MANITOBA HUMAN RIGHTS BOARD OF ADJUDICATION

IN THE MATTER OF:  A Complaint by Wendy Kilbride against A+ Financial Services Ltd. alleging a breach of s. 19 of The Human Rights Code;

AND IN THE MATTER OF:  The Human Rights Code, C.C.S.M., Chapter H175, as amended.

Panel:  Peter Sim, adjudicator

Appearances:

Wendy Kilbride, in person
For the respondent:Mr. Sidney Soronow
For the Commission: Ms Isha Khan

Interim Decision on Production of Documents

[1]  On November 29, 2012 I issued an order under Section 38 of the Human Rights Code which directed the Respondent to produce certain documents to counsel for the Commission. The Order stated that if the Respondent had any objection to the production of any materials, it could raise those objections in writing and I would consider them at the commencement of the hearing.

[2]  At the hearing, on December 11, 2012. Mr. Soronow, who was then acting for the Respondent, indicated that the Respondent had certain objections to the Order. Since the hearing was being adjourned, I invited counsel for the Commission and the Respondent to submit written arguments to me and advised that I would deliver a decision prior to the resumption of the hearing. I have now received the submissions of the Respondent and the Commission and the following is my decision.

[3]  Section 38(1) reads as follows:

38(1) Subject to subsection (2), the adjudicator may, either simultaneously with the notice referred to in section 35 or at a subsequent time, order any party to produce to any other party a copy of

(a) any document that the party intends to rely on at the hearing; and

(b) any other document that, in the opinion of the adjudicator, is or may be relevant to the complaint.

[4] The section falls into two parts. Paragraph (a) provides for the production of documents which a party intends to rely on at the hearing. Paragraph (b) provides a broader authority to order the production of any relevant document. The documents in this case fall under paragraph 38(1)(b).

[5]  I have not been directed to any Manitoba authorities which consider Section 38, but human rights tribunals in other provinces have considered similar legislation.  In general, the test applied in determining whether to order production of documents in a human rights tribunal is similar to the test for production and disclosure in civil claims.  In Tannis et al v. Calvary Publishing Corp and Glen Robbins, 2000 BCHRT 26 at par. 44, Tribunal Member Parrack provides the following summary of the principles to consider on an application for disclosure:

Following from this general review of the law, I am guided in this decision by the following principles:

1. justice is better served if the element of surprise is eliminated from the hearing process;

2. parties should be prepared to address all issues that may arise in the hearing and this requires that all parties be fully apprised of the case it is to meet and the evidence to be adduced;

3. only material relevant documents need be disclosed; that is, the process of document disclosure is not meant to be a "fishing expedition". The documents requested must relate to the issues in the case;

4. the nature of the case and the rights at issue will assist the tribunal in determining the nature and breadth of document disclosure; and

5. fairness requires that procedural matters, such as pre-hearing disclosure, be dealt with in a manner that is "fair and conducive to an expeditious hearing of the matter". Disclosure should be completed with sufficient time available so that the parties can adequately prepare for the hearing.

[6] The test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.  This is the same test that is applied by the Court of Queen’s Bench in determining whether to order production of documents in a civil action.  It is therefore appropriate that the Board of Adjudication look to decisions of the court in civil matters for guidance.  In J-Sons Inc. v. N.M. Paterson & Sons Ltd., 2003 MBQB 199 (CanLII), Justice Scurfield defined the test for ordering production of documents as follows:

The test as to what documents are required to be produced is that of relevance. Relevance is normally measured by an examination of the issues raised in the pleadings. At the very least, for a document to be relevant, the party seeking production ought to be able to articulate a theory as to how that document might help its case or damage the case of the opposite party.

While it has been said that the threshold for determining the question of relevance is a low one, the court should nevertheless not countenance fishing expeditions. If counsel cannot articulate a reasonable theory upon which the documents to be discovered are relevant, then the documents should not have to be produced. Litigants should not be deterred from prosecuting or defending an action by unnecessary discovery.

[7]  Relevancy in civil actions is determined with reference to the pleadings.  In a human rights adjudication the complaint and written response serve a similar function.  In this case, the Respondent has not provided any written response to the complaint so relevancy must be determined with reference to the complaint alone.

[8]  Counsel for the Respondent has also objected that much of the material sought to be produced must already be available to the Complainant.  This is not a valid objection to production of documents in a civil matter and it should not be one in a human rights adjudication.

[9]  I will now deal with each specific paragraph in the Order.

(a)  A list of all persons who were employed by the Respondent or who contracted to provide services to the Respondent at any time from November 1, 2009 to November 1, 2010, including the most recent contact information for each such person.

[10]  The Complainant has alleged that she was subjected to harassment as defined under Section 19 of the Human Rights Code while working for the Respondent and was subjected to a poisoned work environment.  The Commission seeks the names and contact information of other employees who might have evidence as to the allegations of harassment or of the general work environment.  The Commission has referred to the decision of Nova Scotia (Human Rights Commission) v. Sam’s Place [2000] N.S.J. No. 240 which ordered production of names and addresses of employees in similar circumstances.

