Brown v. Clay, 2009 HRTO 740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Brown

Applicant

-and-

Philip Clay

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: June 2, 2009

Citation: 2009 HRTO 740

Indexed as: Brown v. Clay

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on March 3, 2009. This Interim Decision deals with the respondent’s request that the Tribunal dismiss the Application or, in the alternative, defer it in light of a current civil proceeding.

BACKGROUND

2The applicant states in his Application that he was diagnosed with unipolar depression along with anxiety in November 2004. He suggests that this medical condition with its attendant difficulties led him and his spouse to decide to separate. He states he sought to legally separate from his spouse relying on the respondent to act as his lawyer.

3The applicant contends that the respondent failed to act responsibly or effectively on his behalf while nonetheless charging him considerable amounts of money. The applicant alleges that the respondent discriminated against him on the basis of disability in that the respondent took advantage of his impaired mental abilities and failed to appropriately accommodate his disability.

4The respondent indicates in his Response that he wants the Tribunal to dismiss the Application on the grounds that a claim based on the same facts has been filed in civil court. The applicant has obtained an Order for Assessment under the Solicitors Act, R.S.O. 1990, c. S.15 and is contesting the respondent’s fees. The Ontario Superior Court of Justice has scheduled an assessment hearing for November 18, 2009 to adjudicate this dispute. The respondent asks that if the Tribunal does not dismiss the Application it should defer consideration of the Application until after the November assessment hearing.

5The applicant has also made a complaint about the respondent’s conduct to the Law Society of Upper Canada (“LSUC”). However, this complaint has been discontinued by LSUC. A letter from LSUC to the applicant dated March 13, 2009 states that LSUC is discontinuing its review of the respondent’s conduct and closing its file because of the current litigation between the applicant and respondent. LSUC states the assessment hearing before the Ontario Superior Court of Justice substantially involves the same matters raised by the applicant in his complaint to LSUC. The letter indicates that it is open to the applicant to potentially renew his complaint against the respondent following the assessment scheduled for November 18, 2009.

6Neither party has indicated a willingness to enter into mediation in order to resolve the Application.

DECISION

7The Tribunal finds that the Application is not barred from proceeding by section 34(11) of the Code. The Tribunal also decides against deferral of the Application.

REQUEST TO DISMISS

8The Solicitor’s Act provides for an assessment process in order to resolve disputes over the appropriateness of legal fees being charged by a solicitor to his or her client. Both solicitors and clients may request an assessment either to enforce a fee or to seek a change in a fee. In this case it is the applicant who has asked for an assessment on the grounds that he is disputing the respondent’s fee.

9The applicant states in his Reply that his request for an assessment is in order to challenge the respondent’s billings and he argues that it is distinct from his Application to the Tribunal in which he is asking the Tribunal to find that the respondent’s conduct towards him during the period he acted as his solicitor was discriminatory and that the respondent failed to accommodate his disability.

10The Tribunal’s authority to dismiss an application on the grounds that a civil proceeding has been commenced derives from section 34(11) of the Code. Section 34(11) provides:

Where application barred

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c. 30, s. 5.

11Section 46.1 reads as follows:

Civil remedy

46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. 2006, c. 30, s. 8

12Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings seeking remedies for breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by an applicant’s decision to raise the Code and seek remedies for its violation in a court action: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

13I find that the applicant’s civil action under the Solicitor’s Act will not determine whether a violation of the Code has taken place. There is no information before me to indicate that the assessment hearing scheduled for November 2009 will determine whether the respondent’s actions were discriminatory and whether the applicant’s rights under the Code have been violated. There is no information before me to suggest that the assessment hearing could result in an order for the type of remedies described in section 46.1 of the Code. I do note that I do not have the benefit of a statement of claim in regards to the civil action but none is required for a request for an assessment under the Solicitor’s Act. The applicant’s pursuit of an assessment under the Solicitor’s Act is not a civil proceeding described in s. 34(11) and consequently the applicant is not barred from pursuing his Application before the Tribunal.

REQUEST TO DEFER

14The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative (Rule 14.1).

15Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

16Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

17It is true that the Application and the assessment hearing will both deal with the applicant’s and respondent’s professional relationship over the same period of time. It is true that the applicant has begun the assessment process and has a specific hearing date scheduled within six months. However, the focus of the assessment hearing and a hearing before the Tribunal are distinct as are the potential remedies. The assessment will likely focus on the nature and complexity of the work the respondent performed for the applicant, the results he achieved and the time he spent, all in relation to the fees he charged. The principal remedy will be to uphold or adjust the respondent’s claimed fees. By contrast, a hearing before the Tribunal will likely focus on the nature of the applicant’s disability, whether the respondent considered or ought to have considered this disability and what duty the respondent may have had, if any, to accommodate this disability. Potential remedies go considerably beyond the question of professional fees. These proceedings are distinct given their subject focus, their guiding legal theories and their remedies. It would not be fair, just or expeditious, under the circumstances, to require that the Application be deferred until the outcome of the assessment hearing has been determined.

18If the assessment process is concluded before the Tribunal makes its determinations on the Application, the parties may request the Tribunal consider any findings or resolutions arising out of that process.

19I am not seized of this matter.