Myrlande Mathurin v. Peter Scully, 2010 HRTO 2340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Myrlande Mathurin

Applicant

-and-

Peter Scully

Respondent

DECISION

Adjudicator: Ailsa Jane Wiggins

Date: November 25, 2010

Citation: 2010 HRTO 2340

Indexed as: Mathurin v. Scully

APPEARANCES BY

Myrlande Mathurin, Applicant ) Self-Represented

Peter Scully, Respondent ) Tak Chan, Representative

Introduction

1This Decision addresses the issue of whether this Application should be dismissed pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), because another proceeding has appropriately dealt with the substance of the Application.

Background

2This Application was filed on June 27, 2009, under section 53(5) of Part VI of the Code. The underlying human rights complaint (the "Complaint") was filed with the Ontario Human Rights Commission on March 26, 2008, and abandoned upon filing this Application with the Tribunal.

3The applicant alleges that the respondent, a lawyer, subjected her to discrimination in the provision of services on the basis of age, colour, race and disability.

4In December 2007, the respondent represented the applicant in a criminal matter.

5On March 13, 2008, the applicant filed a complaint with the Law Society of Upper Canada ("LSUC") alleging, amongst other things, that the respondent made a discriminatory remark about her during the court proceedings.

6By letter dated February 27, 2009, the applicant was advised that the LSUC had completed a review of the respondent's conduct to determine if there was sufficient evidence of professional misconduct "to support further regulatory proceedings" (emphasis added) involving the respondent. The review concluded that there was insufficient evidence and the LSUC closed its file.

7In reviewing the applicant's complaint, the LSUC considered the complaint form she had completed with enclosures; documents she had provided to the LSUC on three subsequent dates; the respondent's response to the LSUC with enclosures; information received from the applicant in three telephone conversations with the LSUC; and the applicant's written comments on the respondent's response, received in two letters with an enclosed transcript of the December 11, 2007 court proceeding and a cassette tape of a telephone call between the applicant and the respondent.

8The LSUC's letter dated February 27, 2009 sets out several sections of the Rules of Professional Conduct, including section 5.04(1) which states that:

A lawyer has a special responsibility to respect the requirements of human rights law in force in Ontario and, specifically to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

9In its letter of February 27, 2009, the LSUC stated that the respondent denied making any discriminatory remarks and that no such remarks can be found in the transcript of the court proceedings. The applicant alleged that the transcript was inaccurate, but the LSUC noted that it was certified by the court reporter as a "true and accurate transcript".

10The LSUC's letter of February 27, 2009, notes that the applicant may ask the LSUC Complaints Resolution Commissioner to review the complaint. By letter dated June 2, 2009, the respondent was advised that the applicant had requested the Complaints Review Commissioner to review the LSUC decision in this matter.

11In his response to the Application the respondent asked the Tribunal to dismiss the Application because the issues in dispute had been appropriately dealt with in another proceeding, the LSUC complaints procedure.

12By letter dated October 29, 2009, the Tribunal asked for submissions with respect to the preliminary issue raised by the respondent and said that if either party wished to make oral submissions they should so advise the Tribunal in writing within 20 days.

13By letter dated November 12, 2009, the applicant requested a hearing to make oral submissions.

14By letter dated December 14, 2009, the Tribunal advised the parties that "a hearing to deal with Preliminary Matters" had been set for April 1, 2010.

Statutory Provision

15Section 45.1 of the Code reads 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.

16Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application. See for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, and Carlos v. 1174364 Ontario, 2008 HRTO 403.

17With regard to the second branch of the section 45.1 analysis, factors for consideration have included whether the Application arises from the same facts that provided the basis for the other proceeding; whether the substance of the issues raised in each forum was substantially the same; and whether the matter raised was "appropriately dealt with" in the other proceeding: Dann v. Coombs, 2009 HRTO 176.

18In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. Among them are:

• that the purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• that the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application;
• that the Tribunal does not act as an appellate court from the decisions of other tribunals and need not be satisfied that it would have reached the same conclusion as that reached in the other forum, and;
• that the other Tribunal need not be directly applying the Code so long as it is considering human rights principles, which may be applied through a different statutory framework.

19In applying section 45.1, the principal concern is whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject-matter of the Application: LeBlanc v. Honda of Canada, 2010 HRTO 2048.

