Bishop v. Dunlop and Associates, 2011 HRTO 2035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard-Benjamin Bishop

Applicant

-and-

Dunlop and Associates

and the Law Society of Upper Canada

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: November 9, 2011

Citation: 2011 HRTO 2035

Indexed as: Bishop v. Dunlop and Associates

APPEARANCES

Richard-Benjamin Bishop, Applicant ) On His Own Behalf

Dunlop and Associates, Respondent ) Richard Campbell, Counsel

Law Society of Upper Canada, Respondent ) Brendan Van Niejenhuis,

) Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Tribunal reviewed this Application, which alleges that the respondents engaged in reprisals contrary to s. 8 of the Code, and issued a Case Assessment Direction directing that a summary hearing be held, pursuant to Rule 19 of the Tribunal’s Rules of Procedure, to determine whether the Application has a reasonable prospect of success.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

5In File Number 2009-03087-I, the Human Rights Tribunal of Ontario (“HRTO”) removed the applicant’s organization as a legal representative to the applicant in that case on the basis that he was not legally authorized under the Law Society Act, R.S.O. 1990, c.L.8 to appear as a representative: see Engel v. Winkleigh Co-operative Housing, 2010 HRTO 1466.

6It appeared from the Application documents that the applicant believes that counsel for Winkleigh Co-operative Housing in Engel drew the applicant’s non-licensed status to the attention of the HRTO and the Law Society of Upper Canada (“LSUC”) that subsequently resulted in an investigation by that organization. The applicant alleged that this was done as a reprisal for participating in the Tribunal process.

7As the Case Assessment Direction stated:

to succeed in this Application, the applicant must establish that the respondents had the intention of reprising against him for participating in a previous human rights case as a representative for an applicant, rather than the intention of dealing with a possible breach of the Law Society Act. The applicant merely alleges that the respondents are “harassing” him and reprising against him because he challenged counsel for Winkleigh Co-operative Housing before the HRTO and that the LSUC is abusing its power by facilitating a reprisal against him for attempting to assist a disabled person. The application does not indicate how the applicant can establish that the respondents have had any intention to reprise against him for his participation in the Engel matter as opposed to addressing the possible unauthorized provision of legal services.

8As directed, the applicant made his submissions first during the teleconference hearing. He was asked to explain how there is a reasonable prospect that he could prove, on a balance of probabilities, that he experienced reprisal for participating in proceedings under the Code, and to indicate the evidence he would use to establish that. In particular, he was asked to explain how there is a reasonable prospect that he could prove an intention to reprise and a coordinated effort between the respondents to retaliate against him for his participation in the Engel matter.

9Having heard the applicant’s submissions, I am of the view that he has failed to do so. He argues that the very fact that counsel for the respondent in the Engel matter notified the Law Society of his involvement in that Application file is evidence of an intention to reprise against him and that the Law Society’s investigation constituted a “tool of intimidation”.

10The lawyer who notified the Law Society of potential unlicensed practice by the applicant and a “Mr. Potaglio” did so in relation to another proceeding involving the parties to the Engel matter. There is no indication that he had any hand in the Tribunal’s decision to remove this Applicant’s organization as representative for Ms. Engel. As counsel for Dunlop & Associates pointed out, he is obliged under the Law Society’s Rules of Professional Conduct to report his concerns regarding violations of the provisions of the Law Society Act.

11The respondent Law Society has an obligation to comply with and to enforce ss. 4.1, 26.1 and 26.2 of the Law Society Act, which read as follows:

4.1 It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

26.1 (1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario.

(2) Subject to subsections (6) and (7), no person, other than a licensee whose licence is not suspended, shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a person who may provide legal services in Ontario.

(3) No licensee shall practise law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence. 2006, c. 21, Sched. C, s. 22.

(4) No licensee shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a person who may provide legal services in Ontario, without specifying, in the course of the holding out or representation, the restrictions, if any,

(a) on the areas of law that the licensee is authorized to practise or in which the licensee is authorized to provide legal services; and

(b) on the legal services that the licensee is authorized to provide.

(5) A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.

(6) A person who is not a licensee may hold themself out as, or represent themself to be, a person who may practise law in Ontario, if,

(a) the by-laws permit the person to practise law in Ontario; and

(b) the person specifies, in the course of the holding out or representation, the restrictions, if any, on the areas of law that the person is authorized to practise.

(7) A person who is not a licensee may hold themself out as, or represent themself to be, a person who may provide legal services in Ontario, if,

(a) the by-laws permit the person to provide legal services in Ontario; and

(b) the person specifies, in the course of the holding out or representation, the restrictions, if any,

(i) on the areas of law in which the person is authorized to provide legal services, and

(ii) on the legal services that the person is authorized to provide. Agent

(8) This section applies to a person, even if the person is acting as agent under the authority of an Act of the Legislature or an Act of Parliament.

26.2 (1) Every person who contravenes section 26.1 is guilty of an offence and on conviction is liable to a fine of,

(a) not more than $25,000 for a first offence; and

(b) not more than $50,000 for each subsequent offence.

12Other than to point to the length of time the investigation took and to characterize it as “a tool of intimidation” the applicant has not advanced any information that would suggest that the Law Society’s investigation into information received by it could amount to reprisal under the Code. He has also provided no information that would suggest a co-ordinated intention between the respondents to retaliate against him.

13In my view, there is no reasonable prospect that the applicant will succeed in establishing a breach of the Code in respect of his allegations. Accordingly, the Application is dismissed.