Cornutt v. Community Legal Clinic of York Region, 2012 HRTO 1110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maybeth Cornutt Applicant

-and-

Community Legal Clinic of York Region, Dennis Bailey and Melinda Ferlisi Respondents

DECISION

Adjudicator: Michelle Flaherty Date: June 5, 2012 Citation: 2012 HRTO 1110 Indexed as: Cornutt v. Community Legal Clinic of York Region

APPEARANCES

Maybeth Cornutt, Applicant ) Alan Cornutt, representative Community Legal Clinic of York Region, ) Self-represented Dennis Bailey & Melinda Ferlisi, ) Respondents )

HISTORY OF PROCEEDINGS

1This Application, filed under section 34(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability in the provision of goods, services or facilities. The applicant states that the respondents discriminated against her because her disability was a factor in their decision not to represent her in a matter before the Social Benefits Tribunal.

2For the reasons that follow, the Application is dismissed. I find that the Application has no reasonable prospect of success and, in particular, that there is no reasonable prospect that the applicant can establish a link between the respondents’ alleged conduct and the Code.

3In a Case Assessment Direction (“CAD”) dated December 28, 2011, the Tribunal directed, on its own initiative, that the matter proceed by way of a summary hearing. The Tribunal indicated that, based on its review of the Application, it appeared that the applicant may be unable to prove discrimination based on a Code ground. The Tribunal stated that the respondents need not file a Response in advance of the summary hearing.

4On February 28, 2012, I granted the applicant’s Request to Amend the Application to revise and add to her description of the alleged incidents of discrimination: 2012 HRTO 419.

5The applicant then sought to have the summary hearing cancelled; she argued that she was prejudiced because the respondents had not been required to file a Response. On March 12, 2012, I issued a CAD denying the applicant’s request to cancel the summary hearing. I indicated that, at the summary hearing, the applicant would have an opportunity to identify evidence or information she expects to obtain from the respondents (from their Responses or otherwise) that she believes would help show that the Application has a reasonable prospect of success.

6The summary hearing was conducted by telephone conference call on May 17, 2012 and the parties’ representatives made oral submissions as to whether the Application, as amended, had no reasonable prospect of success.

7At the outset of the hearing, the applicant’s representative confirmed that she waived privilege over the content of her communications with Clinic counsel.

THE FACTS

8On June 28, 2010, the Ministry of Community and Social Services determined that the applicant had received an Ontario Disability Support Program (“ODSP”) overpayment. This alleged overpayment arose because, in calculating the applicant’s husband’s self-employment income pursuant to its Income Directives, the Ministry decided not to accept his gas receipts. The applicant sought an internal review of this determination and ultimately appealed it to the Social Benefits Tribunal (“SBT”). The applicant has taken the position that ODSP’s Income Directives are discriminatory.

9The applicant consulted the Community Legal Clinic of York Region (“Clinic”) and sought legal representation for her SBT hearing.

10The applicant described her meeting with Clinic counsel as an “interrogation” that left her in an unstable state. At the summary hearing, the applicant’s representative clarified that she is not alleging that the meeting or anything that occurred during this meeting was discriminatory. However, the representative states that it set the tone between the parties and provides context for the allegations of discrimination.

11On October 8, 2010, Ms. Ferlisi, legal counsel at the Clinic, provided the applicant with a detailed opinion letter in which she concluded that the applicant’s matter had “insufficient merit to retain our services”. The letter also stated that the Clinic had concluded its investigation and that it would close its file.

12The applicant vigorously disputed the conclusions reached in this opinion letter. In letters to the Clinic, letters of complaint and in his submissions to the Tribunal, the applicant’s representative argues that there were “inconsistencies” in the Clinic’s evaluation of the overpayment issue. He also wrote a number of letters explaining why he disagreed with Ms. Ferlisi’s opinion.

13On November 2, 2010, Dennis Bailey, executive director of the clinic, wrote to the applicant. He stated:

In my conversation with him last week, your husband revealed that he had already provided the ODSP office with mileage information for May 2010 […] After briefly reviewing the logs ourselves, we do see some numbers that could work out to be mileage.

14In his letter, Mr. Bailey asked the applicant to provide “clearly identified mileage information” for her husband’s May 2010 business income. He wrote that the Clinic was not retained to represent the applicant and that it would not consider representing her until she had confirmed the hearing date and provided the mileage information requested.

15The applicant vigorously disputed the relevance and appropriateness of the request for mileage information. Ultimately, she did not provide this to the Clinic.

16On January 12, 2011, Mr. Bailey wrote to the applicant:

The provision of the requested mileage breakdown was clearly stated to be a precondition to us considering whether to accept you as a client again. You have refused to provide that. In addition the clear lack of confidence you demonstrate in our judgement also makes it impossible for us to consider an ongoing relationship as your counsel in your ODSP appeal.

17The applicant’s representative complained to Legal Aid Ontario and to the Clinic’s board of directors about the Clinic’s decision not to represent the applicant. The Clinic’s board of directors found the complaint to be without merit. On August 19, 2011, Legal Aid Ontario referred the matter back to the Clinic’s board of directors for consideration. It made no finding concerning the merits of the complaint, but it found that the board of directors had not handled the complaint according to policy. The applicant states that the Clinic’s board of directors has not yet reconsidered its decision.

