Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241

Human Rights Tribunal of Ontario

B E T W E E N:

Wayne Miller

Applicant

-and-

Prudential Lifestyles Real Estate and David Nicholls

Respondents

Decision

Adjudicator: Michael Gottheil

Date: August 11, 2009

Citation: 2009 HRTO 1241

Indexed as: Miller v. Prudential Lifestyles Real Estate

Appearances by

Wayne Miller, Applicant ) On His Own Behalf

Prudential Lifestyles Real Estate and )

David Nicholls, Respondents ) David Winnitoy, Counsel

1This is an Application alleging discrimination in employment on the grounds of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application was filed on January 13, 2009.

2A hearing was held on July 31, 2009, to address two issues: a request by the applicant that counsel for the respondents be disqualified because of a solicitor-client conflict, and a request by the respondents that the Application be dismissed as being untimely. For the reasons that follow, I have determined that there is no conflict, and the Application should be dismissed.

Background

3The applicant, Wayne Miller, worked with the corporate respondent Prudential Lifestyles Real Estate ("Prudential") as a real estate broker commencing in 1999. He alleges that after the personal respondent purchased Prudential in 2007, he was terminated because he suffers from Hepatitis C. Although there is some dispute as to whether the applicant was an employee or an independent contractor, there is no dispute that the respondents decided to terminate the working relationship effective June 11, 2007. The applicant was hired by another real estate firm the following day.

4The respondents deny that the applicant was terminated because of a disability. They state that there was a dispute between the parties relating to office and other expenses the respondents say were owed by the applicant. On October 28, 2008, Prudential commenced legal proceedings against the applicant in small claims court, seeking payment of the expenses allegedly owed.

5The applicant filed a statement of defence and counterclaim. He denied that there were any monies owing to the respondents, and claimed $10,000.00 in damages for breach of contract and wrongful dismissal. The applicant made an offer to settle the court claims, and beginning November 19, 2008, sent a number of emails to the respondents "urging" them to settle. I have put the word "urging" in quotations because the respondents viewed the various emails as aggressive, abusive and harassing, and in fact contacted the Ontario Provincial Police to complain about the applicant's actions. The respondents did not accept the applicant's offer to settle.

6On or about December 15, 2008, the applicant amended his court claim, seeking damages for discrimination. On or about January 8, 2009, he further amended his court claim, removing the claim for discrimination. Then, on January 13, 2009, the applicant filed this Application with the Tribunal.

DECISION

Solicitor – Client Conflict

7The applicant has requested the Tribunal make an order that Mr. Winnitoy, counsel for the respondents, be disqualified from acting in these proceedings on the basis of a solicitor-client conflict. The applicant alleges that Mr. Winnitoy was retained by the applicant and the applicant's spouse in a civil suit against the Bank of Nova Scotia which was commenced in 1995. The civil suit was brought by the applicant's spouse as plaintiff, and sought damages for interference with contractual relations.

8The respondents acknowledge that both Mr. Miller and his spouse signed the retainer agreement with Mr. Winnitoy's law firm, that the applicant may have attended some meetings related to the file, and that he may have paid some accounts.

9The civil suit arose out of a previous employment relationship Ms. Miller had with the bank. Ms. Miller had been terminated for alleged improper banking practices the bank claimed were designed to benefit her husband, who was a customer at the bank. During the course of the litigation, the bank produced documents which apparently showed, amongst other things, the applicant's bank account and credit cards were overdrawn. The applicant alleges that as a result, Mr. Winnitoy became aware of the applicant's business and financial circumstances. On this basis, the applicant says counsel should be disqualified.

10The respondents respond by arguing the action against the bank was brought by the applicant's spouse, and the solicitor-client relationship was between counsel and the applicant's spouse. In the alternative, even if there was a solicitor-client relationship with the applicant, while counsel may have had access to some information about the applicant's banking and financial affairs, this information is completely unrelated to any matter relevant in the current proceedings. The respondents point out that the civil suit in question was filed in 1995 and settled in 1997, two years before the applicant began working as a real estate agent, and ten years before the issues in this Application arose.

