Williams v. Law Society of Upper Canada, 2009 HRTO 794

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jody Williams

Applicant

-and-

Law Society of Upper Canada, Jessica Kowalski, Sharon Seenath and Bruce Dunsmuir

Respondents

case Resolution Conference DECISION

Adjudicator: David Muir

Date: June 9, 2009

Citation: 2009 HRTO 794

Indexed As: Williams v. Law Society of Upper Canada

AppearanceS BY

Jody Williams, Applicant ) On her own behalf

Law Society of Upper Canada, ) Sharon Seenath and Bruce Dunsmuir, ) Delores M. Barbini, Counsel Respondents )

Jessica Kowalski, Respondent ) Not in attendance

[1] This is an Application filed October 14, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] The Case Resolution Conference (CRC) was held on May 19, 2009 in London in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. Although the CRC was scheduled to consider only the preliminary issues raised by the respondents, I entertained the applicant’s evidence on the merits of the Application. I also heard from the individual respondents as well as from Ms. Spears and Ms. Hickling, employees of the respondent Law Society of Upper Canada (LSUC). The respondent, Jessica Kowalski did not attend the CRC.

3The complaint underlying the present Application was filed with the Human Rights Commission on July 26, 2007. The applicant self-identifies as a single mother who is poor. For periods of time in 2006 and 2007, she was in receipt of social assistance. She alleges that the respondents discriminated against her in vocational associations and in the provision of a service because of her family status and because she was in receipt of public assistance.

4In June 2001, the applicant bought a house. In October 2005, she was advised by the municipality in which she lives that there were significant structural problems with the house which it required that she repair. These problems had not been identified at the time of the real estate transaction and it appears that the Statutory Declarations of the vendors of the property were not entirely accurate. The applicant alleges that the lawyer represented both parties to the real estate transaction without informing her, placing him in a potential conflict of interest. She also states that the lawyer did not advise her of the advisability of obtaining title insurance and claims a loss of approximately $64,000 which is what she has been told repairs to her home will cost.

5After consulting with another lawyer, the applicant contacted the LSUC in November 2005 to enquire about what assistance it might provide. She complained to the LSUC about the lawyer and in January 2007 made a written request for access to the Lawyers Fund for Client Compensation (the “Fund”).

6The complaint was investigated by the LSUC twice. The second investigation was initiated after it was discovered, at the applicant’s prompting, that the first investigation had not been properly concluded. The lawyer was cautioned about his failure to give written notice that he was acting for both sides in the transaction, to obtain a waiver from both parties, and to properly advise the applicant about the advisability of title insurance.

7The claim against the Fund was ultimately refused. The Guidelines for the Fund provide that to be eligible to receive a grant, the client must show that they gave money to a lawyer and the lawyer dishonestly took or failed to account for it. The applicant’s claim was for the damages suffered as a result of the arguably negligent advice given by her lawyer. Such claims are not covered by the Fund according to the LSUC.

8The applicant alleges that the Guidelines for the Fund had a discriminatory impact on her. She also alleges that the named personal respondents treated her differently because she was a poor single mother. She felt that she was disregarded and that there was not a full and proper investigation of her complaint and claim from the Fund.

9I note at this point that the applicant makes no distinction between her complaint about the conduct of her lawyer and her claim against the Fund. Although understandable from her perspective, the fact is that the two things are legally and factually distinct.

10At the CRC the applicant set out the basis for her view that she was subject to differential treatment based on her family status and being in receipt of social assistance. The specific allegations are summarized below with the LSUC’s response where one was offered:

1. A July 5 2007 file transfer memo contains the statement “What the complainant wants is uncertain”. The applicant states that this is inaccurate because it was clear what she had been asking for – the damages she claims to have suffered as a result of the lawyer’s dishonesty - $64,000. The author of the transfer memo is no longer an employee of the Law Society and was not in attendance at the CRC.

2. On June 19, 2006 and July 10, 2007, the applicant asked for the LSUC’s file in respect of her complaint. The applicant states that she did not receive a response to either inquiry. The LSUC stated that in respect of the first request, all that would have been sent would have been the original complaint and the lawyer’s response. The LSUC concedes that it did not send the lawyer’s response to the complaint and has no explanation for why it was not sent. In respect of the second request, the LSUC stated that it would not have responded to this request as the applicant had filed her human rights complaint by that time and any production issues would be dealt with in that process.

3. The applicant relies upon two letters from the LSUC dated July 4 and September 5, 2007 denying her claim against the Fund. Both letters refer to the fact that the applicant had sued the lawyer in small claims court and had settled that claim. In the applicant’s view these references seemed to be relying on that fact to deny the claim but she states that when she first raised the issue of accessing the Fund she was told that she had to exhaust her civil remedies first. The Law Society responds that the applicant was almost certainly told that she was required to exhaust her other remedies first as that is a requirement of the Guidelines for access to the Fund. The rationale for this requirement is that if the lawyer has funds he/she should pay first rather than paying being imposed on all the lawyers in Ontario through the Fund. Ms. Hickling who authored both letters stated that although not the reason for denying the claim, the fact that there was a suit in small claims court is relevant to any claim against the Fund in that this would have implications for any potential payout and a Release signed in a settlement might have had an effect on the LSUC’s subrogation rights in respect of such claims.

