Date: 20001020
Docket: T-608-92
BETWEEN:
RANJIT PERERA
Plaintiff
- and -
THE QUEEN IN RIGHT OF CANADA
Defendant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Intervener
REASONS FOR ORDER
delivered from the bench at Ottawa, Ontario
on Wednesday, October 19, 2000
HUGESSEN J.
[1] This is a motion by the plaintiff seeking production of certain materials in the possession of the defendant to which the latter has made a claim of privilege. The privilege claimed is that of confidentiality. It is both a common law and a statutory privilege.
[2] The materials sought are the result of voluntary self-identification of visible minorities employed by CIDA of which the plaintiff is also an employee. The action itself is a claim for Charter based relief founded upon an allegation of discrimination, both personal and systemic.
[3] It is common ground that voluntary self-identification materials have been collected by the Crown and are in its possession for a period since 1985.
[4] For the period between 1985 and 1996, the collection of that data was pursuant to the government's employment equity policy. The claim for privilege for that period is at common law and also pursuant to section 37 of the Canada Evidence Act. I am satisfied that during that period such information was collected on a confidential basis and would not have been made available if there had not been an assurance of confidentiality; furthermore, the material was essential to the carrying out of an important government policy. Put another way, I am satisfied that the first 3 criteria for the privilege enunciated by Wigmore had been met.
[5] That brings the forth Wigmore criterion into play, that is to say the balancing of interests, those which favour disclosure against those which favour the maintenance of confidentiality. That exercise is in turn very similar to what is mandated by section 37 of the Canada Evidence Act and for practical purposes, I see no difference.
[6] For the period since 1996, another statute, the Employment Equity Act is in play. The most relevant provision of that statute, for our purposes, is section 9 which reads as follows:
| 9. (1) For the purpose of implementing employment equity, every employer shall (a) collect information and conduct an analysis of the employer's workforce, in accordance with the regulations, in order to determine the degree of the underrepresentation of persons in designated groups in each occupational group in that workforce; and (b) conduct a review of the employer's employment systems, policies and practices, in accordance with the regulations, in order to identify employment barriers against persons in designated groups that result from those systems, policies and practices. Self-identification (2) Only those employees who identify themselves to an employer, or agree to be identified by an employer, as aboriginal peoples, members of visible minorities or persons with disabilities are to be counted as members of those designated groups for the purposes of implementing employment equity. Confidentiality of information (3) Information collected by an employer under paragraph (1)(a) is confidential and shall be used only for the purpose of implementing the employer's obligations under this Act. |
9. (1) En vue de réaliser l'équité en matière d'emploi, il incombe à l'employeur : a) conformément aux règlements, de recueillir des renseignements sur son effectif et d'effectuer des analyses sur celui-ci afin de mesurer la sous-représentation des membres des groupes désignés dans chaque catégorie professionnelle; b) d'étudier ses systèmes, règles et usages d'emploi, conformément aux règlements, afin de déterminer les obstacles en résultant pour les membres des groupes désignés. Auto-identification (2) En vue de réaliser l'équité en matière d'emploi, seuls sont pris en compte dans les groupes correspondants les salariés qui s'identifient auprès de l'employeur, ou acceptent de l'être par lui, comme autochtones, personnes handicapées ou faisant partie des minorités visibles. Confidentialité des renseignements (3) Les renseignements recueillis par l'employeur dans le cadre de l'alinéa (1)a) sont confidentiels et ne peuvent être utilisés que pour permettre à l'employeur de remplir ses obligations dans le cadre de la présente loi. |
[7] I also think that it is important to have in mind the purpose of the Act as that is stated in section 2 and also, because section 9 refers to it, the obligations of the employer set out in section 5. Those sections read as follows:
| Purpose of Act 2. The purpose of this Act is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences. |
Objet 2. La présente loi a pour objet de réaliser l'égalité en milieu de travail de façon que nul ne se voie refuser d'avantages ou de chances en matière d'emploi pour des motifs étrangers à sa compétence et, à cette fin, de corriger les désavantages subis, dans le domaine de l'emploi, par les femmes, les autochtones, les personnes handicapées et les personnes qui font partie des minorités visibles, conformément au principe selon lequel l'équité en matière d'emploi requiert, outre un traitement identique des personnes, des mesures spéciales et des aménagements adaptés aux différences. |
