HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

African Canadian Legal Clinic Applicant

-and-

Legal Aid Ontario, Angela Longo and Sue McCaffrey Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: January 27, 2010 Citation: 2010 HRTO 187 Indexed as: African Canadian Legal Clinic v. Legal Aid Ontario

Written Submissions By

African Canadian Legal Clinic, Applicant ) Hamdi Mursal, ) Counsel

Legal Aid Ontario, Angelo Longo and ) Tracy A. Pratt, Sue McCaffrey, Respondents ) Counsel )

[1] This Interim Decision addresses whether the Application should be dismissed at the outset on the basis that the respondents were not providing a service within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Alternatively, the respondents assert that the substance of the Application has been dealt with in another proceeding.

[2] On May 20, 2004, the African Canadian Legal Clinic (“ACLC”) filed a complaint with the Ontario Human Rights Commission against Legal Aid Ontario (“LAO”) and the personal respondents. Angela Longo was President of LAO when the ACLC made its complaint. Sue McCaffrey was Vice President, Clinics and Special Services at the time.

[3] ACLC identified itself a legal aid clinic protecting the rights and interest of African Canadians. The majority of their staff and the entire Board of Directors are African Canadian.

[4] The ACLC asserts that LAO treated the ACLC differently compared to other legal clinics in the manner in which the LAO conducted an investigation of allegations against the ACLC. The complaint also referred to a “history of differential treatment.”

[5] LAO is a corporation established pursuant to section 3 of the Legal Aid Service Act, 1998, S.O. 1998, C. 26 (the “Act”). The Act establishes a statutory scheme for the provision of legal aid services to low-income individuals and disadvantaged communities in Ontario. The affairs of LAO are governed and managed by its Board of Directors. LAO funds 79 community clinics in Ontario including the ACLC. LAO has a statutory duty to monitor the operation of these clinics.

[6] LAO relates the following background of events which appear to have led to the 2004 complaint. In April 2003, an ACLC staff member approached LAO with detailed and specific allegations about financial and other mismanagement. LAO investigated the allegations and retained a forensic expert to perform an independent audit. LAO believes that the forensic investigation largely substantiated the allegations. Under section 38 of the Act, LAO may issue “Directions” to a clinic to ensure that the clinic complies with the Act. If the LAO Board is of the opinion that a clinic is not complying with the Act or a Direction, they may reduce or suspend funding of the clinic.

[7] During the investigation ACLC files were seized and, in June 2003, the ACLC commenced an application for judicial review seeking a declaration that the seizure of their clients’ files breached the clients’ rights under section 15 of the Charter on the basis of race and socio-economic status. The application was not pursued and, in September 2004, the parties agreed that the application would be dismissed without costs.

[8] In late September 2003, the LOA chair and the ACLC chair agreed to form a joint working group to address the situation. Pursuant to its statutory authority, in October 2003, the LAO Board issued a Direction to ACLC to provide membership and board information. In November 2003, the LAO Board issued another Direction respecting the clinic’s internal controls and external financial controls.

[9] ACLC asked the LAO Board to reconsider its Directions. The directions were reconsidered and reconfirmed.

[10] By mid-April 2004, the LAO Board considered that the ACLC was substantially in compliance with its directions.

[11] In April 2004, the ACLC requested that the LAO Board conduct an investigation into the administrative process used to conduct the audit and the fairness of the second Direction. The LAO considered the request and was satisfied that the investigation had been conducted in a professional and objective manner.

[12] In May 2004, the ACLC filed the human rights complaint. Although the complaint itself is extremely vague, the applicant filed details of the alleged discrimination with LAO during the 2003 investigation with respect to the immediate events giving rise to the complaint and with respect to historical differential treatment. I will deal with the historical treatment later in this Interim Decision.

[13] Paragraphs 14 to 19 and paragraph 22 of the ACLC’s brief appear to deal with the alleged discriminatory investigation which formed the impetus for the complaint. Essentially, ACLC asserts that other clinics have been audited in an amicable manner whereas the investigation into ACLC was very aggressive. They assert that LAO applied a higher standard of accountability to them than to other clinics. They assert that usually the Executive Director (“ED”) would be involved in these audits but that the ED from the ACLC was excluded for most of the investigation. LAO stopped ACLC’s direct deposit, which had never been done to another clinic. LAO negotiated about the terms of the Memorandum of Understanding with other clinics but not ACLC. LAO and, in particular, Angela Longo publicly characterized the ACLC and its ED in a negative light, which they have never done with respect to other EDs and clinics.

