Schiff v. Ridout & Maybee, 2009 HRTO 1162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Schiff

Applicant

-and-

Ridout & Maybee LLP, David Heller and Kenneth Hanna

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 29, 2009

Citation: 2009 HRTO 1162

Indexed as: Schiff v. Ridout & Maybee

1This is an Application filed March 13, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal in employment because of age. The applicant alleges that the respondent law firm and personal respondents refused to hire him as a summer law student because of his age and subsequently, as a form of reprisal, the respondents denied him the opportunity to be considered for an articling student position.

2In a previous Interim Decision, 2009 HRTO 864, the Tribunal stated the respondents failed to file a Response. The Tribunal confirms that this information was incorrect and that the respondents had filed a timely Response.

3In their Response, the respondents requested that the Tribunal dismiss the Application because, pursuant to section 45.1 of the Code, another proceeding has wholly or in part appropriately dealt with the substance of the Application. The respondents submit that the applicant complained to the Law Society of Upper Canada (“LSUC”) with respect to the same allegations as those contained in this Application. According to the respondents’ submissions, the LSUC referred the matter to its Alternate Discrimination and Harassment Counsel (“Counsel”), who informed the respondents that “there was no basis to proceed with a complaint”. The respondents submit that the substance of the Application has been appropriately dealt with by the LSUC since it is the body that regulates Ontario’s legal profession.

4In his Reply, the applicant submits that the Application should not be dismissed because the LSUC did not appropriately deal with the substance of this Application. The applicant points out that no formal complaint was filed with the LSUC and that Counsel closed the matter on a procedural basis because the respondents refused to participate in mediation. The applicant submits that the Tribunal cannot dismiss an Application simply on the basis of failed mediation.

Request to Dismiss Under Section 45.1

5Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

There are two parts to the inquiry under s. 45.1: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

6It cannot be said that the LSUC instituted “proceedings” that dealt with the allegations made in this Application. As stated in Maurer v. Metroland Media Group, 2009 HRTO 200, at para. 12,

[s]ection 45.1 addresses situations in which another proceeding has dealt with the substance of the Application, not in which another proceeding could deal with it. The existence of other avenues is not by itself a basis for the application of section 45.1.

There were no proceedings before the LSUC and therefore the issues underlying the applicant's Application to the Tribunal were not addressed. Having determined that the LSUC did not deal with the substance of the Application, there is no need to decide whether it did so “appropriately”. The Request for dismissal under s. 45.1 is denied.

7Given that both the applicant and the respondents have indicated a willingness to participate in mediation, the Registrar’s Office will contact the parties in order to schedule a mediation in this matter.

8I am not seized of this matter.