Mathurin v. Legal Aid Ontario, 2011 HRTO 1740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Mathurin Applicant

-and-

Legal Aid Ontario, Linda Hall and Sean Noble Respondents

DECISION

Adjudicator: Douglas Sanderson Date: September 21, 2011 Citation: 2011 HRTO 1740 Indexed as: Mathurin v. Legal Aid Ontario

Appearances

Marie Mathurin, Applicant: Self-represented Legal Aid Ontario, Linda Hall and Sean Noble, Respondents: Tracy A. Pratt, Counsel

INTRODUCTION

1This is an Application filed on January 15, 2010 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, place of origin, ethnic origin, disability and reprisal or threat of reprisal in connection with goods, services and facilities. The applicant identifies herself as a black woman from Haiti who has a learning disability.

2The respondents made a Request for Summary Hearing, pursuant to Rule 19A, (the “Request”) which the Tribunal received on July 21, 2010. The respondents assert the Application does not establish a prima facie case of discrimination and has no reasonable prospect of success. The respondents also requested the Tribunal dismiss one aspect of the Application because it had been dealt with by another proceeding, pursuant to section 45.1 of the Code. The applicant filed a Response to a Request for an Order (Form 11) opposing the Request on September 21, 2010 (the “Response”). By Case Assessment Direction (“CAD”) dated October 12, 2010, the Tribunal granted the Request. The Tribunal noted as follows at paragraphs 2 and 3:

The Tribunal will schedule a ½ day summary hearing by teleconference, and the applicant shall make her submissions first. She shall also be prepared to address all of the issues raised by the respondents in the Request they have filed with the Tribunal, including whether the Application ought to be dismissed pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

A notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 7 days prior to the teleconference.

The Tribunal first scheduled the Summary Hearing on January 24, 2011. The applicant made a timely request to postpone the Summary Hearing for disability related reasons, supported by medical evidence. The respondents did not oppose the request and the Tribunal granted the request to postpone the hearing, see 2010 HRTO 2547. The Tribunal re-scheduled the Summary hearing for July 14, 2011 and the hearing proceeded on that date.

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 Legal Aid Services Act, 1998, S.O. 1998, Chap. 26 (the “Act”) is the statutory scheme for providing legal aid services for low income individuals and disadvantaged communities across Ontario. Legal Aid Ontario is a Corporation created under the Act with the following purposes set out in section 4:

4. The objects of the Corporation are,

(a) to establish and administer a cost-effective and efficient system for providing high quality legal aid services to low-income individuals in Ontario;

(b) to establish policies and priorities for the provision of legal aid services based on its financial resources;

(c) to facilitate co-ordination among the different methods by which legal aid services are provided;

(d) to monitor and supervise legal aid services provided by clinics and other entities funded by the Corporation;

(e) to co-ordinate services with other aspects of the justice system and with community services;

(f) to advise the Attorney General on all aspects of legal aid services in Ontario, including any features of the justice system that affect or may affect the demand for or quality of legal aid services.

6LAO provides legal aid services in criminal law matters by issuing legal aid certificates to individuals. Upon receipt of a legal aid certificate, the recipient may choose any private lawyer who is a member of the LAO Criminal Law Panel. Members of the Criminal Law Panel must have the qualifications and experience to represent clients in criminal law matters. LAO maintains the Criminal Law Panel and issues legal aid certificates in appropriate cases. LAO does not choose lawyers for legal aid recipients.

7On September 27, 2007, the applicant was charged with several fairly serious criminal charges. On October 3, 2007, the applicant applied for a legal aid certificate and, as she met the applicable criteria, LAO issued a certificate to her. The applicant retained P.S. to represent her. On December 11, 2007, the applicant appeared in Court with P.S. and pleaded guilty to the charges. The applicant received a suspended sentence and eighteen months of probation with conditions. Accordingly, the applicant was not incarcerated.

