 1994, should the Board of Inquiry dismiss this Complaint as an abuse of process, given the fact that such a position directly contradicts the position she has successfully taken before the Canada Pension Plan i[n] respect of the same time period?
If, as her CPP status would suggest, the Complainant was totally unemployable in March, 1994, did Dofasco have any obligation at all to accommodate her "needs"?
Assuming the Complainant was capable of some work in March, 1994, was she capable of the switchboard duties?
Assuming the Complainant's needs were such that some measure of accommodation would have permitted her to perform work in March, 1994, were Dofasco's efforts at accommodation sufficient to accommodate those needs?
Did the Complainant, herself, take all reasonable steps available to her to participate in the accommodative process?
The Motion Before the Board
[13] After the exchange of pleadings, Dofasco brought a motion for:
An Order compelling production of the files of Dr. Leong, Dr. Buckley, Dr Kean and Dr. Forrest relating to the Complainant during the period between March 22, 1990 and the present date;
An order compelling production of the files of any other medical practitioner who examined or treated the Complainant during the period between March 22, 1990 until the present date;
An order compelling production of all files maintained by the Workplace Safety and Insurance Board regarding the Complainant;
An order compelling production of the Complainant's medical file maintained by the Medical Department of Dofasco Inc.
An order compelling production of the Complainant's disability pension file maintained by the Canada Pension Plan;
An order compelling production of true copies of the Complainant's income tax returns from 1993 until the present as well as true copies of any documents received by the Complainant from Revenue Canada which confirm or correct any of those returns.
Alternatively, an order requiring the Complainant's written consent to the disclosure of each of the foregoing documents to the Respondent's counsel.
Such further and other relief as to this Board of Inquiry seems just.
[14] The board heard the motion on December 16, 1999 and gave its decision orally that day. It stated the competing submissions of the parties as follows:
Dofasco brings a motion for production of medical files, WCB file, CPP file and income tax returns (T1s and notices of assessment) from the Complainant. Dofasco argues that it should have the same degree of access to original documents in a file as the Complainant. Dofasco also submits that it is being denied the ability to know the case it has to meet, prepare its defence under section 17 of the Code, and deal with central issues in this case including the quantum of damages. Dofasco has highlighted instances of imperfect disclosure in these proceedings including sequentially numbered documents not produced by the Complainant.
The Commission opposes the motion and argues that the relief sought is too wide and that Dofasco is not entitled to the production of files per se and documents not relevant to the handicap of the Complainant (chronic pain disability, fibromyositis, fibromyalgia). The Commission argues that the Board's rules do not contemplate such a wide net of disclosure -- a "fishing expedition".
Though not present, the Complainant, through letters by her counsel in the motion materials, indicates that she has met her disclosure obligations under the Rules.
[15] After stating that "[t]he motion is granted in part", the board gave the following reasons:
The test for production is arguable relevance. Section 5.4(1) of the Statutory Powers Procedure Act and Board of Inquiry Rule 42 give me a broad power to order disclosure. Rule 42 confers on me the power to order disclosure of ". . . anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding."
The threshold for disclosure here, as in the courts, is not a very high one. There must be some relevance and the production must have some nexus to issues before the Board. The general movement is toward greater disclosure. This is reflected by the Ontario Court of Appeal's comments in Cook v. Ip (1985), 1985 CanLII 163 (ON CA), 5 C.P.C. (2d) 81, at 86:
There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the Court. This is essential if justice is to be done between the parties . . . The production of medical records is thus fundamental to a Court's determination of the nature, extent and effect of the injuries which may have been suffered and the appropriate measure of damages flowing from them.
Dofasco has satisfied me that the nature of the documents sought (some of which are known and some of which are not known) are crucial to knowing its case to be met and preparing its key defence under section 17 of the Code. The motion materials clearly show that production by the Complainant has been incomplete. My goal is to balance the needs of Dofasco to know and prepare its case and the confidentiality of the Complainant inherent in such disclosure.
The Commission argues against an order of disclosure of documents from medical practitioners not enumerated by Dofasco and those parts of the file of Dr. Leong (the Complainant's family doctor) dealing with medical conditions not enumerated above. I find that ailments other than those listed above are arguably relevant to Dofasco's section 17 accommodation defence and the quantum of damages. Dofasco should not be prevented from presenting such arguments.
