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BOARD OF INQUIRY (Human Rights Code) IN THE MATTER OF the Omario Human Rights Code, 1981, S.O. 1981, c.53, as amended; AND IN THE MATTER OF the complaint by Dena Potocnik dated October 25, 1988, alleging discrimination in employment on the basis of age and sex. BETWEEN: Dena Potocnik Complainant and City ofThunder Bay Respondent INTERIM DECISION Adjudicator Lome Slotnick : Date October 27, 1995 : Board File No: BI-0034-95 Decision No 95-047-1 : Board of Inquiry {Human Rights Code) 150 Eglinton Avenue East 5th Floor, Toronto ON M4P 1E8 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 O: Br55\0034-95\COVER.DEC IN THE MATTER OF a Board ofInquiry appointed pursuant to s.38(l) of theHumanRights Code, R.S.O. 1990, c. H-19, as amended BETWEEN: DENAPOTOCNIK Complainant - and - CITY OF THUNDER BAY Respondent INTERIM DECISION Date ofComplaint: October 25, 1988 Hearing onPreliminary Matters: September 12 & 13, 1995, ThunderBay Board ofInquiry: Lome Slotnick Counsel: Stephen Wojciechowski, Counsel for the Ontario Human Rights Commission AUanMcKitrick, Counsel forRespondent • This is an interim decision relating to two aspects ofdisclosure: the Respondent is seeking pre- hearing disclosure ofcertain documents in the Commission's possession; at the same time, the Commission has had a wide-ranging summons issued seeking disclosure ofdocuments by the Respondent, and the Respondent requests an order quashing the summons. The complaint itselfalleges that Dena Potocnik was discriminated against because she is a woman inthe filling ofthe positions ofTreasurer and Deputy Treasurer ofthe City ofThunder Bay in 1988. In addition, the complaint cites numerous other competitions for financial management jobs with the City, and alleges that hiring practices constitute constructive or systemic discrimination againstwomen, contrary to what is now Section 11 oftheHumanRights Code. At the start ofthis hearing, counsel for the City outlined a large number ofpreliminary matters in dispute. After some discussion between the parties, many ofthese were resolved, including many ofthe issues related to disclosure. It is now roughly seven years since this complaint was filed, and the City takes the position that the complaint should be dismissed because ofdelay and procedural unfairness. Counsel agreed that this issue would not be argued as a preliminary matter, because evidence on this issue would probably overlap with evidence on the complaint itself However, some ofthe disclosure issues below relate to the City's plan to raise the delay argument. Disclosure by the Commission to the City The Commission acknowledges its obligation in light oftheNorthwestern GeneralHospital case CHRR (1993) 21 D/498 (Div. Ct.) to disclose the "fiiiits ofthe investigation". However, in this case, there is some dispute over preciselywhat documents should be considered the "Suits ofthe investigation." At the end ofthe first day ofthis hearing, I asked the Commission to provide to the City a list ofitems in its file that it was not prepared to disclose, and its reasons. The Respondent was then asked which ofthese items it was still seeking. This process resulted in some fiirther agreement on disclosure, but three areas remain in dispute. The parties made submissions onthese areas. -2- (a) Investigators' Dealings with Senior Commission staff The first category ofdisputed documents in the Commission's file are described by Commission counsel as notes ofcalls, memos, and letters from Commission mvestigators to senior staffofthe Commission, dealing with procedural questions at the investigation stage ofthe complaint. The Commission argues simply that these documents cannot be described as the fruits ofthe investigation, and so need not be disclosed. Many ofthem. Commission counsel says, seek "what do I do next?" advice from senior staff The City says these documents must be disclosed because they are relevant to the argument it will be making on delay and procedural abuse. Respondent's counsel concedes that these documents are not the fiiaits ofthe investigation, but he argues that the documents are evidence that is relevant to an issue in the case, namely that ofdelay. He cites Rule 49 ofthe Board ofInquiry's InterimRules ofPractice (August, 1995), which allows a panel to order any party "to provide to any other party fiirther particulars, physical or documentary evidence, expert(s)'reports, lists of witnesses and witness statements," and says this Rule essentially means the Commission is bound to produce any evidence germane to the complaint. While these documents are clearly relevant to the question ofdelay, I think there is a distinctionto be made between disclosure ofdocuments related to the substance ofthe complaint and disclosure ofthe Commission's internal discussions on procedural matters related to the complaint. This inquiry was set up to determine the merits ofthe complaint, and procedural fairness requires that the City know the case it has to meet, including any evidence uncovered in the Commission's investigationwhich might tend to help the Respondents own case rather than the Commission's. The City has evidently decided that one method ofattacking the complaint is to make the an argument regarding delay and procedural unfairness. The Respondent ofcourse has a right to make this argument, but that does not entitle the Respondent automatically to pre-hearing disclosure ofall the internal communications in the Commission's files. The delay argument has been initiated by the party seeking disclosure. The Respondent, then, cannot claim that these documents must be disclosed to enable it to know the case it has to meet. In fact, I would expect that whatever evidence there is to support the delay is already in the ~ possession ofthe Respondent the City and its oflBcials presumably can tender evidence ofthe timing ofvarious events and correspondence since the complaint originated, and can testify as to the prejudice caused by any delays. Ifthat evidence is compeHing, the Commission may have some explaining to do, possibly in the form ofsome ofthe documents that are at issue now. But that is the Commission's