11I cannot accept the applicant's claim that in the circumstances, there is a basis to disqualify Mr. Winnitoy from acting as counsel for the respondent.

12The respondents referred me to the Supreme Court of Canada's decision in Strother v. 3464920 Canada Inc., 2007 SCC 24. At paragraph 36 of his reasons, Mr. Justice Binnie stated:

In recent years as law firms have grown in size and shrunk in numbers, the courts have increasingly been required to deal with claims by clients arising out of alleged conflicts of interest on the part of their lawyers. Occasionally, a law firm is caught innocently in crossfire between two or more clients. Sometimes the claim of conflict is asserted for purely tactical reasons, an objectionable practice criticized in Neil at paras. 14-15, and a factor to be taken into account by a court in determining what relief if any is to be accorded…

13Counsel also referred me to the leading case on solicitor-client conflicts, MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, where the Court explained the competing values at play when considering a request to disqualify a lawyer from acting because of an alleged conflict: (1) the courts and tribunals must be vigilant to maintain the high standards of the legal profession and the integrity of the justice system, (2) a litigant should not be deprived of his or her choice of counsel without good cause, and (3) it is desirable to permit reasonable mobility in the legal profession.

14The Court set out a two part test for determining whether a conflict exists such that a lawyer should be disqualified:

a) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

b) Is there a risk that it will be used to the prejudice of the client?

15I agree with the respondents that the request can be dismissed on the basis of the first question enumerated by the Supreme Court in MacDonald Estate. The applicant has not shown that (even assuming there was a solicitor-client relationship), counsel received any information relevant to the present proceedings.

16At the hearing, I asked the applicant to identify what information or knowledge Mr. Winnitoy would have received that might be relevant in this case, or that could be used to against him. The applicant was not able to identify any particular information, or even any general category of information. The applicant said only that because Mr. Winnitoy had knowledge of the applicant's alleged difficult financial circumstance, he might use this information as part of a litigation strategy to "pressure" the applicant into abandoning his human rights claim.

17I do not find that information about the applicant's overdrawn bank account or monies owing on credit cards in the early 1990's can have any relevance in these proceedings. Nor do I accept the applicant's vague assertion that he is prejudiced by Mr. Winnitoy having knowledge about "business affairs" dating back more than 15 years as being sufficient to find a conflict. The applicant could not explain how or why the information received is pertinent to the present case. In my view, the applicant's claim of conflict is being advanced, to use the words of Mr. Justice Binnie, "for purely tactical reasons."

18The applicant's request is denied.

Timeliness of the Application

19The respondents submit that the Application is untimely. They argue that the applicant's employment or contractual relationship ended on June 11, 2007, yet the Application to the Tribunal was not filed until January 13, 2009. They argue that the applicant has not provided any legitimate explanation for the 19-month delay in filing the Application. They further submit they would suffer substantial prejudice were the Tribunal to allow the Application to proceed.

20The applicant makes two arguments in response to the request to dismiss the Application. The applicant asks that I exercise my discretion under section 34(2) on the basis that the delay was incurred in good faith and the respondent would suffer no prejudice.

21He also argues that the last instance of discrimination was November 21, 2008, when the respondent Nicholls contacted his current employer, which the applicant claims was a reprisal for seeking to enforce his rights under the Code. As a result, the applicant says, the Application is not untimely.

22Sections 34(1) and (2) of the Code provide:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

23I do not find that the applicant has established a basis for the Tribunal to exercise its discretion to allow this Application to be brought outside the statutory one-year limitation period. I do not find the delay was incurred in good faith.

24In my view, where an applicant seeks to establish that a delay in filing an application was "incurred" in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

25In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

26In the present case, the applicant provides two reasons to justify the delay. First, he submits that he underwent treatment for his disability between approximately March 2007 and February 2008. He said that the treatment had serious psychological side effects, and he was weak and often felt nausea. He did not provide any medical reports or other information explaining why, for example, he was able to continue working in this period but was unable to pursue a human rights claim. Even accepting that the effects of the treatment had an impact on his ability to take steps to enforce his rights under the Code, the applicant provided no explanation for the delay between the spring of 2008 and January 2009 when the Application was eventually filed.