8On February 28, 2008, the applicant applied to LAO for another legal aid certificate. LAO understood that the applicant sought this second certificate to appeal her conviction resulting from her guilty plea. However, LAO’s policy regarding criminal appeals indicates that “The area committee should not provide coverage where the applicant has received a non-custodial sentence or a conditional sentence.” Consequently, the LAO area committee declined the application and communicated this decision to the applicant in a letter dated March 17, 2008. The applicant appealed the decision to Linda Hall, LAO’s Director, Appeals, which was denied on April 7, 2008. In August 2008, the applicant sought reconsideration of the decision, which was denied on December 3, 2009.

9On May 28, 2009, the applicant requested a copy of her complete LAO file. On June 22, 2009, LAO sent the applicant a copy of her file. The applicant apparently had sought legal aid on other matters and LAO included copies of the documents on file regarding these matters as well as the criminal matter. The cover letter, dated June 22, 2009 was on the letterhead of Robert Ward, LAO President and CEO. The applicant complained to the Information and Privacy Commissioner of Ontario (the “IPC”) on August 25, 2009. In the letter setting out the complaint, the applicant alleged that LAO and Mr. Ward knew that her request was in respect of her criminal case only and used her request to review her entire file in order to share her personal information with P.S. who she described as Mr. Ward’s “business partner”. Further, the applicant alleged that Mr. Ward withdrew information from her file that would have assisted her in her “appeal at the Superior Court of Justice” and in proceedings against P.S. In particular, the applicant believed that Mr. Ward removed some of the notes taken by Sean Noble during the application intake interview with the applicant on October 3, 2007. The applicant stated that she informed Mr. Noble that she was not guilty during her intake interview, but there was no reference to this statement in the file. She also alleged that Mr. Noble advised her that P.S. was a good lawyer. On October 30, 2009, LAO again sent the notes prepared by Mr. Noble and on November 4, 2009 the IPC informed the applicant that her concerns had been adequately addressed and the file was closed.

Procedural Matters

10As noted above, the Tribunal directed the parties to deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 7 days prior to the teleconference. On July 8, 2011, the respondent filed and delivered to the applicant the case law upon which it intended to rely at the hearing. The applicant filed documents and submissions in advance of the hearing on July 8, 11 and 13, 2011. The applicant also purported to file additional submissions on the day of the hearing, July 14, 2011 (received by the Tribunal after the commencement of the hearing and not available to me) and the Tribunal received additional submissions from her on July 20, 28, August, 2, 12, 17, and 29, 2011. At the hearing, respondents’ counsel, Ms. Pratt, advised that she received the applicant’s submission of July 14, 2011 shortly before the start of the hearing and had not had the opportunity to review them. The applicant advised that she intended to file and deliver further submissions after the Summary Hearing, which, as noted, she did.

11I reminded the applicant that she had been aware of the issues raised in the Request for Summary Hearing for approximately a year, as the respondents filed their Request on July 21, 2010, along with the respondent’s supporting documents. The Tribunal ordered a Summary Hearing in the matter requiring her to address those issues on October 12, 2010. Further, the Tribunal directed the parties to deliver and file the documents and cases seven days before the hearing on July 14, 2011. In the circumstances, I indicated that the applicant had had ample time to prepare her submissions and that it would not be fair to the respondents if I allowed her to rely on submissions that they had not reviewed and to which they could not respond. Consequently, I warned the applicant that I likely would not consider her submissions filed on July 14, 2011 or any subsequent submissions.

12The applicant explained that her disability, which includes a learning disability, caused her difficulty in preparing her submissions and explained the late delivery of some of her materials. In a cover letter to her submissions of July 20^th, the applicant asks the Tribunal to accept her late submissions because of her disability and because the later version of her submissions is the one she intends to make public. She also noted that her late submission contained “nothing new” and that “everything is already in Mathurin’s Complaint file documentation…” In an Interim Decision in this matter, 2010 HRTO 2547, the Tribunal accepted the applicant’s disability as the basis for granting her request to postpone the Summary Hearing from the original date of January 25, 2011 to well beyond the 12 week period in which the Tribunal normally requires postponed hearings to be scheduled. Accordingly, the Tribunal has accommodated the applicant with a lengthy postponement and, unlike the postponement request, there is no medical evidence indicating that she was unable to complete and file her submissions in a timely manner.

