Mathurin v. Law Society of Upper Canada, 2011 HRTO 1271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Mathurin

Applicant

-and-

Law Society of Upper Canada and Clare Lewis

Respondents

DECISION

Adjudicator: Douglas Sanderson Date: August 31, 2011 Citation: 2011 HRTO 1271 Indexed as: Mathurin v. Law Society of Upper Canada

Appearances

Marie Mathurin, Applicant ) Self-Represented Law Society of Upper Canada ) Owen M. Rees, Counsel and Clare Lewis, Respondents )

INTRODUCTION

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, colour, place of origin, ethnic origin and disability in connection with goods, services and facilities.

2By Case Assessment Direction (“CAD”) dated November 3, 2010, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The Tribunal noted as follows at paragraph 4:

The Applicant does not appear to identify evidence that links the alleged discriminatory treatment on the grounds cited. The applicant makes bare allegations that Mr. Lewis treated her in a manner contrary to the Code when they met to discuss her complaint to the LSUC against her former criminal defence lawyer, and when Mr. Lewis decided to close this complaint.

The Summary Hearing was held by teleconference on June 1, 2011.

Summary Hearings

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the application or part of the application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Background Facts

5The Law Society of Upper Canada (the “Law Society”) regulates the practise of law in Ontario to ensure that lawyers and paralegals meet high standards of learning, competence and professional conduct. Amongst other things, the Law Society investigates complaints of professional misconduct. The office of Complaints Resolution Commissioner is established under the Law Society Act, R.S.O. 1990, c. L.8. The function of the Complaints Resolution Commissioner is to attempt to resolve complaints referred to him or her and to review and, if appropriate, attempt to resolve complaints. The individual respondent, Mr. Lewis, was a Complaints Resolution Commissioner.

6On March 13, 2008, the applicant filed a complaint with the Law Society against her former lawyer, P.S., who had represented her regarding several serious criminal charges. The applicant pleaded guilty and was sentenced to a suspended sentence and 18 months of probation with conditions. One of the Law Society’s Complaints Resolution Counsel investigated the complaint and concluded there was insufficient evidence of professional misconduct to support further proceedings. The Law Society informed the applicant of this decision in writing on February 27, 2009.

7On April 23, 2009, the applicant requested that the Complaints Resolution Commissioner review her complaint. Mr. Lewis conducted the review, which included a formal Complaints Review Meeting with the applicant on November 10, 2009, to consider her complaint. Following the review, Mr. Lewis concluded the available evidence would not support a finding of professional misconduct that merited disciplinary action and the file should remain closed. Mr. Lewis confirmed his conclusion in a detailed letter to the applicant, dated December 16, 2009.

Applicant’s Submissions

8The applicant submitted several allegations that she argued showed discrimination by the respondents. First, the applicant asserted that Mr. Lewis’ conclusion was based on a “doctored file” provided by the Law Society. By this, I took the applicant to mean that someone had included false information in the Law Society’s file regarding her complaint in order to produce a negative result for her. I asked the applicant why she came to this conclusion and she responded to the effect that the file was doctored because the Law Society accepted the submissions of P.S., set out in a letter dated June 1, 2008, over hers.

9Second, the applicant asserted that Mr. Lewis pre-judged her case and communicated his decision to others even before meeting her. The applicant stated that Mr. Lewis communicated his decision to Legal Aid Ontario, her former lawyer, and the Human Rights Tribunal of Ontario. The applicant filed a human rights complaint with the Human Rights Commission against P.S. on March 26, 2008. In response to the human rights complaint, P.S. referred to the applicant’s complaint against him at the Law Society and his expectation that the investigation would conclude in his favour. Accordingly, to the applicant, P.S.’ reference to the Law Society investigation showed that he had knowledge of Mr. Lewis’ decision well in advance of the Complaints Resolution Meeting.

