Group of Employees v. Presteve Foods, 2012 HRTO 1448

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 24, 2012

Citation: 2012 HRTO 1448

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

No one appearing

1The following oral ruling was delivered at the hearing of this matter on July 24, 2012:

1. This Interim Decision addresses the issue of whether these Applications are barred because of the doctrine of abuse of process and/or s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as a result of the individual respondent’s guilty plea to simple assault at his criminal trial following a lengthy preliminary inquiry.

2. The background to these Applications is fully set out in previous Interim Decisions (2009 HRTO 944, 2010 HRTO 796, 2011 HRTO 1581, 2011 HRTO 2025, 2012 HRTO 361, 2012 HRTO 1047 and 2012 HRTO 1365) and need not be repeated here.

3. The individual respondent was charged criminally with sexual assault and with simple assault. The allegations in the criminal process mirror many of the allegations in these Applications. Following a lengthy preliminary inquiry in the Ontario Court of Justice, the Crown and the defendant reached an agreement that the individual respondent would plead guilty to one count of common assault, incorporating allegations of touching of various women, all but one of whom are claimants or applicants in this case. This occurred after the judge found at the conclusion of the preliminary inquiry, on April 12, 2010, that there was sufficient evidence to commit the applicant to trial on certain counts of sexual assault.

4. The parties appeared before the same Ontario Court of Justice judge who had heard the preliminary inquiry to enter a plea on March 1, 2011. After the facts the accused was prepared to admit were read in by the Crown, defence counsel, who also represents Mr. Pratas in these proceedings, noted on the record, “[T]his is over clothing. There is nothing sexual in nature whatsoever and the Crown agrees with me in that regard”. Mr. Pratas was sentenced to a conditional discharge.

5. The respondents argue that implicit in the judge’s acceptance of the guilty plea was a finding of fact that the allegations of sexual assault were not made out, and that therefore it is an abuse of process for the applicants to submit that Mr. Pratas engaged in any form of sexual misconduct. They submit that these allegations should be struck, and without them what is before the Tribunal at most are de minimus allegations and that the Tribunal should exercise its discretion to find that pursuing them in these circumstances would be an abuse of process. They argue that a senior judge and a senior Crown agreed at the preliminary hearing that there was nothing sexual that was made out and that it is an abuse of process for the applicants to challenge such findings in this Tribunal. They suggest that there is also an abuse of process because the applicants and the representative, the CAW, are dissatisfied with the results of the criminal process and are therefore seeking to pursue these allegations again here.

6. There are well-established principles regarding the results of criminal proceedings in subsequent civil proceedings, including human rights applications. As a result of the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, it is an abuse of process for a party who has been convicted in a criminal court, whether through a conviction or plea of guilt, to challenge a finding of guilt beyond a reasonable doubt and the facts that underlie it.

7. The Ontario Court of Appeal has held that the same considerations do not apply to an acquittal and to findings made in the course of an acquittal. In Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427, the Ontario Court of Appeal held that the doctrine of abuse of process does not prevent a party from challenging findings of fact made by a judge in the course of acquitting the accused. The Court relied upon the following considerations in support of its conclusion:

1. No appeal could have been brought by the Crown or the estate from the reasons (as opposed to the verdict) of the trial judge. Only the Crown could have appealed, and it could have done so only if the findings of fact tainted the verdict, and only on a question of law. Unlike an accused found guilty, therefore, the plaintiffs could not have challenged the reasons. (paras. 31-32)

2. The only judicial finding in an acquittal is that a case has not been proven beyond a reasonable doubt and to give legal significance to other aspects of the decision would confuse the role of the criminal and civil courts. (paras. 33 and 36)

3. The law does not recognize a verdict of factual innocence. (para. 35)

4. Trial judges should not be discouraged by the application of the abuse of process doctrine from expressing their reasons for acquittal in the manner they see fit, and “that may give the parties solace, satisfaction or even vindication”. (para. 37)

8. Applying these cases, and the underlying principles behind them, it is not an abuse of process to proceed with these Applications. The applicants are entitled to argue that Mr. Pratas’s violations of the Code included conduct that was alleged in the criminal proceedings, but that was not included in the facts to which he pled guilty.

