Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada

Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada

Materials foundational to an expert report prepared for use as evidence, including interview recordings and interview notes, are not privileged where the expert was retained to produce evidence; such materials must be disclosed to the respondent (and Commission) so the respondent can test the expert's opinion and make full answer and defence, subject to narrowly tailored confidentiality measures and limited access; Appendix 2 listing interviewee names is granted an interim confidentiality order.

Citation
2025 CHRT 63
Parties
Complainant: Gilbert Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation); Commission: Canadian Human Rights Commission; Respondent: Public Safety Canada
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
23 June 2025
Procedural Posture
Canadian Human Rights Act Complaint / Remedies Stage Disclosure Motion Decided
Outcome
Respondent's disclosure motion granted in part; required disclosure ordered with limited access and interim confidentiality over Appendix 2.
Legal Topics
Disclosure of Expert Materials, Confidentiality Orders, Expert Evidence Foundation, Privilege, Hearsay and Admissibility, Remedies
Source Language
English
Human Rights Law Administrative Law Evidence Law Indigenous Law Disclosure of Expert Materials Confidentiality Orders Expert Evidence Foundation Privilege +2 more

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Parties

Gilbert Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation)

Complainant

Canadian Human Rights Commission

Commission

Public Safety Canada

Respondent

Procedural Posture

Canadian Human Rights Act Complaint / Remedies Stage Disclosure Motion Decided

Legal Issues

  1. 1 Whether materials used by a retained expert (recordings and interview notes) must be disclosed to the adverse party
  2. 2 Whether a case-by-case confidentiality privilege applies to interview materials collected by an expert retained to prepare evidence
  3. 3 Who may access disclosed materials and appropriate confidentiality safeguards

Ratio Decidendi

Materials foundational to an expert report prepared for use as evidence, including interview recordings and interview notes, are not privileged where the expert was retained to produce evidence; such materials must be disclosed to the respondent (and Commission) so the respondent can test the expert's opinion and make full answer and defence, subject to narrowly tailored confidentiality measures and limited access; Appendix 2 listing interviewee names is granted an interim confidentiality order.

Court Disposition

Respondent's disclosure motion granted in part; required disclosure ordered with limited access and interim confidentiality over Appendix 2.

Orders

  • Complainant must disclose to the Respondent and the Commission, no later than June 3, 2025, all facts, documents and other sources used to prepare the Jaccoud report, including interview recordings and interview notes and materials listed in Appendices 1–3 of the report.
  • Only individuals closely involved in providing instructions to the Respondent's counsel and their proposed expert, and those closely involved in providing instructions to the Commission's counsel, may have access to the disclosed materials; parties to agree on confidentiality measures and undertakings.