I find further that information contained in the Complainant's files at the WSB and CPP will arguably be relevant to the issues in this proceeding. Employment related income is clearly relevant to issues in this proceeding, including the quantum of damages. Information in the Complainant's file at Dofasco's medical department will no doubt be relevant to key issues in this proceeding.
[16] Following this, the board made its "order" as follows:
The Complainant shall provide to her counsel an executed Consent to the disclosure of the file of Dr. Leong, Dr. Buckley, Dr. Kean and Dr. Forrest relating to the Complainant during the period between March 22, 1990 and the present date. Complainant's counsel shall then provide said Consents to the doctors and request production by January 15, 2000.
The Complainant shall provide a list to Mr. Hines [counsel for Dofasco] by January 31, 2000 of any other medical practitioner who examined or treated her during the period between March 22, 1990 until the present date, the doctor's area of expertise or specialty, the dates of said visits, and the ailment or condition treated.
The Complainant shall provide to her counsel executed Consents to the disclosure of her files maintained at the Workplace Safety and Insurance Board, at the Canada Pension Plan regarding her disability and her medical file maintained by Dofasco's medical department, all for the period between March 22, 1990 until the present date. Complainant's counsel shall then provide said Consents to the above entities and request production by January 15, 2000.
The Complainant shall produce to Mr. Hines true copies of her T1 income tax returns and notices of assessment from 1993 until the present. Said documents may be edited by the Complainant so that non-employment income parts are expunged. Production of the income tax documents as above shall be given by January 31, 2000.
The Complainant shall provide a sworn Affidavit of Documents as stipulated in the Rules of Civil Procedure dealing with documents obtained from the above sources. The Affidavit shall also include a section listing those documents not provided to Dofasco for reason of not being arguably relevant. Said affidavit, including copies of productions shall be provided to Mr. Hines by January 31, 2000. Mr. Hines may see the originals of productions upon request to the Complainant's counsel.
Disbursements of the productions above shall be borne by Dofasco.
The Complainant's counsel shall get Mr. Hines' approval as to the form and content of the Consents and letters of request.
The Application for Judicial Review
[17] The commission brought an application for judicial review of the board's decision before the Divisional Court. It sought, in the notice of application, an order quashing the board's order and remitting the matter to the board for "a decision in accordance with proper legal principles to be specified" and stated the following grounds:
In making this order, the Board of Inquiry:
i) Made an error of law in its interpretation of s. 17 of the Human Rights Code;
ii) Made an error of law in its interpretation of the Rules of Practice of the Board of Inquiry in placing even more onerous procedural and substantive obligations on the complainant with respect to disclosure than would the Rules of Civil Procedure, despite the fact that the Rules of Practice of the Board of Inquiry specify, for parties other than the Human Rights Commission, only that disclosure must be made of documents on which that party will rely;
iii) Exercised its discretion unreasonably, or patently unreasonably, in requiring disclosure concerning medical conditions unrelated to the handicaps alleged in the complaint, in the absence of any evidence that the complaint had any such conditions which might have affected her ability to work. This constitutes, almost by definition, a "fishing expedition".
(Emphasis in original)
[18] The Divisional Court (Hartt, Carnwath and Matlow JJ.) dismissed the application. Carnwath J. gave the following reasons for the court orally at the conclusion of the hearing:
We all agree the application fails. We find it would be unreasonable to interfere with the interim decision of the Board, a decision devoid of exceptional or extraordinary circumstances. The hearing before the Board should not be fragmented and should be permitted to run its course. The section 17 issue should receive a full hearing by the Board. Any aggrieved party may appeal, based on a full evidentiary record. Moreover, records are arguably relevant to the determination of a remedy and quantum of damages.
We find the Board's decision was a reasonable exercise of its discretion at this preliminary stage. In carrying out the balancing of the fourth part of the test in A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, we find the Board's exercise of discretion to be reasonable, particularly in the light of the acknowledgment of counsel that the usual undertaking of Mr. Hines to maintain confidentiality is in effect.
