CAW - Canada v. Presteve Foods, 2010 HRTO 796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

CAW - Canada on behalf of a Group of Employees

Applicant

-and-

Presteve Foods Ltd. and Jose Pratas

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 12, 2010

Citation: 2010 HRTO 796

Indexed as: CAW - Canada v. Presteve Foods

APPEARANCES

CAW – Canada on behalf of ) Niki Lundquist and a Group of Employees, Applicant ) Clarisa Waldman, Counsel

Presteve Foods Ltd. and ) Claudio Martini and Jose Pratas, Respondents ) Mary Kopcok, Counsel

INTRODUCTION

1This is an Application filed by the CAW – Canada (“CAW”) under s. 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on behalf of a group of employees who are or were employed by the respondent, Presteve Foods Ltd., a fish processing facility in Wheatley. The applicants are all citizens of Thailand or Mexico, employed under the federal Temporary Foreign Worker Program in a bargaining unit at Presteve represented by the CAW. The Application alleges discrimination on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, and sex, and also sexual solicitation or advances.

2First, the application alleges that Thai and Mexican employees were discriminated against as compared with Canadian workers in the compensation and benefits that they received. Second, the application alleges sexual harassment in the workplace by the personal respondent Jose Pratas against some of the claimants. Mr. Pratas has been criminally charged with 23 counts of sexual assault, five counts of common assault, and two counts of breach of probation. These charges relate to alleged incidents involving temporary foreign workers employed at Presteve Foods.

3A telephone conference call was held on February 19, 2010, to hear submissions on various preliminary issues raised by the parties. During that call, the parties made submissions on the following issues: (1) the request by the applicant that certain claimants be anonymized in Tribunal decisions; (2) the request by the respondents that their names be anonymized in Tribunal decisions; and (3) the question of whether, in the absence of signed consents from various members of the group of employees, the Application is properly brought on their behalf by the CAW. This Interim Decision determines those issues and confirms various agreements on other matters reached by the parties.

ANONYMIZATION AND PUBLICATION BAN

4The applicant seeks an order anonymizing the names of any claimants alleging sexual assault and sexual harassment and prohibiting the publication of those names. It notes the stigma to the claimants that may result from publication. The respondent consents to the Order requested. An interim publication ban was previously granted by the Tribunal: see Group of Employees v. Presteve Foods, 2009 HRTO 944.

5The relevant principles in considering requests for anonymization and publication bans are set out in C.M. v. York Region District School Board, 2009 HRTO 735, at paras. 19-26. Balancing the public interest in freedom of expression and open justice against the significant stigma to the claimants raised by the facts of this case that include alleged sexual assaults, I find that an order of the type requested by the applicant is appropriate and justified. Such an order has also been made in the criminal trial, presumably pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, and in the facts of this case, should be mirrored in the Tribunal process. The Tribunal orders that the full names of those claimants alleging sexual assault not be disclosed in any publications or materials regarding this matter.

6The respondents also seek an order that the names of the respondents, including the corporate respondent, not be published. The request for the corporate respondent’s name to be anonymized, based on the potential economic harm of publicity, is without merit. In my view a corporation, which is not a natural person, has no privacy interests, and certainly none that could outweigh the public interest in open justice and freedom of expression. Moreover, the economic interests asserted here cannot outweigh these principles. As for the personal respondent, it is asserted that publication of his name could affect the right to a fair trial. However, the criminal Court where the trial will take place has issued no publication ban. Therefore, it appears that there is no need for anonymity to ensure a fair trial. The respondents’ request that their names be anonymized is denied.

CONSENT UNDER S. 34(5)

7I turn next to issue of whether the CAW can bring this Application on behalf of claimants from whom it has not obtained a signed consent. The Form 4 consents that were first filed, from just over half of the 42 claimants, named Niki Lundquist, counsel for the CAW, as the person making the Application on the individuals’ behalf. During the conference call, the Tribunal raised with the parties the concern that the forms did not properly name the intended applicant, the CAW. Counsel undertook to obtain revised forms, but subsequently advised the Tribunal in a letter dated March 25, 2010, that several claimants had been repatriated to Thailand or gone into hiding within Canada, and the CAW was unable to obtain consent forms from them. Accordingly, consent forms naming the CAW as the applicant have been filed for only 16 of the claimants.

