CAW-Canada v. Presteve Foods Ltd., 2013 HRTO 20

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: January 4, 2013 Citation: 2013 HRTO 20 Indexed as: CAW-Canada v. Presteve Foods Ltd.

WRITTEN SUBMISSIONS

CAW – Canada on behalf of a group of workers, Applicants Niki Lundquist, Counsel

Presteve Foods Ltd., Respondent Gino Morga, Counsel

Jose Pratas, Respondent Laura Joy, Counsel, and Greg McGivern, Student-at-Law

Justicia for Migrant Workers, Intervenor Grace Vaccarelli, Counsel

1This Interim Decision is written to address various preliminary and case management issues arising as a result of detailed pleadings filed by the parties pursuant to the Tribunal’s Interim Decision dated July 24, 2012 (2012 HRTO 1448) and as directed following a conference call with the parties held on November 7, 2012, and a Case Assessment Direction issued on November 14, 2012.

1. Identity of the individuals on whose rights are at issue in this proceeding

2This matter has a rather complex procedural history. Originally there was an Application dated April 30, 2009 (2009-02443-I) that was purported to be filed by CAW-Canada on behalf of 39 individuals, who were temporary foreign workers employed by the respondent company. By Interim Decision dated June 30, 2009 (2009 HRTO 944), another individual (M.G.C. or Worker 40) was added as an additional applicant. By Interim Decision dated April 12, 2010 (2010 HRTO 796), two further individuals were added as additional applicants (O.P.T. or Worker 41 and M.P.T. or Worker 42).

3Pursuant to s. 34(5) of the Code, an organization such as CAW-Canada may apply to this Tribunal on behalf of another person if that person would have been entitled to bring the application on her or his own behalf and if that person consents to the application. Section 34(7) requires that a consent to bring an application on another person’s behalf shall be in a form specified in the Tribunal’s Rules.

4Accordingly, upon receipt of the Application dated April 30, 2009, the Tribunal requested that CAW-Canada also file consents as specified in the Rules indicating that the 39 individuals consented to the Application being brought on their behalf by CAW-Canada. Unfortunately, the consents that were subsequently filed named Ms. Lundquist personally on the consent form, rather than naming CAW-Canada. This led to a need for clarification as to whether CAW-Canada was bringing an Application pursuant to s. 34(5) of the Code on behalf of these individuals, or whether the intent was for each individual to file her or his own application pursuant to s. 34(1) of the Code. This issue was raised with the parties in the Tribunal’s Interim Decision dated June 30, 2009 (2009 HRTO 944).

5While CAW-Canada clarified that it was purporting to file the Application under s. 34(5) of the Code on behalf of the individuals listed in the Application, the Tribunal determined that the consents as filed were not sufficient to enable CAW-Canada to do so, as the consents did not identify CAW-Canada as the organization that was authorized to bring the Application. This led to an attempt by CAW-Canada to get revised consents signed by these individuals. Unfortunately, because some workers either had gone back to their home country or had gone into hiding, CAW-Canada was able to obtain revised consents from only 16 individuals.

6The issue of the status of the Application purported to be filed by CAW-Canada on April 30, 2009 was ultimately determined on a conference call held with the parties on July 16, 2010, and confirmed by a Case Assessment Direction issued on July 21, 2010. Two things were determined on this conference call, on agreement by the parties. First, Application 2009-02443-I was determined to be an application made by CAW-Canada under s. 34(5) of the Code on behalf of the 16 individuals who had signed consents naming CAW-Canada. These individuals were Workers 6, 8, 13, 14, 15, 19, 21, 23, 26, 31, 32, 34, 36, 37, 39 and 40, as identified on a schedule appended to a letter dated July 16, 2010 from CAW-Canada counsel. Second, the remaining 26 individuals, who had signed consents naming Ms. Lundquist, were treated as having filed individual applications under s. 34(1) of the Code with Ms. Lundquist acting as counsel. These 26 individual applications were listed on Schedule A to the Case Assessment Direction dated July 21, 2010 and were assigned Tribunal file numbers 2010-06274-I to 2010-06299-I. It was determined that these 26 individual applications would be consolidated with each other and with Application 2009-02443-I, and that the pleadings in 2009-02443-I would be considered as the pleadings in each of these individual applications.

7These consolidated matters then proceeded to what was to have been the first day of hearing on February 21, 2012. On this day, two significant events transpired. First, counsel for the respondents advised that he believed himself to be in a conflict of interest in relation to what were described as the “sexual harassment” allegations. As a result, counsel expressed his view that he could no longer continue to act in relation to these allegations. Second, the parties advised that they had reached a tentative settlement in relation to what were described as the “wage claims”.

8As a result, the Tribunal hived off what was described as those claims “other than wage claims” and created three new files to address these remaining claims. The claims “other than wage claims” in Application 2009-02443-I were separated out and became Application 2012-10976-I. Of the 26 individual Applications, only two were continued: one filed by O.P.T. numbered 2010-06298-I, which became 2012-10977-I; and the other filed by M.P.T. numbered 2010-06299-I, which became 2012-10978-I. This is set out in the Tribunal’s Interim Decision dated February 21, 2012 (2012 HRTO 361). Counsel for the respondents continued to act for both respondents in relation to the “wage claims”, while each respondent retained independent counsel to act in relation to the “other than wage claims” which had been separated out into the three new files.

9The parties then appeared before Associate Chair Wright in the latter part of July 2012. As a result of this appearance, it was determined that the parties should file detailed pleadings in order to set out all of the factual and legal allegations they intended to raise. This resulted in the CAW-Canada filing its detailed pleading on September 7, 2012, in which it purported to raise allegations on behalf of 41 individuals. (M.G.C. or Worker 40 was not included in this list. Her status in this proceeding will be addressed below. O.P.T. and M.P.T. were identified on this list, but were re-numbered as Workers 40 and 41 respectively. In this Interim Decision, I will continue to refer to these latter two individuals as Workers 41 and 42, as they were originally identified when they were sought to be added as applicants.)

10On the November 7, 2012 conference call, I raised the issue as to the identity of the applicants whose rights continue to be at issue in this proceeding. On the basis of Associate Chair Wright’s Interim Decision dated February 21, 2012, it appeared to me that the only remaining applicants were the 16 individuals who had signed consents to be part of the s. 34(5) Application filed by CAW-Canada and the two individuals whose s. 34(1) applications had been continued. I invited written submissions from CAW-Canada, on its own behalf and as counsel for the applicants in the individual applications, to address this issue.

11CAW-Canada takes the position that the rights of all applicants remain at issue in this proceeding, with the exception of the “wage claims”. CAW-Canada takes the position that, following the July 21, 2010 Case Assessment Direction, there was no practical distinction between the cases as identified by the assigned file numbers, and the Tribunal continued to deal with the matters as one global claim, as did the parties. In relation to the Tribunal’s February 21, 2012 Interim Decision, CAW-Canada submits that the agreement between the parties and the Tribunal at the time was that all of the applicants would have their non-wage claim matters continued in new file numbers. It is submitted that the assignment of file numbers in the February 21, 2012 decision was done in error, based on the ongoing and voluminous nature of the proceeding. It is submitted that the reason why two individual applicants – O.P.T. and M.P.T. – were assigned new file numbers is because they were mentioned in the hearing. It is stated that because these two applicants were added to the Application at a later time, counsel specifically noted their names when the Tribunal bifurcated the matters.

12CAW-Canada submits that the intention of the Tribunal was to parse out the wage settlement portion from all other aspects of the human rights claim, not to truncate the rights of the majority of applicants. It is submitted that at no point in the chronology of this proceeding did the remaining applicants abandon their claims. It is submitted that the discrimination in employment and sexual harassment portions of the Applications concern all applicants, such that the current file numbers apply to all applicants. In the alternative, it is submitted that if the Tribunal determines that the remaining individual applicants are not included with the currently assigned file numbers, then new file numbers should be created to address their non-wage claim issues.

13I cannot accept these submissions, for two principal reasons. First, the division of the applicants as between those who are part of the s. 34(5) Application filed by CAW-Canada and those who were determined to have filed individual Applications under s. 34(1) was not just merely a matter of assigning file numbers, but was a much more fundamental attempt by the Tribunal to understand the basis upon which these individuals were asserting their rights within the context of the statutory scheme under the Code. This issue consumed a significant amount of time, energy and effort at the Tribunal and with the parties before it was finally sorted out. In light of this history, to suggest that the Tribunal simply proceeded to consider all of these matters as one undifferentiated mass and failed to appreciate in February 2012 the significance of continuing two individual Applications but not 24 others does not bear scrutiny. In my view, having thoroughly reviewed the history of this matter, the Tribunal in February 2012 made a deliberate decision to continue only two of the individual Applications based upon its understanding, from the materials filed up to that time, that these were the only two individual Applications that raised non-wage claim matters.

