CAW-Canada v. Presteve Foods Ltd., 2013 HRTO 1064

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

CAW-Canada on behalf of R.K., R.M., N.T., S.W., P.Y. and M.G.C., and O.P.T., M.P.T. and N.Y. Applicants

-and-

Presteve Foods Ltd. and Jose Pratas Respondents

-and-

Justicia for Migrant Workers Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: June 14, 2013 Citation: 2013 HRTO 1064 Indexed as: CAW-Canada v. Presteve Foods Ltd.

1The purpose of this Interim Decision is to address certain requests for disclosure of documents and/or information that have been raised by the respondents during the course of the questioning to date of some of the applicants, and to address the applicants’ request to call one additional witness.

2The respondents first seek production of the immigration file in Essex County Bilingual Legal Clinic as it relates to O.P.T., M.P.T. and M.G.C. The applicant O.P.T. has voluntarily agreed to make disclosure of this file to the respondents, while reserving the right to object to the admissibility or relevance of any documents contained in this file.

3With regard to the immigration files as they relate to M.P.T. and M.G.C., these applicants assert solicitor-client privilege. In response, the respondents submit first that these applicants have waived this privilege by testifying as to the content of their discussions with counsel at the clinic, or in the alternative that these files contain relevant documents not subject to privilege.

4With regard to the testimony of M.G.C., I find that she did not waive privilege in relation to discussions she had with immigration counsel. To be frank, her evidence regarding her interaction with immigration counsel, who was identified as being at Legal Assistance Windsor rather than at the Bilingual Legal Clinic, was very confused and hard to follow. But she did not testify as to the content of any of her discussions with legal counsel.

5That said, it certainly would be of assistance to me to have a better understanding of when in fact M.G.C. first contacted Legal Assistance Windsor, a general description of the services provided to her, when M.G.C. first raised any issue with Legal Assistance Windsor pertaining to the substance of her allegations at issue in this proceeding, and when and who referred her to counsel for the CAW-Canada. In my view, the disclosure of this information by Legal Assistance Windsor would not violate solicitor-client privilege and can be provided by way of a letter obtained by applicant’s counsel from Legal Assistance Windsor.

6As I have found that M.G.C. has not waived privilege, the respondents alternatively seek a copy of those portions of the immigration file which are copies of documents filed with Immigration Canada or in the further alternative, a requirement that such documents be obtained by M.G.C. directly from Immigration Canada.

7In their submissions, the respondents support their request for such disclosure on three bases: (1) to establish the timeline for her involvement in this Application; (2) to assess credibility; and (3) to determine whether there is any ulterior motive in the prosecuting of this Application as alleged by the respondent. With regard to the first point, it is my view that the information I have ordered disclosed from Legal Assistance Windsor will address this. I have not been provided with any basis to support that documents filed with Immigration Canada would assist in determining the timeline for M.G.C.’s involvement in the matter before me.

8With regard to the second point, the standard rule regarding collateral evidence is that such evidence cannot be introduced simply to challenge credibility. I see no reason to depart from this rule. At the same time, I am aware that M.G.C.’s application for refugee status was denied. It is unclear to me, without seeing a copy of the decision denying her application, whether any negative assessment of her credibility was made in that proceeding. If it was, then that is something that the respondents are entitled to raise and that I am entitled to consider. Accordingly, I will order disclosure of the decision denying M.G.C.’s application for refugee status.

9With regard to the third point, it is not clear to me the extent to which any documents contained in the Legal Assistance Windsor file for M.G.C. would assist me in assessing whether M.G.C. had any ulterior motive in proceeding with her Application against the respondents. The respondents have raised allegations that the police, the Crown Attorney, and the union offered inducements to the applicants in order to secure their testimony against Mr. Pratas. To the extent that the Legal Assistance Windsor file for M.G.C. contains any notes, records or other documents pertaining to communications between LAW counsel or staff and the police, the Crown Attorney or the union (apart from communications with CAW-Canada counsel subsequent to the point at which she was retained as counsel for M.G.C.), such documents would not be protected by solicitor-client privilege. Accordingly, on the basis of the allegations raised by the respondents, it is my view that any such documents are relevant and ought to be disclosed. If there is any lack of clarity or other concerns regarding the proper scope of this order, such concerns may be raised with me at the hearing and, after hearing further submissions from the parties, I am prepared to consider making an order that any such documents be vetted by me for assessment as to whether they fall within the scope of this order.

