CAW-Canada v. Presteve Foods Ltd., 2013 HRTO 1441

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

CAW-Canada on behalf of M.G.C., and O.P.T. and M.P.T. Applicants

-and-

Presteve Foods Ltd. and Jose Pratas Respondents

-and-

Justicia for Migrant Workers Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: August 22, 2013 Citation: 2013 HRTO 1441 Indexed as: CAW-Canada v. Presteve Foods Ltd.

WRITTEN SUBMISSIONS

Presteve Foods Ltd., Respondent Gino Morga, Counsel

Justicia for Migrant Workers, Intervenor Grace Vaccarelli, Counsel

1The issue to be addressed in this Interim Decision arises in the context of a longstanding proceeding alleging sexual harassment by the respondents against the applicants, who worked for the respondents as migrant workers. The hearing on the merits in this matter commenced in January 2013 and is ongoing.

2As part of this proceeding, Justicia for Migrant Workers (“J4MW”) was granted to leave to intervene in order to call expert evidence regarding the disadvantage and barriers experienced by migrant workers. The intervenor has called Dr. Kerry Preibisch to provide this testimony, and she testified on July 15 and 16, 2013. She is currently in the middle of cross-examination, and is scheduled to re-attend on September 20, 2013 for her cross-examination to be completed and for any proper re-examination.

3In the context of the cross-examination, counsel for Presteve Foods Ltd. (“Presteve”) made certain requests for production. By Case Assessment Direction dated July 23, 2013, counsel for Presteve was directed to confirm these requests in writing to counsel for the intervenor.

4By letter dated August 2, 2013, counsel for Presteve requested disclosure of the following materials:

“ . . . copies of all correspondence as well as any notes of discussions between [counsel for the intervenor] and Dr. Preibisch which led up to her retainer, preparation of her report and her preparing to give evidence.”

5The intervenor objects to making this disclosure on a number of bases. First, it is asserted that such disclosure is not required under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, or the Tribunal’s Rules of Procedure as the documents are protected by litigation privilege. Authorities have been provided to me from the civil law context, in which it is recognized that, subject to certain specific disclosure requirements regarding experts under the Rules of Civil Procedure, litigation privilege exists to maintain protection over the expert’s file “until trial”: see Bookman v. Loeb, [2009] O.J. No. 2741, 2009 CanLII 33528 at para. 32. However, I have been provided with no authority to support that once an expert is actually called to testify at trial or in a hearing, litigation privilege continues past this point.

6It is next stated that the request is untimely. I agree that the request could and probably should have been made at a much earlier stage in the proceeding. However, Dr. Preibisch is required to re-attend in order for her cross-examination to be completed in any event, and I do not see any prejudice caused to her or the intervenor arising out of the timing of the production request. I also note that, while litigation privilege may have applied to protect certain information in advance of Dr. Preibisch being called to testify, it does not appear to apply once she actually has commenced her testimony at the hearing, which is when the respondent made its request. This is not a situation like that in Horodynsky Farms v. Zeneca Corp., 2006 CanLII 31976 (ON CA), 2006 O.J. No. 3716 (C.A.), where the request was made after the trial had been completed.

7The intervenor relies upon the Tribunal’s Rules of Procedure to submit that I should consider whether the request is “in order to provide for the fair, just and expeditious resolution” of this matter. I agree that this is the over-arching principle to be applied to the exercise of the Tribunal’s powers pursuant to Rule 1.7. It is then submitted that I must ask myself whether such disclosure “is reasonably necessary or appropriate”. This is derived from Rule 1.7(p), which sets out the Tribunal’s power to “require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form”. I do not agree that the standard of “reasonably necessary” applies to the production of documents from a party. Rather, based upon the wording of Rule 1.7(p), it is my view that the qualifier “reasonably necessary” applies to the nature of any assistance that may be required “to produce the information in any form”. The standard that this Tribunal applies to an order for production of documents at the hearing stage is whether such documents are relevant to a matter at issue.

