Expert Witness (Activism)

Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 (CanLII)

[235] Both parties objected to the expert evidence tendered by the other. In my view, while the objections raised by the parties may go to the weight to be accorded to any expert evidence, they do not affect the admissibility of the expert evidence in the context of this proceeding.

[236] The test for the admissibility of expert evidence has been established in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, namely: (i) the evidence must be relevant; (ii) the evidence must be necessary to assist the trier of fact; (iii) there must be no exclusionary rule prohibiting receipt of the evidence; and (iv) the evidence must be given by a properly qualified expert.

[237] With regard to the second criteria, this Tribunal has recognized that there is a lower threshold for showing that the evidence is necessary to assist the trier of fact in discrimination cases as compared to criminal cases, due to the nature of human rights proceedings and the often subtle nature of discrimination: see Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paras. 36 to 37.

[239] The respondent next objects to the qualification of Dr. Preibisch as an expert witness. The respondent primarily takes the position that Dr. Preibisch’s evidence regarding the SAWP and the impact of this program on migrant farm workers is irrelevant. I disagree. While the specific statutory provision at issue in this case relates to traumatic workplace fatalities, the jurisprudence is clear that the discrimination analysis is highly contextual and properly can consider the historical, social and political disadvantage experienced by the group at issue: see Withler v. Canada (Attorney General), 2011 SCC 12 (CanLII), [2011] 1 S.C.R. 396 at para. 38. In my view, Dr. Preibisch’s evidence speaks directly to these matters.

[240] The respondent further attempts to portray Dr. Preibisch as an “activist”, on the basis that she has made recommendations for changes to the SAWP, has been retained by the advocacy group J4MW to testify as an expert witness in another proceeding before this Tribunal, and has received an award for her academic research from the UFCW. I do not find that any of these concerns affect either the admissibility or weight to be accorded to Dr. Preibisch’s evidence. She refers to herself as a “community engaged scholar”, which means that the very nature of her area of specialization necessarily requires her to have ongoing contact with various community groups. I fail to see how making recommendations for positive change that grow out of her research, being recognized for her academic work, or being retained as an expert witness in another proceeding have any bearing on her qualifications as an expert witness or the substance of her evidence.

[244] The respondent takes the position that I should accord Dr. Galabuzi’s evidence little weight because he is an “advocate”, which is premised on Dr. Galabuzi’s involvement as a research associate with the Centre for Social Justice in Toronto and him being a member of the Canadian Centre for Policy Alternatives. I disagree. I did not find Dr. Galabuzi’s testimony before me to be that of an advocate of a cause, but rather as coming from the place of someone with academic expertise in the racialization of labour and seeking to explain how this racialization affected the precarious working and living conditions for SAWP workers, which is evidence both relevant and necessary to the discrimination analysis.

[246] The respondent further wants me to exclude Dr. McLaughlin’s evidence relating to injuries and illnesses experienced by migrant farm workers that do not result in death. I decline to do so for the reasons expressed above, given that this evidence speaks directly to the issue of social disadvantage. The respondents want me to exclude her evidence regarding deaths from infectious diseases, occupational diseases and suicide, which are not deaths captured by s. 10(5) of the Coroners Act, and also her evidence regarding deaths that may have occurred outside Ontario. I have discussed this evidence already and, while I have found that deaths in such circumstances would not meet the criteria set out in s. 10(5), I do not see that as being a proper basis to exclude this evidence, given that what deaths meet the criteria in s. 10(5) is a matter of dispute between the parties and given that this evidence in any event may be relevant to the issue of social disadvantage.

[247] The respondent takes the position that if admitted, Dr. McLaughlin’s evidence should be accorded little weight, on the basis that she is the founder of two migrant farm worker interest groups in Ontario and her publications criticize migrant farm worker programs and supports. The respondent also notes that Dr. McLaughlin’s expert report largely repeats what is set out in the applicant’s Statement of Additional Facts.

[249] With regard to the former point, once again it appears to me to be unsurprising that academics, particularly in the social science field, may have some degree of involvement in advocacy efforts aimed to improve conditions in the areas of their expertise and within which they work and study. The issue for me as an adjudicator is whether such academics bring this advocacy role into the hearing room, or whether they ground their evidence in their work and the relevant literature. Dr. McLaughlin, in my view, clearly did the latter. Her report and her oral testimony consistently were given with relevant citations and references.