13I do not doubt the applicant’s disability made responding to the Request for Summary Hearing more difficult for her, but I am not convinced that she could not comply with disclosure requirements set out in the CAD of October 12, 2010. In my view, allowing the applicant to rely on material to which the respondents had no opportunity to respond is also manifestly unfair. Accordingly, in rendering my decision I have considered only materials submitted by the applicant prior to July 14, 2011.

Applicant’s Submissions

14The applicant made several submissions in response to the Request. The first related to the respondents’ use of the transcript of the criminal proceedings on December 11, 2007. Both in their Response and the Request, the respondents referred to the criminal charges laid against the applicant and her guilty plea. The respondents included a copy of the transcript of the criminal proceeding with their Response. The applicant asserts that the transcript reproduced by the respondents is “doctored” because it does not accurately reflect the events in Court that day. Rather, the applicant appears to allege that the Court, P.S. and Crown counsel conspired to produce a transcript that omitted improper or unfair conduct that led to her pleading guilty. The applicant asserts that she informed the respondents that the transcript was not accurate. Nonetheless, they persisted in relying on the transcript, which the applicant states is discriminatory. The applicant stated that relying on the transcript was related to the Code because the respondents accepted the validity of the document over her word, which was disrespectful to her.

15The applicant asserted that she was subject to gender discrimination because of comments made P.S. and M.L., one of the Crown prosecutors present, at the commencement of proceedings on December 11, 2007. Both a federal and a provincial crown prosecutor was present because of the nature of the charges against her. The exchange was as follows:

M.L: Let’s deal with…

THE COURT: Ms. Mathurin?

M.L.: Yes.

P.S.: Yes.

M.L.: All right…

P.S.: Good afternoon, sir

THE COURT: Ms. Mathurin, would you come before the court, please?

M.L.: Your Honour, you’re going to get two powerful Crowns dealing with the Mathurin matter.

THE COURT: Well, we have two powerful Crowns and a powerful defence lawyer too, so…

P.S.: Well, there you go.

M.L.: I know.

THE COURT: Come on forward, please ma’am, a little closer. What is the name?

M.L.: This is – what to they call it in horseracing – the tri facta?

THE COURT: Okay, Mr. S, this is Myrlande Mathurin?

P.S.: As long as I am the thoroughbred, not the gelding, I think.

The applicant explained that M.L.’s reference to a trifecta, which is a kind of bet made on horseracing, indicated that he and the other parties to the exchange set out above already knew the outcome of the proceedings. According to the applicant, a gelding (a castrated male horse) is the equivalent to a woman and would be the loser in the race. The applicant therefore submits that the gelding to which P.S. referred was her. The applicant argued that this exchange was a derogatory reference to her gender and that the respondents discriminated against her because of sex for submitting the transcript with their Response.

16The applicant’s next submission related to the production of her LAO file. The applicant stated that she requested the file because she believed it contained information that would assist her in other proceedings. As noted in paragraph 9, applicant again stated that she believes the respondents “doctored” this file by removing information she believes would be helpful to her and potentially damaging to the respondents and P.S. with whom the applicant believes the respondents are conspiring. The applicant also alleged that the respondents also included inappropriate information in the file, including a reference to crack cocaine and notes of statements attributed to her on a form dated March 31, 2004 regarding her appeal of LAO decision not to assist her with a landlord / tenant issue. The statements were as follows: “I suffer brain damage” and “I’m not sure I can cope”. The applicant also alleges that the respondents included a notation “bad info in EN”, which she submitted meant “bad info in English”. The applicant believed the notations where in Ms. Hall’s handwriting. The applicant also pointed to the fact that LAO had used an inaccurate mailing address for her. The applicant submitted that “doctoring” her LAO file in this way demonstrates discrimination because of disability because the respondents thought she would not notice what they had done because she used crack cocaine, has low proficiency in the English language and suffered from brain damage. Further, the applicant asserted that crack cocaine is a drug mostly used by poor black people. Therefore, the applicant submitted that the reference to crack cocaine also showed discrimination because of race, colour and ethnic origin.

