Jewish Community Campus of Winnipeg Inc. v. Metaser et al., (2013) 300 Man.R.(2d) 311 (QB)

• Judge: Suche, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 13, 2013
• Jurisdiction: Manitoba
• Citations: (2013), 300 Man.R.(2d) 311 (QB);2013 MBQB 303

Jewish Com. Campus v. Metaser (2013), 300 Man.R.(2d) 311 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.015

In The Matter Of: The Human Rights Code (C.C.S.M., c. H-175)

And In The Matter Of: A complaint of discrimination under the Human Rights Code (C.C.S.M., c. H-175) filed by Etabezahu Metaser

Jewish Community Campus of Winnipeg Inc. (applicant) v. Etabezahu Metaser and Manitoba Human Rights Commission (respondents)

(CI 13-01-81367; 2013 MBQB 303)

Indexed As: Jewish Community Campus of Winnipeg Inc. v. Metaser et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

December 13, 2013.

Summary:

Metaser complained to the Manitoba Human Rights Commission that she had been sexually harassed at work. The Commission ordered an investigation and, after mediation failed, appointed an adjudicator to hear the complaint. The employer applied for judicial review of both of those decisions and brought a motion before a Master for an order requiring the Commission to produce all of the documents in its possession concerning Metaser, including the investigator's report. The Master granted the motion. The Commission appealed.

The Manitoba Court of Queen's Bench allowed the appeal.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - Metaser complained to the Manitoba Human Rights Commission that she had been sexually harassed at work - The Commission ordered an investigation and, after mediation failed, appointed an adjudicator to hear the complaint - The employer applied for judicial review of both of those decisions and brought a motion before a Master for an order requiring the Commission to produce all of the documents in its possession concerning Metaser, including the investigator's report - The Master granted the motion - The Manitoba Court of Queen's Bench allowed the Commission's appeal - On a judicial review, the record of the proceeding before the tribunal was generally the basis on which its decision was judged - Evidence extrinsic to the record could be introduced only in very limited situations - Absent any right to documentary disclosure, a court should only order a tribunal whose decision is under review to produce documents that were admissible as extrinsic evidence - Fundamentally, the employer did not know of the existence of any documents it wished to present as extrinsic evidence and it had no basis for suggesting that any such documents (other than an Employment Insurance Board of Referees tape recording) existed - In substance, what the employer sought was documentary disclosure, which was not available in this proceeding - See paragraphs 18 to 31.

Administrative Law - Topic 612

The hearing and decision - Disclosure by tribunal - Of investigative results or notes - [See Administrative Law - Topic 608 ].

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - [See Administrative Law - Topic 608 ].

Administrative Law - Topic 3345.1

Judicial review - Practice - Evidence (incl. new evidence) - [See Administrative Law - Topic 608 ].

Civil Rights - Topic 7119

Federal, provincial or territorial legislation - Practice - Discovery and disclosure - [See Administrative Law - Topic 608 ].

Courts - Topic 1058

Masters - Jurisdiction - Motions - Metaser complained to the Manitoba Human Rights Commission that she had been sexually harassed at work - The Commission ordered an investigation and, after mediation failed, appointed an adjudicator to hear the complaint - The employer applied for judicial review of both of those decisions and brought a motion before a Master for an order requiring the Commission to produce all of the documents in its possession concerning Metaser, including the investigator's report - The Master granted the motion - On the Commission's appeal, the Manitoba Court of Queen's Bench stated that the employer's motion should have been brought as a preliminary motion before the judge assigned to hear the judicial review application - Neither the Court of Queen's Bench Act nor the rules provided for documentary disclosure in proceedings commenced by way of an application - Thus, while the Master had jurisdiction to hear a motion in a proceeding, there was no motion concerning this subject for the Master to hear - Whether a party to an application should be ordered to disclose a document was a matter of discretion of the judge who heard the application - See paragraphs 5 to 10.

Cases Noticed:

McPherson v. Institute of Chartered Accountants of British Columbia (1987), 15 B.C.L.R.(2d) 44 (S.C.), revd. (1988), 32 B.C.L.R.(2d) 328 (C.A.), refd to. [para. 6].

Stein et al. v. Thames Bend Hybrids Inc. et al. (1998), 133 Man.R.(2d) 152 (Q.B.), affd. (1999), 138 Man.R.(2d) 296; 202 W.A.C. 296 (C.A.), refd to. [para. 7].

Board of Education of Winnipeg School Division No. 1 v. Winnipeg Teachers' Association of the Manitoba Teachers' Society (2007), 211 Man.R.(2d) 138; 2007 MBQB 23, [para. 10].

AOV Adults Only Video Ltd. v. Labour Board (Man.) et al. (2003), 177 Man.R.(2d) 56; 304 W.A.C. 56; 2003 MBCA 81, refd to. [para. 19].

Zeliony v. Red River College (2007), 222 Man.R.(2d) 156; 2007 MBQB 308, refd to. [para. 19].

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), refd to. [para. 22].

Cooke v. Correctional Services of Canada (2005), 274 F.T.R. 44; 2005 FC 712, dist. [para. 22].

Kamel v. Canada (Attorney General) (2006), 303 F.T.R. 17; 2006 FC 676, dist. [para. 22].

Tremblay v. Canada (Attorney General), [2005] F.T.R. Uned. 251; 2005 FC 339, dist. [para. 22].

Tekano v. Canada (Attorney General) (2010), 373 F.T.R. 161; 2010 FC 818, refd to. [para. 24].

Counsel:

Karen R. Poetker, for the applicant;

Isha Khan, for the respondents.

This appeal was heard by Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on December 13, 2013.