HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Katherine Jaconello
Applicant
-and-
Thomas Unger and Farah Malik
Respondents
And between:
Katherine Jaconello
Applicant
-and-
Lenczner Slaght Royce Smith Griffin LLP and Farah Malik
Respondents
And between:
Katherine Jaconello
Applicant
-and-
Law Society of Upper Canada
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Jaconello v. Unger
1These are three Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in services on the basis of creed. Tribunal File 2009-02586-I is an Application filed on June 10, 2009 against the respondents Thomas Unger and Farah Malik (“the Unger Application”). Tribunal File 2009-03102-I is an Application filed on July 31, 2009 against the respondents Ms Malik and her law firm (“the Malik Application”). Tribunal File 2009-03103-I is an Application filed August 4, 2009 against the Law Society of Upper Canada (the “LSUC Application”).
2The purpose of this Interim Decision is to address the question of the Tribunal’s jurisdiction to hear these matters and to provide directions regarding further processing. Given that the Applications arise out of the same factual background, I find it appropriate to address the preliminary issues in all three Applications together.
BACKGROUND
3On June 21, 2006, the applicant filed a complaint with the College of Physicians and Surgeons of Ontario (the College) about comments made by Dr. Unger in an article in a medical publication (the “complaint”). The Application does not suggest that Dr. Unger was the applicant’s physician, but rather that her complaint was based soley on the applicant’s having read Dr. Unger’s article and been concerned about the view expressed therein. The “comments” are not part of the Applications filed at the Tribunal. Rather, the Applications arise out of how the applicant was allegedly treated in the subsequent proceeding about the complaint when it was investigated and ultimately reviewed by the Health Professions Appeal and Review Board (the “Board”) and in her subsequent complaint to the Law Society of Upper Canada about Ms Malik’s conduct before the Board.
4The applicant alleges that, in June 2007, Dr. Unger made a comment about her religious beliefs during the College’s investigation of her complaint in an effort to discredit her complaint. Further, the applicant alleges that on June 12, 2008, during the course of the Board proceeding, Dr. Unger had Ms Malik refer to the applicant’s religious beliefs again in an effort to discredit her complaint. The applicant subsequently filed a complaint with the Law Society of Upper Canada about Ms. Malik’s conduct including the alleged violation of her human rights during the proceeding. On July 29, 2008, the LSUC concluded that the matter complained of was not something that it could deal with as it can only act on complaints that provide information suggesting a lawyer has done something contrary to its Rules of Professional Conduct. The Application against the LSUC alleges that the applicant’s rights were violated by their response to her complaint since they “supported her human rights violation and did nothing to mitigate this transgression”.
6On February 12, 2009, the Tribunal issued a Notice of Intent to Dismiss against certain respondents and sought submissions as follows:
The Tribunal has reviewed your Applications. It appears the Applications as against certain respondents are outside the Tribunal’s jurisdiction because:
The respondents Farah Malik and Lenczner Slaght Royce Smith Griffin LLP appear to have been the lawyers for the respondent Thomas Unger in the proceeding before the College of Physicians and Surgeons and the Health Professions Review Board. The Tribunal has stated that the relationship between a lawyer and an opposing party is not covered by the Code: Belso v. York Region Police, 2009-HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390.
Your Application against the Law Society of Upper Canada does not identify any connection between the refusal to investigate the complaint against Ms. Malik and discrimination on the basis of creed.
In addition you are asked to provide submissions on whether the proceeding before the Health Professions Review Board appropriately dealt with the substance of your application against Dr. Unger [sic] within the meaning of s. 45.1 of the Code.
7On March 9, 2010, the applicant filed submissions. The applicant argues that her complaint should stand against the respondent Malik and her firm because the matter of a person’s religion cannot be used by anyone to discredit them. With respect to her complaint against the LSUC, the applicant argues that the LSUC upheld the attack on her religion by “these lawyers and this law firm” and that that is a human rights violation and “shirking responsibility”. With respect to the proceeding before the Health Professions Review Board, the applicant argues that it did not appropriately deal with the substance since they did not address Dr. Unger’s attack on her religion.
The Application against Malik and the Law Firm
8Section 1 of the Code prohibits discrimination in services, goods and facilities on certain prohibited grounds including creed. In order to proceed with her Application against the respondents, Malik and the law firm, the applicant must demonstrate that she is in a services relationship with the respondents.