10With regard to the testimony of M.P.T., I also find that she did not waive privilege in relation to discussions she had with immigration counsel. Her evidence is that, at some point after she filed her application for refugee status, she met with a lawyer named Judy Springer at the Bilingual Legal Clinic. She further testified that it was as a result of her contact with Ms. Springer that she became aware of this human rights proceeding and was referred to CAW-Canada counsel. In my view, her testimony in chief and on cross-examination did not extend to the content of solicitor-client communications with Ms. Springer. Accordingly, I do not have a basis in the evidence before me to find that M.P.T. waived solicitor-client privilege in relation to her communications with Ms. Springer and the Bilingual Legal Clinic.

11At the same time, as with M.G.C., there was a lack of clarity and some confusion in M.P.T.’s evidence as to the precise date when she filed her application for refugee status, when she first came into contact with Ms. Springer, and when she was advised of this human rights proceeding. Accordingly, as I have with M.G.C., I order disclosure of the following information from the Bilingual Legal Clinic: the date when M.P.T. filed her application for refugee status, the date when M.P.T. first contacted the Bilingual Legal Clinic, a general description of the services provided to her, when M.P.T. first raised any issue with the Bilingual Legal Clinic pertaining to the substance of her allegations at issue in this proceeding, and when and who referred her to counsel for the CAW-Canada.

12Similarly, as with M.G.C., I am aware that M.P.T.’s application for refugee status was denied. Without disclosure of the decision denying this status, I am unclear as to whether any adverse finding of credibility was made. As a result, a copy of this decision should be disclosed to the respondents. In addition, the same allegations are being raised by the respondents regarding inducements offered to M.P.T. by the police, the Crown Attorney and union in relation to her testimony in this proceeding. Accordingly, for the same reasons and on the same basis as set out above, I order disclosure of any notes, records or other documents pertaining to communications between Ms. Springer or staff at the Bilingual Legal Clinic and the police, the Crown Attorney or the union (apart from communications with CAW-Canada counsel subsequent to the point at which she was retained as counsel for M.P.T.).

13The respondents also seek disclosure of the New Canadians’ Centre of Excellence Inc. file regarding O.P.T. The CAW quite rightly objects on the basis that O.P.T. did not give any testimony regarding this organization. Rather, it was M.P.T. who testified about this organization during cross-examination. M.P.T. testified that during the period from her return to Canada in February 2009 until she filed her refugee application in June or July 2009, she only attended at this organization’s office in Leamington on one occasion, in order to get the address of the place to go to in Toronto to file her refugee application and directions as to how to get there. She testified that there are people at this organization who speak Spanish and who are there to help people like her with such things as filling out documents, finding a job, finding a house, or finding a school. M.P.T. testified that she never told the people at Excellence about allegedly having been touched by Mr. Pratas, and never asked them about making a human rights application about this, or about filing a complaint, or about seeking compensation for injury to her dignity.

14In light of this testimony, it is my view that records regarding M.P.T.’s communications with this organization are collateral to the issues before me, and as a result are neither relevant nor producible.

15Finally, with regard to O.P.T., the respondents request disclosure of her income tax information for the last three years and the name of her husband’s employer. The name of her husband’s employer already has been provided by CAW-Canada counsel. In addition, the applicant also has agreed to provide a copy of tax forms as they relate to her child tax benefits along with proof that she and her spouse file income tax as a married couple as is required by federal legislation. The applicant objects to the disclosure of any further information.

