Madassa v. Amalgamated Transit Union, Local 113, 2011 HRTO 2204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Estraia Madassa Applicant

-and-

Amalgamated Transit Union, Local 113 and Bob Kinnear Respondents

INTERIM decision

Adjudicator: Maureen Doyle Date: December 7, 2011 Citation: 2011 HRTO 2204 Indexed as: Madassa v. Amalgamated Transit Union, Local 113

wRITTEN SUBMISSIONS

Estraia Madassa, Applicant ) Self-represented

Amalagamated Transit Union, Local 113 ) Barrie Chercover, Counsel and Bob Kinnear, Respondents )

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant seeks the adjournment of the Summary Hearing scheduled for December 12, 2011. The adjournment request is denied.

2The applicant also appears to be asking for an order that counsel for the respondents be removed as counsel for the respondents in this Application. She has not, however, filed a Request for an Order During Proceedings ("RFOP").

BACKGROUND

3The Application was filed with the Tribunal on November 1, 2010.

4On July 4, 2011, the Tribunal issued a Case Assessment Direction ("CAD") pursuant to Rule 19A.1 and 19A.2 of the Tribunal's Rules of Procedure, directing on its own initiative that a Summary Hearing would be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it would succeed. It also directed that the parties would address the question of the timeliness of the Application and, if the Application were to be permitted to proceed, the question of whether it should be dismissed as against the personal respondent.

5On October 20, 2011, the Tribunal sent the parties a Notice of Confirmation of Hearing. That Notice scheduled the telephone conference call hearing for December 12, 2011, and provided the information the parties would require in order to participate. It noted that requests for adjournment would be dealt with in accordance with the Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, which is available on the HRTO's website.

6On October 30, 2011, the applicant wrote to the Tribunal, stating:

I would like Green and Chercover, Barrister and Solicitors to withdraw, due to, they are in a conflict of interest, as they are acting in my interest in regards to ATU Local 113 vs. Toronto Transit commission where as I am the grievor.

Green and Chercover Barrister and Solicitors firm has personal information of me that would benefit there [sic] client ATU Local 113 at the arbitration hearing.

I respectfully submit that in regards to HRTO.

7The applicant has provided several previous Tribunal decisions, without submissions with regard to their relevance. In particular, she has provided Nolan v. Vale Inco, 2010 HRTO 1758 ("Nolan"), Goring v. Ontario Public Service Employees Union, 2009 HRTO 2127 ("Goring"), Tyszka v. Sleeman Breweries, 2009 HRTO 2076 ("Tyszka"), Lafond v. Hopital Montfort, 2009 HRTO 529 ("Lafond"), Bernard v. Lakehead University, 2011 HRTO 977 ("Bernard"), Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 69 ("Christianson"), and Michalek v. PNF Holdings, 2009 HRTO 91 ("Michalek").

8By letter dated November 24, 2011, the applicant wrote to the Registrar, and copied to the respondents, to request an adjournment of the scheduled date. She wrote as follows:

I am requesting an adjournment due to the fact that the Law Society is looking into my concerns of the respondent representation, as it is alledged [sic] that they are in a conflict of interest, as I am demanding that they be removed.

9On November 28, 2011, the respondents wrote to the Tribunal with a copy to the applicant. The respondents opposed the Request for an adjournment. Counsel indicated that it was unaware of any matter having been sent to the Law Society and submitted that the matter of an alleged conflict is not before the Tribunal at the December 12, 2011 Summary Hearing. They submitted that they have acted throughout as union counsel to the union respondent and cited Hansen v. City of Toronto 2010 HRTO 13 ("Hansen"), in support of their position that they should be permitted to continue as counsel in the matter before the Tribunal. The respondents submitted that the matters to be dealt with at the Summary Hearing are as set out in the CAD and no other matters are included. They submit that the request for adjournment was "only made by the applicant by letter dated November 28, 2011 [sic]" and they oppose the request.

DECISION

10The Practice Direction on requests to adjourn or reschedule reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

11In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties' dispute will no longer be used. For that reason, among others, the Tribunal's Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel's availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

12The only basis the applicant advances in connection with her request to adjourn the Summary Hearing date is what appears to be a request that the Tribunal not permit counsel for the respondents to continue its representation of the respondents in this Application. Accordingly, I turn to this issue.

13As noted above, the applicant has provided several Tribunal decisions. Each of these decisions touches upon the question of removal of counsel by the Tribunal, but I do not find that they support removal of the respondents' counsel in this Application. In Nolan, the applicant sought removal of the respondent union's counsel for reasons similar to the ones which this applicant appears to advance. However, I find in fact Nolan supports a refusal to grant the applicant's request. In that decision, the applicant asserted that as the union's counsel had represented the applicant through various grievance arbitration hearings, "it would be a professional and ethical conflict of interest for that law firm to be acting on behalf of the union" in the Application. The position of that applicant was that union counsel "had become privy to confidential information regarding the applicant" and it would be inappropriate to allow that counsel to "utilize that information on behalf of the respondent union". The Tribunal refused the applicant's request and stated:

With respect to various arbitration proceedings involving the grievor, no direct client/solicitor relationship existed between Shell Lawyers and the applicant. That firm's client in those proceedings was the union and not the applicant. That firm was, therefore, not in a conflict position by representing the union in this proceeding. Additionally, the jurisprudence suggests that a party's right to retain counsel of its own choosing should not be interfered with lightly.