27Of greater significance is that the applicant stated the main reason he decided to pursue legal action against the respondents, including the human rights Application, was because the respondents decided to sue him for the office expenses allegedly owed. The applicant stated that it was a defensive action.

28The respondents argue that this demonstrates bad faith. They argue that the human rights Application is merely part of a litigation strategy, and shows the Application is vexatious.

29I need not determine whether an Application filed in reaction to other legal proceedings is brought in bad faith or is vexatious. The issue before me is the reason for the delay and whether it was incurred in good faith.

30What is apparent is that the timing of when the Application was filed (as opposed to the motivation for filing it) turned entirely on the fact that the respondents brought a small claims court action to recover expenses they claimed were owing. That, in my view, is not a reason which supports a finding the delay was incurred in good faith, within the meaning of section 34(2).

31Given my finding, I need not address whether the respondents would have suffered substantial prejudice.

32The applicant's other argument is that the application is not untimely, because the last event of discrimination occurred in November 2008, when the respondent Nicholls contacted the applicant's current employer, which the applicant claims was a reprisal within the meaning of section 8 of the Code.

33The respondents do not dispute that Mr. Nicholls sent an email to the applicant's current employer on November 21, 2008. They state the email was sent following a conversation between Nicholls and the current employer, a fellow real estate broker in the community. The respondents alleged that during this conversation, Nicholls discussed his concerns about what he felt were a series of highly abusive and offensive emails the applicant was sending, in an effort to have Nicholls settle the small claims court action. The respondents allege that following the conversation, and at the request of the applicant's current employer, Nicholls sent him an email which read: "For your records for a rainy day. Is this person competent enough to be a realtor?", and attached some of the allegedly offensive emails.

34The applicant claims that the respondents sent the November 21, 2008 email in reaction to the following email he sent to Nicholls on November 20, 2008:

So you don't want to talk to me and settle this matter. Well I will tell you what I am going to do, if I don't hear from you today I am going to speak to Ron and address what you are doing and the way you have treated me to the Human Rights Commission.

35Section 8 of the Code reads:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

36The Tribunal has accepted that the words "claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act" do not require that an applicant has actually filed a an application under the Code before a reprisal can be found. Individuals may "claim" rights under the Code in a variety of ways, whether through a grievance under a collective agreement, through an employer's internal human rights policy or, in some cases, by simply raising an objection to alleged discriminatory or harassing conduct. A reprisal may be found even though a human rights application was not filed at the point the alleged reprisal occurred.

37However, I am not prepared to accept that the words in the November 20, 2008 email, which must be understood as part of the applicant's ongoing attempt to force the respondents to accept a settlement of the small claims court proceedings, can form the basis of a reprisal claim.

38The November 20, 2008 email came 17 months after the applicant alleges the respondents infringed his rights under the Code. He was in the midst of a civil action with the respondents, involving competing contractual claims. In the 24 hours prior to the email in question, the applicant had sent numerous emails to the respondents, attempting to convince them to accept his offer to settle, having given them a self-imposed deadline of November 20, 2008. The respondents were unwilling to settle on the terms the applicant was proposing, and were refusing to respond to the emails. In an obvious sense of frustration at the respondents' refusal to negotiate, the applicant sent this email, threatening to go to the Ontario Human Rights Commission (which at that time no longer had jurisdiction to receive individual complaints) if the respondents did not accept his offer.

39In this context, I do not accept that the applicant's November 20, 2008 email was a genuine attempt by the applicant to "claim or enforce his rights" under the Code, within the meaning of section 8. Regardless of the propriety of Mr. Nicholls' contact with the applicant's current employer, it cannot be considered a reprisal under the Code, and cannot be used by the applicant to bring his Application within the one-year limitation period.

40For all of the reasons above, this Application is dismissed.