16The issue giving rise to the request for income tax information arose as a result of O.P.T.’s testimony on cross-examination by Mr. Morga that she received $1,400 per month from the government as a “baby bonus”, which is now referred to as a child tax benefit. Ms. Joy then pursued a line of cross-examination on this point, regarding whether O.P.T. had reported her husband’s income as part of her income tax return when seeking the child tax benefit. In the context of this questioning, O.P.T. offered to provide her income tax returns to prove that she was not lying. I then interjected and indicated that any request for disclosure of such information would be addressed as part of the respondents’ request for production. In my view, this is an entirely collateral issue to the matter before me for determination. Accordingly, I do not require that O.P.T. make disclosure of her income tax information beyond what she already has agreed to provide. I note that I already have ruled that M.G.C. was not required to disclose her income tax returns in response to a similar request.

17In light of the disclosure that I have ordered, we will need to arrange for these three witnesses to re-attend so that the respondents have an opportunity to conduct further cross-examination arising from the disclosure. A suitable date for their re-attendance can be discussed when the hearing resumes. With regard to M.G.C., I am aware that she was subject to a deportation order that was to be executed on February 28, 2013. It is not known to me whether she remains in Canada at this time or whether she in fact has returned to Mexico. If she has returned to Mexico, we will need to discuss what arrangements can be made to facilitate any further cross-examination, such as by conference telephone.

18Finally, with regard to the additional witness proposed to be called by the applicants, I have reviewed the witness statement setting out this witness’ proposed evidence and note that it is consistent with evidence I already have heard from O.P.T. In my view, I do not see the utility in hearing from this witness, particularly as he does not have any evidence that pertains to the principal allegations before me for determination. Accordingly, the applicants’ request to call this additional witness is denied.

ORDER

19For all of the foregoing reasons, I hereby order the applicants M.G.C., M.P.T. and O.P.T. to disclose to the respondents the following documents and/or information within two weeks of the date of this order:

a. With regard to M.G.C., she is ordered to disclose to the respondents

i. when she first contacted Legal Assistance Windsor, a general description of the services provided to her, when she first raised any issue with Legal Assistance Windsor pertaining to the substance of her allegations at issue in this proceeding, and when and who referred her to counsel for the CAW-Canada, which information can be provided by letter from Legal Assistance Windsor,

ii. a copy of the decision denying her application for refugee status, and

iii. any notes, records or other documents from her file as maintained by Legal Assistance Windsor pertaining to communications between Legal Assistance Windsor counsel or staff and the police, the Crown Attorney or the union (apart from communications with CAW-Canada counsel subsequent to the point at which she was retained as counsel for M.G.C.);

b. with regard to M.P.T., she is ordered to disclose to the respondents

i. the date when she filed her application for refugee status, the date when she first contacted the Bilingual Legal Clinic, a general description of the services provided to her, when she first raised any issue with the Bilingual Legal Clinic pertaining to the substance of her allegations at issue in this proceeding, and when and who referred her to counsel for the CAW-Canada, which information can be provided by letter from the Bilingual Legal Clinic,

ii. a copy of the decision denying her application for refugee status, and

iii. any notes, records or other documents from her file as maintained by the Bilingual Legal Clinic pertaining to communications between the Bilingual Legal Clinic counsel or staff and the police, the Crown Attorney or the union (apart from communications with CAW-Canada counsel subsequent to the point at which she was retained as counsel for M.P.T.);

c. with regard to O.P.T., she is ordered to disclose to the respondents

i. a copy of her immigration file as maintained by the Bilingual Legal Clinic, and

ii. a copy of tax forms as they relate to her child tax benefits along with proof that she and her spouse file income tax as a married couple as is required by federal legislation;

d. any lack of clarity or other concerns regarding the proper scope of the orders made in sub-paras. (a)(iii) and (b)(iii) may be raised at the hearing.