[11]  The Respondent has objected that this information is not relevant and that the Complainant would be familiar with the names of the people who were working with the Respondent.  The Commission responds that the Complainant worked relatively independently and the Respondent’s office had a high turnover. The Complainant would therefore not have had an opportunity to learn the full names and addresses of many of the other people in the office.

[12]  I am satisfied that the information in question meets the test of relevancy and there is no reason why is should not be disclosed.

[13]  I also note that under Queen’s Bench Rules 20A(43)(b) and 31.06(2), parties to a civil action are required to disclose the names and addresses of persons who might have knowledge of matters at issue in the action, unless the court orders otherwise.

[14]  I confirm paragraph 1(a) of the Order of November 29, 2012.

(b) A list of any and all payments made to the Complainant Wendy Kilbride by the Respondent A+ Financial Services Ltd. or by Wayne McConnell in accordance with the Personal Services Agreement entered into between Wendy Kilbride and A+ Financial Services Ltd, or otherwise (including any supporting documentation);

(c) A list of all files worked on by Wendy Kilbride while she was employed or engaged by A+ Financial Services Ltd., including the name of the borrower, the date on which the file was opened, the name of the lender, the date and terms on which the lender approved financing, the calculation of commissions payable, the date on which the funds were transferred by the lender to A+ Financial Services Ltd, the amount of funds transferred by the lender to A+ Financial Services Ltd. and the apportionment of commissions paid out (including to whom they were paid out) as well as all supporting documentation, including but not limited to the files for a list of borrowers.

[15]  Both paragraphs 1(b) and 1(c) of the Order relate to the same issue so I will deal with them together.

[16]  Section 43(2) of The Human Rights Code provides that when an adjudicator has determined that a party has contravened The Code the adjudicator may order a party to:

(b) compensate any party adversely affected by the contravention for any financial losses sustained, expenses incurred or benefits lost by reason of the contravention, or for such portion of those losses, expenses or benefits are the adjudicator considers just and appropriate.

[17]  The Commission argues that the Complainant was forced to leave her position with the Respondent because she was subjected to harassment in contravention of The Code.  As a result, she lost the opportunity to earn commissions.  In order to prove the Complainant’s claim for lost commissions, the Commission will need to introduce evidence that of the Complainant’s actual earnings and amount of the commissions which she could reasonably expected to have earned had she continued to work for the Respondent.

[18]  The Commission has cited Jodoin v. Ciro’s Jewellers (Mayfair) Inc. [1996] O.H.R.B.I.D. No. 1 as an example of a case where a human rights tribunal awarded compensation for both commissions earned and not paid and potential future commissions to a complainant whose employment was terminated in violation of the code. 

[19]  The Respondent objects to the production of records relating to payments made to the Complainant on the grounds that the Complainant must know what payments she in fact received.  This may be true, but it is also possible that the Respondent’s and Complainant’s records may not be consistent.  It may also be important for the determination of compensation, to know how the Respondent characterized certain payments.

[20]  The Respondent has also objected that a human rights tribunal has no jurisdiction to hear a case for non-payment of commissions and this claim must be the subject to a civil action.  As noted above, a human rights tribunal may award compensation for unpaid commissions if it can be shown that the failure to pay these commissions was a consequence of a contravention of the Code.  It may be open to the Respondent to argue that certain commissions were not paid for reasons unrelated to the alleged contravention of the Code.  However, in order to deal with such an argument, the adjudicator needs to review the relevant files.

[21]  The information referred to in paragraphs 1(b) and 1(c) of the Order is relevant and must be produced.

[22]  The production of the mortgage files does infringe on the privacy of the persons named in the mortgage files.  For this reason, I have directed that the Commission and the Complainant keep the personal information of persons who are not parties to the adjudication confidential and not to use it for any purpose other than the present adjudication.  At the hearing, I will expect that the names and addresses of the persons named in the mortgage file be referred to by initials only.

(d) Any documentation related to Wendy Kilbride's engagement for services by A+ Financial Services Ltd. including, but not limited to, emails and handwritten notes.

[23]  Documentation relating to the terms of the Complainant’s contact with the Respondent will be relevant for, among other things, determining the amount of compensation for lost earnings that the Complainant may be entitled to.

[24]  The Respondent has never filed a formal reply to the complaint so it is not clear what position it is taking on the status of the Complainant.  A previous counsel for the Respondent stated that the Respondent intended to challenge the jurisdiction of the Human Rights Commission to deal with the complaint on the grounds that the Complainant was not an employee of the Respondent for purposes of the Human Rights Code.  If this issue is raised at the hearing, any information as to the nature of the employment relationship will be relevant.

[25]  The documents sought in paragraph 1(d) of the Order are also relevant and must be produced.

[26]  The Commission has met the test of articulating a theory of how the documents requested might help its case or damage the case of the Respondent and the Respondent has not put forward any compelling reason why the documents should not be produced.

[27]  I therefore confirm my Order of November 29, 2012 in its entirety. 

 

      February 15, 2013                       
Date
  ______________________________
Peter Sim
Barrister and Solicitor
Board of Adjudication
2200-201 Portage Avenue
Winnipeg, MB R3B 3L3