The panel, in the exercise of its discretion, awards party- and-party costs of $3,500.00, inclusive of fees and disbursements, plus G.S.T. to Dofasco Inc. The costs are awarded solely against the Commission.
Legislative Provisions
[19] Before setting forth the issues argued before this court and my reasons relating to them, I set forth the relevant legislative provisions in the Human Rights Code, R.S.O. 1990, c. H.19, as amended, the Rules of Practice made by the Board of Inquiry, and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended.
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.
(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
35(1) There shall be a board of inquiry for the purposes of this Act composed of such members as are appointed by the Lieutenant Governor in Council.
(5) The board of inquiry may make rules regulating its practice and procedure and generally for the conduct and management of its affairs and such rules are not regulations within the meaning of the Regulations Act.
39(1) The board of inquiry shall hold a hearing,
(a) to determine whether a right of the complainant under this Act has been infringed;
(b) to determine who infringed the right; and
(c) to decide upon an appropriate order under section 41,
and the hearing shall be commenced within thirty days after the date on which the subject-matter of the complaint was referred to the board.
(2) The parties to a proceeding before the board of inquiry are,
(a) the Commission, which shall have the carriage of the complaint;
(b) the complainant;
(c) any person who the Commission alleges has infringed the right;
(d) any person appearing to the board of inquiry to have infringed the right;
(4) Where the board exercises its power under clause 12(1) (b) of the Statutory Powers Procedure Act to issue a summons requiring the production in evidence of documents or things, it may, upon the production of documents or things before it, adjourn the proceedings to permit the parties to examine the documents or things.
Rules of Practice -- Ontario Board of Inquiry -- Effective November 1, 1996
- These Rules apply to all proceedings of the Board of Inquiry . . . .
MUTUAL DISCLOSURE
The Human Rights Commission, shall provide full disclosure of the results of its investigation including, but not limited to, witness statements, documents, and evidence relating to the complaint, to all parties and to any other person the panel directs, at least ten (10) days prior to the first scheduled mediation date or thirty (30) days before the case management-prehearing if no mediation is scheduled.
All other parties except the Human Rights Commission, shall deliver to all parties full disclosure of the information and evidence including, but not limited to, witness statements and documents it will rely on to support its case at least ten (10) days prior to the first scheduled case management-prehearing.
At any time in a proceeding, a panel may order any party to deliver to any other party further particulars, physical or documentary evidence, expert(s)' reports, lists of witnesses and witness statements for the purposes of the hearing, and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding.
If a party fails to disclose in accordance with these Rules or an order of the panel, the party may not refer to or enter the document or physical evidence at the hearing without an order or a ruling of the panel which may be on such conditions as the panel considers appropriate.
Statutory Powers Procedure Act
- This Act, and any rule made by a tribunal under section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
5.4(1) If the tribunal's rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,
(a) the exchange of documents;
(b) the oral or written examination of a party;
(c) the exchange of witness statements and reports of expert witnesses;
(d) the provision of particulars;
(e) any other form of disclosure.
(1.1) The tribunal's power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding.
(2) Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.
- Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.
12(1) A tribunal may require any person, including a party, by summons,
(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,
relevant to the subject-matter of the proceeding and admissible at an oral or electronic hearing.
25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1.
25.1(1) A tribunal may make rules governing the practice and procedure before it.
(2) The rules may be of general or particular application.
(3) The rules shall be consistent with this Act and with the other Acts to which they relate.
(4) The tribunal shall make the rules available to the public in English and in French.
(5) Rules adopted under this section are not regulations as defined in the Regulations Act.
(6) The power conferred by this section is in addition to any power to adopt rules that the tribunal may have under another Act.
- Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.
The Issues Raised by the Commission
[20] The basic issues raised by the commission are that the Divisional Court erred in applying the review standard of reasonableness rather than correctness and that the board committed jurisdictional error in ordering extensive disclosure and productions of records that (a) were in the hands of non- parties to the proceeding and (b) were privileged. The commission also argued that the Board erred in ordering disclosure of documents that were not arguably relevant to the proceeding and documents other than those on which the disclosing party intended to rely.