17The applicant asserted in her written submissions and during the hearing that the Application was not about LAO’s decision to deny her a second legal aid certificate to appeal her conviction. Rather, she sought further assistance from LAO to re-open her case in order to clear her name. The applicant pointed out that she clarified her position to LAO in a Notice to Appeal to the Provincial Office, dated March 28, 2008, which the applicant included with her submissions. In the Notice to Appeal she stated that she wished to re-open her case because her lawyer, P.S., has tricked her into pleading guilty and did not represent her properly. The applicant also asserts in her written and oral submissions that P.S., the Crown prosecutor and the Court tricked her into pleading guilty, against her wishes. According to the applicant, the transcript of her guilty plea was amended to omit this inappropriate conduct and give the impression she received fair and proper treatment. Accordingly, the applicant sought a second legal aid certificate in order to retain a lawyer to assist her in proving this alleged injustice, to find out what is on record about her and to uncover LAO misconduct. The applicant stated the respondents refused to grant her a second legal aid certificate to block her from addressing this situation, which the applicant asserted was systemic discrimination. The applicant submitted that the respondents discriminated against because she is black, disabled and stupid – a “nonsense person”.

18The applicant filed a complaint to the Law Society of Upper Canada and a human rights complaint with the Ontario Human Rights Commission against P.S. on March 13, 2008 and June 27, 2009, respectively. The applicant asserts that the respondents refused to grant her a second legal aid certificate and “doctored” her file to protect P.S. in those proceedings. The applicant therefore submitted that the respondents committed a reprisal against her for exercising her rights under the Code and before the Law Society of Upper Canada. Further, the applicant asserts that this alleged behaviour was a reprisal against her for wishing to “…come out in the open and finding what was wrong with the whole questionable picture she saw at LAO and with their business partners…” In addition to alleging the respondents improperly altered her legal aid file, the applicant takes issue with the cover letter from Mr. Ward of June 22, 2009 that accompanied her file. In the letter, Mr. Ward described the contents of the enclosure and stated “No exemptions have been made from this material.” The applicant stated the letter was offensive and evidence of both discrimination and reprisal against her.

19The applicant’s position regarding whether another proceeding has appropriately dealt with the substance of the Application is set out in her Response. The applicant did not address whether the process followed by the IPC following her complaint was a proceeding for the purposes of section 45.1 of the Code. The applicant’s submissions in this regard largely repeat her allegations against LAO and Ms. Hall regarding the disclosure of her legal aid file and the alleged alteration of it. The applicant does submit, however, that the Application concerns human rights issues whereas the IPC process related to information and privacy issues. I take this to mean that the applicant does not consider the IPC process to have dealt appropriately with the substance of her Application.

Respondent’s Submissions

20Ms. Pratt began the respondents’ submissions by noting that the applicant is clearly of the view that she has been wronged by the criminal justice system, including the presiding judge, the Law Society of Upper Canada, the IPC and Legal Aid Ontario and its employees. The respondents noted that based on the applicant’s written materials and oral submissions her main complaint is the conduct and outcome of the criminal court proceedings of December 11, 2007. While the respondents appreciate the applicant is upset and hurt by what transpired in Court that day, they point out that no one from LAO was present during her appearance and neither LAO nor any of its employees had anything to do with the transcript produced by the Court. LAO’s only role in the matter was to provide the applicant with a legal aid certificate in order to obtain legal representation. Therefore, there is no conduct, discriminatory or otherwise, related to her court appearance and guilty plea that could be attributed to the respondents. Reliance on a transcript produced by the Court is no grounds for discrimination and the respondents deny they drew any conclusion because of what happened in Court or otherwise. In particular, there was no statement, in writing or orally, by any respondent to the effect that the applicant is stupid or any other express derogatory statement.