10Third, the applicant alleged that Mr. Lewis treated her disrespectfully at the Complaints Review Meeting on November 10, 2009. In this respect, she stated that a security guard was present during the meeting, Mr. Lewis refused to record the meeting and asked the translator arranged by the applicant (the applicant’s first language is French) to leave the meeting. The applicant stated that he did this to “hide facts” by eliminating a witness. The applicant also stated that Mr. Lewis was not polite to her and did not take her seriously. According to the applicant, Mr. Lewis’ demeanour and body language demonstrated a bias against her. The applicant asserted that as a black person she has a “sixth sense” or can feel when someone is racist.

11Fourth, the applicant stated that Mr. Lewis’ letter to her of December 16, 2009 was offensive and demonstrates discrimination against her. In her view, Mr. Lewis’ decision was wrong on every issue in her complaint. She asserted that Mr. Lewis must have believed that she would not understand his letter because she is a black woman from Haiti in receipt of ODSP benefits. She stated that she may have been treated better if she was a white woman from Eastern Europe.

12Fifth, the applicant states that the Law Society refused to obtain an accurate transcript of her appearance before the Ontario Court of Justice on December 11, 2007, or a recording of that matter. The transcript produced by the Court indicates that the applicant was treated fairly, admitted the facts underlying the charges against her, and pleaded guilty. The applicant asserts that this transcript is a fabrication that does not accurately reflect her court appearance that day. Accordingly, she asked the Law Society to help her obtain either an accurate transcript or a recording of her court appearance. She also states that she asked the Law Society to obtain disclosure from the police, which she stated would support her case. She states that the Law Society did not do this and wrongly accepted the transcript as accurate.

Respondents’ Submissions

13The respondents denied that any part of the Law Society file regarding the applicant’s complaint was “doctored” or improperly altered. The respondents submitted that there is no evidence of any such alteration and the only basis for the applicant’s allegation is that the respondents considered P.S.’ response to her complaint, which is no basis at all.

14Similarly, the respondents submitted that the applicant provided no evidence that Mr. Lewis pre-judged her complaint or communicated anything to other parties before meeting with the applicant. The respondents noted that P.S. appears to have referred to the Law Society investigation process when he responded to the applicant’s human rights complaint against him and that he expected a favourable outcome to that investigation. The respondents submitted that there was nothing in this reference that suggests that P.S. had any advance knowledge of Mr. Lewis’ decision.

15Regarding the Complaints Resolution Meeting, the respondents stated that there is no allegation that Mr. Lewis said or did anything that could be construed as discriminatory. The meeting was formal and perhaps less cordial than the applicant expected, but Mr. Lewis treated her with respect. The applicant’s bald assertion that Mr. Lewis’ body language demonstrated bias against her is insufficient and the respondents state that one cannot “just tell” if someone is racist. The respondents pointed out that Complaints Resolution Meetings are not recorded, but Mr. Lewis permitted the applicant to record their meeting to accommodate her learning disability. The applicant failed to state how the presence of security at the meeting discriminated against her. The respondents did not address the exclusion of the translator in detail, but asserted that Mr. Lewis conducted the meeting fairly and there was no evidence of either disrespectful or discriminatory behaviour.

16As with the allegations of “doctoring the file”, the respondents asserted that the only reason the applicant alleges that Mr. Lewis’ letter of December 16, 2009 is discriminatory is that she disagrees with his conclusions set out therein. The respondents submitted that there was nothing in Mr. Lewis’ decision that would remotely suggest discrimination. The applicant pleaded guilty and the transcript of the Ontario Court of Justice proceeding confirms both the plea and P.S.’ description of the applicant’s court appearance. The respondents stated that they did not have a recording of the applicant’s appearance, but it was not the Law Society’s responsibility to gather evidence for the applicant.

17As noted above, the respondents submitted that it was not their role to gather evidence for the applicant. The respondents also could not, in the context of a complaint to the Law Society, obtain disclosure from the police or Crown for her. The applicant alleges that the transcript of her court appearance was altered, but offered no evidence of such alteration other that her disagreement with the outcome at that appearance.

