Marek Chuchala v. Jan Szmidt, 2010 HRTO 2545

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marek Chuchala

Applicant

-and-

Jan Szmidt

Respondent

DECISION

Adjudicator: Naomi Overend

Date: December 30, 2010

Citation: 2010 HRTO 2545

Indexed as: Chuchala v. Szmidt

Appearances by

Marek Chuchala, Applicant ) Self-represented

Jan Szmidt, Respondent ) Lorne Jackson, Counsel

1This Decision deals with the applicant’s multiple Requests for Order During Proceeding (Form 10). In addition, it deals with whether the allegations in the Application are within the jurisdiction of the Tribunal.

2An oral hearing was held on May 6, 2010 to address a number of these preliminary matters, including the issue of jurisdiction. Subsequent to that hearing, the Tribunal requested that the parties file written submissions on the question of absolute privilege, as well as on the three Requests for Order filed by the applicant after the May 6, 2010 hearing.

BACKGROUND

3The applicant filed his Application on July 20, 2009 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of services on the basis of disability. The Application named Szmidt Counselling & Interpreting (“SC&I”) as the respondent, with Jan Szmidt as the contact person for SC&I. . The applicant alleges that he retained the respondent to represent him with respect to a Workplace Safety and Insurance Board (“WSIB”) claim.

4A day before SC&I filed its Response, it filed a Statement of Claim against the applicant for slander and defamation. The Claim, which was dated October 14, 2009, was referenced and attached to the Response. Upon receipt of that Response, the applicant filed his first Request for Order During Proceedings (“RFOP”) in which he made a request to amend his Application to include reprisal or threat of reprisal as a ground of discrimination.

5The Tribunal issued a Case Assessment Direction which states that it was not clear what the applicant was alleging, but that it appeared his allegations were not within the jurisdiction of the Tribunal. It directed that a Case Management Hearing would be held to allow (1) the applicant to clarify his allegations; (2) the parties to make submissions on the issue of jurisdiction; and (3) the parties to make submissions on the applicant’s request to amend his Application to include the ground of reprisal.

6Prior to the Case Management Hearing, the applicant submitted another RFOP requesting that Jan Szmidt replace SC&I as the respondent to this proceeding. The parties were advised that the parties could make submissions concerning this at the upcoming hearing.

7In the months following the Case Management Hearing, the applicant filed three additional RFOPs. The first RFOP requested an order that I not receive the respondent’s documents or witnesses because the respondent had failed to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure. The second RFOP requested summary judgment. The third and final RFOP requested an amendment to the Application to add the Workplace Safety and Insurance Board as a party to this proceeding, and to alter the relief requested.

8The Tribunal issued a second Case Assessment Direction on October 20, 2010 directing the parties to provide written submissions on these subsequent RFOPs as well as submissions on the issue of absolute privilege.

REQUEST TO NAME JAN SZMIDT IN PLACE OF SC&I

9It would appear that the applicant signed no formal retainer with SC&I, and that all his dealings were directly with Jan Szmidt. It is not clear whether SC&I is even a separate legal entity from Mr. Szmidt. There is, accordingly, no compelling reason to continue against SC&I and not against Mr. Szmidt. The respondent did not make any submissions in opposition to this request, and it is, therefore, granted. Szmidt Counselling & Interpreting is removed as the named respondent and Jan Szmidt is substituted as the respondent to this Application.

REQUEST TO ADD REPRISAL AS A GROUND

10The applicant’s request to add reprisal as a ground is based solely on the respondent’s decision to initiate a claim against him for slander and defamation. However, pleadings filed in a court are protected by the doctrine of absolute privilege: Ornelas v. Casamici Restaurant, 2010 HRTO 1078, 1522491 Ontario Inc. v Stewart, Esten Professional Corp, 2010 ONSC 727 (Div.Ct.). Accordingly, the pleading filed by the respondent cannot constitute a reprisal. That being said, there is no basis for adding reprisal and the applicant’s request to do so is denied.

REQUEST TO ADD WSIB AS A RESPONDENT

11The applicant alleges that the WSIB representative assigned to his case discussed his case with Jan Szmidt, even though she was aware that he was not the applicant’s representative. He also alleges that this representative wanted the applicant to retain Mr. Szmidt because they she had a pre-existing friendly relationship with Mr. Szmidt. This is the basis for the applicant’s request to add the WSIB as a respondent to this proceeding.

12As correctly pointed out by the WSIB in its Response to the Request for Order (Form 11), the WSIB “could not be found to have violated the Code even if the applicant establishes his allegations as true.” In the absence of any allegation of discrimination, there is no basis for adding the WSIB as a respondent to this proceeding and the applicant’s request to do so is denied.

JURISDICTION OF THE TRIBUNAL TO DEAL WITH THE APPLICATION

13The facts set out in the original Application can be summarized as follows

• A WSIB representative advised the applicant in July 2008 that Mr. Szmidt had not submitted correspondence to it on the applicant’s behalf in 2006 and 2007, although the applicant had copies of the purported correspondence to the WSIB. The WSIB representative further indicated that she was unaware of Mr. Szmidt and that he had not filed any Authorization indicating his representation of the applicant;
• Mr. Szmidt submitted an Authorization with the WSIB indicating that he was the applicant’s representative on July 25, 2008, which contained incorrect information that the applicant did not understand. Moreover it was subsequently rejected by the WSIB;
• Mr. Szmidt held himself out to be a lawyer with the SMP law firm to the applicant, even though he was not a lawyer
• Mr. Szmidt failed to provide the applicant with his licensing status unless the applicant paid him $2,000.00
• Mr. Szmidt provided the applicant with $55 as a pre-payment, in order to obtain the applicant’s cooperation in a “financial fraud” on the WSIB.

14The applicant makes the assertion that he was treated “differently” from other people by Mr. Szmidt. He also asserts that “Jan Szmidt treated me not as his disabled client but as the partner to his “financial fraud”.”

15The applicant is, in essence, arguing that because he has a disability, he is able to make out a case of discrimination by simply demonstrating that the respondent treated him badly. However, the Code requires that the discrimination be linked to one of the prohibited grounds. That is, the applicant must allege that he was discriminated against because of his disability.

16None of the allegations in the Application make such a link. The applicant alleges the respondent acted in a negligent and/or fraudulent manner, but does not allege that the respondent discriminated against him. Accordingly, the allegations in the Application are outside the jurisdiction of the Tribunal.

ORDER

17For the reasons provided above, I make the following orders:

a. Szmidt Counselling & Interpreting is removed as the named respondent and Jan Szmidt is added as respondent to this Application;

b. The request to amend the Application to add the ground of reprisal is denied;

c. The request to amend the Application to add the WSIB as a respondent is denied; and

d. The Application is dismissed.

18Given the dismissal of the Application, it is unnecessary to address the applicant’s remaining requests for order.