21The respondents noted that the applicant bears the onus of establishing a prima facie case of discrimination or that the Application has a reasonable prospect of success. The alleged acts of discrimination appeared to be: 1) LAO did not provide an appeal certificate to the applicant, 2) LAO “doctored” or improperly altered its file regarding the applicant and 3) LAO did not follow instructions regarding her file and did not provide her with the information she requested. The respondents pointed out that the applicant cited several grounds of discrimination and the Application and her submissions in response to the Request for Summary Hearing consist largely of general statements alleging systemic discrimination without particulars. Moreover, these statements either have no connection to a prohibited ground of discrimination or are bald statements disclosing no facts that would support allegations of discrimination, or both.

22The respondents also noted that the applicant also asserts that the respondents somehow share responsibility for the conduct of the criminal law proceedings that resulted in her pleading guilty, which she considers to have been conducted in a highly inappropriate manner. The applicant effectively accuses the respondents of involvement in some kind of conspiracy between P.S. and the Crown prosecutor to ensure her conviction and to cover up this misconduct by falsifying the transcript and protecting P.S. from allegations of professional misconduct. The respondents submit there is no evidence to support any of these allegations. LAO’s only involvement in the applicant’s criminal matter was to provide a legal aid certificate to allow her to retain counsel. There is no evidence – other than the applicant’s assertion – that the transcript was falsified or that the respondents had any role in drafting the transcript. Similarly, there is no evidence of professional misconduct. The transcript does not indicate any kind of misconduct. Also, the applicant complained to the Law Society of Upper Canada regarding P.S. and the Law Society found no professional misconduct.

23The respondents stated that there is some confusion regarding LAO’s decision not to grant an appeal certificate to the applicant. The respondents understood that this decision was central to the Application. However, the applicant stated in both her written and oral submission in reply to the Request for Summary Hearing that the application was not about the denial of the appeal certificate to appeal her conviction. Nonetheless, the applicant asserts that LAO blocked her from clearing her name. Consequently, LAO’s decision not to grant an appeal certificate remains relevant to the Application.

24The respondents assert LAO had no discretion to grant an appeal certificate in the applicant’s circumstances. Section 28 of the Act states that the area committee must approve the issuance of a certificate in an appeal proceeding. As noted in paragraph 8, above, LAO’s policy regarding criminal appeals indicates that “The area committee should not provide coverage where the applicant has received a non-custodial sentence or a conditional sentence.” Accordingly, the respondents submitted that the area committee had no discretion to grant the applicant an appeal certificate because her sentence did not involve incarceration. No one receiving a non custodial sentence would receive an appeal certificate, regardless of whether the sentence resulted from a guilty plea or conviction following a trial. Further, the policy gives the Director of Appeals no discretion to reverse the area committee’s decision. Consequently, the respondents submit there is no opportunity for differential treatment and, indeed, the applicant was treated no differently than others in similar circumstances.

25The respondents submitted that the applicant’s allegations regarding her LAO file, including her allegations of a reprisal, do not reflect reality and do not sustain a valid claim of discrimination or reprisal. Ms. Pratt explained that Mr. Noble, as the responsible application assessment officer, took notes during the intake interview with the applicant, but was not required to record everything she said to him. Rather he exercised discretion to include the information he believed was pertinent to the applicant’s eligibility. Mr. Noble recorded in his notes of the intake interview on October 3, 2007 that when the police arrived they searched the applicant and found crack cocaine. The note says nothing about whether the crack cocaine belonged to the applicant or whether she used it. Ms. Pratt allowed that the applicant may well have informed Mr. Noble that she intended to plead not guilty. However, her potential plea was not pertinent to her eligibility for legal aid; therefore, it was not really surprising that he did not record this information. The applicant advanced no evidence that would establish that the respondents “doctored” the file as asserted or explained why LAO would alter the file as alleged. Further, even if established, the respondents asserted that such facts would not prove discrimination.

26The respondent noted that the applicant relies heavily on the cover letter from Robert Ward of June 22, 2009 that accompanied the first disclosure of her legal aid file. The applicant takes particular issue with the sentence “No exemptions have been made from this material.” The applicant seems to believe the statement is evidence of some kind of impropriety. To the contrary, the respondents assert that the reference to exemptions reflects the requirements of privacy law and simply means that everything in the file was provided and that there was no legal exemption that would allow the respondents to withhold anything.

