Group of Employees v. Presteve Foods Ltd., 2012 HRTO 1047

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

CAW – Canada on behalf of a Group of Employees, O.T. and M.T.

Applicants

-and-

Presteve Foods Ltd. and Jose Pratas

Respondents

-and-

Justicia for Migrant Workers

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 25, 2012

Citation: 2012 HRTO 1047

Indexed as: Group of Employees v. Presteve Foods Ltd.

WRITTEN SUBMISSIONS

Jose Pratas, Respondent

Laura Joy, Counsel

1The issue in this Interim Decision is whether the Tribunal should revisit its order of August 24, 2011, 2011 HRTO 1581, granting Justicia for Migrant Workers (“J4MW”) leave to intervene in these Applications.

2At the time J4MW was granted leave to intervene, the individual respondent and the organization respondent were represented by the same counsel. There were two components to the Applications: an allegation of discrimination in the wages paid to the claimants and applicants, who are migrant workers, and allegations of sexual harassment by the individual respondent. The parties subsequently settled in principle the allegations of discriminatory wages and what remains are the allegations of sexual harassment.

3New and separate counsel now represent the individual and organization respondents on the sexual harassment allegations as a result of a conflict of interest for former counsel. The sexual harassment allegations were separated into new Tribunal files in order for former counsel to continue to represent both his former clients in finalizing the wage claim settlements. The materials in the previous file were transferred to the new files: see 2012 HRTO 361. In other words, although there are new file numbers, these Applications are a continuation of the sexual harassment allegations in the previous files in which J4MW has intervenor status.

4The individual respondent makes various arguments in support of his request that J4MW not continue as an intervenor. First, with regard to procedure, he asks that the matter be decided through an in-person hearing and states that he “is not prepared to waive his right to the benefit of oral advocacy”. He argues that the intervenor does not have a significant interest in the issue on which intervention is sought, and that the intervenor is not likely to provide assistance to the Tribunal that will not otherwise be provided, relying on Ellis v. Petro-Canada, 2010 HRTO 1182 and Jeppeson v. Ancaster (Town), 2001 CanLII 26209 (Ont. Bd. Inq.). Finally, he argues that the granting of intervenor status to J4MW could create a reasonable apprehension of bias because of its role in advocating on behalf of the position of migrant workers.

5I address first the issue of procedure. There is no right to make oral submissions on a preliminary issue. While an Application within the Tribunal’s jurisdiction may not be finally disposed of without giving the parties the opportunity to make oral submissions (s. 43(2)), this does not provide the parties with a right to make oral submissions on preliminary issues. Rule 19.7 provides:

The Tribunal will determine whether a Request for Order will be heard in writing, in person, or electronically and, where necessary, will set a date for the hearing of the Request.

This information is also set out in Form 10, which makes it clear that the request may be heard in writing and on the basis of Form 10 alone. I am of the view that this Request is appropriately dealt with on the basis of the Form 10, as is the case with many preliminary issues in the Tribunal process.

6Turning to the merits of the individual respondent’s Request, the Tribunal ruled as follows in its previous decision, 2011 HRTO 1581 at paras. 9-14:

It is important to focus the analysis in the context of the new Code, which was amended in 2008 and in which applications are now made directly to the Tribunal. Section 36 of the Code permits the Tribunal to add “[a]ny other person or the Commission, if they are added as a party by the Tribunal”. Rule 11.1 allows the Tribunal to allow “a person or organization to intervene in any case at any time on such terms as the Tribunal may determine”. Moreover, the Tribunal has extensive powers under the new Code and Rules to focus the hearing on the evidence and argument necessary to a fair, just and expeditious resolution of the case.

In my view, the new Code and Rules give the Tribunal the power to grant an intervenor full participatory rights in a hearing. Moreover, in the new system in which individuals have direct access to the Tribunal and where the Ontario Human Rights Commission is not a party to every case, the Tribunal should be more liberal in granting intervenor status to groups and individuals who wish to bring forward their perspectives on the quasi-constitutional issues it hears, particularly where the issues have significant public importance. The Tribunal can apply its active adjudication approach to ensure that, once intervention status is granted, the intervenor’s evidence focuses on the issues of assistance to the Tribunal in the case and minimizes any resulting costs to the parties.

I turn now to this Request. With regard to the allegations of delay in filing the Request to Intervene, I note that the respondents only filed a full Response on April 21, 2011, with leave of the Tribunal, because of pending criminal charges against the individual respondent. Moreover, the two pages of Response that were filed are extremely sparse, with little detail about the respondents’ position on the facts and allegations. The Request to Intervene was made on July 7, 2011. In these circumstances, I cannot agree that the timing of the Request is “late” or that the timing will unduly delay the hearing

This is, to my knowledge, the first case before this Tribunal involving alleged discrimination against migrant workers. The relevant social context is useful and helpful to the evaluation and understanding of the issues raised in the Applications and J4MW has relevant expertise and perspective to add to an understanding of those issues. Such evidence may be particularly important on the issue of remedy. Moreover, I note that the respondents make arguments that would affect the Code rights of migrant workers more generally. They take the position that “[i]n calculating likable compensation, consideration and credit must be given to other benefits provided to the foreign workers such as accommodation, airfare, etc.”.

Finally, it is my view that J4MW, as an organization that works generally exclusively with migrant workers outside the labour movement, has a particular perspective to add that will assist the Tribunal with the issues in the Application.

Accordingly, leave to intervene and to call Dr. Preibisch as an expert witness is granted to Justicia for Migrant Workers. J4MW will call its evidence after that of the applicants

7To the extent that the individual respondent invites the Tribunal to reconsider the principles applied in the previous Interim Decision, there is no reason to do so. I remain of the view that the more liberal approach to intervention set out there is appropriate under the new Code, rather than the principles set out in Jeppeson. The question that is relevant at this stage is whether the settlement in principle of the wage claims changes my conclusion that J4MW is an appropriate intervenor.

8In my view, the change to the scope of the Application does not mean that J4MW should not remain an intervenor. While the Interim Decision mentioned the respondent’s position on the wage claims, my reasoning hinged on the fact that the social context affecting migrant workers was central to the resolution of the discrimination claims at issue, and in particular the question of remedy. In my view, that social context remains relevant to the issue of sexual harassment and any remedy if discrimination is found. There is no requirement that an intervenor be “neutral”; it is granted status and entitled to advocate a particular position that goes beyond the interests of the parties. The granting of intervenor status to make submissions and present evidence about the relevant social context does not create an apprehension of bias in the Tribunal; the Tribunal will consider the intervenor’s submissions and evidence together with those of the applicant and the two respondents in making its decision.

9For these reasons, the Tribunal declines to revisit its previous order, and Justicia for Migrant Workers remains an intervenor in these Applications.

10I am not seized.