What the board and the Divisional Court decided
The board's order
[21] Before the issues raised by the commission can be properly addressed, it is essential to have an accurate understanding of the meaning and scope of the board's order. No doubt, and I say this with respect to the board, its order could be expressed more clearly than it is. Following the hearing of this appeal, we sought further submissions in writing from counsel for each party on particular questions relating to the meaning of the order. On the basis of all the submissions made, I now express my opinion on what the board did order in so far as it relates to the issues in this proceeding.
[22] I think that para. 5 in the order, which relates to the provision of an affidavit of documents, is the key paragraph in the order. It refers to the "documents obtained from the above sources". I take this to refer to the documents ("files") referred to in paras. 1 and 3 of the order. I do not interpret it as referring to para. 2, which does not refer to either files or documents, or to para. 4, which relates to the complainant's income tax returns and provides that they be produced to Mr. Hines, counsel for Dofasco. No argument was directed to para. 4 and I do not regard it is being a contentious matter in this proceeding.
[23] The difficulty in interpreting para. 5 is that, literally, it provides that both the affidavit of documents and copies of the productions are to be provided to Mr. Hines by a certain date. In my view, the only sensible meaning of the paragraph is that the complainant is obliged to produce only those documents for which no claim of privilege (provided for in an affidavit of documents) or for which no claim to withhold production on the ground of non-arguable relevance is asserted in the affidavit. I say this because there would be no point in requiring the use of the affidavit of documents if all of the documents listed in it, including those, on proper grounds, sought to be withheld, had to be produced to the opposite party at the outset of the process. The purpose of the affidavit, as in ordinary civil litigation, is to provide a framework within which the board may subsequently determine whether claims of privilege and irrelevance should be upheld. I shall expand on this point further later in these reasons.
[24] It may be noted that this interpretation is consistent with the second sentence in para. 5: "The affidavit shall also include a section listing those documents not provided to Dofasco for reason of not being arguably relevant" (emphasis added).
[25] The commission and the complainant argue against this interpretation largely on the basis that the board had earlier said in its reasons: "I find that ailments other than those listed above are arguably relevant to Dofasco's section 17 accommodation defence and the quantum of damages." In the context of the reasons and order as a whole, I do not read this as expressing a final decision on the producability of every document. I read it as being subject to the affidavit of documents procedure contemplated by para. 5.
[26] Further, it may be noted that earlier in its reasons the board stated its basis conclusion in these words: "The motion is granted in part." This meant that the moving party, Dofasco, was not successful in obtaining immediate production of the documents it sought or, at least, all of them.
[27] I would also note that my interpretation of para. 5 of the board's order is in accord with the meaning contended for by counsel for the board itself. Because the correct interpretation of the order relates to the question of whether the board acted within or exceeded its jurisdiction, I think that it was appropriate for the board to make a submission on the subject (Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998- ) at pp. 4-49 to 4-54).
The Divisional Court's reasons
[28] It is clear that the Divisional Court did not read the board's order as I have. The court assumed that the complainant was required to produce all of the documents sought by Dofasco. For the purpose of analyzing the court's reasons, I shall accept its interpretation. The first paragraph in its reasons indicates that the commission's application was premature and that the issues respecting the production of documents should await determination until after the board had heard the complaint on its substantive merits. The court said that the "records are arguably relevant to the determination of a remedy and quantum of damages" and, further, that an aggrieved party could appeal "based on a full evidentiary record". With respect, all of this overlooks the fact that the right of the complainant to protection from production of documents that are privileged or not arguably relevant would be irreparably infringed the moment the documents were handed over to Dofasco, whether or not they were used against the complainant at the hearing.
[29] I move on to the next paragraph in the Divisional Court's reasons. I do not think that it can rightly be said that the board carried out "the balancing of the fourth part of the test in A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157". The board made no reference to this decision. The board did say that "my goal is to balance the needs of Dofasco to know and prepare its case and the confidentiality of the Complainant inherent in such disclosure." That "goal" was to be carried out at the next stage of the proceeding, before the main hearing, after the documents for which privilege and non-relevance was claimed had been identified in the affidavit of documents.
[30] The Divisional Court went on to say that the exercise of the board's discretion was reasonable particularly in light of the "usual undertaking of Mr. Hines to maintain confidentiality [being] in effect".
