Carlos v. Scher Law Professional Corporation, 2010 HRTO 941

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Carlos Applicant

-and-

Scher Law Professional Corporation, Hugh Scher and Manuel Ferreira Respondents

AND BETWEEN:

Daniel Noronha Applicant

-and-

Scher and DeAngelis Professional Corporation, Hugh Scher and Manuel Ferreira Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: April 29, 2010 Citation: 2010 HRTO 941 Indexed as: Carlos v. Scher Law Professional Corporation

1The applicant, Elizabeth Carlos, has filed an Application (the “Carlos Application”) with the Tribunal alleging reprisal or threat of reprisal contrary to Section 8 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). Specifically, the Carlos Application alleges that while the applicant was preparing for the hearing of an earlier Application she had filed with the Tribunal the respondent Hugh Scher, acted in a manner which constituted a reprisal or a threat of a reprisal. Ms. Carlos claims Mr. Scher’s behaviour impeded her ability to claim and enforce her rights under the Code and to institute and participate in proceedings under the Code contrary to section 8 of the Code. The Carlos Application has not yet been delivered to the responding parties.

2The applicant, Daniel Noronha, has filed an Application (the Noronha Application) with the Tribunal also alleging reprisal or threat of reprisal contrary to Section 8 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) arising out of his having acted as the representative for Ms. Carlos during her earlier Application.

3This Interim Decision addresses a Request for an Order During Proceedings filed by the respondents to dismiss the Carlos’ Application; Ms. Carlos’ Request to remove the numbered corporation as a respondent in the Carlos Application and provides case management directions for a preliminary hearing.

BACKGROUND

4Ms. Carlos filed an earlier Application, Tribunal File Number T-0067-08, alleging sexual harassment and solicitation in housing and naming 1174364 Ontario Ltd. and Manual Ferreira as respondents (the “transition Application”). The respondent Hugh Scher was counsel to the respondents in the transition Application. The respondents Scher Law Professional Corporation and Scher and DeAngelis Professional Corporation are law firms in which Mr. Scher is a partner.

5During the hearing of the transition Application the respondents requested that Mr. Noronha be disqualified as a representative in that proceeding. This Request was denied. The Tribunal dismissed the Transitional Application. See 2009 HRTO 311.

6Mr. Noronha filed an Application Tribunal File Number 2009-01453-I, (the “first Noronha Application”) against the respondent numbered corporation, Mr. Ferreira, Mr. Scher and the Scher law firm alleging reprisal and threats of reprisal arising out of the Request to have him disqualified as a representative. In an Interim Decision 2009 HRTO 935 the Tribunal set the first Noronha Application down for an oral hearing to determine a preliminary issue. Before that hearing could proceed Mr. Noronha requested, and was granted, leave to withdraw the first Noronha Application. See Noronha v. 1174364 Ontario Limited, 2009 HRTO 2054.

7On February 12, 2010 the respondents to the Carlos Application filed a Request for an Order During Proceedings (RFOP) asking that Ms. Carlos and Mr. Noronha be precluded from proceeding with the Carlos Application or any future Application against the respondents or any related party without leave of the Tribunal. The respondents asked that the Application be dismissed on the grounds that it is frivolous and vexatious and brought in bad faith with a view to harassing the respondents and retaliating against them for the decision of the Tribunal to dismiss Ms. Carlos’ transition Application.

8On April 26, 2010 Ms. Carlos e-mailed the Tribunal asking that the Carlos Application be processed together with the Noronha Application and seeking to withdraw her Application as against the respondent numbered corporation.

DECISION

9The Registrar will deliver the Carlos Application to the respondents.

10The request to withdraw as against the respondent numbered corporation is granted given it was made in advance of the delivery of the Application on the respondents.

11The remaining respondents are not required to file full Responses to the Carlos and Noronha Applications until directed to do so by the Tribunal.

12Given the overlap of issues and parties it is most fair, just and expeditious that the Carlos Application and the Noronha Application be processed together.

13The Registrar will schedule the Applications for a preliminary hearing on the following issues

• Should these Applications be dismissed in accordance with s.45.1 of the Code on the basis the first Noronha Application appropriately dealt with the substance of the Applications?

• Does the protection from reprisal in section 8 apply to a party’s representative, and, more particularly, whether the right of a person to “participate in proceedings under this Act… without reprisal or threat of reprisal”, cover the right to be a representative in a proceeding before the Tribunal?

• Does privilege attach to the actions of the respondents during the course of the proceeding before the Tribunal that are alleged to constitute reprisal or the threat of reprisal?

• Should these Applications be dismissed as an abuse of process?

• Does the Tribunal have the authority to declare a person a vexatious litigant and, if so, should such an order be made in respect of either of these applicants?

14The respondents are directed to provide any written submissions and relevant caselaw they wish to rely on at the preliminary hearing to the applicants and the Tribunal no later than 25 days before the scheduled hearing date.

15The applicants may provide their submissions and any caselaw they wish to rely on at the preliminary hearing to the respondents and the Tribunal no later than 15 days before the scheduled hearing date.

16The respondents may deliver any reply within 5 days of receiving the applicants’ submissions to the applicants and the Tribunal.

17I am not seized of this matter.