27The respondents also submitted that the Tribunal should dismiss all or part of the Application because another proceeding has appropriately dealt with the substance of the application pursuant to section 45.1 of the Code. In this regard, the respondent referred the applicant’s complaint to the IPC regarding the disclosure of her legal aid file. The respondents noted the applicant made written submissions and provided tape recorded evidence in support of her complaint. The IPC addressed the applicant’s concerns with Ms. Hall, the LAO’s Freedom of Information Coordinator. The IPC wrote to the applicant on November 2, 2009, setting out LAO’s explanation for why the records the applicant sought did not exist. The IPC noted that the applicant accepted that three of the four records did not exist. The fourth was Mr. Noble’s notes of the applicant’s intake review. The IPC accepted LAO’s explanation that these notes had been disclosed and the fact they did not record the full intake interview was explained by the case worker’s discretion to record only pertinent information. Accordingly, the IPC concluded that the applicant’s concerns had been adequately addressed and closed the file.

28The respondents submit that the process by which the IPC dealt with the applicant’s complaint was a proceeding for the purposes of section 45.1 of the Code. The respondents acknowledged that the IPC did not hold a hearing to assess the complaint, but submitted that process was nonetheless a proceeding because the IPC decided than an appeal was not necessary. The respondent’s cited Mathurin v. Scully 2010 HRTO 2340 where the Tribunal found that the Law Society of Upper Canada’s complaint process was a proceeding although no hearing was convened because the Law Society concluded that a hearing was not warranted because of lack of evidence.

Analysis

29As noted above, the respondents submitted the Application and the applicant’s submissions in response to the Request for Summary Hearing consist of general statements alleging discrimination, systemic discrimination and reprisal and do not set out any evidence or facts that could support a valid Application.

30I find that the applicant’s submissions fail to establish that the Application has a reasonable prospect of success. The Application sets out several allegations of discrimination and reprisal, but does not describe any facts that support them. The applicant’s submissions in response to the Request are themselves largely bald allegations. The facts or evidence the applicant did describe do not establish a link between the events in question and a prohibited ground of discrimination and in some cases, the facts alleged by the applicant are not linked to the respondents at all.

31The 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 applicant denies that she was treated fairly or that she understood the implications of pleading guilty, or, in fact, that she pleaded guilty at all. She asserts that the transcript is a fabrication and that the presiding judge, the Crown prosecutors and her lawyer conspired against her – all very serious allegations. According to the applicant, the respondents blocked her attempts to uncover this impropriety. Other than these bald assertions, she does not say how she can prove the transcript is false or why the respondents were wrong to refer to it. Similarly she gave no indication of any evidence of the alleged conspiracy.

32The applicant’s assertion that the references to horse racing made by one Crown counsel and her lawyer during her court appearance amount to gender discrimination is equally untenable. On the face of the transcript, it appears that the Crown, M.L, and her lawyer, P.S., indulged in an attempt at witty banter as the proceedings commenced. Neither interlocutor gave any indication he was referring to the applicant. The applicant clearly thought they were talking about her, but she provided no basis for this assumption. Regardless, the respondents had nothing whatsoever to do with the exchange or with the promulgation of the transcript and the applicant provided no evidence to the contrary. Therefore, assuming the exchange between M.L and P.S. could bear the discriminatory interpretation the applicant suggests – which is a stretch to say the least – the respondents are not responsible for it. Again the applicant provided no evidence or reason why the respondents were not entitled to rely on the transcript other than her bald assertion that it was a fabrication.