ANALYSIS

18Section 1 of the Code states:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

19The issue before me in determining this summary hearing is whether or not the applicant has no reasonable prospect of establishing that the respondent discriminated against her based on the Code grounds she has identified.

20In considering this issue, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness or to correct errors. It can only deal with alleged discrimination on the grounds set out in the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

21The applicant has advanced a number of arguments that the Clinic improperly evaluated the merits of her appeal. The Clinic disputes this. It also argues that, in any event, an error does not constitute an act of discrimination.

22While there is clearly a difference of opinion between the parties as to the merits of the applicant’s appeal, it is not necessary or appropriate for me to resolve this dispute. Although she clearly disagrees with the respondents’ views, the applicant has provided no basis to suggest that this difference of opinion amounts to discrimination under the Code or that her disability was a factor in the respondents’ decision to not represent her.

23The fact that ODSP ultimately waived the overpayment is not determinative of the issue. As counsel for the respondents pointed out, parties to a matter may have all kinds of reasons to resolve the issues between them in advance of a hearing. The waiver of the overpayment does not necessarily establish that the Income Directives were, in fact, discriminatory. Nor does it establish that the respondents’ refusal to represent the applicant was a breach of the Code.

24Further, a refusal to represent the applicant is not, itself, a breach of the Code. In order to establish discrimination, the applicant must show that the respondents’ decision not to represent her was based on discriminatory factors: Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996 and U.N. v. Tarion Warranty Corporation, 2012 HRTO 211.

25When asked to explain why he believed the respondents’ decision to be discriminatory, the applicant’s representative urged me to consider the entire context of the matter. He argues that it gives rise to a “feeling” of discrimination. He states that the respondents looked for excuses not to represent the applicant and that her disability and receipt of ODSP were factors in that decision. He also argues that the respondents were closed-minded and that they refused to consider what the applicant’s representative believes to have been irrefutable arguments regarding the merits of her appeal.

26I do not accept these arguments. First, other than to baldly suggest that her disability and her receipt of ODSP were factors in the respondents’ treatment of her, the applicant has not pointed to any evidence or any prospective evidence to show that her disability was a factor in the respondents’ assessment of the merits of her appeal or its decision regarding representation. I note that the applicant did not dispute that the overwhelming majority of the Clinic’s clientele is in receipt of social assistance, including ODSP. Nor did she dispute that the respondents regularly represent individuals in matters involving ODSP.

27Second, while I make no findings in this regard, I accept that even if the respondents erred in their legal opinion, this is not, itself, a breach of the Code. The applicant has not pointed to any evidence or any prospective evidence to suggest that her disability was a factor in the respondents’ decision-making.

28Third, the documents filed by the applicant do not support the argument that the Clinic was closed-minded or that it refused to consider the applicant’s arguments. In my view, they suggest the opposite. For example, in his letter of November 2, Mr. Bailey followed up on additional information provided by the applicant and suggested that the Clinic would further investigate the merits of the appeal once the applicant has provided further information.

29The applicant’s representative argues that the respondents took alternate and contradicting positions: when he disproved the Clinic’s legal opinion, it then relied on a dispute about documents to deny legal representation. When he disproved the relevance of the documents requested, the Clinic then resorted to the lack of confidence argument.

30While the arguments he presented may have seemed irrefutable in the applicant’s representative’s own mind, they were never accepted by the Clinic. The documents filed show that, while it offered to consider new information, the Clinic did not waiver in its conclusion that the appeal had insufficient merit to warrant legal representation. Similarly, the Clinic did not waiver in its insistence that the applicant provide further information if she wished it to further investigate her request for representation.

31I have no difficulty rejecting the applicant’s contention that the respondents were “looking for excuses” to not represent the applicant. Rather, the documents filed by the applicant show that the respondents’ position was consistent and that it declined to represent the applicant because of a combination of ongoing issues. I reach no conclusion as to the merits of the parties’ respective positions. However, I find that while there was clearly a difference of opinion between the parties, the applicant has no reasonable prospect of showing that Code grounds were a factor in this difference of opinion or in the conclusions reached.

32The applicant has argued that, as they were initially dealing with Ms. Ferlisi, there was something untoward in Mr. Bailey’s later involvement in their matter. Given that the applicant had complained about Ms. Ferlisi’s legal opinion, I fail to see how it would be improper for Mr. Bailey, the Clinic’s executive director, to become involved. The applicant has not explained or pointed to any evidence or prospective evidence to show how this involvement could constitute a breach of the Code.

33The applicant’s representative argues that the respondents were under a legal imperative to provide representation services to the applicant because she met the income criteria. The respondents state that they are under no obligation to represent someone simply because she meets the income criteria and that, as the provider of a finite public resource, they must evaluate the merits of a person’s claim before deciding whether to offer legal representation services.

34It is not for this Tribunal to determine whether the respondents complied with any legal obligation to represent the applicant, nor is it for me to evaluate whether or not they complied with their own complaints process. As I have indicated, the Tribunal has no general power to determine fairness and my role is simply to consider whether the Application has a reasonable prospect of success.

35In all of the circumstances, I find that the Application has no reasonable prospect of success.

DECISION

36For all of these reasons, the Application is dismissed.