14This conclusion is reinforced by the second principal reason why I cannot accept the submissions made by CAW-Canada, which is based upon the nature of the issues raised in the Application as originally filed and which informed the decision made by this Tribunal in February 2012.

15The Application as originally filed raised two sets of allegations: one under the heading “Discrimination in Employment”; and the other under the heading “Sexual Harassment”.

16In the “Discrimination in Employment” section, it is alleged that: the wages being paid to the temporary foreign workers were not the same, nor were they reasonably likeable amounts, when compared to other members of the bargaining unit; the respondents were making illegal deductions from the salaries of the temporary foreign workers, including deductions for costs incurred in the recruitment of workers, airfare, housing and transportation, amongst numerous other deductions, contrary to the Foreign Worker Contract signed with the federal government of Canada; and the temporary foreign workers received lesser benefits than their counterparts who were citizens of Canada. The allegations provide examples from five of the temporary foreign workers in relation to wage rates and deductions from wages, but states that CAW-Canada was unable to quantify the exact differences in the wages as between Canadian workers and temporary foreign workers because the relevant documents were in the employer’s possession. Significantly, in this section of the Application, there are no allegations raised regarding a poisoned work environment affecting all employees, substandard living conditions, discriminatory rules imposed on the workers, or confiscation of documents, even though these issues had been raised by workers in statements provided to the CAW-Canada in February and March 2009.

17Under the heading “Sexual Harassment”, particulars are provided from five women who allege that they were sexually harassed by the personal respondent Jose Pratas. Of these five women, four signed consents in favour of CAW-Canada to become part of the s. 34(5) Application, namely Workers 8 (R.K.), 14 (R.M.), 32 (N.T.) and 36 (S.W.). The fifth woman (Worker 38 (N.Y.)) filed individual Application 2010-06297-I. Further particulars of sexual harassment were provided for O.P.T. (Worker 41) when she was sought to be added as an applicant in July 2009, and these particulars became part of the Application as a result of the Tribunal’s Interim Decision dated April 12, 2010.

18From the time the Application was filed until July 2012, it was understood by the Tribunal that these were the two sets of allegations being raised. This was repeatedly expressed in the Tribunal’s decisions. In the Tribunal’s Interim Decision dated April 12, 2010 at para. 2, Associate Chair Wright sets out his understanding of the issues raised:

First, the application alleges that Thai and Mexican employees were discriminated against as compared with Canadian workers in the compensation and benefits that they received. Second, the application alleges sexual harassment in the workplace by the personal respondent Jose Pratas against some of the claimants.

19This was repeated in the Tribunal’s decision dated August 24, 2011 (2011 HRTO 1581) at para. 4.

20In the Tribunal’s Interim Decision dated November 8, 2011 (2011 HRTO 2025), and on consent of the parties, the Tribunal made an order regarding the calling of evidence at the hearing, which divided the issues to be determined into “the wage issues” and “the sexual harassment issues”. The Tribunal would first hear evidence regarding the wage issues, with the respondents calling their evidence first, and the Tribunal would then hear evidence on the sexual harassment issues, with the applicants calling their evidence first.

21As a result, by the time we get to the Tribunal’s February 21, 2012 decision, there is a clear understanding, from how the allegations were framed in the Application itself and how the allegations were understood as expressed by the Tribunal in its decisions, that the Tribunal was dealing with two sets of allegations. First, there were the allegations raised in the Application under the heading Discrimination in Employment, which related to allegations of differential compensation and benefits. These were referred to by the Tribunal in its November 8, 2011 decision, on consent of the parties, as the “wage issues”. Second, there were sexual harassment allegations raised by some of the applicants. Five applicants had provided particulars of their sexual harassment allegations on the face of the Application itself. A sixth applicant (O.P.T.) had provided particulars of her allegations of sexual harassment at the time a request was filed for her to be added as an applicant in July 2009.

22By the time of the February 21, 2012 decision and at the Tribunal’s direction, CAW-Canada had filed detailed witness statements for all witnesses it intended to call at the hearing. Of these detailed witness statements, eight witnesses raise allegations of sexual harassment: the five identified in the original Application, namely Workers 8 (R.K.), 14 (R.M.), 32 (N.T.), 36 (S.W.) and 38 (N.Y.); O.P.T. (Worker 41); M.P.T. (Worker 42); and M.G.C. (Worker 40). Of these eight individuals, five already were part of the s. 34(5) Application which was continued as Application 2012-10976-I: Workers 8, 14, 32, 36 and 40. The other three had filed individual Applications under s. 34(1), and two of these three were expressly identified in the Tribunal’s February 21, 2012 decision as having their individual applications continued (namely O.P.T. and M.P.T.).

23In my view, far from suggesting that the Tribunal’s intention was simply to continue all applications as a global claim with the specific identification of two individuals as being of no particular significance, the history of this matter and the nature of the non-wage claim allegations as they were raised and understood at the time in February 2012 indicates that the Tribunal very deliberately was continuing the s. 34(5) Application to address the non-wage claim allegations (which were understood to be the sexual harassment allegations) raised by the individuals who had signed consents in favour of CAW-Canada and was continuing two s. 34(1) Applications made by individuals who also at that time had raised sexual harassment allegations.

24Indeed, even after the February 21, 2012 decision, the Tribunal continued to understand that the ongoing matters related to the sexual harassment allegations. For example, in its decision dated May 24, 2012, Associate Chair Wright stated at paras. 2 and 3:

There were two components to the Applications: an allegation of discrimination in the wages paid to the claimants and applicants, who are migrant workers, and allegations of sexual harassment by the individual respondent. The parties subsequently settled in principle the allegations of discriminatory wages and what remains are the allegations of sexual harassment.

New and separate counsel now represent the individual and organization respondents on the sexual harassment allegations as a result of a conflict of interest for former counsel. The sexual harassment allegations were separated into new Tribunal files in order for former counsel to continue to represent both his former clients in finalizing the wage claim settlements. The materials in the previous file were transferred to the new files: see 2012 HRTO 361. In other words, although there are new file numbers, these Applications are a continuation of the sexual harassment allegations in the previous files in which J4MW has intervenor status.

25This Interim Decision addressed the objection by new counsel for Jose Pratas to Justicia for Migrant Workers having been added as an intervenor to the proceeding. In the May 24, 2012 decision, Associate Chair Wright considered whether the change in the scope of the proceeding affected his decision to grant intervenor status. In concluding that it did not, Associate Chair Wright stated (at para. 8):

In my view, the change to the scope of the Application does not mean that J4MW should not remain an intervenor. While the Interim Decision mentioned the respondent’s position on the wage claims, my reasoning hinged on the fact that the social context affecting migrant workers was central to the resolution of the discrimination claims at issue, and in particular the question of remedy. In my view, that social context remains relevant to the issue of sexual harassment and any remedy if discrimination is found.

26Finally, in an Interim Decision dated July 10, 2012 (2012 HRTO 1365), Associate Chair Wright once again comments on the scope of the remaining allegations before the Tribunal (at paras. 2 to 4):

It 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.

On 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.

Previous 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.

27Based upon the history of this matter and the Tribunal’s decisions leading up to and following the creation of the current files in February 2012, it is my determination that the only non-wage claims that were continued in the current files were the sexual harassment claims raised in the original Application, in the particulars filed on behalf of O.P.T. in July 2009, and in the detailed witness statements of the previously identified eight applicants filed in January 2012. On the basis of this determination, I find that the Tribunal’s Interim Decision dated February 21, 2012 was not made in error, but rather was based upon the fact that the non-wage claims before the Tribunal as articulated at that time were the outstanding sexual harassment allegations. I therefore find that the only applicants whose Applications were continued as a result of the Tribunal’s February 21, 2012 Interim Decision were those who had signed consents in favour of CAW-Canada for the s. 34(5) Application (formerly 2009-02443-I and continued as 2012-10976-I) and O.P.T. and M.P.T., whose individual Applications were continued.

