Hansen v. Toronto (City), 2010 HRTO 13

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ian Hansen

Applicant

-and-

City of Toronto and Toronto Professional Fire Fighters’ Association, Local 3888

Respondents

A N D B E T W E E N:

Kenneth Boyd

Applicant

-and-

City of Toronto, Toronto Professional Fire Fighters’ Association, Local 3888, Jim Shelton, Frank Lamie, Frank Mitchell, Susan Lawler and Scott Marks

Respondents

A N D B E T W E E N:

Kent Carswell

Applicant

-and-

City of Toronto, Toronto Professional Fire Fighters’ Association, Local 3888, Wayne McLean, Andrew Kostiuk, Jim Bonner, Eddie Moore, Doctor Forman, Jim Shelton, Hugh Doherty, John Barben, Ronald McDonald, Jack Kirk, Carl Quinn, Bill Coe, Randy Smith, Stan McKelvey, Don Knox, Frank Lamie and Scott Marks

Respondents

A N D B E T W E E N :

Eugene Dionne

Applicant

• and -

City of Toronto, Toronto Professional Fire Fighters’ Association, Local 3888, Jim Shelton, Scott Marks, Frank Mitchell, Susan Lawler, Frank Lamie, Jessie Caryll and Jim McDonald

Respondents

A N D B E T W E E N:

David Kelterborn

Applicant

-and-

City of Toronto, Toronto Professional Fire Fighters’ Association, Local 3888, Ernie Thorne, Jim Shelton, Scott Marks, Frank Mitchell, Jessie Caryll, Hugh Doherty, Mike Gerard and John Payne

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 5, 2010

Citation: 2010 HRTO 13

Indexed as: Hansen v. Toronto (City)

APPEARANCES

Ian Hansen, Kenneth Boyd, ) Jurgen Degen, Kent Carswell, Eugene Dionne and ) Representative David Kelterborn, Applicants ) )

City of Toronto and Various Individuals, ) Kerri Kitchura, Respondents ) Heather Crisp, and ) Robert Fredericks, ) Counsel ) Slowomit Szlapczyuski, ) Student at Law

Toronto Professional Fire Fighters’ Association, ) Mandy Wojcik, Local 3888 and Various Individuals, ) Counsel Respondents ) ) Adrienne Lei, ) Student at Law

1These are five Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Each Application alleges discrimination in employment on the basis of disability by the Toronto Fire Service and the Toronto Professional Fire Fighters’ Association, Local 3888 (“TPFFA”). Each applicant is represented by Jurgen Degen, who has made his own Application against the same organizational respondents based upon similar issues. Mr. Degen’s Application (2008-00330-I) is currently adjourned: see 2009 HRTO 748.

2The Application by Mr. Dionne was not delivered to the respondents until November 26, 2009. The Tribunal has not made previous decisions about this Application. However, in view of its relation to the other Applications, the Tribunal will give directions in this Interim Decision about all five Applications.

3There are multiple parties, in particular a large number of personal respondents, and many Requests for Order During Proceedings that have been filed in these matters.

4In a Case Assessment Direction dated July 7, 2009 in the Hansen, Boyd, Carswell and Kelterborn matters, the Tribunal directed that a one-day hearing would be held in the four cases on four issues:

1. The respondents’ request that Mr. Degen be prohibited from appearing as representative in all these matters.

2. The applicant’s request that Mr. McDonald be prohibited from appearing as counsel in the Hansen matter.

3. The request that these Applications be consolidated with each other and with file 2008-00330-I.

4. The appropriate next steps in these Applications, in light of the request for adjournment, the various other outstanding requests for order, and the Tribunal’s inability to deliver some Applications to personal respondents at the addresses provided.

5The hearing was held on October 28, 2009. During the hearing, I ruled orally that Mr. Degen would not be prohibited from appearing as representative, that Mr. McDonald would not be prohibited from appearing as counsel in the Hansen matter, and that the Applications would not be consolidated or heard together. The parties agreed that it would be appropriate for one case to proceed first as a lead case. I ruled that the Boyd matter would proceed first, and a hearing has been set for March 16, 2010 to hear argument on outstanding preliminary issues in the Boyd matter. What follows are my reasons for those rulings and further directions in these files.