[31] There is no document in the material setting forth an undertaking and no undertaking is referred to in the order, as would be expected if an undertaking was material to the order made. The board, through its counsel, informed us that "[t]he undertaking referred to by the Divisional Court was not given to the Board. The Board has no knowledge of the specific terms of the undertaking and was not asked to consider or rule on this issue."
[32] Mr. Hines informed us that he gave an undertaking "not to disclose any document (or information contained therein) to my client or anyone else (including, for example, potential expert witnesses) without the permission of the Board of Inquiry. It was expressly acknowledged that such permission for further disclosure could only be obtained after argument involving the commission and Mrs. Jeffrey." (Emphasis in original)
[33] Mr. Hines said that he could not explain why the Divisional Court referred to it as "the usual undertaking". He agreed with counsel for the commission that the undertaking was "unusual".
[34] The commission informed us that, during the hearing of the motion, Mr. Hines offered an undertaking not to disclose the documents ordered produced to him to his client Dofasco but that the undertaking did not form part of the board's order on production.
[35] I, of course, have no hesitation in accepting Mr. Hines' statement that in the course of argument he offered the undertaking he described. It appears, however, that it had no effect on the board's decision. In the circumstances, I have no doubt that the undertaking should not be taken into account in determining the meaning and legal effect of the board's order.
[36] I might add that the foregoing discussion shows that if it is intended that an undertaking be material to the making of an order, the undertaking should be in writing and, also, referred to in the order.
The Board's General Powers Relating to Disclosure
[37] Before addressing the specific jurisdictional issues raised by the commission, I shall deal with matters of a more general nature relating to the board's powers respecting disclosure.
[38] As far as history is concerned, it was the generally held view that administrative tribunals did not have an inherent power to order pre-hearing disclosure of documents (see Mullan, Administrative Law (Toronto: Irwin Law, 2001) at p. 242) but this could be subject to a tribunal's duty, in some cases, to order pre-hearing disclosure as part of its duty to give effect to principles of natural justice or procedural fairness: Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern General Hospital) (1993), 1994 CanLII 10981 (ON SCDC), 115 D.L.R. (4th) 279 (Ont. Div. Ct.); Howe v. Institute of Chartered Accountants of Ontario (Professional Conduct Committee) (1994), 1994 CanLII 3360 (ON CA), 19 O.R. (3d) 483, 118 D.L.R. (4th) 129 (C.A.), Laskin J.A. in dissent.
[39] When the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended, was first enacted in 1971, S.O. 1971, c. 47, [s. 8], it conferred the right on a person whose "good character, propriety of conduct or competence" was an issue in a proceeding "to be furnished prior to the hearing with reasonable information of any allegations with respect thereto" (emphasis added). This was the only right to pre-hearing disclosure conferred by the Act until 1994 and the enactment of s. 5.4 by S.O. 1994, c. 27, s. 56(12). This amendment was preceded by a proposal by the Society of Ontario Adjudicators and Regulators to amend the Statutory Powers Procedure Act, in several respects. The proposal respecting disclosure read as follows:
A tribunal may require disclosure at any stage of the proceedings, including
(a) the disclosure and exchange of documents;
(b) the examination of a party or witness;
(c) an examination by written questions;
(d) the inspection of property;
(e) the filing of witness statements;
(f) the provision of particulars.
See Appendix III of Administrative Law: Issues and Practice, Anisman and Reid ed. (Scarborough: Carswell, 1995) at p. 266.
[40] The Society's brief explanation for the proposal was that it was "for greater certainty and to expedite proceedings". Before the amendment it may not have been that clear that tribunals could provide for pre-hearing disclosure, at least to the extent of having the power to order such disclosure. In any event, it can be seen from s. 5.4(1) that the legislature did not enact a general provision conferring powers relating to disclosure on all tribunals. It restricted the power to only those tribunals that had made rules dealing with disclosure under s. 25.1.