9In other cases addressing the relationship between a lawyer and an opposing party, the Tribunal has held that the relationship does not fall within the ambit of services covered by the Code (See: Cooper v. Pinkofskys, 2008 HRTO 390; Belso v. York Region Police, 2009 HRTO 757). In Cooper (where a witness for the Crown alleged that defence counsel discriminated against him in respect of services), the Tribunal provided the following rationale for its conclusion at para 11:
Applying the above principles to this Application, unlike the situation in Hogan and Braithwaite, the cases cited by the applicant in support of his argument, defence counsel is neither providing services to a larger public of which the applicant is a member nor is there a direct service relationship between defence counsel and a Crown witness. Rather, the role of defence counsel at a criminal trial puts that counsel into an adversarial position with all prosecution witnesses called by the Crown in order to secure a conviction of that counsel’s client. Even applying a large, liberal and purposive interpretation of the Code, it cannot be said that defence counsel is providing services to or is in a service relationship with an adverse witness, given the duty of that counsel to fully and fearlessly advance the interests of his client. In no way are the “services” provided by the defence counsel of benefit or of assistance to the prosecution witness. (See also: Crawford v. 2176534 Ontario, 2009 HRTO 1028)
11In my view, these principles apply in this case and result in a finding that the allegations against the respondents Malik and the named law firm are not within the jurisdiction of the Tribunal. I find that in providing legal representation to Dr. Unger and in allegedly making certain comments, the respondent Malik and the law firm were not in a service relationship with the applicant and therefore do not fall within the jurisdiction of the Code. The Application filed against the respondents Malik and the law firm is therefore dismissed.
The Application against the Respondent Unger
12Upon a review of the applicant’s allegations, I find there is an issue as to whether the Tribunal has jurisdiction to hear the Application filed against the respondent, Dr. Unger, on the basis of whether the allegations engage a social area of the Code.
13The Tribunal’s jurisdiction is limited to the social areas, grounds and categories of discrimination set out in the Code. As the applicant has based her Application against Dr. Unger on section 1 (discrimination in services, goods and facilities), she must be able to demonstrate that the discrimination arose out of a services relationship with Dr. Unger.
14Having regard to the nature of the applicant’s allegations against Dr. Unger, it is not apparent how the allegations fall within the ambit of the Code. Based on the material filed, it appears that the applicant relies on Dr. Unger’s conduct arising out of the course of her complaint about him at the College. The applicant is asked to provide submissions as to how these allegations about Dr. Unger raise matters which the Tribunal has the power to decide. In particular, the applicant should explain how her complaint about Dr. Unger’s comments during the College’s investigation amounts to discrimination in respect of goods, services and facilities.
15The applicant’s submissions should be filed with the Tribunal in accordance with the Rules within 14 days of receiving this Interim Decision.
The Application against the LSUC
16Based on the material filed and the submissions received, I find that there are no allegations against the LSUC which are within the Tribunal’s jurisdiction to decide.
17Assuming for purposes of this decision that the LSUC provides a service to the applicant, there is nothing referenced in the Application and the submissions made that establishes a connection between the LSUC’s decision to not deal with her complaint and discrimination based on creed. While she argues that by not dealing with her complaint, the LSUC “upheld” the attack on her religion, there is no allegation that her creed was a factor in how the LSUC dealt with her complaint. The applicant essentially disagrees with the decision of the LSUC not to investigate her complaint.
18The mere fact that the LSUC did not investigate the applicant’s complaint is not a basis for a claim that it has violated the applicant’s rights under the Code. The Tribunal does not have a general power to inquire into the rightness or fairness of decisions made by the LSUC. Its jurisdiction is based on the Code, which prohibits discrimination on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability. I find that the allegations against the LSUC do not raise issues covered by the Code.
19The Application against the LSUC is therefore dismissed.
Next Steps
20Following receipt of the applicant’s submissions on the Application filed against Dr. Unger, the Tribunal may decide the issue of its jurisdiction to hear the matter or make further directions as to the processing of this Application. If the applicant does not file written submissions within the required time, the Application may be dismissed as abandoned.
21The section 45.1 issue remains outstanding and will be dealt with if necessary if this matter proceeds.
22I am not seized.
Dated at Toronto, this 9th day of April, 2010.
“Signed By”
Kathleen Martin
Vice-chair