Submissions of the Parties

20At the preliminary hearing the applicant, who was unrepresented, stated that she thought that the purpose of the hearing was to decide her case on the merits. Further to the notice of hearing sent to the parties, I explained that the purpose of the hearing was to determine if the Application should be dismissed in accordance with section 45.1. The applicant then said that she had filled in an LSUC complaint form, that she had no hearing before the LSUC and that the matter had not been dealt with appropriately.

21The respondent's representative maintained that the complaint to the LSUC was identical in substance to the applicant's human rights Complaint and that the finding of the LSUC should be relied upon by the Tribunal. He produced a letter from the LSUC dated March 2, 2010, indicating that the Complaint Review Commissioner found that the LSUC's consideration of the complaint and the decision to take no further action was reasonable and that the matter remained closed.

22As neither party came prepared to discuss the two distinct questions regarding the application of section 45.1: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application, I gave the parties the opportunity to make further written submissions.

23The applicant's submission dated April 13, 2010, did not address the questions referred to above. Her four-page letter to the Tribunal, copied to the respondent, contains many inappropriate remarks about the respondent. While it is understandable that an unrepresented applicant may have difficulty making a submission on a legal issue, it is not acceptable for a party to use uncivil language in a submission to the Tribunal and other parties.

24In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913, the Tribunal stated as follows:

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal's process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party's submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

25The respondent's submission dated April 9, 2010 maintains, without citing any case law on the topic, that the LSUC's complaint process is a "proceeding" and that it "appropriately dealt with the substance of the application".

DECISION

Was there a proceeding for the purposes of section 45.1?

26The LSUC regulates Ontario lawyers and licensed paralegals. It receives and responds to complaints from members of the public about lawyers and licensed paralegals. It reviews and assesses every complaint, but not all complaints proceed to a hearing. Complainants who disagree with a decision to close a complaint file may ask the Complaints Resolution Commissioner for a review. In such case an impartial review of the LSUC's decision is conducted by the Office of the Complaints Resolution Commissioner. Under section 49.19 of the Law Society Act, R.S.O. 1990, c. L.8, a decision of the Commissioner is final and is not subject to appeal.

27This is not a case where another proceeding could have but did not deal with the subject-matter of the application. The applicant's complaint to the LSUC was investigated as part of a statutory dispute resolution process. Her complaint did not proceed to a hearing because the LSUC found that there was insufficient evidence to hold a hearing on the matter.

28In my view, a complaint or dispute resolution process of the type described above may be a "proceeding" under section 45.1 even if there is no hearing, if the reason that a hearing is not held is because there is insufficient evidence upon which to hold a hearing.

29Qiu v. Neilson, 2009 HRTO 2187, involved a police complaints investigation process similar to the LSUC complaints process. The applicant in that case filed a complaint with the Ontario Civilian Commission on Police Services. The investigator concluded that there was insufficient evidence to substantiate the applicant's complaint. A review requested by the applicant confirmed the investigator's decision and found that there were not sufficient grounds to warrant further action. The Tribunal found that in the particular circumstances of that case, the investigation and subsequent review did constitute a "proceeding" within the meaning of section 45.1 of the Code.

30I am satisfied that the LSUC complaint process is a "proceeding" for the purposes of section 45.1 of the Code, even if the matter does not proceed to a hearing. In making this finding I have considered and relied upon the following factors: the applicant fully participated in the LSUC investigation process and provided the LSUC with information and documents; the LSUC considered the applicant's completed complaint form and enclosures, the documents she provided to the LSUC, the respondent's response to the LSUC with enclosures, information received from the applicant in telephone conversations with the LSUC, the applicant's written comments on the respondent's response, as well as the transcript of the December 11, 2007 court proceeding and a cassette tape of a telephone call between the applicant and the respondent; the applicant sought a review by the LSUC Complaints Resolution Commissioner; and an impartial review of the LSUC's decision was conducted by the Commissioner prior to the Commissioner's decision that the LSUC's consideration of the complaint and the decision to take no further action was reasonable.

Did the LSUC appropriately deal with the subject-matter of the Application?

31The subject-matter of the applicant's complaint to the LSUC is identical to the subject-matter of her Application. The LSUC conducted a thorough investigation of her allegations and concluded that there was insufficient evidence to proceed to a hearing. In light of these factors, I find that the LSUC proceeding dealt appropriately with the subject-matter of this Application.

32For these reasons the Application is dismissed.