Peart v. Ontario (Community Safety and Correctional Services), 2011 HRTO 2157

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilbert Peart

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services

Respondent

interim DECISION

Adjudicator: Kaye Joachim

Date: December 1, 2011

Citation: 2011 HRTO 2157

Indexed as: Peart v. Ontario (Community Safety and Correctional Services)

Written Submissions by

Wilbert Peart, Applicant ) Mark Edelstein, Counsel

Her Majesty the Queen in Right of Ontario as ) represented by the minister of Community ) Arif Virani, Counsel Safety and Correctional Services, Respondent )

Foreign Agricultural Resource ) Sue Williams, Representative Management Services, Third Party )

Human Resources Skills ) No submissions Development Canada, Third Party ) )

1This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to address the applicant’s request for production of documents from the Foreign Agricultural Resource Management Services (“FARMS”) and Human Resources Skills Development Canada (“HRSDC”). These third parties were given notice of the Request for Order and an opportunity to make written submissions.

2The applicant is the brother of Ned Peart who was killed on August 22, 2002, at a tobacco farm in Ontario while at work. The applicant’s request for a coroner’s inquest into the death of his brother was denied. The applicant asserts that section 10(5) of the Coroner’s Act, R.S.O. 1990, C. C.37, as amended, which mandates a coroner’s inquest where a worker dies in a construction project, mining plant or mine, but not in the circumstances of Ned Peart’s death (as a participant in the Commonwealth Seasonal Agricultural Workers Program (“CSAWP”)), is discriminatory on the basis of race, ethnicity, ancestry, place of origin, colour, citizenship, contrary to section 1 and 9 of the Code.

3The applicant submitted that he requires data regarding CSAWP participant fatalities in Ontario from 1966 to the present to demonstrate the adverse effect suffered by migrant farm workers. This data is in the possession of FARMS, a not-for-profit corporation involved in the processing and placement of migrant agricultural workers, and/or is in the possession of HRSDC. Both organizations collect and compile information regarding program participants. In particular, the applicant requested production of all relevant data regarding CSAWP participant fatalities in Ontario from 1966 to the present that is in the possession of FARMS and/or the HRSDC.

4The respondent did not oppose the requested production, although it opposed the time period for which the data was requested. The applicant is seeking the same type of mandatory inquests provided to construction/mining/pit/quarry workers under section 10(5) of the Coroner’s Act, which was not enacted until 1978. Therefore there is no basis for seeking information prior to 1978, as the alleged comparator group did not exist until 1978.

5The applicant agreed to the modified time period. When advising the third parties of the requested data, the applicant clarified that the request included data relating to the medical repatriation of migrant agricultural workers (from both the Caribbean and Mexico) from 1978 to the present.

6FARMS voluntarily disclosed its data of Caribbean and Mexican Seasonal Agricultural worker deaths from 1995 to the present, noting that FARMS was incorporated in 1987 and only data from 1995 was available. It noted that prior to 1987, the Federal Government administered the Seasonal Agricultural Workers Program and therefore no other data was available from it.

7FARMS responded that there is very little data on medical repatriation, and that due to privacy laws, they would be required to contact each individual for permission to disclose. As the parties appear to be in agreement with respect to the relevancy of the requested data, and as FARMS’ only objection appears to be that it cannot voluntarily disclose the information without permission from the individuals, it appears to me to be an appropriate circumstance for me to order the requested disclosure.

8Accordingly, I order FARMS to produce to the applicant and the respondent data in their possession relating to medical repatriation of migrant agricultural workers under CSAWP from 1978 to the present within 60 days of the date of this decision.

9HRSDC did not provide any written submissions opposing the requested production. Accordingly I order the HRSDC to produce to the applicant and the respondent all relevant data in its possession regarding CSAWP participant fatalities in Ontario from 1978 to the present and all data in its possession relating to medical repatriation of migrant agricultural workers under CSAWP from 1978 to the present within 60 days of the date of this decision.

10At the request of the parties, the hearing in this matter is adjourned until the requested information has been produced and the parties contact the Tribunal to schedule new hearing dates.