[41] Having regard to the foregoing, if a tribunal was of the view that power relating to pre-hearing disclosure was not relevant to or appropriate for its proceedings, it would not make rules dealing with disclosure. Obviously, the Board of Inquiry provided for in the Ontario Human Rights Code thought that power to make orders relating to pre-hearing disclosure was important to its processes because it made Rules of Practice which included rules dealing with disclosure (Rules 40-44) which came into effect on November 1, 1996. It appears that these rules were made under both s. 25.1 of the Statutory Powers Procedure Act and s. 35(5) of the Human Rights Code. It may be noted that each of these statutory enabling provisions was enacted by the same statute, S.O. 1994, c. 27: s. 56(38) for the Statutory Powers Procedure Act and s. 65(10) for the Human Rights Code.
[42] I shall now consider some of the terms in the disclosure scheme. The first observation relates to the meaning of the key word "disclosure" in s. 5.4 of the Statutory Powers Procedure Act and in the board's rules. As the context of s. 5.4 and the rules make clear, the word clearly extends to the obligation of a party to furnish to the other party documents in its possession for the other party's inspection. I mention this because in the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, as amended, "disclosure" means something less: the disclosure in a party's affidavit of documents of the existence of documents and does not extend to making the documents available to the other side for inspection. This latter step is called production. Disclosure and production in the Rules of Civil Procedure together comprise the total process of documentary discovery. See, in particular, rules 30.01 to 30.05.
[43] The foregoing analysis does not mean that under s. 5.4 and the board's rules the board cannot make orders which are part of, or a step in, the complete disclosure process as long as their purpose is to lead to the proper production of documents, e.g. an order directing the preparation and delivery of an affidavit of documents. This power would be included in the board's general power relating to disclosure. This observation is relevant to the board's order in this case, which provided for an affidavit of documents as a prelude to ruling subsequently on what documents should be produced.
[44] My second observation relates to the first. It can be seen at a glance that the disclosure provisions relating to the board are substantially fewer and much less detailed [than] those provided for in the Rules of Civil Procedure. It appears to me that what is expected with respect to the board's powers is that, in many proceedings before the board, the powers would not have to be exercised because parties would voluntarily exchange all relevant documents. In other proceedings, the board might be required to make any one or more of a wide range of particular orders provided that they are directed toward the ultimate proper production of documents to the party seeking production.
The Jurisdiction of the Board to Make the Orders Challenged in this Proceeding
[45] I should mention at this point that, by reason of my interpretation of the board's order, which is different from that of the Divisional Court, it is not necessary to consider the appropriate standard of review. For the reasons I shall give, whether the standard be reasonableness or correctness, paras. 1, 3, and 5 in the order are within the board's authority and para. 2 is not. I now address the remaining issues raised by the appellant.
Did the board err in not confining its order only to documents on which the complainant intended to rely to support her case?
[46] The commission submits that the board's order should have been confined to only those documents on which the complainant intends to rely to support her case. It relies upon Rule 41 in making the submission. Rule 41, standing alone, appears to support the commission's submission. There is, however, more in the governing legislation than Rule 41. Rule 42, which is backed up by s. 5.4(1) of the Statutory Powers Procedure Act, confers on the board the power to order any party to deliver to any other party "further . . . documentary evidence . . . for the purposes of the hearing, and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding". This would clearly include any documents in a party's possession that are relevant to an issue in the proceeding and which may be helpful to the other party.
[47] This interpretation accords with one of the recognized purposes of discovery, which include not only enabling a party to know the case he or she has to meet but, also, to obtain documents "which may . . . enable the party requiring the affidavit [of documents] either to advance his own case or to damage the case of his adversary" (Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55, 52 L.J.Q.B. 181 (C.A.) at p. 63 Q.B.D.; and see Williston and Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970) at pp. 894-98). This, in turn, facilitates more accurate fact- finding at the trial or hearing, if the proceeding has not earlier resulted in a settlement. I refer, generally, to Cook v. Ip (1985), 1985 CanLII 163 (ON CA), 52 O.R. (2d) 289, 22 D.L.R. (4th) 1 (C.A.) at p. 292 O.R.
[48] Section 5.4(1) of the Statutory Powers Procedure Act, which confers power on the board to "make orders for (a) the exchange of documents", should be read as meaning the exchange of documents to carry out the basic purposes of pre-hearing disclosure and so should not be read as confined to documents on which a party intends to rely.