| Employer's duty 5. Every employer shall implement employment equity by (a) identifying and eliminating employment barriers against persons in designated groups that result from the employer's employment systems, policies and practices that are not authorized by law; and (b) instituting such positive policies and practices and making such reasonable accommodations as will ensure that persons in designated groups achieve a degree of representation in each occupational group in the employer's workforce that reflects their representation in (i) the Canadian workforce, or (ii) those segments of the Canadian workforce that are identifiable by qualification, eligibility or geography and from which the employer may reasonably be expected to draw employees. |
Obligations de l'employeur 5. L'employeur est tenu de réaliser l'équité en matière d'emploi par les actions suivantes : a) détermination et suppression des obstacles à la carrière des membres des groupes désignés découlant de ses systèmes, règles et usages en matière d'emploi non autorisés par une règle de droit; b) instauration de règles et d'usages positifs et prise de mesures raisonnables d'adaptation pour que le nombre de membres de ces groupes dans chaque catégorie professionnelle de son effectif reflète leur représentation : (i) au sein de la population apte au travail, (ii) dans les secteurs de la population apte au travail susceptibles d'être distingués en fonction de critères de compétence, d'admissibilité ou d'ordre géographique où il serait fondé à choisir ses salariés. |
[8] In my view, there is no discretion in this Court to override Parliament's declaration of the confidential nature of the information provided which is contained in section 9(3) of the Act. The Act does not give any such discretion and the persons who volunteered the information, which be it remembered is voluntary self-identification of visible minorities, have done so on the basis of an assurance of confidentiality. Those persons are not before the Court and their interests are not represented here.
[9] Those considerations are also important in my view in the balancing process which is required for the period prior to the coming into force of the statute, that is to say the period 1985 to 1996. Even prior to the passage of the statute, employment equity was an important public policy. The statute enshrined but did not create the policy.
[10] Voluntary self-identification has been seen since 1995, as being, and is in fact, essential to the proper functioning of employment equity. To reveal identities in breach of the undertaking of confidentiality would in truth be a breach of trust. It would also defeat the declared purposes of the statute as well as of the preceding policy.
[11] While the plaintiff's action is Charter based and is no doubt of critical importance to him, it remains that he is exercising a private as opposed to a public right. The fact that the claim is Charter based does not substantially change the analysis. Charter claims must still meet the ordinary requirements of burden of proof and of the laws of evidence.
[12] The plaintiff's argument that I should somehow read out or read down subsection 9(3) cannot be accepted. Unless subsection 9(3) is itself in breach of the Charter, and the plaintiff abandoned any such claim at the hearing, it must apply to Charter claims as to all others.
[13] I conclude, therefore, that for neither periods should I order the government to disclose the material in the form in which it presently exists. It is and will remain confidential unless and until otherwise ordered.
[14] That is not the end of the matter, however. There is absolutely no doubt in my mind that the employment equity information collected by the government, both under its policy, prior to 1996, and under the statute since that time, is relevant information for the purposes of the plaintiff's action and is accordingly discoverable. While confidentiality must be respected, it must be remembered that one important purpose for the collection of the data, both under the policy and under the statute is the preparation of statistical information. If it is possible to maintain confidentiality and still give to the plaintiff a reasonable opportunity to verify and, if he sees fit, to contradict the government's statistics, then that should be done. At the end of the first day of hearing, the plaintiff himself, conscious, I think, of the difficulty which the revelation of the confidential material in its raw form would present, proposed a form of order. In my view, and also that of the intervener, whose participation in these proceedings has been extremely useful, that proposed draft goes a long way to achieving that purpose: to allowing the plaintiff to have as much access as can reasonably be given to the information while still protecting the confidentiality of the persons concerned.
