CAW-Canada v. Presteve Foods Ltd., 2013 HRTO 1532

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.

Applicant

-and-

Presteve Foods Ltd. and Jose Pratas

Respondents

-and-

Justicia for Migrant Workers

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 12, 2013

Citation: 2013 HRTO 1532

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

1This Interim Decision is written further to my Interim Decision dated August 22, 2013 (2013 HRTO 1441), in order to provide direction regarding the scope of my disclosure order relating to materials relevant to the evidence of the intervenor’s proposed expert, Dr. Kerry Preibisch.

2The intervenor wrote to the Tribunal pursuant to paragraph 13 of my Interim Decision dated August 22, 2013, in order to seek direction as to whether a certain category of documents is encompassed in my Order. This correspondence was not copied to the other parties. This correspondence seeks direction regarding the disclosure of e-mails between counsel for the intervenor and Dr. Preibisch during the period from July 8 to 15, 2013 for the purpose of hearing preparation, which include counsel’s proposed questions for Dr. Preibisch and drafts of Dr. Preibisch’s proposed responses. Counsel attached the initiating e-mail sent by her to Dr. Preibisch together with an initial draft of her questions for examination-in-chief. The direction sought by the intervenor is whether these documents are captured by para. 12a of my Order, which refers to “any letters of instruction or particulars of the instructions provided”.

3As a result of this correspondence, I issued a Case Assessment Direction dated September 6, 2013, setting out the substance of the intervenor’s request for direction and inviting any submissions from the parties in response.

4Counsel for the corporate respondent submits that the e-mails in question, and particularly the replies of Dr. Preibisch, fall into the category of “draft reports” referred to in the case law relied upon by me in the Interim Decision. He submits that what Dr. Preibisch said in reply to counsel’s proposed questions and any amendments to those answers are, especially if they were made pursuant to counsel’s recommendation, clearly relevant. It is submitted that any changes pursuant to counsel’s recommendation would amount to “instruction” and would thereby properly be part of the production order.

5As stated in the previous Interim Decision, the case law in the civil courts has recognized some scope for the recognition of litigation privilege in relation to communications between counsel and an expert witness. While I noted in the previous Interim Decision that this case law appeared to suggest that this privilege remained “until trial”, I have not been provided with any authority whereby communications between counsel and an expert witness in preparation for the expert witness to testify have been ordered to be produced at trial once the expert witness has been called to the stand. Accordingly, in the absence of having been provided with any such authority, I am not prepared to extend my production order beyond the categories of documents that have been ordered produced in the civil context.

6In Livent Inc. (Receiver and Manager of) v. Deloitte & Touche, 2012 ONSC 7007, [2012] O.J. No. 5878 (Master D.E. Short), while the Master ordered disclosure of documents that show the instructions upon which the expert proceeded and the assumptions they were asked to make as well as any changes to those instructions, the production order was expressly limited so as not to extend to “all e-mails, letters or other correspondence passing between counsel and the expert where litigation privilege has not been waived”. In my view, this exception captures the kind of e-mail dialogue that occurred in this case where counsel for the intervenor was engaged in preparing Dr. Preibisch to testify at the hearing. I have reviewed the list of proposed questions that was provided by counsel, and these are all drawn directly from Dr. Preibisch’s work as set out in the witness statement filed on her behalf in this proceeding. I do not regard these as “instructions” within the meaning of my Order.

7Nor do I regard any proposed responses that were prepared by Dr. Preibisch to be “draft reports” within the meaning of my Order. While no formal “report” was filed by Dr. Preibisch in this proceeding, a witness statement was filed on her behalf. I understand that drafts of this statement have been disclosed. But proposed responses to questions cannot, in my view, properly be regarded as “draft reports”.

8I also do not regard any proposed changes to Dr. Preibisch’s responses, as may have been suggested by counsel, to constitute a change in “instructions” within the meaning of my Order. I would regard a change in instructions as being a direction that asked an expert to examine a new area or issue beyond what already had been directed, or to consider new information or material that had not previously been disclosed. But merely providing feedback on Dr. Preibisch’s proposed responses to counsel’s draft examination-in-chief does not, in my view, fall within the realm of a change in instructions.

9I agree with counsel for the corporate respondent that Dr. Preibisch’s proposed responses and any changes to those responses as may have been recommended by counsel may be arguably relevant. However, pursuant to s. 15(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, I do not have the jurisdiction to admit into evidence anything “that would be inadmissible in a court by reason of any privilege under the law of evidence” and I similarly do not have jurisdiction to order production of any such privileged material. In my view, the kinds of communications between counsel and the intervenor in preparation for her testimony before this Tribunal fall within the scope of litigation privilege. As I have said above, in the absence of having been provided with any authority to support that litigation privilege over such communications is waived once the expert witness is called to testify at the hearing, I do not believe that I have the authority to order production of the category of documents referenced by counsel for the intervenor in her request for direction, and I accordingly find that this category of documents is not within the scope of the production order made in my previous Interim Decision.

DIRECTION

10The category of documents referenced by counsel for the intervenor in her correspondence to the Tribunal dated September 5, 2013, namely e-mails between counsel and Dr. Preibisch during the period from July 8 to 15, 2013 for the purpose of hearing preparation including counsel’s proposed questions for Dr. Preibisch, drafts of Dr. Preibisch’s proposed responses, and any feedback from counsel, does not fall within the scope of the production order as set out in my Interim Decision dated August 22, 2013 and need not be disclosed.