John Battagio v. Workplace Health and Safety Insurance Tribunal, 2013 HRTO 1609

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Battagio

Applicant

-and-

Workplace Health and Safety Insurance Tribunal

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: September 25, 2013
Citation: 2013 HRTO 1609
Indexed as: Battagio v. Workplace Health and Safety Insurance Tribunal

WRITTEN SUBMISSIONS

John Battagio, Applicant

Ben Bishop, Representative

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability.

2This Application names the applicant’s representative as “Community Functionality Facilitation Inc.” and Ben Bishop as the representative’s contact person.

3On August 8, 2013, the Registrar asked Mr. Bishop to confirm his Law Society of Upper Canada (“LSUC”) number or identify the category or exemption that applies to him that would allow him to act as a representative before the Tribunal.

4I note that this is at least the third application before the Tribunal in which Mr. Bishop has attempted to appear as a legal representative. In Baltrano v. Ontario (Community and Social Services), 2010 HRTO 268, and Engel v. Winkleigh Co-operative Housing, 2010 HRTO 1466, Mr. Bishop identified himself as the President and Chairperson of Community Functionality Facilitation Inc. While the Tribunal dismissed Baltrano without deciding the issue of Mr. Bishop’s status, in Engel the Tribunal rejected Mr. Bishop’s claim he and his organisation was a “non-profit federal agency” and therefore was exempt from the LSUC’s licensing requirements. See Engel at paras 5 – 7.

5In his email response to the Registrar Mr. Bishop advises that the Community Functionality Facilitation is “currently exempted under the Law Society Act. Bylaw 4 Section 4 (ii)(iii)”, and identifies himself as “Executive Director of Facilitation and Technology”.

6Subsections (ii)(iii) identified by Mr. Bishop do not exist. Section 4 of By-law 4 states:

A licensee who is required to pay the annual fee, or who would be required to pay the annual fee but for being granted an exemption from payment of the annual fee on the grounds that he or she has been entitled to practise law in Ontario as a barrister and solicitor for a period of fifty years, and who is exempt from the payment of insurance premium levies is subject to the following terms, conditions, limitations and restrictions:

1. The licensee is prohibited from practising law in Ontario as a barrister and solicitor through a sole proprietorship, a partnership, a professional corporation or any arrangement that permits two or more licensees to share all or certain common expenses but to practise law as independent practitioners other than on a pro bono basis,

i) for or on behalf of non-profit organizations, or

ii) through a program registered with Pro Bono Law Ontario.

7Pursuant to section 26.1(5) of the Law Society Act, R.S.O. 1990, c. L.8, as amended, a person who is not a licensee of the LSUC may practise law or provide legal services only as permitted by the by-laws of the LSUC.

8Subsection 1(6) of the Law Society Act defines legal services.

Without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:

1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person.

2. Selects, drafts, completes or revises, on behalf of a person,

i. a document that affects a person’s interests in or rights to or in real or personal property,

ii. a testamentary document, trust document, power of attorney or other document that relates to the estate of a person or the guardianship of a person,

iii. a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as a document that relates to the formation, organization, reorganization, registration, dissolution or winding-up of the entity,

iv. a document that relates to a matter under the Bankruptcy and Insolvency Act (Canada),

v. a document that relates to the custody of or access to children,

vi. a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights or responsibilities referred to in subparagraphs i to v, or

vii. a document for use in a proceeding before an adjudicative body.

3. Represents a person in a proceeding before an adjudicative body.

4. Negotiates the legal interests, rights or responsibilities of a person.

9Mr. Bishop has not provided any indication of how the exemption he has cited applies to him or to Community Functionality Facilitation. He is not a licensee so this section of By-Law 4 cannot apply to him.

10As the Tribunal noted in Engel there is an exemption in section 30(1)4 of the By-Law which allows an individual employed by a non-profit organization to provide legal services without a licence, under certain conditions:

4. An individual who,

i. is employed by a not-for-profit organization that is established for the purposes of providing the legal services and is funded by the Government of Ontario, the Government of Canada or a municipal government in Ontario,

ii. provides the legal services through the organization to the community that the organization serves and does not otherwise provide legal services, and

iii. has professional liability insurance coverage for the provision of the legal services in Ontario that is comparable in coverage and limits to professional liability insurance that is required of a licensee who holds a Class L1 licence.

11However there is no indication that any of these criteria would apply to Mr. Bishop or to Community Functionality Facilitation Inc. There are no other exemptions in By-Law 4 that would permit Mr. Bishop or Community Functionality Facilitation Inc. to provide representation to an applicant before the Tribunal.

12As the Tribunal held in Engel an individual who cannot legally provide legal services under the Law Society Act cannot appear as a representative before the Tribunal. Mr. Bishop and Community Functionality Facilitation Inc. are removed as the applicant’s representative.

13Mr. Bishop can attend the hearing in a non-legal capacity to support the applicant if he wishes but he cannot engage in any of the activities listed in paragraph 8 above. The applicant is directed to advise the Registrar within 7 days of the date of this Interim Decision whether he wishes to name Mr. Bishop as his alternative contact person.