8The CAW argues that it can or should be permitted to bring the Application on behalf of all of the employees in the group as a result of its status as their collective bargaining representative and the provisions of Article 6, section 11 of its Constitution, which reads as follows:

The National Union and the Local Union to which the member belongs shall be her/his exclusive representative for:

• acting for the member before a Board, Court or other Tribunal in any matter affecting her/his union membership, employment status or relationship with an employer or the union’s collective bargaining status; …

The CAW argues that these foreign workers feel a sense of vulnerability raising these issues in the manner of a formal application before the Tribunal, and that the requirement that all affected workers sign and complete a consent form acts as a barrier to their right to redress for these alleged violations of the Code.

9The relevant portions of s. 34 of the Code 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.

10Rule 6.8 of the Tribunal rules reads as follows:

6.8. An Application filed on behalf of another person under section 34(5) of the Code must be filed together with the signed Consent of the person on whose behalf the Application is brought.

11The Tribunal discussed the nature of a s. 34(5) application in Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, released concurrently, a copy of which will be sent to the parties with this Interim Decision. In Kacan, the Tribunal held that the intention of s. 34(5) is to promote the accessibility of the Code’s processes. The claimant, the person on whose behalf the Application is brought, delegates to the applicant, a person or organization of his or her choosing, the ability to take all the steps in the human rights process on his or her behalf. Kacan noted that the applicant owes fiduciary duties to the claimant, to act in his or her best interests throughout the process.

12The applicant in a s. 34(5) application has the power to make many decisions in the Tribunal process that directly affect the rights of the claimant. This is a significant power, and is different from the role of a union in a collective bargaining relationship where the union is pursuing its legal rights. When it files a grievance, even when it relates to the individual interests of an employee, it is the Union’s collective agreement rights that are being enforced and the individual is protected by the duty of fair representation. The right to act as a collective bargaining representative, however, does not give the Union the right to take other legal proceedings in the member’s own name without consent.

13The text of s. 34 makes clear that it was the Legislature’s intention that under s. 34(5), the applicant must consent to the bringing of the particular application. Section 34(5)(a) provides that there must be consent “to the application” and s. 34(7) provides that the consent must be in a form specified in the Tribunal rules.

14The CAW argues that the Tribunal can exercise its power to vary or waive the application of its rules (see Rule 5.2) and that where the requirement for a signed consent is waived, the s. 34(5) consent is given “in a form specified in the Tribunal rules” within the meaning of s. 34(7). In my view the provision, read as a whole, does not permit “consent” to be inferred from general documents like the union Constitution or the principles of collective bargaining. It may be that the Tribunal can vary or waive the requirements of Rule 6.8 in certain circumstances; for example, by permitting evidence that consent has been given other than through a Form 4, or amending the requirement for a signature to accommodate a person’s disability. However, what the applicant asks is for the Tribunal to vary the rules to permit an Application where no consent to the particular Application has been given. This would not be appropriate or consistent with the Code. Accordingly, in this case, individuals who have not signed a consent shall not be considered claimants and are not parties to this proceeding.

15This leaves the issue of the few individuals who signed a consent naming Ms. Lundquist, but who did not subsequently sign one naming the CAW. Since the telephone conference call proceeded on the assumption that consents could be obtained for those individuals, in my view the parties should be given the opportunity to make further submissions before the Tribunal makes a decision on whether these consents are valid.

AGREEMENTS

16The parties also made various agreements during the call. An order was granted, on consent, amending the Application as requested by the applicant and adding further claimants. The parties agreed that the issue raised by the respondent about whether the Application is barred as a result of an agreement between the CAW and Presteve Foods Ltd. would be heard together with the merits of the Application.

17The parties also agreed to a particular process for the hearing, in light of the fact that the personal respondent faces criminal charges arising out of some of the events raised in the Application and the applicant is concerned that some of the members of the group of employees may no longer be in Canada after the criminal trial. Accordingly, the Tribunal makes the following Order:

1. The respondents shall file a Response to paras. 1-42 of Schedule “B” to the Application relating to wage and benefit differences by May 3, 2010.

2. The claimants may testify and be cross-examined during early dates. The rule in Browne v. Dunn will not apply to the cross-examination.

3. The respondents shall file a full Response on the merits within one month of the completion of the criminal process.

4. The hearing will then proceed. Claimants who have previously given evidence may be recalled as witnesses, and if they are not available in person, they may testify by telephone or videoconference.

CONFERENCE CALL

18The Registrar is requested to schedule a conference call with the parties, to take place after May 3, 2010. During this call, the parties shall be prepared to make argument on the issue identified in para. 16, their available dates for the testimony of claimants prior to the criminal trial, and the exchange of disclosure and witness statements.