Group of Employees v. Presteve Foods, 2012 HRTO 1365

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.

Applicant

-and-

Presteve Foods Ltd. and Jose Pratas

Respondents

-and-

Justicia for Migrant Workers

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: July 10, 2012

Citation: 2012 HRTO 1365

Indexed as: Group of Employees v. Presteve Foods

APPEARANCES

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

Niki Lundquist, Counsel

Presteve Foods Ltd., Respondent

Gino Morga, Counsel

Jose Pratas, Respondent

Laura Joy, Counsel

Justicia for Migrant Workers, Intervenor

Grace Vaccarelli, Counsel

1This Interim Decision addresses a request by the individual respondent, filed on May 31, 2012, that I recuse myself on the basis of reasonable apprehension of bias, based on the fact that I made a previous decision on August 24, 2011, granting Justicia for Migrant Workers (“J4MW”) intervenor status: 2011 HRTO 1581. Prior to receiving the written request that I recuse myself, I ruled on May 25, 2012, that J4MW would continue to be an intervenor, as these Applications were a continuation of the previous Applications in which it had been granted intervenor status and there was no reason to revisit the previous order. The applicants oppose the request, and the other parties take no formal position. A hearing was held by teleconference to allow the parties to make oral submissions, which took place on June 29 and July 10, 2012.

2It is helpful to briefly review the history of these matters. The Applications originally raised two issues: alleged sexual harassment and allegedly differential wages. They named both the individual respondent and the organization respondent, and made no distinction in the Application between the two in terms of liability for the alleged violations of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Both respondents were represented by the same counsel, in relation to both issues.

3On the day the hearing on both issues was to start, the parties reached a settlement of the wage issues and advised me of the fact of the settlement. It appears that in discussions between counsel, the issue of whether the applicants were seeking damages against the organization respondent for the sexual harassment claims had not been fully discussed or articulated, and when counsel for the applicants confirmed that she was seeking damages from both respondents for sexual harassment, counsel for the respondents withdrew on the basis of conflict and sought an adjournment, which the Tribunal granted.

4Previous counsel for the respondents wished to stay on the record in order to finalize the settlements of the wage issues. To accommodate counsel for the respondents, new file numbers were opened for the sexual harassment cases, but all parties agreed, and the Tribunal confirmed, that this was a continuation of the previous file: see 2012 HRTO 361. The Tribunal ordered that all materials in the existing file other than on the wage claims would form the new file, and the Applications would be deemed filed on the date they were originally filed. This was done so that the respondents could have their existing common counsel complete the resolution of the wage claims and stay on the record for that matter, but have new and separate counsel represent them in the sexual harassment claims.

5This is, therefore, the same Application as the one in which the Tribunal ruled in its decision of August 24, 2011, except that part of the Application has been settled.

6The respondent expresses the facts underlying his argument as follows

17. Adjudicator Wright has previously adjudicated another Human Rights Tribunal matter involving the Applicant, the Respondent, the Justicia for Migrant Workers and the intervenor status issue.

18. In the previous Human Rights Tribunal matter involving the wage issue, after reviewing the evidence and hearing submissions, Adjudicator Wright granted the Justicia for Migrant Workers intervenor status.

19. This prior ruling creates a reasonable apprehension of bias on the part of Adjudicator Wright. An informed person, viewing the matter realistically and practically and having thought the matter thoroughly, would conclude that the potential for bias exists.

20. The grounds for the apprehension of bias are substantial. Adjudicator Wright has already reviewed the underlying factual scenario of the case. He has also reviewed the evidence, heard submissions, and made a ruling on the issue of intervenor status.

21. A reasonably informed person would conclude that after such a ruling, Adjudicator Wright is no longer impartial to the issue of intervenor status in this matter. Having already decided on the issue previously, he is predisposed to the particular point of view of granting the Justicia for Migrant Workers intervenor status. His impartiality is tainted by this predisposition and the potential exists for a closed mind which might negatively affect the result of the proceedings.

7Counsel for the respondent also suggested in oral argument that a previous ruling in the same case could also lead to a finding of bias.

8As noted by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 57, impartiality is the fundamental qualification for a judge, and this, of course, is true for Tribunal adjudicators. Impartiality, however, is not an absence of prior experience with the issues in question, but rather means having an open mind which is open to persuasion (Wewaykum, supra, at para. 58). There is a presumption of impartiality and the onus is on the person seeking disqualification to establish a reasonable apprehension of bias.

9The Code permits the Tribunal to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it”: s. 41. It is common at the Tribunal, and in administrative proceedings generally, for an adjudicator who hears the merits to make preliminary and case management rulings, which may include case management decisions and decisions narrowing the issue. This is a fundamental part of the Tribunal’s active adjudication process, and assists in the fair, just and expeditious resolution of Applications, the consistent application of principles and the effective use of resources.

10The respondent’s arguments based on the allegation that I made a previous decision involving the same parties in a different matter are dismissed, on the basis that this is clearly a continuation of the same matter. To the extent the respondent argues that an adjudicator hearing the merits cannot have heard a preliminary matter in the same case, I disagree. It is the role of an adjudicator to make preliminary decisions in advance of the final decision, with neutrality, and this facilitates the resolution of cases in an effective manner for all parties. Parties before the Tribunal understand that each issue is approached on its own merits. The applicant was unable to cite any case that would suggest that there is a reasonable apprehension of bias if an adjudicator or judge who has made a previous ruling on a different issue in the same case makes further rulings.

11For these reasons, the Request that I recuse myself is dismissed.