decision, and I do not see any reason to compel disclosure ofthis portion ofthe Commission's file at this stage. Further, I believe the Board ofInquiry has attempted to enshrine the disclosure obligations as laid out in theNorthwestern case, in the form ofRule 47 in its InterimRules. Rule 47 provides that the Commission "provide full disclosure ofthe information, witness statements, documents and evidence relating to the complaint" prior to the hearing. The phrase "relating to the complaint", in my opinion, is intended to encompass the Suits ofthe investigation into the substance ofthe complaint and is not intended as an obligation onthe Commission to disclose documents dealing solely with procedural questions. For these reasons, I will not order pre-hearing disclosure ofdocuments that are internal communications dealing withprocedural matters. (b) Record ofthe Investigation This is described by Commission counsel as an index or listing ofall the documents in the file. The Commission objects to its disclosure, arguing that it may include reference to privileged documents and that disclosure is unnecessary ifthe Commission is already disclosing all the actual documents to which the Respondent is entitled. The City argues that there is no reason to keep it secret and that disclosure would enable the Respondent to checkwhether the Commission has actually disclosed all the fiuits ofthe investigation. Ibelieve there is some value in having the Respondent feel confident that the Commission has met its disclosure obligations, and I order the Commission to disclose the Record ofthe Investigation. I am assuming that this Record does not contain a detailed description ofthe content ofany document. In the event that it does, I will permit the Commission to black out any details, beyond a briefdescription, ofa document it is not disclosing. -4- m (c) List ofthe Complainant's Former Employers and Supervisors The City is seeking from the Commission a list ofMs. Potocnik's employers and supervisors before she was first employed by the City in 1983. This is apparently a document that does not currently exist, although presumably the Commission could create it easily through information provided by Ms. Potocnik. The Commission argues that such information cannot be relevant to an examination ofthe process resulting inMs. Potocnikbeing rejected for the positions she sought, since any information not akeady in the possession ofthe City could not, by definition, have been part ofthat decision making process. I have some doubts about the relevance ofsuch information, and in any event I do not believe the duty to disclose includes any obligation to create documents that do not ah-eady exist. I therefore do not order disclosure ofthis information. The Summons ~ In September, 1995, the Commission served on three city officials the City Manager, the City Archivist, and the General Manager, HumanResources ~ a Summons requiring them to attend the hearing and produce awide range ofdocuments, mainly relating to numerousjob competitions. The City is not contesting parts ofthe Summons, and has agreed to provide pre- hearing disclosure ofthe documents sought in these uncontested portions. In addition, during the hearing on these preliminary matters the Commission dropped some material fromthe list of documents it is seeking through the Summons. These two developments helped narrow the issues in dispute. Parts I and n ofthe Summons seek detailed documentation related to eightjob competitions, all ofwhich are mentioned in Ms. Potocnik's complaint. The City is not challenging these portions of the Summons, but because ofconcerns about its obligations under theMunicipalFreedom of Information andProtection ofPrivacyActthe City wants an order from this Tribunal before disclosing the documents. Therefore, I order the City to disclose the documents outlined inParts I and n ofSchedule Ato the Summons, priorto the hearing. As agreed by the Commission and the Complainant, they will be treated with confidentiality. However, the City has asked me to quash the remainder ofthe Summons. These portions Summons read as follows: V Part With respect to the following individuals,...the qualifications ofeach individual at the time ofentering into the said positions: 1. Paul Milligan b. Acting Treasurer (1988) c. Treasurer (1988) Young 2. Bill b Acting Deputy Treasurer (1988) . c. Deputy Treasurer (1988) 3 JohnDunn . a. Accounting and Administration Coordinator (1983) 4. Peter Kelos a. Accounting Supervisor (1983) b. Manager - Budgets and Planning (1984) Tim Commisso 5. b. Services and Financial Co-ordinator (1983/84) c. Manager - Budgets and Planning (1985) 6. Tom Mustapic a. Financial Analyst (1984) b. Corporate Development OflBcer (1985) c. Acting Manager - Budgets and Planning (1989) d. Manager - Budgets and Planning (1990) 7. Doug Strachan a. Accounting Supervisor - Financial (1984) 8. Gary Donadel a. Accounting Supervisor - Continuing PropertyRecords (1984) 9. KevinBums a. Accounting Supervisor - Rates and TarijSFs (1983) 10. Rob Colquhoun a. Financial Analyst (1987) b. Accounting and Financial Supervisor (1989-90) c. Capital and Revenue Control Supervisor (1990) d. Manager - Disbursements Division (1993/4) e. Manager - Revenue (1995) 11. Chuck Abey a. Manager - Budgets and Planning (1991) b. Manager -Financial Programs Division (1993/4) 15. Veli Kraft a. Budget and Office Co-ordinator (Homes for the Aged) (1983) 18. Sam Federico a. Tax Collector (1983) b. Billing Supervisor (1993/4) 21. Dave Home a. Tax Supervisor (1983) Part VI V With respect to the Job Positions listed in above, any and aU information in the possession or control ofthe Corporation ofthe City ofThunderBaywhich relates to: 3. Names ofthose supervising the said competition, or names ofthose approving and recommending the appomtment ofthe named individual to the saidjob position, and all those involved in the selection process, as well as any documents or notes m which they prepared supervising the competition or making the decisionto appoint the named individual; 4. Names ofall those who applied for the said position, along with copies oftheir applications and accompanying documents;