28Having made this finding, I do note that there is one individual (N.Y. – Worker 38) for whom particulars of sexual harassment were provided on the face of the original Application, but who did not sign a consent in favour of CAW-Canada. I note that a detailed witness statement was filed on this individual’s behalf in January 2012, and she was one of the individuals in respect of whom Jose Pratas pleaded guilty to common assault. In respect of this individual, I find that the evidence indicates not only that she had not abandoned her allegations of sexual harassment, but that she has been diligently pursuing these allegations. In this regard, I find that it was due to inadvertence that N.Y.’s individual application was not identified as one of the individual applications that needed to be continued. Accordingly, I have directed the Tribunal administration to open a new file to address N.Y.’s individual sexual harassment allegations, and the pleadings as filed in 2009-02443-I (with the removal of the wage claims) shall form the pleadings in N.Y.’s file. The new Tribunal file number assigned to N.Y. is 2013-13383-I. The allegations of sexual harassment raised by N.Y. shall be addressed as part of this proceeding, and Tribunal file 2013-13383-I is hereby consolidated with files 2012-10976-I, 2012-10977-I and 2012-10978-I.

29I will next address CAW-Canada’s request that new files be opened in relation to the remaining individuals who filed s. 34(1) applications but whose files were not continued as a result of the February 21, 2012 Decision. I have already found that the failure to continue these individual Applications was not done through inadvertence or error, but was based upon the fact that the other individuals who had filed s. 34(1) Applications (with the exception of Worker 38) had not raised non-wage claim allegations as set out in the original Application, in the particulars filed for Worker 41 or in the detailed witness statements.

30There originally were 26 individuals who filed s. 34(1) Applications with the Tribunal. Of these, CAW-Canada has indicated that it no longer represents six of them, as it has lost contact with these individuals. These six individuals are identified as Workers 1, 2, 3, 4, 11 and 18.

31As discussed above, three individuals have had their s. 34(1) Applications continued in order to address their outstanding sexual harassment allegations, namely Workers 38, 41 and 42.

32This leaves 17 individuals whose s. 34(1) Applications were not continued. On the basis of my review of the detailed pleadings filed by CAW-Canada in September 2012, there are only two of these individuals who are raising allegations of sexual harassment, namely Workers 9 and 10. To the extent that CAW-Canada’s request can be viewed as a request to revive the individual Applications of these two workers in order to address these sexual harassment allegations, I have considerable difficulty with such a request. No particulars of the sexual harassment allegations as raised by Workers 9 and 10 formed part of the original Application as filed on April 30, 2009. Further, as a result of the Tribunal’s decision dated November 8, 2011, CAW-Canada was directed to file detailed witness statements on behalf of all witnesses it intended to call at the hearing. No detailed witness statement has been filed for either Worker 9 or Worker 10. Rather, their allegations of sexual harassment emerged before this Tribunal for the first time in detailed pleadings filed in September 2012, almost three and a half years after the original Application was filed. Below, I will address the issue of delay as raised by the respondents in relation to those whose applications I have found to be continued. But in relation to Workers 9 and 10, no explanation has been provided as to why their allegations of sexual harassment were not raised before this Tribunal at a much earlier time or why no detailed witness statement was filed on their behalf. In these circumstances, it is my view that it would not be appropriate to revive the individual Applications filed by Workers 9 and 10 in order to address sexual harassment allegations raised before this Tribunal at only such a late date.

33With regard to all remaining 17 individuals who filed individual Applications, including Workers 9 and 10, my understanding is that CAW-Canada is asking that their individual Applications be revived in order to address what is characterized as allegations of discrimination in employment as now framed in the detailed pleadings filed by the CAW-Canada in September 2012. In my view, this request in essence is a request for these individual Applications to be amended some three and a half years after the original Application was filed in April 2009 in order to raise new allegations of discrimination in employment not raised in the original Application, including allegations of a poisoned work environment affecting all employees, substandard living conditions, discriminatory rules imposed on the workers, differential application of the collective agreement, and confiscation of documents. As previously noted, these issues were raised by at least some workers in interviews with CAW-Canada representatives conducted in February and March 2009. No explanation is provided as to why these allegations were not raised in the original Application, or as to why they are only now being raised some three and a half years later. In my view, it would not be appropriate at this late stage to permit what in effect would amount to a substantial amendment to and re-framing of the allegations raised in the original Application. As a result, I am not prepared to revive the other 17 individual Applications filed under s. 34(1) of the Code. For greater certainty, this ruling means that the following individuals are not persons whose rights remain to be determined in this proceeding: Workers 5, 7, 9, 10, 12, 16, 17, 20, 22, 24, 25, 27, 28, 29, 30, 33 and 35.

34As indicated below, while I have found that the allegations raised in the detailed pleading filed by CAW-Canada in September 2012 regarding a poisoned work environment affecting all employees, substandard living conditions, discriminatory rules imposed on the workers, differential application of the collective agreement, and confiscation of documents are not matters upon which I am prepared to consider whether there has been a violation of the Code, I note that this does not preclude the potential relevance of evidence regarding some or all of these matters as they may provide a context or background in which the sexual harassment allegations may need to be considered and as they may also be relevant to the delay issue.

2. Request to add M.G.C. (Worker 40) as additional applicant

35On the November 7, 2012 conference call, I noted that M.G.C. had not been listed as an individual who rights are at issue in the continued proceeding. There is no doubt that she was added as an additional applicant by Interim Decision dated June 30, 2009 and there also is no doubt that she signed a consent in favour of CAW-Canada to become part of the s. 34(5) Application. Particulars of M.G.C.’s expected evidence already have been provided to the respondents through her detailed witness statement, and I note that she also testified as a witness at the preliminary inquiry in the criminal proceeding. I accept that M.G.C. was not identified in CAW-Canada’s detailed pleading through inadvertence. Neither respondent has taken issue with M.G.C. being considered as an applicant in this proceeding.

36Accordingly, I find that M.G.C. is one of the individuals whose rights under the Code remain at issue in this proceeding and the request by CAW-Canada to amend its detailed pleading to add M.G.C. (Worker 40) as an additional applicant is allowed, with particulars as set out in paragraphs 4 to 22 of Schedule “A” to the Request.

3. Preliminary issues raised by respondents

A. Dismissal for vagueness and lack of particularity

37Of the 16 individuals who form part of the s. 34(5) Application, there are five individuals for whom no particulars of discrimination are provided in the detailed pleadings as filed by CAW-Canada. These individuals are Workers 15, 19, 23, 31 and 37. The respondents take the position that the application on behalf of these five individuals should be dismissed on the basis that they do not allege that any right of theirs under the Code has been infringed.

38In order for an application to be brought on another person’s behalf under s. 34(5) of the Code, that person must have been entitled to bring an application under s. 34(1): see s. 34(5)(a). In order to bring an application under s. 34(1), a person must believe that his or her rights under Part I of the Code have been infringed. As a result, there must be something in an application under s. 34(5) of the Code that would support that the person on whose behalf the application is brought believes that her or his Code rights have been infringed.

39As I have already discussed at length above, the only allegations that were continued in the existing proceeding were the sexual harassment allegations raised by some of the applicants. These applicants do not include Workers 15, 19, 23, 31 or 37. Rather, as I understand it, CAW-Canada is alleging that, simply because these individuals were employed by the respondent company at the same time as others, they therefore were subjected to the same poisoned work environment and general discrimination as the other temporary foreign workers. As I already have expressed above, this is not an allegation that was raised in the original Application as filed in April 2009 and is not part of the sexual harassment allegations that were continued in the current proceeding. To the extent that the CAW-Canada’s detailed pleading can be viewed as a request to amend the Application to raise new allegations of discrimination beyond what is set out in the original Application, I find that such an amendment would not be appropriate for all of the reasons I already have expressed above.

40There are a further five individuals (namely Workers 6, 13, 21, 26 and 39) who have raised allegations of sexual harassment for the first time before this Tribunal in the detailed pleading filed by CAW-Canada in September 2012. I will address the allegations raised by Workers 6, 13, 21 and 26 when I consider the respondents’ objection on the basis of delay. There is one further individual (Worker 34) whose allegations also will be addressed when I consider the delay issue.

41This leaves the eight individuals for whom detailed witness statements have been provided in this proceeding, namely Workers 8, 14, 32, 36, 38, 40, 41 and 42, as well as Worker 39. Specific particulars regarding the alleged sexual harassment were provided for five of these individuals as part of the original Application in April 2009, and for a sixth at the time the request was made to add her as an applicant in July 2009. Eight of these individuals testified at the preliminary inquiry in the criminal proceeding and were extensively cross-examined by counsel for Jose Pratas. While there is a lack of specificity in relation to the dates upon which some events are alleged to have occurred, in my view the overall level of detail provided in relation to the allegations raised by these individuals is more than sufficient to satisfy the level of specificity of allegations required by this Tribunal as stated in Taylor-Wright v. York University, 2010 HRTO 312 (at para. 52), Sayed-Zada v. Renin Corp., 2011 HRTO 2075 (at para. 5), and Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 626 (at paras. 7 and 8).