REQUEST TO REMOVE SaCK GOLDBLATT MITCHELL

6The law firm of Sack Goldblatt Mitchell (“SGM”) represents the TPFFA. Prior to the filing of the Application, Mr. Hansen met with James McDonald, a lawyer at SGM, regarding the possibility of the TPFFA filing a grievance on his behalf related to the events at issue in this Application. Mr. Hansen argues that he provided confidential information to Mr. McDonald at this meeting and that he understood that he had a solicitor-client relationship with SGM. He argues that for SGM to now represent the TPFFA in this matter is a conflict of interest. He notes that he has filed a complaint against Mr. McDonald with the Law Society of Upper Canada.

7To prevent an abuse of its process, the Tribunal may prevent a lawyer who has a conflict of interest from continuing to appear: Universal Workers’ Union v. Labourers’ International Union of North America (2004), 2004 CanLII 66334 (ON SC), 70 O.R. (3d) 435 (S.C.J.). There is no question that a lawyer cannot act against a client he or she has previously represented in a solicitor-client relationship in the same matter: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. However, it is also generally recognized that a lawyer for a union is not in a solicitor-client relationship with a member of a bargaining unit who has filed or seeks to file a grievance through the union. While Mr. Hansen points to various correspondence with the TPFFA that he argues confirms a solicitor-client relationship between him and SGM, I do not agree that it in fact creates such a relationship. Accordingly, Mr. Hansen has not shown that SGM previously represented him (as opposed to the TPFFA) and therefore that the firm has a conflict of interest. Accordingly, it has not been shown that SGM should be prevented from representing the TPFFA. Should the Law Society of Upper Canada’s investigation come to a different conclusion, of course, the Tribunal would examine this issue again at the request of Mr. Hansen.

REQUEST TO REMOVE JURGEN DEGEN

8The respondents ask that Mr. Degen be disqualified from representing the other applicants. They argue, first, that he does not fall within the classes of persons permitted to represent others under Law Society Act, R.S.O. 1990, c. L.8, as amended. They also argue that even if he is entitled to do so under the Law Society Act, to allow him to continue would constitute an abuse of process, both because he acted in conflict of interest in using the others’ Applications to support his own Application, and because he is not competent to do so.

9I rendered the following brief oral reasons on this issue at the hearing and indicated that full reasons would follow:

In brief, I find that Mr. Degen falls within the exemption in By-law 4, s. 30(5) [sic] of the Law Society Act. In the circumstances, while I have some concerns about Mr. Degen’s competence to represent the other applicants in these legal proceedings, I do not believe that they have reached the level at this point where to allow Mr. Degen to continue would lead to an abuse of the Tribunal’s process. This is particularly so in light of the Tribunal’s ability to engage in active adjudication and hearing management pursuant to the Human Rights Code and its rules. The issues of Mr. Degen’s competence to represent his colleagues and conflict of interest, however, may be revisited in the future based on his actions as representative, either on the initiative of the other parties or on the Tribunal’s own motion.

Mr. Degen is directed to review, in detail, the Applicant’s Guide, the Information Bulletin: Hearings, the Information Bulletin: Naming Respondents, available on the Tribunal’s website, and the Tribunal Rules. He is directed to ensure that the Tribunal and the respondents have his up-to-date contact information and to attend hearings with all documents that have been filed in the case in order to facilitate submissions.

The Law Society Act

10I address first the issue of whether Mr. Degen is prohibited from representing the other applicants because of the Law Society Act. Pursuant to s. 26.1(5) of that Act, a person who is not a licensee of the Law Society of Upper Canada may only practise law or provide legal services in Ontario to the extent permitted by the by-laws of the Law Society.

11Law Society By-law 4, s. 30(1), sets out various individuals who may, without a license, provide legal services in Ontario that a licensee who holds a Class P1 licence may provide. There is no dispute that if Mr. Degen falls within these exemptions, he is not barred by the Law Society Act from representing the applicants before the Tribunal. The relevant exemption is #5, which reads as follows:

Acting for family, friend or neighbour

5. An individual,

i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii. who provides the legal services only occasionally,

iii. who provides the legal services only for and on behalf of a related person within the meaning of the Income Tax Act (Canada), a friend or a neighbour, and

iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

12This provision is summarized in the Policy on Representation before the HRTO, which reads as follows:

A party or witness before the Human Rights Tribunal of Ontario (HRTO) may be self-represented or represented by a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC).