4. The applicant states that she was provided with limited information by the LSUC. She says that she was told that she should exhaust civil remedies and had some discussion with the respondent about her small claims court action. She states she was not provided with any information about LawPro at that time. Had this information been provided she had she would have commenced a lawsuit. The applicant also claims that if she had been made aware of the existence of Statutory Declarations by the vendors of the property prior to July 2007 when finally informed of their existence, she might have been better able to seek redress elsewhere. The LSUC states that the applicant ought to have been aware of the Statutory Declarations as of the time of the real estate transaction as they are referred to in the lawyer’s July 2001 closing letter. In any event, she could have obtained them from the lawyer at any time. The LSUC also states the applicant had obtained legal advice prior to making her complaint in November 2005 and that she did commence a lawsuit against the lawyer in small claims court.

5. The applicant takes issue with Ms. Spears’ statement that the investigation into her complaint was detailed. In her view a detailed investigation would have included an interview of the vendor of the property. Mr. Dunsmuir stated that the vendor was not contacted because based on the complaint it was not relevant whether the vendor was verbally told or not that the lawyer was representing both parties. It was evident to Mr. Dunsmuir that there was no written notice to both parties and no waiver – that is the requirement and it was not met by the lawyer.

6. The applicant stated and the LSUC acknowledges that the lawyer’s response to her complaint dated March 2, 2006 was not provided to her. The LSUC has no explanation for this and agrees the applicant was entitled to it. The applicant stated that the letter deprived her of crucial information that she might have acted on. The LSUC states she had all of the information contained in the March 2 letter at the closing of the real estate transaction or could have obtained it from her lawyer at any time.

7. The applicant responded to an August 12, 2007 closing letter from Mr. Dunsmuir advising she had nothing further to add to the investigation in the hopes her position would speed up the processing of her complaint. The applicant later learned that Mr. Dunsmuir did not get her message. Mr. Dunsmuir stated that getting her message would not have changed the timing of his dealing with her complaint as he processes complaint files in chronological order.

8. The applicant states that the respondents’ witnesses will-say statements all state that none of them were aware of her family status. This suggests, according to the applicant, that they were not reading her mail. Ms. Hickling stated that she said in her will-say that that she could not recall being advised of the applicant’s family status. She acknowledged that she sees references to the applicant’s family status in the letters but explained that the fact that she had not remembered this did not mean that she did not read the letters at the time. Rather, the applicant’s family status was not in any way relevant to her claim for payment from the Fund. Mr. Dunsmuir gave evidence to the same effect – he acknowledged that statements to the effect that Ms. Williams was a single mother were in one or more of the applicant’s letters but it was not relevant to the investigation of the complaint concerning the professional conduct of the lawyer.

9. Although the LSUC offers the possibility of mediating a resolution between the lawyer and client, the applicant stated that this was not offered to her. Ms. Spears and Mr. Dunsmuir stated that such services are offered where there is an ongoing solicitor-client relationship which might be rehabilitated. In this case the complaint related to a single transaction which occurred several years prior; there was no ongoing relationship.

10. The applicant also states that there were several documents which she had sent to the LSUC which were not in the file. The LSUC had no explanation for this although it noted that these were all documents sent after the applicant commenced her human rights complaint.

Analysis

11The Law Society raised a number of preliminary issues:

1. The Tribunal lacks jurisdiction to hear the Application because of statutory and common law immunity of the respondents;

2. The Application does not set out a prima facie case of discrimination;

3. That the social areas and prohibited grounds raised do not apply to the facts raised in the Application and therefore the Tribunal lacks jurisdiction.

12The applicant alleges discrimination in vocational associations. The applicant is not a member or potential member of the LSUC and cannot succeed on this aspect of her Application.

13The applicant did receive services from the LSUC and in this respect her relationship with the respondents is subject to Code protections. However, being in receipt of social assistance is not a protected ground in respect of a service relationship. This aspect of her claim also cannot proceed.

14The Law Society also states that as an adjudicative agency in this circumstance it does not provide a service within the meaning of the Code. This submission is rejected. It is well established that a statutory decision-making process is a “service” for purposes of the Code however there are limits to the jurisdiction of the Tribunal in respect of such a service. See Baird v. WSIAT, 2009 HRTO 99:

While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is therefore, not subject to the Tribunal’s jurisdiction.

15The Law Society states that both the complaints process and claims against the Fund are legislatively delegated discretionary decision-making processes and therefore the results are beyond the jurisdiction of the Tribunal to consider. In respect of the complaints process, I agree. In any event, there is no evidence that the applicant was subject to differential treatment in the handling of her complaint prior to the adjudicative phase.

16The applicant believes that the fact that the lawyer represented both sides in the 2001 real estate transaction was dishonest and therefore she ought to have been able to access the Fund. The Law Society determined in its discretion that the Guidelines applied in these circumstances did not allow it to pay out to the applicant. I have no jurisdiction to review the decision to deny the claim against the Compensation Fund. It is, I find, a statutorily delegated discretionary decision given to the Law Society. The decision itself is beyond the Tribunal’s review.

17At the heart of this part of the dispute is the applicant’s contention that the criteria for access to the Fund has a discriminatory impact on her because of her family status as a single mother. As sympathetic as her situation might be, there is absolutely no evidence to support a violation of the Code in any of these circumstances.

18The respondents also state more generally that the facts as alleged by the applicant do not disclose a prima facie case of discrimination on the basis of family status. I agree. The essence of this complaint is that the applicant was denied payment from the Fund due to her family status. Other than the bare allegation, no facts have been presented upon which an inference could be drawn that the LSUC’s actions, processes or decisions were in any way affected by knowledge of her family status.

19While the LSUC made mistakes in processing her complaint and perhaps the treatment provided by some of those she dealt with at the Law Society was not a model of customer service, there is no evidence the applicant received differential treatment in the provision of services on the basis of family status in any of the interactions, or the sum of them, between the applicant and the respondents.

20For all of the reasons set out above the Application is dismissed.