Human Rights Tribunal of Ontario
B E T W E E N:
Heather Humphries Applicant
-and-
General Electric of Canada Inc., Bill Bergeron, Gail Brent, Mark Hurst, Mike Johnson, Stephen Shamie and Vickie Goulah Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson Date: November 4, 2009 Citation: 2009 HRTO 1869 Indexed as: Humphries v. General Electric of Canada
1This is an Application filed on June 29, 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 on the grounds of disability and sex in employment. The Application has not yet been served on the respondents.
2On August 13, 2009, the Tribunal provided a Notice of Intent to Dismiss (“Notice”) to the applicant, indicating that it appears that portions of the Application are outside of the Tribunal’s jurisdiction, and inviting the applicant to make submissions. In particular, it appeared that the applicant intended to name as individual respondents, Gail Brent, an arbitrator, and Stephen Shamie, counsel for the organizational respondent in grievance arbitration proceedings involving the applicant and her employer.
3The applicant provided submissions in response to the Notice. With respect to the individual respondent, Shamie, the applicant submits that “he is GE’s agent, and is stating GE’s position and beliefs.” She submits that, in his closing statement, he alleged that, as her “husband worked and brought home a good pay cheque, [she] did not need a job, or to be compensated for the discrimination, harassment, mental anguish and emotional suffering”.
4The allegations concerning the respondent, Shamie, appear to relate to his representation of the respondent employer in grievance arbitration proceedings and alleged statements in the context of those proceedings. The question is whether this can constitute discrimination in respect of employment or any other social area under the Code.
5In Cooper v. Pinkofskys, 2008 HRTO 390, the Tribunal addressed a situation where a witness for the Crown alleged that defence counsel had discriminated against him in respect of services, contrary to the Code. The Tribunal stated as follows at para. 11:
Applying the above principles to this Application, unlike the situation in Hogan and Braithwaite, the cases cited by the applicant in support of his argument, defence counsel is neither providing services to a larger public of which the applicant is a member nor is there a direct service relationship between defence counsel and a Crown witness. Rather, the role of defence counsel at a criminal trial puts that counsel into an adversarial position with all prosecution witnesses called by the Crown in order to secure a conviction of that counsel’s client. Even applying a large, liberal and purposive interpretation of the Code, it cannot be said that defence counsel is providing services to or is in a service relationship with an adverse witness, given the duty of that counsel to fully and fearlessly advance the interests of his client. In no way are the “services” provided by the defence counsel of benefit or of assistance to the prosecution witness. (See also: Crawford v. 2176534 Ontario, 2009 HRTO 1028)
6In my view, these principles also apply in this case and result in a finding that the allegations concerning the respondent, Shamie, are not within the jurisdiction of the Tribunal. I find that in providing legal representation to the applicant’s employer in grievance arbitration proceedings, a lawyer is in neither an employment nor a service relationship with the applicant. In this context, a lawyer is representing a party that is adverse in interest to the applicant. Lawyers are obliged to act in the interests of and on instructions of their clients. Consequently, I find that counsel’s representation of the applicant’s employer in grievance arbitration proceedings, and the submissions of counsel in the context of those proceedings, are not covered by the [Code](https://www.canlii.org/en/on