Bulow v. Legal Aid Ontario, 2010 HRTO 1544

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stevens Bulow Applicant

-and-

Legal Aid Ontario Respondent

DECISION

Adjudicator: Jay Sengupta Date: July 16, 2010 Citation: 2010 HRTO 1544 Indexed as: Bulow v. Legal Aid Ontario

APPEARANCES:

Stevens Bulow, Applicant ) On his own behalf Legal Aid Ontario, Respondent ) Alix Herber, Counsel

1This is an Application filed pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he suffered discrimination on the basis of sex in receipt of services. Specifically he alleges that he received differential treatment as a man applying for a legal aid certificate.

2A hearing was held on April 27, 2010, at which time the applicant presented evidence in support of his Application. At the conclusion of the applicant’s evidence, the respondent, Legal Aid Ontario (“LAO”), requested that the Tribunal dismiss the Application on the basis that the applicant had not established a prima facie case of discrimination to which it must respond. The respondent also took the position that the Application should be dismissed pursuant to s. 45.1 of the Code, on the basis that another proceeding, an appeal heard by an “Area Committee”, convened under the Legal Aid Services Act, 1998, S.O. 1998, c. 26 (“LASA”), had appropriately dealt with the substance of the Application. I heard submissions from the parties on both issues.

3Following the parties’ submissions, I made an oral ruling dismissing the Application and indicated that written reasons would follow. The following are my reasons.

Facts

4The applicant, Stevens Bulow, applied for assistance from the respondent in dealing with a family law dispute. Specifically, he sought to obtain a legal aid certificate to pay for the services of a lawyer to represent him in a request for variation of access and support arrangements in place with respect to his children.

5The parties agree that his initial application for a legal aid certificate was refused. The respondent takes the position that in delivering legal aid services to those in need in accordance with its mandate, it is governed by the LASA. It points out that there are numerous guidelines put in place pursuant to LASA, one of which is that certificates are not ordinarily issued for representation on variation requests as duty counsel services are available for such matters.

6The parties also agree that the applicant made allegations that he was concerned for the safety of his children and a certificate was then issued. It appears that the applicant and his former spouse were represented by lawyers funded through the legal aid plan.

7The applicant, an automotive industry consultant, was in the process of looking for work at the time of his initial applications. He was asked to provide updated financial information three months later. It appears that he was asked about other sources of income, given that his bill payments continued to have been made despite his reported lack of income.

8When the applicant did not respond to the request, a notice of intent to cancel his legal aid certificate was sent. The applicant then asked for an extension of time to provide information and was granted an extension by the Area Office Director, a legal aid employee. He contends that when he provided the information, even more information was requested, some of which was unreasonable. The certificate was then cancelled by the respondent.

9The applicant appealed to the “Area Committee”, a committee appointed under the aegis of the LASA to hear appeals of decisions made by the Area Office Director of LAO. The appeal was denied. Although a further level of appeal was possible within the LASA structure, the applicant did not exercise his right to that appeal.

ANALYSIS

No Prima Facie Case

10It is well-established in human rights law that the onus is on an applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.), at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.

11Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. As the adjudicator in Jagait v. IN TECH Risk Management, 2009 HRTO 779, stated, “where the applicant has failed to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions”.

12In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that he has established a prima facie case of discrimination.

13Although he alleges differential treatment, his evidence does not bear this out. He is clearly upset by the refusal of the respondent to issue a legal aid certificate when he first applied. However, he has not shown that his gender was a factor in the respondent’s decision or that the respondent has a policy or practice of granting certificates to women who made or make similar applications for variation of custody and support in the family law context.

14Subsequently, when the applicant told the respondent that he had safety concerns regarding his children, he was provided with a certificate. It appears that by the time the matter was heard by the court, it was his understanding that both he and his former spouse were represented by counsel who were funded through the legal aid plan.

15Although the applicant questioned why his former spouse would have been granted a certificate by the respondent, given their initial refusal of his application on the basis that it was not the type of matter for which certificates were issued, he had no concrete information about the process his former spouse had to follow in order to satisfy LAO’s eligibility requirements. He was not present during her application interview and was not privy to the factors used by LAO to assess her eligibility for a certificate.

16Moreover, it is unclear how the fact that his wife was successful in getting a certificate to fund her litigation is helpful to the applicant in proving his main allegation, that he was treated differently as a result of his gender. To the contrary, the fact that they were both represented by counsel paid through LAO appears to negate his allegation of different treatment and suggests the opposite.

17The applicant’s next area of concern is the respondent’s request that he provide updated and additional financial information for a reassessment of his certificate three months after issuance. He also took issue with the respondent’s request that family members confirm that they had provided him with financial support and the respondent’s insistence on getting information from potential employers. Finally, he objected to the subsequent cancellation of the legal aid certificate for an alleged failure to comply with the request for financial information.

18Having heard the evidence provided on this point, while I understand that the applicant disagrees with the respondent on a number of points, there is nothing to bear out his central allegation of differential treatment on the basis of sex. The applicant’s eligibility for a legal aid certificate was based, in part, on financial need. The respondent made requests for information about his financial status and the applicant has not provided any evidence to suggest that the same information would not have been requested of someone of another gender.

19In conclusion, I find that the evidence of the applicant is not complete and sufficient to justify a finding in the applicant’s favour. His evidence does not establish a prima facie case of discrimination under the Code. I am also satisfied that this is not a case where it is unfair to arrive at this assessment in the absence of any evidence from the respondent.

Section 45.1

20Having found that the applicant has failed to establish a prima facie case, it is not necessary for me to decide whether the Application ought to be dismissed on the basis of s. 45.1.

21The Application is dismissed.