33The applicant submits that the respondents “doctored” or improperly altered her legal aid file and improperly accessed those parts of her file not related to the criminal law case. She says the respondents did so to prevent her from clearing her name by removing certain information and to assist P.S. in defending her complaints against him by providing him with personal information about her. The applicant clearly assumes that certain records or notes were at some point contained in her file (e.g., notes that she said she was not guilty during the intake interview). However, she did not provide any evidence that such information was ever actually in her file. The IPC came to the same conclusion. The respondent did not give any reason to believe that the respondents referred to notes regarding her landlord tenant matter in 1994 when dealing with her criminal case or that Ms. Hall compiled those notes. Similarly, there is no basis to conclude that anyone at LAO had any contact with P.S. regarding the applicant’s case or provided him with any information. I agree with the respondent that Mr. Ward’s cover letter of June 22, 2009 is innocuous on its face and is evidence of nothing other than LAO sent the applicant’s legal file to her. The documents provided from the applicant’s legal aid file do indicate that LAO had incorrect information about her address at some point, but this, in itself, is not evidence of discrimination.

34The respondents clearly understood that the applicant’s main concern with LAO was that it denied her an appeal certificate with a view to reversing her conviction subsequent to her guilty plea. The applicant states that she was not pursuing an appeal of the conviction, but wanted to retain another lawyer to clear her name and uncover the miscarriage of justice she alleges was perpetrated against her. This position is consistent with her reasons for seeking an appeal certificate set out in the Notice to Appeal to the Provincial Office, dated March 28, 2008, which she submitted to LAO. In any event, the applicant wanted further legal aid support to address an allegedly flawed process that led to her conviction on several criminal charges. Presumably, reversal of the convictions was also one of applicant’s desired outcomes. Consequently, the distinction in the parties’ characterization of her request appears to be one without a difference. However characterized, LAO applied its criteria for considering appeal requests and there is no evidence that LAO has any other process to deal with requests like the applicant’s. LAO denied the applicant’s request for a second legal aid certificate because she did not receive a custodial sentence. The applicant offered no evidence that would suggest that LAO has ever granted an appeal certificate for a non-custodial sentence. The applicant argued that she did not seek an appeal, but gave no reason to conclude that LAO acted improperly in denying her an appeal certificate because she did not face incarceration. Similarly, the applicant described no evidence, other than her bare assertion, that LAO refused her an appeal certificate to prevent her from pursuing action against P.S., LAO or anyone else. Consequently, I find there is no evidence that could show LAO’s refusal of an appeal certificate was tainted by discrimination or was an act of reprisal.

35The Tribunal directed the applicant to respond to the issues the respondents raised in the Request, i.e., that the Application did not disclose a prima facie case of discrimination or reprisal and had no reasonable prospect of success. As noted, the Application contains allegations of discrimination and reprisal against the respondents without describing the facts that would support the allegations. In the Response to a Request for Summary Hearing, her subsequent written submission and in her oral submissions during the Summary Hearing, however, the applicant provided more bare allegations. The applicant’s submissions did not describe any evidence that could support her allegations and did not establish a link between the events she described and grounds on which she claimed. Therefore, I find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated.

36As I have concluded the Application has no reasonable prospect of success, I need not deal with the issue of whether another proceeding has dealt appropriately with the substance of the Application, in whole or part, pursuant to section 45.1 of the Code.

37Finally, I briefly note that the respondents submitted that they felt compelled to note that applicant’s written submissions fell well below the standard of civility required. The respondents submitted that the applicant’s written materials were rife with what they characterized as defamatory and inappropriate statements. While the applicant was polite and respectful during the summary hearing, I agree with the submissions of the respondents on this matter. Regrettably, it is no more than the truth. Given the offensive nature of the statements it is in my view neither appropriate nor necessary to reproduce them here. In summary, the applicant described the respondents and others in highly disrespectful terms and made very serious and unsubstantiated allegations of a conspiracy to foist a criminal record onto her. Parties to an application before the Tribunal will naturally have very strong views about the facts in dispute, the other parties and even the Tribunal. The respondents sought no order in respect of their submissions. Regardless, it is important to note that the Tribunal expects all participants in the process to treat each other and the Tribunal with respect and courtesy. See, Cochrane v. Workplace Safety and Insurance Board 2010 HRTO 913.

38The Application is dismissed.

Dated at Toronto, this 21^st day of September, 2011

“signed by”

__________________________________

Douglas Sanderson Vice-chair