42Accordingly, the respondents’ request to dismiss the allegations of sexual harassment raised by Workers 8, 14, 32, 36, 38, 39, 40, 41 and 42 for vagueness or lack of particularity are denied.

B. Delay

43The respondents seek to dismiss the allegations raised by all applicants other than Workers 32, 38 and 39 on the basis of delay.

44I will first address the allegations made by Workers 6, 13, 21 and 26 which were raised for the first time when CAW-Canada filed its detailed pleading in September 2012. Worker 6 alleges that Jose Pratas pinched her cheeks and patted her shoulder several times, and also lifted her shirt to see if she was pregnant. She also alleges that she saw Mr. Pratas being inappropriate with other female temporary foreign workers in the bunkhouse. No dates are provided as to when any of this is alleged to have occurred. Worker 6 was employed by the respondent company from September 25, 2007 to August 15, 2009, so one can assume that these alleged incidents occurred sometime during this period.

45Worker 13 alleges that Jose Pratas pinched her cheeks sometime in the winter of 2008. She alleges that she was subjected to sexual jokes, advances and touching, and specifically that she was asked about her boyfriend and that Mr. Pratas put his arm around her shoulder. She also alleges that she was afraid to go to the doctor due to warnings given by other women about Mr. Pratas. No dates are provided for when any of this is alleged to have occurred. It is stated that Worker 13 commenced employment for the respondent company on September 25, 2007, but no end date is provided.

46Worker 21 alleges that Jose Pratas made degrading remarks to her, although no particulars or dates are provided. She alleges that she was petrified of Mr. Pratas due to the environment of sexual harassment, and that she saw Mr. Pratas in bed with a co-worker. No date is provided as to when this is alleged to have occurred. She alleges that Mr. Pratas took her passport. Worker 21 commenced employment for the respondent company on September 25, 2007, but no end date is provided.

47Worker 26 alleges that she was separated by Jose Pratas from her husband, and that she was subjected to inappropriate sexual advances, such as being invited for a drink. She also alleges that she saw Mr. Pratas attempt to touch a woman lying in bed, but that the woman ran away. No dates are provided as to when this is alleged to have occurred. Worker 26 commenced employment for the respondent company on September 25, 2007, but no end date is provided.

48As previously indicated, an organization can make an application on behalf of another person pursuant to s. 34(5) of the Code only if that person would have been entitled to bring an application under s. 34(1), meaning that the person has some basis to believe that a right of her or his under the Code has been infringed. At the time the original Application was filed on April 30, 2009, there arguably was a sufficient basis to support the belief of Workers 6, 13, 21 and 26 that their right not to experience discrimination in employment due to differential wages and benefits had been infringed. However, at that time, there was no basis provided to support an allegation that these four individuals had experienced sexual harassment. Nor were any detailed witness statements filed on their behalf in January 2012, which was required for every witness CAW-Canada intended to call to testify at the hearing. The allegations of sexual harassment emerged for the first time before this Tribunal only in September 2012 when CAW-Canada filed its detailed pleading.

49In my view, in its detailed pleading, what CAW-Canada is really attempting to do on behalf of these four individuals is to amend the Application to now allege sexual harassment on their behalf as supported by at least some particulars. In deciding whether to permit the amendment of an application to raise new allegations, this Tribunal will consider the stage at which the request to amend is made, the impact of the proposed amendment on the proceeding, and any prejudice to the respondents: see B.M. v. Cambridge (City), 2009 HRTO 954. In my view, and particularly in the context of an application brought under s. 34(5) of the Code, where an entirely new allegation is raised beyond the one year time period set out in s. 34(1) of the Code, it is incumbent upon the organization or person to provide some reasonable explanation to account for the delay in raising this allegation. I appreciate the social and contextual factors which may have contributed to the isolation of the temporary foreign workers from the union prior to the fall of 2008, and which may have contributed to the timing of the filing of the original Application in April 2009. What I do not understand going forward is what reasonable explanation there may be for a further delay of almost three and a half years before the sexual harassment allegations were raised for the first time on behalf of Workers 6, 13, 21 and 26 in September 2012. No such explanation is provided in the material before me.

50Accordingly, I find that the allegations of sexual harassment raised on behalf of Workers 6, 13, 21 and 26 in the detailed pleading filed by CAW-Canada in September 2012 in essence amounts to a request to amend the Application to raise these allegations, which is denied as a result of delay.

51With regard to Worker 34, his specific allegations were set out at paras. 26 to 31 of the original Application as part of what became known as the “wage claims”. He raised allegations that he was required to pay for his lodging, which was alleged to be contrary to the Foreign Worker Contract. He alleged that after he was sent away in 2007 to another location (Picton) and then returned to Leamington about a month and a half later, he was required to find his own place to stay and a vehicle to get to work, which again was alleged to be contrary to the Foreign Worker Contract. He alleged that he was not reimbursed for the cost of his airfare, and he raised allegations about his rate of pay. No allegation is raised in relation to Worker 34 (who is male) in the “sexual harassment” portion of the Application.

52In January 2012, a detailed witness statement was provided for Worker 34. In this statement, Worker 34 raises issues about not being paid overtime for a certain period of time, and then subsequently not being paid at the overtime rate. The detailed witness statement also raises an issue regarding what is described as a “strike incident” in September 2007, where Worker 34 organized a protest on behalf of the foreign workers and was then re-located to Picton. Finally, the detailed witness statement raises an issue regarding the termination of Worker 34’s employment following a decertification vote held on August 15, 2008. This last issue was addressed in a grievance arbitration proceeding before Arbitrator Snow. By decision dated November 6, 2008, Arbitrator Snow found in Worker 34’s favour and ordered him reinstated with full compensation for all lost wages and benefits.

53In the detailed pleading filed in September 2012, issues regarding Worker 34’s rate of pay and not being reimbursed for his airfare are raised. These do not form part of the non-wage issues that were continued in the current proceeding as a result of the Tribunal’s February 21, 2012 decision. The detailed pleading also raises an issue regarding the protest in 2007 and the impact on Worker 34. Finally, the detailed pleading raises an allegation that Worker 34 was asked by Jose Pratas to tell a female worker (Worker 8) that he (Mr. Pratas) was interested in her and to find out if she had a boyfriend. He also raises an allegation that Mr. Pratas asked inappropriate questions about his (Worker 34’s) sex life.

54The material filed with the Tribunal indicates that Worker 34 was interviewed by CAW-Canada representatives on March 22, 2009. From the notes of this interview, Worker 34 raised at that time issues regarding the protest in 2007 and its impact on him. Worker 34 also raised the allegation that Mr. Pratas had asked him to tell Worker 8 that he (Mr. Pratas) was interested in her and wanted to meet her. Worker 34 further raised the allegation that he was asked by Mr. Pratas about his relationship with his girlfriend. And yet none of this information appears as part of the allegations in the original Application filed in April 2009. The allegations about the protest in 2007 and its impact on Worker 34 are raised for the first time in the detailed witness statement provided in January 2012, and the allegations about sexual advances or comments by Mr. Pratas are not raised in relation to Worker 34’s rights until September 2012.

55In my view, CAW-Canada once again is attempting to amend the original Application to raise new allegations on behalf of Worker 34 that were not raised in the original Application, and is attempting to do so well beyond the one year time period for raising alleged violations of the Code, without a reasonable explanation as to why these allegations were not raised at an earlier time, particularly when they were known to CAW-Canada as early as March 2009. In these circumstances, in my view, it would be inappropriate to allow CAW-Canada to proceed with these allegations on behalf of Worker 34 and they too are dismissed due to delay.

56With regard to the remaining six applicants (namely Workers 8, 14, 36, 40, 41 and 42), and as I have stated above, I do appreciate the social and contextual factors which may have contributed to the isolation of the temporary foreign workers from the union prior to the fall of 2008, and which may have contributed to the timing of the filing of the original Application in April 2009. However, at present, while I have been provided with a theoretical framework to explain the delay, I do not have specific evidence from these individuals as to the impact on them of factors such as language barriers, lack of access to information about their rights, the general work environment, etc. In my view, before ruling definitively on the issue of delay in raising their allegations of sexual harassment and whether the delay was incurred in good faith or caused substantial prejudice to the respondents, I need to hear evidence on these matters.