A party or witness may be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements. The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. The LSUC’s website contains a complete list of the approved exemptions.

A person who is not licensed, whose license is suspended or who is not in a exempted category will not be permitted to act as a representative in an HRTO proceeding.

A licensed representative must provide her/his LSUC license number to the HRTO. The HRTO may ask an unlicensed representative to identify the LSUC category to which he or she belongs.

The HRTO may exclude a representative from a hearing where necessary to prevent an abuse of its processes or, in the case of unlicensed representatives, where the Tribunal finds the representative is not competent to properly represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.

Representatives must treat each other and the Tribunal with courtesy and respect. Both licensed and unlicensed representatives are expected to know and follow the HRTO’s Rules and any directions or orders made during the proceeding. Acting on the client’s behalf and instructions, a representative is responsible for all communications with the HRTO and the other parties and for preparing and presenting the client’s case to the HRTO.

The HRTO will do its best to accommodate a representative’s schedule when setting hearing and mediation dates. Representatives retained after hearing or mediation dates are set must be available on those dates. Adjournments to accommodate a new representative’s schedule or preparation needs will only be granted in exceptional circumstances.

13The respondents argue that Mr. Degen does not fall within this exemption for two reasons. First, they argue, given that he is representing five other individuals who filed Applications within a relatively short period, he is not providing legal services “only occasionally”. Second, they argue, the applicant expects or receives a “gain” from representing the other applicants in that he has sought information in the other cases through the Tribunal’s process to bolster or get information for his own claim.

14There are three important values to be considered in interpreting these provisions in this context, and in analyzing the more general issues raised by the respondents. The first is the protection of the public. The Law Society Act and the professional standards it imposes ensure that paid legal services are provided by those with the requisite qualifications, training, and regulation. This ensures quality representation and the orderly administration of justice. The second is access to justice. Unfortunately, legal representation can often be expensive, and in Ontario’s courts and tribunals, more and more litigants are self-represented. Permitting representation by those who are willing to give their time to assist friends or neighbours is one way of supporting access to justice. The third is the context of the workplace. The Supreme Court of Canada has recognized that employees generally may be vulnerable in the workplace, and that collective action has been an important part of promoting their interests: see generally Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 at paras. 40-86. The law should favour an interpretation of the relevant By-law that would not prevent employees who see themselves as having common interests from choosing a spokesperson to speak on their behalf in legal proceedings where they may appear on their own behalf.

15Taking those interpretative values into account, I find that Mr. Degen provides legal services “occasionally” within the meaning of the By-law. Although he is currently representing five colleagues who have accommodation issues in the workplace, there is no indication he intends to provide legal services regularly or on an ongoing basis. Representing a group of colleagues who have similar interests on particular issue, in my view, falls within the meaning of “occasionally” providing legal services within the By-law.

16I also do not believe that Mr. Degen is receiving a “gain, fee or reward” for the provision of the legal services. In my view, this section refers to some form of remuneration – monetary or otherwise – for the provision of the legal services, not an alleged indirect benefit from the representation. In any event, there is no evidence of any agreement that Mr. Degen would represent the others in order to obtain documents from their cases, and I fail to see how any such documents could in fact be a gain to Mr. Degen in his case. Parties are prohibited under the Tribunal Rules and the common law from using documents disclosed for a purpose other than the particular proceeding in which they were obtained. Moreover there is an obligation on all parties to disclose arguably relevant documents and Mr. Degen is entitled, in his Application, to the disclosure of any documents that relate to it.

Abuse of Process

17I turn now to the respondents’ alternative argument, which is whether, in view of Mr. Degen’s conduct of these proceedings as representative, it would be an abuse of process to allow him to continue to represent the other applicants. In this regard, they rely upon R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506 (C.A.), in which, in the criminal context, the Court found that a decision maker must apply the doctrine of abuse of process to refuse to permit an agent to appear in certain circumstances. At paras. 73-75, the Court stated as follows:

The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused’s constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (eg. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.

