Group of Employees v. Presteve Foods, 2009 HRTO 944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Group of 40 Employees

Applicant

-and-

Presteve Foods Ltd. and Jose Pratas

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: June 30, 2009

Citation: 2009 HRTO 944

Indexed as: Group of Employees v. Presteve Foods

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It was filed by counsel in the CAW–Canada Legal Department on behalf of a group of 40 individuals, members of CAW–Canada Local 444, who allege discrimination in employment on various grounds and sexual harassment. It has not yet been delivered to the respondents by the Tribunal.

2This Interim Decision addresses three issues: (i) whether the Application is under s. 34(1) or s. 34(5); (ii) a request to add an applicant; and (iii) a request by the applicants for a publication ban. The Application shall be delivered to the respondents together with this Interim Decision and copies of the correspondence in the Tribunal’s file. A Response in Form 2 must be filed in accordance with the Rules within thirty-five days.

Sections 34 (1) and 34(5)

3The Application was filed by Niki Lundquist, counsel to the Legal Department of the CAW–Canada. The names of the applicants are set out at Schedule “A” to the Application. The Application indicates, through a mark in the relevant box, that the Application is brought on behalf of another person.

4In light of the statement that the Application is brought on behalf of another person, the Tribunal, as part of its case processing, requested that counsel file Form 4’s (Application Filed on Behalf of Another Person) signed by the applicants. This form is used by the Tribunal when an Application is brought on behalf of another person, either by a parent on behalf of a child, a litigation guardian or other substitute decision maker on behalf of an individual, or pursuant to s. 34(5) of the Code. Section 34(5) permits another party to bring an application on behalf of another person and participate in the proceedings. Sections 34(5) to (10) read as follows:

(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

(6) If a person or organization makes an application on behalf of another person, the person or organization may participate in the proceeding in accordance with the Tribunal rules.

(7) A consent under clause (5)(b) shall be in a form specified in the Tribunal rules.

(8) An application under subsection (5) shall be made within the time period required for making an application under subsection (1).

(9) Subsections (2) and (3) apply to an application made under subsection (5).

(10) An application under subsection (5) may be withdrawn by the person on behalf of whom the application is made in accordance with the Tribunal rules.

5Ms. Lundquist has not obtained signed Form 4’s from all of the 40 individuals and has made submissions as to why the Form 4’s should not be required in the circumstances.

6Having reviewed the materials, including the fact that the Form 4’s identify Ms. Lundquist as person making the Application under s. 34(5), it is not clear to me whether the CAW–Canada or Ms. Lundquist seeks to bring the Application on behalf of the 40 individuals pursuant to s. 34(5) of the Code, or rather, whether each of the 40 individuals has retained Ms. Lundquist as counsel. In a circumstance in which counsel represents an individual who makes an Application on his or her own behalf under s. 34(1), the Tribunal does not require a Form 4 from the party.

7Counsel for the applicants is, accordingly, directed to immediately write to the Tribunal, with a copy to the respondents, confirming whether it was their intention to file the Application under s. 34(5) or under s. 34(1). If it was the intention to file under s. 34(1), the Tribunal shall process the individual Applications without regard to the Form 4’s, treating each of the 40 individuals as an applicant represented by Ms. Lundquist as counsel. If applicants’ counsel confirms that the intention was to file under s.34(5), counsel shall confirm whether she or the CAW–Canada is the person making the Application on behalf of the workers. If the Application is filed under s. 34(5), the respondents may make submissions on the issue of whether signed forms are required in their Response(s), and the applicants may reply in their Reply (Form 3).

ADDITIONAL APPLICANT

8In correspondence dated June 18, 2009, counsel seeks to add an additional applicant. As the Application has not yet been delivered to the respondents, this request will cause no prejudice, it is appropriate in all the circumstances, and it is granted.

PUBLICATION BAN

9The applicants seek an order prohibiting the publication of any information that would lead directly or indirectly to the publication of the identities of the applicants. They note that a publication ban has been issued in criminal court, in which some of the allegations before the Tribunal are being addressed. They note that the applicants will make allegations of explicit and intimate experiences of sexual harassment in the workplace. They seek an order on the basis that there is a real and substantial risk to the privacy and dignity interests of the applicants.

10The Tribunal dealt with a request in similar circumstances in XY v. Ontario (Government and Consumer Services), 2009 HRTO 367. It stated as follows:

3The Tribunal’s Rules do not specifically provide for a request without notice to other parties. Rule 19 provides that any party may make a request for an order during a proceeding, but the request must be delivered to the other parties before or at the same time as filing it with the Tribunal. Rule 3.11 permits the Tribunal to make an order protecting the confidentiality of personal information where it considers it appropriate. Requests pursuant to Rule 3.11 are typically brought under Rule 19 with notice to all parties.

4Rule 5.2 permits the Tribunal to vary or waive the application of any Rule where it considers it appropriate to ensure a fair just and expeditious resolution of an application. In my view it would be an extraordinary and rare case in which the Tribunal would decide a request for order without notice to other parties or affected persons.

5I need not decide whether the Tribunal would exercise its discretion under Rule 5.2 to determine a request to anonymize or other orders under Rule 3.11 without notice to the other parties. In these circumstances, a more limited approach will preserve the applicant’s interests pending determination of the request.

6I am satisfied, given the nature of the Application, that absent an order, there is a risk the privacy interests of the applicant may be harmed. If the applicant’s name were to be widely disclosed, a request for Rule 3.11 orders would become moot. The Tribunal has the power to control its proceedings, and may make orders on its own initiative. In these circumstances, it is appropriate to take special measures to protect the applicant’s confidentiality pending the determination of the request for order.

11I am satisfied that the circumstances of this case are similar. Accordingly, the Tribunal will make an Order protecting the identity of the applicants pending the determination of the issue following full submissions from all parties.

12Accordingly, the Tribunal makes the following order:

a. This Interim Decision shall identify the applicants as “Group of 40 Employees”;

b. Within 10 days of the date of this Interim Decision, the applicant will deliver a Request for Order (Form 10) to the respondents setting out the remedy or remedies sought pursuant to Rule 3.11 and file it, with a Statement of Delivery, with the Tribunal;

c. The respondents will deliver their Response to the Request (Form 11) and file it with the Tribunal in accordance with the Rules. The respondents will ensure that the applicants’ names are kept strictly confidential until the Request for a Rule 3.11 order is heard and decided;

d. Anyone who becomes aware of the applicants’ identity shall not disclose that information until the Tribunal has decided the Request.

13I am not seized.