57In accordance with Rule 1.7(g) and (j), I have the power to “determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined” and to “determine and direct the order in which evidence will be presented”. In the exercise of these powers, I order that I will hear evidence from the witnesses relevant to the delay issue as part of their evidence on the overall merits of the issues before me, and I will hear submissions about the evidence regarding the delay issue as part of the parties’ final submissions on the merits, after which I will issue my decision on all outstanding issues.

C. Irrelevant and prejudicial material

58The respondents object to paragraphs 16 to 44 of the detailed pleadings filed by CAW-Canada on the basis that the material contained in these paragraphs is irrelevant and prejudicial. These paragraphs are part of the detailed pleadings under the heading “Background” and set out alleged facts pertaining to what appears to have been a fractious relationship between the union and the respondents and detail various arbitration and Ontario Labour Relations Board proceedings involving these parties.

59These alleged facts are clearly put forward by CAW-Canada as background and contextual evidence, and not as a basis for alleging a violation of the Code. I agree with the respondents that it would be inappropriate for such alleged facts to be put forward as a form of bad character evidence, to suggest that because the respondents behaved badly in the labour relations context, they are more likely to have violated the temporary foreign workers’ rights under the Code. I will have no regard to these alleged facts for any such purpose.

60However, as submitted by CAW-Canada, the respondents themselves have suggested that there is a possible ulterior motive to the human rights claims that relates to longstanding issues between the union and the respondents, and accordingly the alleged facts set out in paras. 16 to 44 of the CAW-Canada’s detailed pleadings are relevant to this issue. In addition, these alleged facts may be relevant context in relation to the delay issue raised by the respondents, and why CAW-Canada did not act at an earlier time to bring forward the human rights claims at issue in this proceeding. Accordingly, I find that the alleged facts at paras. 16 to 44 of the CAW-Canada’s detailed pleading are relevant to issues before me in this proceeding and I deny the respondents’ request to strike these paragraphs.

61The respondents also object to facts alleged in the CAW-Canada’s detailed pleadings relating to wage differentials among workers at the respondent company, on the basis that the wage claims already have been resolved between the parties. I agree. As discussed above, the issues of differential wages and benefits and improper deductions from the workers’ wages were raised in the original Application, and these issues were separated off from the remaining allegations of sexual harassment on the basis that the parties had reached a tentative settlement. This settlement ultimately was confirmed with the Tribunal, and the underlying Applications were either withdrawn or dismissed as abandoned by Tribunal Decision dated November 5, 2012 (2012 HRTO 2099). Accordingly, the issues of differential wages and benefits and improper deductions from the workers’ wages are no longer at issue in this proceeding, and in my view it would be inappropriate for me to hear evidence about these issues. Accordingly, I hereby strike paras. 92 to 97 of the CAW-Canada’s detailed pleading.

62To the extent that reference to these issues is raised in Part VI of the CAW-Canada’s detailed pleading, I already have struck the allegations raised by all workers other than Workers 8, 14, 32, 36, 38, 39, 40, 41 and 42 for the reasons articulated above. With regard to references to issues of differential wages and benefits and improper deductions from the workers’ wages in the detailed pleadings for these nine remaining individuals, I am prepared to hear this evidence not in relation to any alleged violation of the Code arising from these issues, but as background or context that may be relevant to the allegations of sexual harassment and any delay in raising these allegations.

63The respondents object to paragraphs 66 to 85 of the CAW-Canada’s detailed pleading, which raise allegations that the living conditions for the temporary foreign workers amount to discriminatory treatment in violation of the Code. I already have ruled that these allegations, including the general allegation in paragraph 65 of the CAW-Canada’s detailed pleading, are beyond the proper scope of the issues to be addressed in this proceeding, and so these paragraphs are struck. As indicated above, I am, however, prepared to hear evidence regarding the living conditions and rules imposed upon the nine individuals alleging sexual harassment as background or context that may be relevant to the allegations of sexual harassment and any delay in raising these allegations.

64The respondents object to paragraphs 51 to 57 of CAW-Canada’s detailed pleading, on the basis that these paragraphs are irrelevant and prejudicial to them and are designed to elicit sympathy for the applicants. These paragraphs are included as part of the Background section of the CAW-Canada’s detailed pleading and do not form the basis for any alleged violation of the Code. In my view, the circumstances surrounding the arrival in Canada of the nine individuals alleging sexual harassment are potentially relevant as background or context to the allegations of sexual harassment and any delay in raising these allegations. Accordingly, I will not strike these paragraphs, but will want any evidence at the hearing to be focused specifically on the remaining nine individuals.

65The respondents object to paragraph 60 which relates to the alleged inspection of the workers’ belongings when they arrived at the premises of the respondent company. Once again, this paragraph is included as part of the Background section of the CAW-Canada’s detailed pleading. To the extent that it is alleged for the purpose of forming the basis for any alleged violation of the Code, such an allegation is beyond the proper scope of the issues to be addressed in this proceeding. However, as with the preceding paragraphs, in my view the circumstances surrounding the arrival of the nine individuals alleging sexual harassment at the premises of the respondent company may be potentially relevant as background or context to the allegations of sexual harassment and any delay in raising these allegations. Accordingly, I will not strike paragraph 60, but will want any evidence at the hearing about inspection of belongings to be focused specifically on the remaining nine individuals.

66The respondents object to paragraphs in the CAW-Canada’s pleading referring to workers hiding illnesses and choosing not to seek medical attention because of a fear of being sexually harassed by Jose Pratas. This allegation is most specifically raised in paragraph 127 of the CAW-Canada’s detailed pleading. In my view, this allegation is potentially relevant not as an allegation of a Code violation in and of itself, but rather as evidence regarding the impact of the alleged sexual harassment on the nine remaining individuals whose rights are at issue in this proceeding. Accordingly, I will not strike paragraph 127 but will want any evidence at the hearing about hiding illnesses and fearing to seek medical attention to be focused specifically on the remaining nine individuals.

67The respondents object to paragraphs in the CAW-Canada’s detailed pleading alleging that, upon arrival at the respondent company, the workers’ personal documents, including passports, social insurance number cards, work permits, papers and plane tickets, were confiscated. This allegation is raised most specifically in paragraph 66 of the CAW-Canada’s detailed pleading. I already have struck this allegation as being beyond the proper scope of this proceeding. However, as indicated above, I am prepared to hear evidence regarding the confiscation of documents from the nine individuals alleging sexual harassment as background or context that may be relevant to the allegations of sexual harassment and any delay in raising these allegations.

68The respondent company additionally objects to paragraphs 45 to 64 of the CAW-Canada’s detailed pleading on the basis that they are scandalous and inflammatory and have no relevance to the issues in this proceeding. These paragraphs form part of the Background section of the CAW-Canada’s detailed pleading and are not expressed as a basis for alleging a violation of the Code. Paragraphs 45 to 50 set out alleged facts pertaining to the union’s knowledge of the alleged human rights violations, and are relevant at least to the issue of delay. Paragraphs 51 to 57 already have been addressed above. Paragraphs 58 to 64 address general working conditions for the temporary foreign workers that may be relevant as background or context to the allegations of sexual harassment and any delay in raising these allegations, although as expressed repeatedly above, I will want any such evidence to be focused specifically on the nine individuals alleging sexual harassment. Accordingly, the respondent company’s request to strike these paragraphs is denied.

69The respondent company next raises objection to paragraphs 65 to 111 of the CAW-Canada’s detailed pleading on the basis that these paragraphs deal with matters other than the sexual harassment or discrimination allegations at issue in this proceeding. For all of the reasons already canvassed above, I agree. I already have struck paragraphs 65 to 85 and 92 to 97 of the CAW-Canada’s detailed pleading, and I further strike paragraphs 86 to 91 and 98 to 111 as being beyond the proper scope of the issues to be addressed in this proceeding. However, as indicated above, I am prepared to hear evidence regarding the living and working conditions imposed upon the nine individuals alleging sexual harassment as background or context that may be relevant to the allegations of sexual harassment and any delay in raising these allegations.

70The respondent company objects to paragraphs 112 to 129 of the CAW’s detailed pleading on the basis that they are essentially vague allegations or conclusions. These paragraphs relate to allegations of sexual harassment which are at issue in this proceeding. This is acknowledged by the respondent company, but it is submitted that these allegations should not be accepted as statements of fact or admissions in the absence of direct evidence to support these allegations. I see no basis in these submissions to support striking these paragraphs. I do, however, remind all parties that the focus of this hearing will be upon the specific allegations of sexual harassment raised by the nine remaining individuals, and not on general allegations of sexual harassment.