It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused’s right to a fair trial…

In addition to the cases where the agent’s ability or character would disqualify the agent from acting, there may be other situations where disqualification is appropriate. Representation by an agent who has a conflict of interest, for example, where the agent has a special relationship with the complainant or other witness, could well interfere with the proper administration of justice.

18These principles apply here: an unlicensed representative may be disqualified in Tribunal proceedings, including because of a lack of competence, when this is necessary to avoid an abuse of process and protect the administration of justice. However, in making such a decision and applying the decisions of the courts, it is important take into account the more informal nature of administrative proceedings and the fact that the Tribunal’s processes include various alternatives to traditional adjudicative and adversarial processes which facilitate the participation of self-represented litigants.

19I am confident that the applicants represented by Mr. Degen understand that he is not a trained or licensed lawyer or paralegal. They want him to be their spokesperson in Tribunal proceedings and to take responsibility for communications with the Tribunal and other parties on their behalf. The Tribunal’s process is designed to be accessible to self-represented parties and it has extensive powers to control its proceedings: see Rules 1.5 to 1.7.

20In my view, the standard of competence required of an unpaid friend in Tribunal proceedings is not the same as a licensed paralegal or lawyer. The representative is expected to conduct himself or herself as a reasonable, well-informed and diligent layperson, not trained in legal proceedings, would do. Among the relevant considerations are whether the representative complies with the Tribunal rules, is respectful of the Tribunal and the other parties, responsive to communications, and thoroughly familiar with the file (see Edward v. Moda at Home, 2009 HRTO 1010).

21I have concerns about the manner in which Mr. Degen has conducted himself as representative to this point. However, I am confident that, having now attended a Tribunal hearing, he has a better understanding of the process and his responsibilities as representative in that process. A review of the Tribunal’s Guides as directed in the oral decision will assist him in representing the other applicants in accordance with the standard of competence expected of an unpaid friend. Accordingly, I am not prepared to find that Mr. Degen should be excluded because of the alleged lack of competence. Of course, as noted in the oral decision, should he fail to comply with the required standards as the matters proceed, the issue may be revisited at that time.

22The respondents also allege that there is a conflict of interest in Mr. Degen representing the other applicants while pursuing his own Application before the Tribunal. In this regard, they rely upon Romanchook v. Garda Ontario, 2009 HRTO 1077 at para. 66, where the Tribunal found that a paralegal was in a conflict of interest in representing a client in an Application where he had brought his own application based upon related facts. Romanchook was based upon the specific legal and ethical obligations of lawyers and paralegals. I do not agree with the premise of the respondents that those falling under the “unpaid friend” exemption have all the particular ethical duties to clients, including the same duty of undivided loyalty, that licensees have. Considering all of the circumstances, including the role played by an unpaid friend in Tribunal proceedings, the nature of the various Applications, and the context in which Mr. Degen represents of his colleagues as discussed above, I do not believe that the existence of Mr. Degen’s own Application or actions to date have created a conflict of interest that leads to an abuse of process.

CONSOLIDATION OR HEARING TOGETHER

23I turn now to my reason for denying the applicants’ request that these Applications be heard together or consolidated. In these circumstances, while there are some common facts and legal issues, each of these Applications raises unique factual and legal issues about accommodation of each applicant’s disability in the workplace, The decision about whether the parties complied with the duty to accommodate will in each case be an individual and fact-specific inquiry. It would not be fair, just and expeditious for them to be all heard together.

NEXT STEPS

24A hearing is scheduled for March 16, 2010 to hear argument on all preliminary issues in the Boyd matter. The respondents shall deliver and file written submissions on these issues by February 16, 2010. The applicant shall deliver and file written submissions on these issues by March 2, 2010.

25In all the circumstances, the parties are relieved of the obligation to file any outstanding materials in any of these matters until after the decision on the preliminary matters in the Boyd case. Moreover, if any further Requests for Order are filed, the other parties need not respond unless directed to do so by the Tribunal.