Request to Dismiss Under Section 45.1

[14] Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[15] LAO asserts that the judicial review application raised substantially the same allegations of discrimination on the basis of race and that the substance of the complaint has been dealt with by the dismissal on consent. ACLC asserts that judicial review application related solely to the seizure of documents and raised allegations of discrimination against the clients, and not the ACLC itself. I agree with ACLC that the judicial review application alleged that the seizure caused adverse effect discrimination upon their clients. That is different from the allegation that the manner in which the LAO investigated the ACLC amounted to discrimination.

[16] In any event, I do not accept that a consent dismissal without any terms “appropriately dealt” with the substance of the Application.

[17] LAO also asserted that the ACLC exercised its statutory right to seek reconsideration of the LAO Board’s directions and that the Board considered but did not vary the directions. The process as described by the LAO appeared to consist of a letter requesting reconsideration and letter from the LAO Board declining to change its directions. I do not accept that this was a “proceeding” within the meaning of section 45.1

Service

[18] Section 1 of the Code provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

[19] LAO asserts that the provision of funding to a clinic is not a service within the meaning of the Code and that the Tribunal has no authority to review the exercise of LAO’s statutory power to provide funding. I do not understand the applicant to be challenging a funding decision of the LAO or seeking a remedy in the nature of an order to LAO to provide funding.

[20] The LAO asserts that the exercise of its statutory mandate to oversee the clinic are not services within the meaning of the Code.

[21] The applicant notes that the LAO provides services to clinics through its Clinic Services Office, that the Act is entitled the Legal Services Act and that, as a Crown corporation, LAO provides a civil service.

[22] As I understand it, the ACLC is asserting that the manner in which the LAO conducted the investigation into the alleged financial and other irregularities was discriminatory. Is this investigatory process a service within the meaning of the Code?

[23] In numerous decisions, the Supreme Court of Canada has ruled that a broad, policy-based and liberal interpretation must be given to human rights legislation and the policies behind such legislation: see [Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) 1987 CanLII 109 (SCC)](https://www.minicounsel.ca/scc/1987/109), [1987] 1 S.C.R. 1114; [Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27](https://www.minicounsel.ca/scc/2000/27), [2000] 1 S.C.R. 665; [B. v. Ontario (Human Rights Commission), 2002 SCC 66](https://www.minicounsel.ca/scc/2002/66), [2002] 3 S.C.R. 403), at para. 44.

[24] The Hon. Peter Cory, in [Braithwaite v. Ontario (Attorney General), 2005 HRTO 31](https://www.minicounsel.ca/hrto/2005/31) at para. [22](https://www.minicounsel.ca/hrto/2005/31), defined “services” as follows:

(…) “service” must mean something which is of benefit that is provided by one person to another or to the public. The Human Rights Code of Ontario is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it.

[25] The Divisional Court confirmed that aspect of the decision: [Braithwaite v. Ontario (Attorney General), 2007 CanLII 56481](https://www.minicounsel.ca/odc/2007/56481) (Div. Ct.).

[26] It appears to me that the LAO provides a service to legal aid clinics when it, among other things, reviews their compliance with the Act, issues Directions and investigates allegations of non-compliance.

Historical Allegations

[27] The ACLC also alleges historical differential treatment in the nine years prior to the complaint. Many incidents are undated and some are alleged to have occurred in 1997 and 1998. I have serious concerns whether these allegations have been raised in a timely fashion.

[28] The ACLC is required to provide particulars of the dates of allegations found in paragraphs 1 to 13, 19, 20, 21 and 23, within 14 days of receipt of this Interim Decision. Upon receipt of this information the Tribunal will hear submissions from the parties whether these allegations are barred by section 34(1) of the Code in accordance with the following timetable. The respondents shall file their submissions within 14 days of receipt of the particulars from the applicant; the applicant shall file responding submission within 14 days of receipt of the respondents’ submissions and the respondents may file reply submissions within seven days of receipt of the applicants’ submissions.

Removal of Personal Respondents

[29] ACLC objected to the removal of the personal respondents on the basis that they engaged in actions that were malicious and vexatious. ACLC is directed to provide dates and specifics of the actions of the personal respondents these allegations within 14 days of receipt of this Interim Decision, in order that I may determine whether they should be removed as personal respondents.

[30] Upon receipt of this information, the Tribunal will determine whether the personal respondents should be removed

Mediation

[31] If both parties indicate an interest in mediation with seven days of this Interim Decision, the above deadlines will be suspended until after mediation.

Dated at Toronto, this 27th day of January, 2010.

“Signed by”

___________________________________

Kaye Joachim

Alternate Chair