[49] The commission has referred to Rule 43, which is concerned with the sanction for failing to disclose, as being some indication that a party's disclosure rights are confined to receiving only those documents on which the other party will rely. Clearly, this sanction relates only to the case of non- disclosure of a document on which a party wishes to rely, but this consideration cannot reasonably result in the conclusion that the whole of the disclosure scheme is confined to documents on which the producing party intends to rely.
Did the board err in ordering non-parties to disclose documents?
[50] The commission submits that the board had no power to order disclosure from the complainant's doctors because they are not parties to the proceeding. It is not necessary to determine whether the disclosure provisions in the board's rules and s. 5.4 of the Statutory Powers Procedure Act confer power to order disclosure by non-parties because I think that the order in question is confined to imposing disclosure obligations on a party (the complainant) and not on her doctors, who are not parties. The complainant has a general right of access to her medical records in the form of obtaining copies of them from her doctors: McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415. This is consistent with the general position in civil proceedings that a party has control over his or her doctors' records and has the obligation to produce them: Holmested and Watson, Ontario Civil Procedure (Toronto: Carswell, 1984- ) at pp. 30-38 to 30-39, and 30-49 to 30-62.
[51] It is generally agreed that if documents under the control of non-parties are important to the fair and accurate resolution of issues it is preferable that they be produced before the hearing to avoid almost inevitable adjournments if they are produced for the first time at the hearing (see s. 39(4) of the Human Rights Code) and to enable each side to prepare its case more effectively. In this regard s. 2 of the Statutory Powers Procedure Act (which provides that the Act and rules made under it "shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits") may be of assistance in interpreting s. 5.4(1)(e) in a way that would support pre- hearing disclosure from third parties. This point was not argued and I express no final opinion on it.
Did the board err in ordering production of documents that are privileged or are not arguably relevant?
[52] I mention at the outset that Mr. Hines conceded that the board had no power to order the production of privileged documents. This is correct (Statutory Powers Procedure Act, s. 5.4(2)) and, in the same vein, I think that the board has no power to order the production of documents that are not arguably relevant. The exercise of such a power would invade a party's privacy rights without any countervailing advantage to the administration of justice. This does not mean that a court should not show deference to a decision by the board that a particular document is arguably relevant but this, of course, is a different issue.
[53] This is an appropriate place to deal in general terms with the question of substantive relevance in this proceeding. In its reasons, the board found that "the ailments other than those listed above [chronic pain disability, fibromyositis, and fibromyalgia] are arguably relevant to Dofasco's section 17 accommodation defence and the quantum of damages." In my view, the board had a reasonable basis for this finding. There was material before the board that the complainant had satisfied the Canada Pension Plan administrators that she was "incapable of pursuing any substantially gainful occupation".
[54] Dofasco's position, accepted by the board, is that the evidence relating to this disability benefit is relevant to its defence under s. 17(1) of the Human Rights Code that the complainant was "incapable of performing or fulfilling the essential duties or requirements" of work at Dofasco. Further, there was a rational basis for the board's finding that the "motion materials clearly show that production by the complainant has been incomplete".
[55] In dealing with the specific issues of privilege and non-relevance I shall first consider para. 5 in the board's order which relates to the provision by the complainant of an affidavit of documents and copies of production. I have, earlier in these reasons, set forth my interpretation of this paragraph. It appears to be concerned with the documents in the possession of the doctors named in para. 1 and with the documents referred [to] in para. 3, which are in the files of the Workplace Safety and Insurance Board, the Canada Pension Plan, and Dofasco's medical department. I shall then consider para. 2 of the order which requires the complainant to furnish to counsel for Dofasco the medical information referred to in it.
[56] I shall not consider para. 4, which relates to the production to Mr. Hines of income tax returns and notices of assessment, because, as I have earlier noted, no complaint was made with respect to it.