8The intervenor submits that, if it is determined that some degree of production should be made, then I should be guided by the case law that has developed under the Rules of Civil Procedure, regarding the scope of required production in relation to expert evidence. I agree that it is appropriate for me to consider the case law that has developed under the Rules of Civil Procedure in this context as a guide to the extent of required disclosure, as this Tribunal has done in other contexts, while recognizing that the Rules of Civil Procedure and the case law interpreting those Rules do not bind this Tribunal.

9The intervenor submits that under the civil case law, the respondent’s request is overly broad, and that the respondent is only entitled to the information on which the expert relied, not all communications passing between counsel and the expert. It is submitted that courts have held that the requesting party is entitled to “foundational information” for the expert’s final opinion, but cautioned that this was not a “limitless entitlement”: see Bookman v. Loeb, supra, at paras. 28-29.

10While this is true, the case law before me indicates that the civil court is prepared to order disclosure of at least some categories of documents or information that fall within the scope of what the respondent has requested. For example, in Livent Inc. (Receiver and Manager of) v. Deloitte & Touche, [2012] O.J. No. 5878, 2012 ONSC 7007 (Master D.E. Short), the Master ordered disclosure of: documents that show the instructions upon which the experts proceeded and the assumptions they were asked to make; any changes to those instructions (although not extending to all e-mails, letters or other correspondence passing between counsel and the expert where litigation privilege has not been waived); previous drafts of expert reports in the care or control of the expert or counsel; and correspondence between the expert and their instructing counsel that contains foundational information (i.e. information provided to and/or relied upon by the expert in the preparation of the expert report). I expressly note that this was an order for disclosure made at the discovery stage of the civil litigation process, and not an order for disclosure while the expert was actually testifying at trial. In this regard, I point to the concluding language used by the Master at para. 109, in which he states: “The experts’ files otherwise remain privileged until trial. They need not be produced now.” (emphasis added)

11In Bookman v. Loeb, supra, Mesbur J. ordered disclosure of: prior drafts of the expert report; the expert’s notes of any meetings that reflect any information the expert obtained that formed part of the foundation of the opinion, whether factual or by way of assumption (but not other notes made by the expert which were regarded as subject to litigation privilege and not notes made by counsel which were held to be protected by solicitor-client privilege); copies of any letters of instruction or particulars of the instructions provided, including any changes to these instructions (but not other e-mails, letters or other correspondence passing between counsel and the expert, which was held to be subject to litigation privilege which had not yet been waived). Production of the expert’s files was not required to be produced at the discovery stage on the basis that the files “remained privileged until trial”.

ORDER

12On the basis of the authorities provided to me and within the scope of the request for production made by the respondent, I hereby order production of the following documents and/or information:

a. Copies of any letters of instruction or particulars of the instructions provided, including any changes to these instructions (but not other e-mails, letters or other correspondence passing between counsel and the expert). If the instructions or any changes to instructions were given orally, then counsel for the intervenor shall provide a memorandum setting out what the instructions or any changes were and when these were communicated to Dr. Preibisch;

b. Dr. Preibisch’s notes of any meetings that reflect any information she obtained that formed part of the foundation of her report or the opinion evidence tendered at the hearing, whether factual or by way of assumption (but not other notes made by the Dr. Preibisch and not notes made by counsel);

c. Any existing prior drafts of Dr. Preibisch’s report in the care or control of Dr. Preibisch, the intervenor or counsel for the intervenor;

d. Any correspondence, whether by letter, e-mail or other means, between Dr. Preibisch and the intervenor or counsel for the intervenor that contains foundational information (i.e. information provided to and/or relied upon by Dr. Preibisch in the preparation of her report or for the purpose of her evidence at the hearing).

13The intervenor shall produce these documents to the other parties and file them with the Tribunal by no later than September 9, 2013. If an issue arises as to whether all or part of any specific document falls within the scope of my order, counsel for the intervenor may seek further direction from me and/or provide the complete unredacted copy of any such document to me for a determination as to whether it falls within the scope of the order I have made.