9. I reject the respondents’ argument that the Court made any findings, implicit or explicit, that the applicant had not committed assaults of a sexual nature. That was not the preliminary inquiry judge’s decision to make. Rather, the Crown and the defence agreed that the applicant would plead guilty to charges of simple assault that did not include allegations of a sexual nature. The judge did not question this plea in all the circumstances, in light of what he had heard, but this does not suggest that he had made a finding about whether the evidence in the preliminary inquiry proved the original offences alleged.

10. I find that when defence counsel stated on the record that there was nothing of a sexual nature and the Crown agreed, that statement, in context, referred to the revised charges on which a plea was entered, not any conclusion about the preliminary hearing as a whole. In fact, the Crown specifically said to the Court that he believed there was a reasonable prospect of conviction on the sexual assault charges, but that in all the circumstances, it was appropriate to agree to a plea of guilty on a less serious charge. Given that the judge had already found that some initial charges were of a sexual nature when he committed the accused for trial following the preliminary inquiry, it cannot be the case that he had now concluded that they were not of a sexual nature.

11. I also reject the respondents’ argument that the acceptance by the judge of a guilty plea implies a finding that allegations beyond the facts stated on the plea did not happen. What the respondents ask me to find is that the acceptance of a plea implies a verdict of factual innocence, which, as the Court of Appeal makes plain in Polgrain Estate, supra, is not recognized by the law. The individual respondent pled guilty to the facts alleged in the revised charge, and he is bound by those, but there is no legal basis for the implication that either the Crown or the judge made a finding that other aspects of the original allegations had not been proven.

12. Even if there was such a finding by the judge, the reasoning in Polgrain Estate leads to the conclusion that it would not be binding on this Tribunal or the applicants. Such a finding would be analogous to a conviction on non-sexual charges and an acquittal on the sexual aspects. For all the reasons stated in Polgrain Estate – the fact that no appeal could have been brought by the applicants, the different standard of proof in criminal matters from civil ones, the impossibility of a verdict of factual innocence, and the desire not to constrain trial judges from giving vindication to an accused -- the acceptance of a plea by a judge does not bind third parties like the applicants from pursuing a subsequent civil proceeding.

13. Finally, it is trite to state that actions that are not a sexual assault may constitute discrimination, harassment or sexual solicitation contrary to the Code, and the allegations in this case go beyond allegations of harassment that is also sexual assault.

14. I want to emphasize, for clarity, that in rejecting the respondents’ arguments based on abuse of process, I am making no findings whatsoever in relation to the merits of the Applications. This decision merely finds that the results of the criminal process do not prevent the applicants from making their Applications.

15. I would also note that pursuant to CUPE, supra, and as conceded by the respondents, Mr. Pratas cannot contest in this proceeding the facts to which he pled guilty in criminal court. It is clear from what Ms. Joy placed on the record in the criminal process that Mr. Pratas made clear that he was not admitting to any facts that were sexual in nature, and this caveat, made on the record, means that it is clear that he is not considered to have admitted any misconduct of a sexual nature for the purpose of this proceeding.

16. In conclusion, neither the doctrine of abuse of process nor s. 45.1 of the Code bars these Applications, in whole or in part, based on what occurred in criminal court. The respondents’ request that the Applications be dismissed because of the result of the criminal proceedings is dismissed.

2The parties have agreed to the following timetable for the next steps in this Application:

1. Counsel for the applicants will deliver to counsel for the respondents and file with the Tribunal a detailed pleading, setting out in full the applicants’ factual and legal allegations, no later than September 7, 2012.

2. Counsel for the respondents will deliver to counsel for the applicants and file with the Tribunal detailed pleadings, setting out in full the respondents’ factual and legal allegations, no later than October 26, 2012.

3. Counsel for the applicants may file a reply pleading no later than November 2, 2012.

4. A case conference shall be held by teleconference on November 7, 2012, at 5:00 PM. Call-in details will follow from the Registrar’s office.