HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Munyonzwe Hamalengwa
Applicant
-and-
The Law Society of Upper Canada and Graham Hanlon
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Hamalengwa v. Law Society of Upper Canada
WRITTEN SUBMISSIONS
Munyonzwe Hamalengwa, Applicant ) Self-represented
Law Society of Upper Canada ) Owen Rees, Counsel
and Graham Hanlon, Respondents )
[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination by the Law Society of Upper Canada (“Law Society”) and Graham Hanlon. The applicant, a lawyer and licensee of the Law Society, alleges that in investigating him for professional misconduct and commencing disciplinary hearings, the respondents have discriminated against him because of race, colour, ancestry, place of origin and ethnic origin and committed reprisals. This Interim Decision deals with the applicant’s request to amend his Application and the respondent’s Request for deferral.
BACKGROUND
[2] The respondent is the provincial body responsible for regulating lawyers and paralegals in Ontario. The Law Society’s functions include ensuring that 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, pursuant to s. 4.1 of the Law Society Act, R.S.O. 1990, c. L.8. Mr. Hanlon is an investigator employed by the Law Society in accordance with s. 49.3 of the Law Society Act. Mr. Hanlon had carriage of the Law Society’s investigation of Mr. Hamalengwa.
[3] On February 14, 2008, Mr. Hamalengwa was advised that the Law Society had commenced an investigation of his professional conduct while representing his client, Richard Wills. On July 11, 2011, Mr. Hamalengwa brought this Application. Mr. Hamalengwa’s complaints against the Law Society in the Tribunal Application concern the investigation and can be summarized as follows:
I have insisted that the investigation against me is tantamount to racial profiling because white lawyers in the Richard Wills case have not been similarly investigated. The investigation against my alleged conduct in the Richard Wills case was initiated by the Law Society of Upper Canada.
[4] On August 15, 2011, the respondents filed a Response to the Tribunal Application, denying that the investigation of Mr. Hamalengwa violates the Code. They state that Mr. Hamalengwa’s Application is an attempt to discourage the respondents from pursuing the investigation of Mr. Hamalengwa to its completion, and is ultimately an abuse of process, or vexatious and frivolous.
[5] On January 20, 2012, the Law Society issued a Notice of Application to the Law Society Hearing Panel (“Panel”), which commenced conduct proceedings against Mr. Hamalengwa. The Notice alleges breaches of the Law Society’s Rules of Professional Conduct (the “Rules”) arising in connection with Mr. Hamalengwa’s representation of Richard Wills. Mr. Hamalengwa alleges that this action was taken as a reprisal for the filing of this Application and in order to stop the Tribunal’s process.
APPLICANT’S REQUEST TO AMEND THE APPLICATION
[6] The applicant seeks to amend his Application to add the allegation that the Notice of Application is a reprisal, to add further particulars, to add two further respondents, and to place the draft of a book he has written about diversity in the judiciary on the record. The respondent consents to the proposed amendment only insofar as it relates to new allegations of a reprisal and subject to a right to amend the Response. The respondent opposes the addition of the proposed new respondents.
[7] The Application is amended as requested, with the exception of the request to add respondents. The Request contains no allegations that the proposed respondents violated the Code and it would not be appropriate to add them as respondents. See Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12.
RESPONDENT’S REQUEST TO DEFER
[8] The respondent requests that the Tribunal defer the Application pursuant to Rule 14. The respondent argues that the Panel can consider and apply human rights legislation, including the Code. It notes that the Law Society proceedings and the Application arise from the same facts: the investigation of Mr. Hamalengwa’s conduct. It states that the applicant can raise the same arguments set out in the Application in the conduct of an abuse of process motion or otherwise in the conduct of his defence. It notes the high degree of procedural fairness and opportunity to raise issues about the investigation before the Panel, and its expertise on Law Society investigations. It notes that the Tribunal has deferred in similar circumstances: Sawhney v. Law Society of Upper Canada, 2011 HRTO 656.
[9] The applicant opposes deferral. He argues, among other things, that the Notice of Application to the hearing panel is a reprisal under the Code and is “punitive and vengeful”. He states that it is logical that this action was taken solely for the purpose of defeating the Application before this Tribunal. He makes various allegations about improper conduct of the investigation. He submits that the Law Society is not competent to decide racial profiling issues, and that a decision to defer would essentially “deny him his ability to raise and assert my rights” regarding racial profiling, as the issue would be moot following a decision by the Panel. He emphasizes that he requested that the Panel deal with his allegations of racial profiling before he filed this Application, but that the Society determined that the Panel had no jurisdiction as no discipline allegations had been filed at that time.
[10] Under Rule 14.1, the Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
[11] Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
[12] The circumstances of this case favour deferral. Tribunal and judicial decisions have recognized that other administrative tribunals with the power to decide questions of law also have the responsibility and authority to apply the Code to proceedings before them. The applicant can raise his allegations of racial profiling and reprisal before the Panel, which the respondent agrees has the jurisdiction to address them.
[13] In my view, the Tribunal should normally defer to a professional disciplinary tribunal that has the jurisdiction to hear both allegations of professional misconduct and Code issues. Such tribunals have the mandate to protect the public and regulate the conduct of professionals, and balancing of individual rights and the public interest is central to this work (see College of Nurses v. Trozzi, 2011 ONSC 4614 at paras. 35-36 (Div. Ct.)). When allegations of professional misconduct are properly before the relevant body and related Code issues can be raised there, the Tribunal should defer to avoid unnecessary duplication and complication.
[14] This Application is deferred pending the conclusion of the disciplinary proceedings against the applicant by the Law Society of Upper Canada, and appeals or judicial reviews that result from those proceedings. Where a party wishes to proceed with an application that has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
[15] I am not seized.
Dated at Toronto, this 30^th^ day of March, 2012.
“Signed by”
David A. Wright
Associate Chair