18Consequently, the respondents submitted that the applicant failed to provide any evidence linking the allegations set out in her Application to a prohibited ground of discrimination; therefore, the Application had no reasonable prospect of success.

Analysis

19The applicant submits that the Law Society “doctored” or improperly altered its file regarding her complaint, which shows discrimination against her. However, as the respondent points out, the only reason she believes the file was “doctored” is that the Law Society considered P.S.’ submission and found in his favour. This amounts to a bald assertion and is not evidence of a breach of the Code.

20Similarly, the foundation for the applicant’s assertion that Mr. Lewis’ decision not to pursue her complaint is evidence of discrimination against her is that she believes his conclusions were wrong. The applicant presented no facts that would indicate that the decision was unreasonable or based on improper or irrelevant considerations. Again, her submissions on this point are no more than a bald assertion and are not evidence of discrimination.

21The applicant offered no evidence that the respondents communicated with Legal Aid Ontario or the Human Rights Tribunal of Ontario regarding her complaint to the Law Society. The applicant believes Mr. Lewis informed P.S. that he would decide in P.S.’ favour before meeting the applicant because P.S. referred to the Law Society complaint and investigation in his response to the applicant’s human rights complaint against him. Specifically, the applicant stated P.S. expressed confidence that he would successfully defend the Law Society complaint. The respondents submit, and I agree, that P.S.’ expression of confidence gives no reason to conclude that Mr. Lewis pre-judged the applicant’s complaint or communicated with P.S.

22The conduct of the Complaints Resolution Meeting may not have been to the applicant’s liking, but the issues she raises regarding the meeting fall short of being evidence of discrimination. The applicant stated Mr. Lewis was not polite or cordial to her, but she did not say how he was impolite or was less than cordial to her and, more importantly, gave no reason, other than a “sixth sense”, for her conclusion that his behaviour was discriminatory. The respondents state that Complaints Resolution Meetings are not recorded and the applicant provided no evidence to suggest that this is untrue or any differential treatment towards her. While the presence of security may have been a source of concern for the applicant, she provided no facts that suggest discrimination was a reason for the decision to have a security guard present. Similarly, having taken the trouble to bring someone to translate for her, I appreciate that removing the translator from the meeting was unwelcome to her. However, she did not explain how removing the translator was discriminatory. For example, she did not suggest that removal of the translator prevented her from understanding and participating meaningfully in the meeting. While the applicant’s first language is French, she communicates effectively in English, both orally and in writing.

23The origins of this Application are found in the criminal case in which P.S. represented the applicant. The transcript of that proceeding indicates that the applicant received fair treatment and achieved a relatively favourable result in exchange for her guilty plea. The respondents came to a similar conclusion in assessing the applicant’s complaint to the Law Society. The applicant denies that she was treated fairly or that she understood the implications of pleading guilty. She asserts that the transcript is a fabrication, a serious allegation. Other than this bald assertion, she does not say how she can prove the falsity of the transcript or why the respondents were wrong to rely upon it. She states that the respondents should have assisted her in obtaining a true transcript or recording of her court appearance as well as disclosure from the police or Crown and asserts that their failure to do so is evidence of discrimination. The respondents pointed out, however, that they do not gather evidence for complainants and have no ability to obtain the disclosure she sought. The applicant provided no facts that suggest that this is untrue or the respondents treated her differently by not assisting her in collecting evidence.

24The Tribunal directed the applicant to explain how she was subjected to discrimination by the respondents and the evidence she would use to establish those allegations. As noted, the Application contained bare allegations of discrimination against the respondents. At the Summary Hearing, however, the applicant largely provided more bare allegations, not evidence, in support of her claim. As discussed above, the evidence or facts the applicant did describe do not link the respondents to a prohibited ground of discrimination. Therefore, I find the Application does not have a reasonable prospect of success.

25The Application is dismissed.