14In its decision in Goring, the applicant sought removal of respondent union counsel arguing that he had previously represented her. The union asserted that he had never acted for the applicant individually and the Tribunal denied the applicant's request, finding that respondent union counsel "did not possess information attributable to a solicitor and client relationship relevant to the matter at hand".

15In Tyszka, a decision regarding an application alleging of breach of settlement, the Tribunal refused the applicant's request that counsel for the respondent be removed on the grounds that he had acted as counsel to both parties in drafting Minutes of Settlement. The Tribunal found that counsel had never expressly represented himself as acting on behalf of anyone other than the respondent, the applicant never spoke privately with counsel and the applicant was accompanied by a representative from his union, which intervened in the case. The Tribunal found that there was nothing in the facts as alleged which supported the removal of counsel.

16In its decision in Lafond, the Tribunal refused the applicant's request to remove counsel for the Hospital. The applicant maintained that the Hospital had a "conflict of interest in that it is in the position of both a 'judge and party' to this proceeding". The Tribunal noted that the applicant appeared to base his request on the Hospital's role in administering corporate policies "which he says conflicts with its role in representing (through the same legal counsel) some of the very employees that it is investigating". The Tribunal found that there was no basis for making the order sought by the applicant, terming it "an extraordinary measure".

17Noting that parties should not be deprived of their choice of counsel without good cause, in its decision in Bernard, the Tribunal allowed a request to remove counsel for the respondents in circumstances where counsel had previously prepared a report for the respondent university. The Tribunal ordered production of the report as an arguably relevant document, and noted that there were aspects of the report which the applicant claimed were reprisal in light of measures the university took following its release. The Tribunal did not allow counsel for the respondent university to continue to act in the proceedings, finding that it was likely that counsel would have to testify about contentious issues at the hearing, including issues regarding the report, the scope and nature of counsels' work and their conclusions in the report would be contentious in the proceedings, and they may have had access to information in the course of the investigation which would place them at an advantage in questioning witnesses. The factual context and resulting issues were quite different from this application, however, and I do not find it supports this applicant's request.

18The issues before the Tribunal in Christianson were the applicant's request to remove the respondent's counsel and the respondent's objection to the Tribunal accepting jurisdiction over the Application. In the decision, the Tribunal directed the parties to make submissions regarding its jurisdiction to hear the matter and deferred the question of the applicant's request to remove the respondent's counsel until after the jurisdictional issue had been decided.

19In Michalek, the Tribunal refused the respondent's request for an order that the Complainant and/or the Commission be prevented from bringing a future Request for an Order During Proceedings that respondent counsel be removed. The question before the Tribunal in Michalek was not the same as the question before me in the instant case where the question is whether respondent counsel should be removed for conflict of interest. In these circumstances, I do not find the decision in Michalek to be relevant to the issue before me.

20As noted above, in its November 28, 2011 submissions to the Tribunal, the respondents' counsel relied upon Hansen. In that case, again, in circumstances bearing striking similarity to the instant circumstances, the applicant sought removal of counsel for the union respondent, as prior to filing the HRTO Application, he had met with that lawyer regarding the possibility of filing a grievance on his behalf related to the events at issue in the Application. The applicant argued that he had provided counsel with confidential information and that "he understood he had a solicitor-client relationship" with that counsel. He argued that it would be a conflict of interest for that counsel to continue to represent the respondent union in the Application and he indicated that he had filed a complaint against counsel with the Law Society of Upper Canada. The Tribunal denied the applicant's request and I find that this decision supports denial of this applicant's request. In its decision in Hansen, the Tribunal stated:

To prevent an abuse of its process, the Tribunal may prevent a lawyer who has a conflict of interest from continuing to appear: Universal Workers' Union v. Labourers' International Union of North America 2004 CanLII 66334 (ON SC), (2004), 70 O.R. (3d) 435 (S.C.J.). There is no question that a lawyer cannot act against a client he or she has previously represented in a solicitor-client relationship in the same matter: MacDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. However, it is also generally recognized that a lawyer for a union is not in a solicitor-client relationship with a member of a bargaining unit who has filed or seeks to file a grievance through the union. While Mr. Hansen points to various correspondence with TPFFA [respondent union] that he argues confirms a solicitor-client relationship between him and SGM [union counsel law firm], I do not agree that it in fact creates such a relationship. Accordingly, Mr. Hansen has not shown that SGM previously represented him (as opposed to the TPFFA) and therefore that the firm has a conflict of interest. Should the Law Society of Upper Canada's investigation come to a different conclusion, of course, the Tribunal would examine this issue again at the request of Mr. Hansen.

21I do not find that the applicant has established a solicitor-client relationship between herself and respondents' counsel and I do not find that there is a conflict of interest which would prevent the respondents' counsel from participating in this Application.

22The applicant's request for removal of the respondents' counsel is denied.

23There are no exceptional circumstances that warrant the adjournment, and the applicant's request for an adjournment is denied. The hearing will proceed on the date scheduled.