[57] If para. 5 were interpreted to require the complainant to provide to Mr. Hines all of the documents referred to in it, without any screening of them by the board to exclude those which are privileged or not arguably relevant, there would, to put it mildly, be a serious problem with respect to the validity of the order. However, as I have determined, the board's order should not be interpreted as providing for such unrestricted production. The requirement of an affidavit of documents, which contains a paragraph in which privilege may be claimed for specified documents (Form 30A, para. 3) and, by virtue of the board's order, a further section in which protection may be claimed for documents which are not arguably relevant, is, in my view, within the powers of the board. Further, the requirement of the use of the procedure contemplated by the affidavit ensures that the order does not exceed the powers of the board. This procedure enables Dofasco to challenge the objections to production of ident ified documents on the basis of privilege and non-relevance, if it sees fit, and enables the board to deal with the challenges on a document by document basis. In carrying out this function, the board, if it considers it to be helpful, could examine the document in question. Cf. rule 30.06(d) in the Rules of Civil Procedure.
[58] The requirement merely to disclose the existence of a document in an affidavit of documents does not involve a breach of privilege (MacPhayden v. Employers Liability Assurance Corp., 1933 CanLII 128 (ON CA), [1933] O.W.N. 72 (H.C.J.) and Williston and Rolls, op. cit., at p. 897). It is an essential step to enable claims to privilege to be determined in an orderly and fair way.
[59] In short, para. 5 in the order and those paragraphs related to it (paras. 1 and 3) do not involve an infringement of the complainant's right to privilege or to keep from Dofasco documents which are not arguably relevant. On the contrary, they afford protection for these rights.
[60] I do not think that the same can be said for para. 2 in the order. It requires the complainant to furnish to counsel for Dofasco a document setting forth all medical practitioners not mentioned in para. 1 who treated the complaint between March 22, 1990 and the present, their area of expertise or speciality, the dates of the visits, and the ailment or condition treated. It is not known what particular information would be set forth in this document but the requirement to produce it inevitably carries with it the grave risk that, in complying with the order, the complainant would be providing to Dofasco information of a most intimate nature relating to her physical and emotional condition that is completely unrelated to her claims in this proceeding from both Dofasco's and her point of view. In my view, this particular part of the order, which contains no terms or conditions to protect the privacy interests of the complainant, exceeds the board's power under s. 5.4(1) and (2) of the Statutory Power s Procedure Act and its own rules.
[61] I appreciate that the board has, and should have, wide latitude in making procedural orders but, it appears to me, in para. 2, the board has made no attempt at all to balance the complainant's right to protect privileged or irrelevant information with Dofasco's right to obtain production of relevant material. In this respect, para. 2 stands in stark contrast to paras. 1, 3, and 5.
[62] What is required to be produced by para. 2 may, of course, include information and material which is not privileged and is relevant to Dofasco's defence. If this be the case, the board has sufficient powers under s. 5.4(1) of the Statutory Powers Procedure Act, and its own rules, to make an order which would require the information to be produced after the complainant's claims respecting privilege and non-relevance have been resolved.
An Observation
[63] I appreciate that the foregoing will make discouraging reading for those who value the speed and efficiency of the administrative process as an alternative to the cost, delay, and apparent red tape of the procedure which is generally thought to be part of the process in the ordinary courts. The discovery process in these courts has been subjected to severe criticism as a factor contributing to increased cost and delay (see report of the Canadian Bar Association Task Force on Systems of Civil Justice (1996) at p. 43 and Andrews, Principles of Civil Procedure (London: Sweet & Maxell, 1994) at para. 21-041) and yet, in the present case, we have a serious example of discovery undoubtedly causing substantial delay and expense in the proceedings before an administrative tribunal.
[64] No doubt, the discovery process cannot work effectively, in either civil or administrative proceedings, without substantial cooperation between the parties in voluntarily disclosing the existence of all relevant documents. This has been lacking in the present case but, in saying this, I wish to make it clear that I do not intend to criticize the parties or their counsel. This case arose relatively early in the history of a right to disclosure under the Statutory Powers Procedures Act and the Rules of the Board of Inquiry and it appears to me that the main cause of the difficulties has been growing pains with the new procedure.
Disposition
[65] I would allow the appeal, in part, set aside the order of the Divisional Court, and in its place make an order setting aside para. 2 in the board's order but otherwise dismissing the commission's application. In the circumstances, I would not make any costs order with respect to the application, the motion for leave to appeal, or this appeal.
Order accordingly.