HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracey Foster

Applicant

-and-

Law Society of Upper Canada, Lisa Freeman, Carolyn Abramowitz and Treena Wilkie

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 29, 2010

Citation: 2010 HRTO 2176

Indexed as: Foster v. Law Society of Upper Canada

BACKGROUND

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 12, 2010, alleging discrimination with respect to membership in a vocational association on the basis of disability and sex. In summary, the applicant alleges that she was subjected to discrimination when the Law Society of Upper Canada (“Law Society”), with the assistance of its counsel Lisa Freeman, suspended the applicant’s licence to practise law based on alleged discriminatory notions and opinions, contained in reports prepared by Dr. Treena Wilkie and Dr. Carolyn Abramowitz.

2On August 3, 2010, Dr. Abramowitz filed a Response indicating that her involvement in the alleged events was limited to administering a self-report psychological test on the applicant and compiling the results for Dr. Wilkie’s use in her medical evaluation for submission to the Law Society.

3On August 11, 2010, Dr. Wilkie filed a Response, denying the allegations of discrimination. Dr. Wilkie submits that she ought not to be a party to these proceedings because, as the psychiatrist who provided an independent medical opinion to the Law Society, she had no authority over the applicant’s membership in her vocational association. Dr. Wilkie further submits she is entitled to witness immunity. In addition, Dr. Wilkie asserts that the Application is time barred because the allegations made against her relate to 2007.

4The respondents the Law Society and Ms Freeman filed a Response on August 4, 2010, denying the allegations of discrimination. These respondents request that the Application be dismissed pursuant to section 45.1 of the Code, in that another proceeding has appropriately dealt with the substance of the Application. The respondents allege the other proceeding was the capacity hearing of Law Society Hearing Panel which ordered that the applicant’s license be suspended. The respondents also submit that the Application should be dismissed for delay in that the applicant’s license was suspended in 2007. Last, the Law Society submits that the Application cannot proceed against it based on the doctrine of judicial immunity, which protects the independent decision-making of adjudicators. Ms Freeman indicates that the Application cannot proceed against her because of the statutory immunity provided by section 9 of the Law Society Act, which prohibits any actions for damages against an employee of the Law Society in connection to their official duties.

5On August 13, 2010, the Tribunal provided the applicant with copies of the Responses and issued a Notice of Intent to Dismiss on the basis of section 45.1 of the Code.

6The applicant filed a reply on October 4, 2010.

PRELIMINARY ISSUES

Alleged Conflict of Interest

7On July 19, 2010, the applicant notified the Tribunal and counsel for Dr. Wilkie that she had twice consulted with Lerners, the law firm representing Dr. Wilkie, regarding the facts underlying Dr. Wilkie’s 2007 assessment which forms part of the subject of this Application. The applicant asked that Lerners remove itself from the record. On July 16, 2010, counsel for Dr. Wilkie advised that her firm, Lerners, was investigating the alleged conflict of interest. Subsquently, same counsel has continued to file materials on behalf of Dr. Wilkie. The applicant has since corresponded with the Tribunal and the parties about this alleged conflict of interest and asks the Tribunal to schedule a hearing on this issue.

Clarification of 2010 Events

8In response to Question 7 of the Application, the applicant identified April 10, 2010 as the date of the last discriminatory incident. However, the applicant’s narrative does not provide any details with respect to events in 2010 or specifically April 10, 2010. In her Reply submissions, the applicant appears to suggest that events have been on-going and that there were interactions between some of the parties in 2010. In an effort to seek clarification about this issue, the Tribunal attempted to communicate with the applicant and left voice mail messages on October 12, 2010 and October 14, 2010, indicating that the Tribunal was seeking copies of documents the applicant referenced as attached to her Application. The applicant did not respond to the Tribunal’s messages.

Allegations against the Respondent Freeman

9The Tribunal notes that allegations against the personal respondent Freeman may raise matters that are not within the jurisdiction of the Tribunal to decide. The Tribunal has held that allegations pertaining to the conduct of a lawyer representing another party in another legal proceeding is outside of the Tribunal’s jurisdiction. Tribunal jurisprudence has consistently stated that the relationship between a lawyer and an opposing party is not covered by the Code: Cooper v. Pinkofskys, 2008 HRTO 390; Belso v. York Region Police, 2009 HRTO 757; Humphries v. General Electric of Canada, 2009 HRTO 1869; Surh v. Toronto (City), 2009 HRTO 1700; Christianson v. Ontario (Attorney General), 2010 HRTO 1650; and Jaconello v. Unger, 2010 HRTO 789.

ORDER

10In light of these preliminary issues, the Tribunal directs as follows:

a) By no later than November 15, 2010, Dr. Wilkie must deliver to all parties and file with the Tribunal a written reponse with respect to the applicant’s allegations regarding conflict of interest;

b) By no later than November 30, 2010, the applicant must deliver to all parties and file with the Tribunal her written submissions indicating 1.) whether or not she continues to seek a hearing with respect to the alleged conflict of interest issue, 2.) clarification as to what events she alleges occurred in 2010 and specifically April 10, 2010, and 3.) her position with respect to the Tribunal’s jurisdiction in regards to the personal respondent Freeman;

c) The responding parties may file with the Tribunal and deliver to all parties a response, if any, by no later than December 13, 2010.

11The Tribunal will consider the parties’ submissions, and may determine any of the issues set out above based on the parties’ submissions, and/or may determine and schedule future steps accordingly. If the applicant does not respond as directed, the Tribunal may decide based on the materials already submitted or may dismiss the Application as abandoned.

12I am not seized.