71The respondent company next raises an objection to paragraphs 130 to 259 on the basis that they should not be accepted as statements of fact in the absence of direct, admissible evidence at the hearing. In my view, it is important to break these paragraphs down into their component parts. Paragraphs 130 to 140 deal with admissions made by Jose Pratas in the context of the criminal proceeding. As noted in paragraph 1.15 of the Tribunal’s July 24, 2012 Interim Decision (2012 HRTO 1448), it is not open to Jose Pratas to contest in this proceeding the facts to which he pled guilty in criminal court. The transcript of Mr. Pratas’ guilty plea has already been submitted to the Tribunal. To the extent that paragraphs 130 to 140 of the CAW-Canada’s detailed pleading reflect the facts as admitted by Mr. Pratas in the criminal proceeding, then they are accepted as statements of fact. I note, as indicated by Associate Chair Wright in his July 24, 2012 decision, that Mr. Pratas made clear in his guilty plea 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. There is no proper basis to strike these paragraphs.

72Paragraphs 141 to 144 deal with legal submissions regarding sexual harassment. These paragraphs are responsive to Associate Chair Wright’s direction for the parties to file their full factual and legal allegations. There is no proper basis to strike these paragraphs.

73Paragraphs 145 to 259 set out the individual allegations raised by the various temporary foreign workers. I already have struck all paragraphs in this section of the CAW-Canada’s detailed pleading apart from those paragraphs relating to the nine remaining individuals.

74Finally, the respondent company objects to those paragraphs or parts thereof such as paragraphs 218 and 224 which deal with monetary or wage loss issues. Paragraph 218 is part of individual allegations raised by Worker 34, and already has been struck. Paragraph 224 deals with Worker 36, who is one of the nine remaining individuals. As already stated above, with regard to references to issues of differential wages and benefits and improper deductions from the workers’ wages in the detailed pleadings for the nine remaining individuals, I am prepared to hear this evidence not in relation to any alleged violation of the Code arising from these issues, but as background or context that may be relevant to the allegations of sexual harassment and any delay in raising these allegations.

75The respondent company requests that CAW-Canada be required to file a fresh detailed pleading with the removal of the paragraphs I have ordered to be struck. In my view, this is unnecessary. I already have made my ruling and my Decision speaks for itself.

D. [Section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

76The respondents submit that this proceeding should be dismissed pursuant to s. 45.1 of the Code as a result of the criminal proceeding against Jose Pratas. This issue was already raised before Associate Chair Wright in July 2012 and he heard full submissions and argument on this issue, and provided a detailed oral ruling on July 24, 2012 denying this request. This oral ruling was subsequently confirmed in writing in the Tribunal’s Interim Decision dated July 24, 2012 (2012 HRTO 1448). I see no reason in the material before me to depart from the ruling already made by Associate Chair Wright. The respondents’ request to re-visit this issue is denied.

3. Compliance with disclosure and pre-hearing obligations

77This proceeding already has been scheduled to proceed to hearing on a number of previous occasions, and there have been several false starts. The time has long ago passed by which the parties ought to have made full disclosure to each other of all arguably relevant documents in their possession and to have disclosed and filed the documents upon which they intend to rely at the hearing and a list of witnesses together with detailed witness statements.

78With regard to CAW-Canada, detailed witness statements were filed in January 2012 in response to the Tribunal’s order in Interim Decision dated November 8, 2011 (2011 HRTO 2025). Pursuant to the Tribunal’s order, which was made on consent, CAW-Canada was to file detailed witness statements for all witnesses it intended to call at the hearing. For greater certainty, the detailed witness statements filed by CAW-Canada are comprised of statements from the following individuals: Worker 8 (R.K.); Worker 14 (R.M.); Worker 32 (N.T.); Worker 34 (S.T.); Worker 36 (S.W.); Worker 38 (N.Y.); Worker 40 (M.G.C.); Worker 41 (O.P.T.); Worker 42 (M.P.T.); Ken Lewenza; Paul Jacques; Patricia Cunningham; and Sandra Dominato. I note that no detailed witness statement has yet been filed for Worker 39 (P.Y.). To the extent that paragraphs 238 to 239 of the CAW-Canada’s detailed pleading represent Worker 39’s detailed witness statement, then this need only be confirmed by CAW-Canada. With regard to Worker 34, I already have ruled that his personal issues are not within the proper scope of this proceeding and/or have been dismissed for delay. However, I am prepared to hear from Worker 34 in relation to evidence he may have that is relevant to the allegations of sexual harassment raised by the other nine individuals.

79I would like CAW-Canada to confirm that these are all of the witnesses it proposes to call to testify at the hearing in this matter. If CAW-Canada intends to call any other witnesses to testify at the hearing, it shall provide their names and a detailed statement of their evidence by no later than Friday, January 18, 2013.

80I am aware that CAW-Canada also has filed a Book of Documents that it proposes to rely upon at the hearing. If CAW-Canada intends to rely upon any other documents at the hearing in this matter, it shall provide them to the other parties and file them with the Tribunal by no later than January 18, 2013.

81The intervenor, Justicia for Migrant Workers (“J4MW”), will be presenting evidence after I have heard the evidence of the witnesses to be called by CAW-Canada. I further understand that the intervenor will be calling Dr. Preibisch to testify and already has provided a statement of Dr. Preibisch’s expected evidence. I also am aware that in support of its request to intervene, J4MW filed certain documents with the Tribunal. Certain additional documents were filed by J4MW on December 14, 2012, in response to the delay issue raised by the respondents. By January 18, 2013, I would like J4MW to confirm that Dr. Preibisch will be its only witness at the hearing and to confirm the documents upon which it intends to rely at the hearing, together with a copy of any documents not already filed with the Tribunal.

82I understand that the respondent company intends to call Ulysses Pratas to testify as a witness at the hearing in this matter, and has filed a detailed witness statement for him. I note that much of the detailed witness statement filed for Ulysses Pratas deals with the wage issues which are not within the scope of the current proceeding. If Ulysses Pratas has any other or further evidence that he intends to provide on behalf of the respondents in this matter relevant to the sexual harassment allegations or other matters raised in the CAW-Canada’s detailed pleading or the detailed witness statements filed by witnesses to be called by CAW-Canada or J4MW, then he is directed to file a supplementary detailed witness statement setting out what any such further evidence is by no later than January 18, 2013.

83I note that the respondent company has not provided notice that it intends to call any other witnesses to testify in response to the allegations raised. If the respondent company does intend to call any other witness(es) to testify on its behalf, it shall provide the identity of all such witness(es) and a detailed statement of their expected evidence by no later than January 18, 2013.

84To date, the respondent company has not filed any documents upon which it intends to rely for the current proceeding. If there are any documents upon which the respondent company intends to rely at the hearing, then it shall provide to the other parties and file with the Tribunal a list of any such documents and a copy of such documents by no later than January 18, 2013.

85With regard to Jose Pratas, I have reviewed a copy of the detailed witness statement that was filed on his behalf. While this statement sets out the allegations made against him by eight of the nine remaining women alleging sexual harassment, this statement does not in fact set out what Jose Pratas’ own evidence will be in response to these allegations. Rather, after each set of allegations, there is a general denial of the allegations (apart from what was admitted in the criminal proceeding) followed by a statement that Jose Pratas “will give evidence to refute such allegations at the hearing”. To say that Jose Pratas will give evidence to refute such allegations is not a statement of what his evidence is expected to be in response to the allegations raised, and does not fulfil the requirement for a detailed witness statement.

86For example, with regard to the allegations raised by Worker 14 (R.M.), there are two specific incidents raised, one of which is alleged to have occurred at Worker 14’s residence and the other at Jose Pratas’ office. The detailed witness statement required from Jose Pratas needs to address whether he has any recollection of either alleged incident and set out his version of what occurred. His statement also needs to respond to the further incidents of sexual harassment that Worker 14 alleges occurred while she was on the job. Further, if Jose Pratas indeed has any evidence to provide to refute Worker 14’s evidence, then he needs to set out what that evidence is.

87Similarly, with regard to Worker 8 (R.K.), there are specific allegations raised about Jose Pratas sending a message through Worker 34 (S.T.) and a specific incident where Worker 8 alleges she was called into Jose Pratas’ office. The detailed witness statement required from Jose Pratas needs to address whether he has any recollection of either alleged incident and set out his version of what occurred. Further, if Jose Pratas has any evidence to provide to refute Worker 8’s evidence, then he needs to set out what that evidence is.