[15] The text proposed is as follows:
| 1. A third party data analyst, to be agreed upon by the parties, shall be provided with the names of employees of CIDA who have self-identified as a member of a visible minority for the years 1985-1999 in order to verify the numbers of such employees in each of the specified years; |
| 2. Such third party shall not disclose, directly or indirectly, the identities of any employee of CIDA who has self-identified as a visible minority; |
| 3. The lists of names of employees of CIDA who have self-identified as a member of a visible minority for the years 1985-1999 shall be disclosed to third party experts, whether jointly or separately retained, for the purposes of performing an employment equity-type analysis relevant to the litigation; |
| 4. Such third party(ies) shall not disclose, directly or indirectly, the identity of any employee of CIDA as having self-identified as a visible minority; |
| 5. Any report(s) generated by the analysis set out in paragraph 3, above, shall not, directly or indirectly, disclose the identity of any employee of CIDA as having self-identified as a visible minority. For greater certainty, any third party expert retained pursuant to paragraph 3 shall adopt such methodological techniques as are necessary to ensure the non-disclosure of visible minority identities. |
| 6. In the event that a party asserts that a report, or portion of a report, of such third party directly or indirectly discloses the name of any employee of CIDA as having self-identified as a visible minority, the Court shall retain jurisdiction to rule on whether such report, or portion of a report, violate the Order of this Court that the fact of voluntary self-identification by any employee of CIDA shall remain confidential. |
| 7. Until agreement between the parties has been reached that the reports generated do not violate the confidentiality requirements established by Order of the Court, or until such time as the Court has ruled on any assertions of a breach of such confidentiality, no use may be made by any of the parties of the impugned aspect of the report. |
| 8. Reports prepared by retained third party experts shall not be utilized for any purpose other than the litigation until such time as they are accepted into evidence at trial. |
[16] The plaintiff subsequently sought to change that draft in a number of ways and I should deal with those at once.
[17] First he would change the protection of identities to the protection of names. That, in my view, is not acceptable. The number of employees concerned is said to be small and that increases the risk that identities will be inadvertently revealed even if the names are not. But, one's name is only a part of one's identity and it is in my view the latter which must be protected. The order already requires that the experts adapt their methodology to protect the identities and that is as far as I am prepared to go.
[18] Next, the plaintiff seeks to add certain paragraphs at the end of the order which are designed to preserve his rights to lead certain types of evidence and to conduct certain studies. In my view, those paragraphs are not necessary and the order as originally proposed does not restrict the plaintiff's right in that respect.
[19] Finally, the plaintiff seeks to add a paragraph which purports to preserve the rights of the trial judge to order production of these materials. While again, I do not think that such a paragraph is necessary, I will add some words to the order to which I propose myself to make a few changes which will retain the right of the Court to make further orders if it should so decide.
[20] I think the order should be strengthened by declaring the information in question to be protected and confidential. I shall add a paragraph immediately before the existing paragraph 1 to the effect that voluntary self-identification materials in the possession of the Crown are hereby declared to be privileged and confidential and shall not be disclosed save as provided herein, or as may be subsequently ordered. Any confidential materials which have heretofore been inadvertently communicated to the plaintiff or the intervener shall be forthwith returned.
[21] I would also provide for a preliminary vetting of the expert reports by counsel. The plaintiff, who is self-represented, will have to retain counsel for that purpose; otherwise he will not be able to participate in that process. The new paragraph will be inserted between paragraphs 5 and 6 of the draft submitted and will be to the following effect: Any reports shall in the first instance be revealed only to counsel for the parties and not to any self-represented party.
[22] Finally, I think the provisions of rule 152 should be made applicable. Following paragraph 8 of the proposed draft I will insert a paragraph to provide that experts and counsel who are given communication of confidential material pursuant to this Order shall comply mutatis mutandis with Rule 152(2), b), c) and d).
[23] An Order will go accordingly. There will be no order as to costs.
"James K. Hugessen"
Judge
OTTAWA, ONTARIO
October 20, 2000