The Commission applied for judicial review of the decision of the Board of Inquiry to order production of witness statements and other documents related to the investigation of complaints by registered nurses alleging discrimination in employment on the grounds of race, colour, harassment and ethnic origin. The Board found that ss. 8 and 12 of the Statutory Powers Procedure Act gave them the power to order disclosure. The Commission argued that the documents in question were privileged in that they were obtained for litigation purposes. In rejecting the claim the Board separated the investigative stage from the subsequent conciliation stage and the third prosecution stage.
- When should discovery be ordered in an administrative context?
- Were the documents at issue subject to litigation privilege?
The court, in a per curiam decision, held that the investigative stage had to be distinguished from the litigation stage. The court was unable to find that there was either substantial litigation or a dominant litigation purpose in the preparation of the documents. There was no evidentiary basis to support a claim of privilege on the basis of "an expectation of confidentiality".
Further, the court held that justice is better served when parties were prepared to address issues on the basis of complete information, quoting Sopinka in Stinchcombe, and concluded the same was true of proceedings under the Human Rights Code. Similarly the "fruits of the investigation" were not the property of the Commission. While acknowledging the risk that public disclosure of complaints of racial discrimination could discourage future victims from coming forward due to the increased scrutiny of their allegations, it held that the public interest in justice overrode this interest and any concerns could be dealt with by the procedure of the Commission.
- Any claim to discovery will have to be rooted firmly in the empowering statute, and it is not likely that any presumption will be drawn as to the existence of such authority in the absence of express authority.
- Justice is better served when the element of surprise is eliminated and the parties are prepared to address issues on the basis of complete information of the case to be met.
- The fruits of the investigation are not the property of the investigative body, but the property of the public to be used to ensure justice is done.