88With regard to Worker 40 (M.G.C.), the detailed witness statement for Jose Pratas needs to provide an actual response to her allegations, rather than a simple denial, and if he has any evidence to refute her allegations, to set out what that evidence is.

89With regard to Worker 39 (P.Y.), the detailed witness statement for Jose Pratas needs to set out his response to the allegations raised by her at paragraphs 238 and 239 of the detailed pleading filed by CAW-Canada.

90With regard to Workers 38 (N.Y.), 32 (N.T.), 36 (S.W.), 41 (O.P.T.) and 42 (M.P.T.), the detailed witness statement to be filed for Jose Pratas needs to set out his actual evidence as to his version of what occurred in relation to the specific incidents about which he made admissions as part of his guilty plea. For example, with regard to Worker 38, Jose Pratas needs to state what evidence he intends to provide regarding the allegation that he asked sexual questions during the car ride on June 5, 2008 and provide any context for how he came to pat Worker 38 on the upper part of her left thigh three times. With regard to Worker 32, Jose Pratas needs to state what evidence he intends to provide in response to the allegation that he invited Worker 32 to sleep with him, and that Worker 32 objected to his conduct. He also needs to provide any context for how he came to touch Worker 32’s chest and then touch the upper part of her left leg. With regard to Worker 36, Jose Pratas needs to state what evidence he intends to provide in response to Worker 36’s allegations that he asked sexual questions of her when she was in his office on November 18, 2007. He also needs to provide any context for how he came to make a very brief upward, outward stroking motion with one finger on Worker 36’s upper thigh area.

91With regard to Worker 41 (O.P.T.), the detailed witness statement for Jose Pratas needs to provide his evidence in response to the full scope of her allegations, including that he invited her to dinner, on one occasion demanded that she pull her pants down, on other occasions demanded that she touch his penis, would fondle her breasts and forcibly hug and kiss her in his office, and that on three occasions he removed her from her regular work duties and brought her to the residence and asked her to “suck his penis a little” and then climbed on top of her and penetrated her. I appreciate that Jose Pratas may simply deny that he did any of these things. However, if he has specific evidence to provide in response to any of these allegations or to refute any of these allegations, then his detailed witness statement needs to set out what this evidence will be. His detailed statement also needs to provide any context for how Jose Pratas came to touch both of Worker 40’s legs while they were in the car sometime between August 2007 and May 2008.

92With regard to Worker 42 (M.P.T.), Jose Pratas needs to provide his evidence in response to the allegation about slapping Worker 42’s left buttock in the workplace on her first day of work, and any recollection he has of the two incidents where Worker 42 alleges that she was called into his office and he touched her breast. I appreciate that Jose Pratas has admitted that on one occasion in his office, he touched Worker 42 in the chest, but it is unclear what if anything he has to say about the second alleged incident in his office or what evidence he may have to provide regarding any context for him touching Worker 42’s chest in his office. Jose Pratas also needs to provide his evidence in response to Worker 42’s allegations that he asked her sexually inappropriate questions on two trips to the doctor’s office, what recollection he has regarding these two alleged incidents, and what context he has to provide for touching Worker 42’s leg above the knee on these two trips to the doctor’s office.

93I appreciate that Jose Pratas previously was involved in a criminal proceeding arising from many of these allegations, where he had the right to remain silent. However, a proceeding before this Tribunal is in the nature of a civil proceeding, where a respondent has no such right. Just as applicants are expected to set out their allegations with some degree of specificity, so respondents are similarly required in this process to set out their response to the allegations raised with some degree of specificity. This has not been done by Jose Pratas to date in response to the allegations of sexual harassment raised by the nine remaining individuals. They are entitled to know what Jose Pratas’ expected evidence will be in response to their allegations before they commence giving their testimony at the hearing, and should not be ambushed or surprised by Jose Pratas’ expected evidence when they are in the midst of cross-examination or when Jose Pratas takes the witness stand on his own behalf.

94Accordingly, I order Jose Pratas to provide a detailed witness statement which responds in full to the allegations of sexual harassment raised by the nine remaining individuals and that addresses the issues raised above, by no later than January 18, 2013. If Jose Pratas fails to provide such a detailed witness statement, or if he subsequently proposes to give evidence on a matter not set out in his detailed witness statement, I may exercise my authority under the Rules to exclude such evidence.

95I note that Jose Pratas has not provided notice that he intends to call any other witnesses to testify in response to the allegations made against him. If Jose Pratas does intend to call any other witness(es) to testify on his behalf, he shall provide the identity of all such witness(es) and a detailed statement of their expected evidence by no later than January 18, 2013.

96Finally, I note that, to date, Jose Pratas has not filed any documents upon which he intends to rely for the current proceeding. Below I will address the issue of the disclosure of the documents and materials disclosed to Jose Pratas in the course of the criminal proceeding. If there are any other documents upon which Jose Pratas intends to rely at the hearing, then he shall provide to the other parties and file with the Tribunal a list of any such documents and a copy of such documents by no later than January 18, 2013.

4. Disclosure of materials from criminal proceeding

97A significant amount of disclosure was made by the Crown to Jose Pratas as part of the criminal proceeding against him. During the course of the conference call on November 7, 2012 and in my Case Assessment Direction dated November 14, 2012, I indicated that I was aware that because of the decision of the Ontario Court of Appeal in D. P. v. Wagg, 2004 CanLII 39048, documents disclosed by the Crown in a criminal proceeding cannot simply be disclosed or relied upon in a civil proceeding (including a proceeding before this Tribunal) without the Crown’s consent or an order.

98I indicated my view that if counsel for Jose Pratas intended to refer to or rely upon documents disclosed to him by the Crown in the criminal proceeding for the purpose of the hearing before this Tribunal, including for the purpose of questioning the applicants or other witnesses, then Jose Pratas needed to seek the consent of the Crown or an order to permit this. Accordingly, I directed that by no later than November 30, 2012, Jose Pratas was to confirm either that the Crown’s consent had been obtained for the use and disclosure of material from the criminal proceeding or a Request for Order during Proceedings was to be filed seeking such an order.

99On November 30, 2012, counsel for Jose Pratas filed a Request for Order seeking authorization to use and disclose in the proceeding before this Tribunal material received from the Crown Attorney in the criminal proceeding against him. As this Request was not made on notice to either the Crown Attorney or the relevant police service, counsel for Jose Pratas was directed to provide such notice, which he did on December 5, 2012. No objection to the use and disclosure of this material as sought in this Request was received by the Tribunal from either the Crown Attorney or the relevant police service.

100The use and disclosure in a human rights proceeding of materials disclosed by the Crown Attorney in a criminal proceeding may be authorized in accordance with certain conditions: see Morgan v. University of Waterloo, 2011 HRTO 2071; and Wright v. Dhawan, 2012 HRTO 103 (and related decisions in the same case).

101In the instant case, no objection has been raised by either the Crown Attorney or the relevant police service. I am satisfied on the basis of the material filed that both the Crown Attorney and the relevant police service received notice of Jose Pratas’ request and had a sufficient opportunity to respond.

102In these circumstances, I authorize the use and disclosure of the materials disclosed by the Crown Attorney in the context of the criminal proceeding against Jose Pratas for the purpose of the hearing before this Tribunal, and order Jose Pratas to disclose these materials in their entirety to all other parties to this proceeding by no later than January 18, 2013. This order shall be subject to the following conditions:

a. the records produced and copied shall be given directly to the other parties and shall only be used by the parties directly involved in the litigation in this matter for the full and fair disposition of the issues in this proceeding;

b. the parties directly involved in this matter shall not disclose the records produced and copied or any information therefrom, to any person (except for witnesses in the hearing of the Application and to any retained experts) who does not have a direct interest in this proceeding; and

c. the production of the materials disclosed by the Crown Attorney in the criminal proceeding against Jose Pratas is subject to a specific Order of the Tribunal upon notice to the Crown.

5. Use of transcripts from criminal proceeding

103On the conference call held on November 7, 2012, and in my Case Assessment Direction dated November 14, 2012, I indicated that I was aware that the transcript from the preliminary inquiry in the criminal proceeding had been filed with this Tribunal, and that it sets out the evidence of many of the same witnesses who may be called to testify before me on many of the same issues.

104I indicated that I appreciated that I will need to make findings of credibility and so will need to hear oral evidence on the specific allegations upon which I am being asked to make such findings. At the same time, it appeared to me that there were other matters addressed in the transcript from the preliminary inquiry, both in examination-in-chief and on cross-examination, where it seemed that there may be little utility in going over orally at the hearing before this Tribunal what is already set out in full in the transcript from the preliminary inquiry in the criminal proceeding. It also seemed to me that it may be in the interest of all parties to try to expedite this hearing as much as possible and thereby minimize the expense and inconvenience to the extent reasonably practicable.

105In this regard, and without restricting the ability of any party to question any witness or elicit any relevant evidence, I proposed that all parties be allowed to rely upon the evidence as set out in the transcript from the preliminary inquiry without needing to have that evidence repeated before me in oral testimony. For example, on background matters which do not go to the heart of the issues before me, such as when a witness worked for the respondent company, where she or he lived etc., CAW Canada could simply rely upon the evidence from the transcript without asking the same questions to elicit the same evidence. Similarly, with regard to a particular line of cross-examination, counsel for the respondents could simply rely upon the evidence from the transcript without needing to repeat the same line of questioning.

106I invited submissions from the parties in response to my proposal. While not generally averse to what I proposed, all parties expressed concern that they not be restricted by the transcript in relation to matters upon which they may want to examine or cross-examine witnesses. CAW-Canada submitted that the issues in a human rights proceeding are very different than in a criminal proceeding, and that further evidence may need to be elicited from the witnesses than is set out in the transcript. I agree. My intention was not to restrict the eliciting of relevant evidence from witnesses, but rather to make the sworn testimony in the transcript from the criminal proceeding admissible as testimonial evidence before me and available to be relied upon by all parties.

107The respondents expressed concern that credibility will be a major issue in this proceeding, and they did not want to be restricted from cross-examining witnesses simply because a particular line of cross-examination had been pursued in the criminal proceeding and was recorded in the transcript. As I have stated, I appreciate that there will be significant issues of credibility to be determined before me and I wish to afford all parties an adequate opportunity to test the credibility of opposing witnesses. At the same time, I am empowered under the Rules to provide not only for the fair and just but also for the expeditious resolution of this matter, and I have specific power to limit the evidence on any issue. I will exercise this power judiciously at the hearing and in a manner that will not deprive any party of a fair, just and expeditious resolution of this matter. But if a line of questioning already has been pursued with a witness in the criminal proceeding and if it is my determination that the hearing process is not benefiting from repeating this line of questioning before me, I will exercise the powers available to me under the Rules.

108Accordingly, having considered the submissions of all parties, I order that the transcript of evidence from the preliminary inquiry in the criminal proceeding against Jose Pratas will be accepted as sworn testimony before me and will be available for all parties to rely upon at the hearing.

6. No more preliminary issues

109As stated on the conference call on November 7, 2012, and in my Case Assessment Direction dated November 14, 2012, I have dealt with the preliminary issues raised by the parties in writing in advance of the hearing on the merits on the basis that they represent the full scope of the preliminary issues being raised on the basis of matters known or that reasonably should have been known as of November 30, 2012. I raised this because I am aware that Associate Chair Wright previously set a deadline prior to the last scheduled hearing dates for preliminary issues to be raised and nonetheless was confronted with preliminary issues at the hearing in July 2012 that could and should have been raised earlier. I do not want any repeat of that scenario.

110The parties now have been given full opportunity to raise all preliminary issues that need to be addressed prior to the hearing on the merits, and I am proceeding on the basis that all such issues have now been raised. I will not permit the de-railing of the hearing in this matter on the basis of further preliminary issues that could have been raised by the parties at this time.

ORDER

111For all of the foregoing reasons, I hereby make the following order:

a. the only applicants whose Applications are continued as a result of the Tribunal’s February 21, 2012 Interim Decision are those who had signed consents in favour of the CAW-Canada for the s. 34(5) Application (formerly 2009-02443-I and continued as 2012-10976-I) and O.P.T. (Worker 41) and M.P.T. (Worker 42), whose individual Applications were continued;

b. new file 2013-13383-I has been opened to address Worker 38 (N.Y.)’s individual sexual harassment allegations, and the pleadings as filed in 2009-02443-I with the removal of the wage claims shall form the pleadings in Worker 38’s file. The allegations of sexual harassment raised by N.Y. shall be addressed as part of this proceeding, and Tribunal file 2013-13383-I is consolidated with files 2012-10976-I, 2012-10977-I and 2012-10978-I;

c. the request by CAW-Canada for the Tribunal to re-open 17 other individual Applications filed under s. 34(1) of the Code is denied. For greater certainty, this ruling means that the following individuals are not persons whose rights remain to be determined in this proceeding: Workers 5, 7, 9, 10, 12, 16, 17, 20, 22, 24, 25, 27, 28, 29, 30, 33 and 35;

d. the request by CAW-Canada to amend its detailed pleading to add M.G.C. (Worker 40) as an additional applicant is allowed, with particulars as set out in paragraphs 4 to 22 of Schedule “A” to the Request;

e. the allegations raised on behalf of Workers 15, 19, 23, 31 and 37 are beyond the scope of this proceeding, and the claims made on behalf of these individuals are dismissed;

f. the allegations of sexual harassment raised on behalf of Workers 6, 13, 21 and 26 in the detailed pleading filed by CAW-Canada in September 2012 in essence amounts to a request to amend the Application to raise these allegations, which is denied as a result of delay;

g. the allegations raised on behalf of Worker 34 are dismissed due to delay;

h. with regard to Workers 8, 14, 36, 40, 41 and 42, the Tribunal will hear evidence from the witnesses relevant to the delay issue as part of their evidence on the overall merits of the issues before it in this proceeding, and will hear submissions about the evidence regarding the delay issue as part of the parties’ final submissions on the merits, after which the Tribunal will issue its decision on all outstanding issues;

i. paragraphs 65 to 111 of the detailed pleading filed by CAW-Canada are struck as beyond the proper scope of the issues to be addressed in this proceeding, together with the allegations raised in Part VI of the detailed pleading by all workers other than Workers 8, 14, 32, 36, 38, 39, 40, 41 and 42;

j. by no later than January 18, 2013, CAW-Canada shall: i. confirm that the witnesses for whom detailed statements of evidence have been filed plus Worker 39 are all of the witnesses it proposes to call to testify at the hearing in this matter, or provide the names and a detailed statement of evidence for all additional witnesses it proposes to call, and ii. provide to the other parties and file with the Tribunal any other documents it intends to rely upon at the hearing in this matter in addition to those contained in its Book of Documents;

k. by no later than January 18, 2013, Justicia for Migrant Workers shall confirm that Dr. Preibisch will be its only witness at the hearing and confirm the documents upon which it intends to rely at the hearing, together with a copy of any documents not already filed with the Tribunal;

l. by no later than January 18, 2013, Presteve Foods Ltd. shall: i. provide any supplementary detailed witness statement for Ulysses Pratas in response to the sexual harassment allegations as may be required, ii. confirm whether it intends to call any other witnesses in response to the allegations and if so, provide a detailed statement of evidence for each such witness, and iii. confirm whether it intends to rely upon any documents at the hearing, and if so, provide to the other parties and file with the Tribunal a list of any such documents and a copy of such documents;

m. by no later than January 18, 2013, Jose Pratas shall: i. provide a detailed witness statement which responds in full to the allegations of sexual harassment raised by the nine remaining individuals and that addresses the issues raised in this Decision as set out at paras. 85 to 94 above, ii. confirm whether he intends to call any other witnesses in response to the allegations and if so, provide a detailed statement of evidence for each such witness, iii. confirm whether he intends to rely upon any documents at the hearing, and if so, provide to the other parties and file with the Tribunal a list of any such documents and a copy of such documents;

n. the use and disclosure of the materials disclosed by the Crown Attorney in the context of the criminal proceeding against Jose Pratas for the purpose of the hearing before this Tribunal is hereby authorized, and Jose Pratas shall disclose these materials in their entirety to all other parties to this proceeding by no later than January 18, 2013. This order shall be subject to the following conditions: i. the records produced and copied shall be given directly to the other parties and shall only be used by the parties directly involved in the litigation in this matter for the full and fair disposition of the issues in this proceeding, ii. the parties directly involved in this matter shall not disclose the records produced and copied or any information there from, to any person (except for witnesses in the hearing of the Application and to any retained experts) who does not have a direct interest in this proceeding, and iii. the production of the materials disclosed by the Crown Attorney in the criminal proceeding against Jose Pratas is subject to a specific Order of the Tribunal upon notice to the Crown;

o. the transcript of evidence from the preliminary inquiry in the criminal proceeding against Jose Pratas will be accepted as sworn testimony before the Tribunal and will be available for all parties to rely upon at the hearing; and

p. no other preliminary issues may be raised by the parties on the basis of matters known or that reasonably should have been known as of November 30, 2012.