Human Rights Tribunal of Ontario
B E T W E E N:
Kristopher Montgomery
Applicant
-and-
Town of Bradford West Gwillimbury
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Montgomery v. Bradford West Gwillimbury (Town)
1This matter is scheduled in Toronto on December 2, 3 and 4, 2013, in Toronto.
2On October 4, 2013, the Tribunal issued Interim Decision 2013 HRTO 1677 (the “Interim Decision”) which directed the following at paragraph 12(a):
That the applicant and/or his representative within 7 days must provide the following information to the Tribunal with a copy to the respondent:
i. identify, the category or exemption, as described in the Tribunal’s Policy on Representation before the HRTO or by the Law Society of Upper Canada, within which the applicant’s representative comes that would permit him to act as a representative before the Tribunal; and
ii. explain why the applicant did not comply with the directions in the CAD.
3On October 18, 2013, the Tribunal issued Interim Decision 2013 HRTO 1764, which directed the removal of Mr. Mark Gernon as the applicant’s representative for the following reasons at para. 8:
Mr. Gernon is not a licensed lawyer or paralegal and neither Mr. Gernon nor the applicant has explained the exemption which would permit Mr. Gernon to represent the applicant in these proceedings. Further, I find that Mr. Gernon has repeatedly failed to comply with the Tribunal’s directions and orders as required under the Rules. In these circumstances I find that Mr. Gernon must be removed as the applicant’s representative.
4On the same day, shortly after the decision removing Mr. Gernon was issued, the Tribunal received correspondence from Mr. Gernon in which he sought reconsideration of this Interim Decision in which he explains: “In the October 4, 2013, interim order, the HRTO ordered that information be provided with a number of differing timelines. Respectfully, I erred and did not note the 7 days for providing the exception requirement.” Mr. Gernon notes that he is currently appearing before the Tribunal as a representative on “several other matters”.
5Mr. Gernon sent a second correspondence to the Tribunal in which he writes “…the HRTO was informed during the mediation process and the application process” that Mr. Gernon “is a member in good standing with the Human Resources Professional Association and is permitted to act as the Respondent’s representative.”
6The Registrar issued a letter to the parties on October 18, 2013, confirming that Mr. Gernon had been removed as a representative and that the applicant could file a Request for an Order During Proceeding.
7On October 21, 2013, the applicant filed a letter with the Tribunal seeking a number of things, including that the respondent forward to him a copy of its Request for Order (the “respondent’s RFOP”) that was filed on September 16, 2013, a copy of its full Response which was filed on October 3, 2013 and further time to file a Reply.
8On October 22, 2013 the Tribunal issued a Case Assessment Direction, in which I directed the respondent to deliver to the applicant a copy of the respondent’s RFOP and the full Response. I also directed that a telephone conference would be held on October 23, 2013 to address the applicant’s letter. The applicant, the respondent’s counsel and Mr. Gernon were present during the telephone conference. The applicant’s request to file further written submissions was granted.
9Subsequent to the telephone conference call, on November 4, 2013, Mr. Gernon filed a Request for Reconsideration. In this request Mr. Gernon states that the matter before the Tribunal is an employment-related matter, specifically the termination of the applicant’s employment. Mr. Gernon states that his profession and occupation involves providing “human resources consultancy services to a number of clients, that includes employee relations, recruiting, compensation, coaching, WSIB management, Labour Relations and Human Rights guidance and representation.” Mr. Gernon further stated that he appears before the HRTO on an “occasional basis”, without dispute.
10The respondent’s counsel requested that it be provided the opportunity to respond to these written submissions; however, the respondent opted not to file written submissions. These were due on November 8, 2013.
11This Interim Decision addresses whether I should revisit the issue of the removal of Mr. Gernon as the applicant’s representative. Having considered the matter, I am not satisfied that I should re-visit my previous decision and permit Mr. Gernon to represent the applicant. I note that, in my view, the issue of whether or not I should reconsider my previous decision is discretionary. I do not think that the decision to remove Mr. Gernon was a “final decision” within the meaning of the Tribunal’s reconsideration rules. Nor is Mr. Gernon a licensed lawyer or paralegal, who would have a more direct interest in his or her appearance rights before this Tribunal as those rights would be more than “ancillary” to the practice of their profession or occupation. Notwithstanding these considerations I have exercised my discretion to consider the submissions of Mr. Gernon and I would not vary my earlier decision for the following reasons.
Law Society
12The HRTO Rules of procedure states:
A9.1 Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada, or any unlicensed person permitted by the Law Society Act and its regulations and by-laws.
13Mr. Gernon relies on the following from section 30(1) of By-law 4 of the Law Society of Upper Canada:
Subject to subsection (2), the following may, without a license, provide legal services in Ontario that a licensee who holds a Class P1 license is authorized to provide:
- An individual,
i. whose profession or occupation is not the provision of legal services or the practice of law,
ii. who provides legal services only occasionally,
iii. who provides the legal services as ancillary to the carrying on of his or her profession or occupation, and
iv. who is,
A. a member of the Human Resources Professionals Association of Ontario in the Certified Human Resources Professional category.
14I have considered the meaning of this subsection in the context of the factual matrix before me. The subsection provides that the provision of the “legal services” must be “ancillary” to the carrying on of the profession. The ordinary meaning of the word “ancillary” means secondary to or in support to. The applicant explained during this telephone conference that after he initiated the Application, that he thought that Mr. Gernon could represent him given his experience. It is clear that the applicant is not an employer and that he does not require the assistance of a human resource consultant. The legal services provided by Mr. Gernon in this case are not secondary but the dominant reason for his representation.
15Mr. Gernon variously indicated that he appeared before the Tribunal and before other Boards on “several other matters” and then modified this to on an “occasional basis”. As I have insufficient evidence and, as it is unnecessary to this decision, I make no findings on whether Mr. Gernon’s appearances before this Tribunal fall within the scope of the exemption’s condition that legal services provided under it be done “only occasionally.”
16Therefore, I find that Mr. Gernon cannot rely on this subsection to represent the applicant in these proceedings.
Failure to Comply with the Tribunal’s Directives
17I note that Mr. Gernon was also removed because he did not comply with a number of Tribunal directives and orders, as described in the October 18, 2013 Interim Decision.
18Mr. Gernon explained during the call that he has been very busy working out of town for a number of months. He did apologize to the Tribunal for not responding to the various directives.
19However, during the conference call it became clear that Mr. Gernon had no satisfactory explanation for the following:
a. Mr. Gernon received the respondent’s RFOP on September 16, 2013, but he did not send it to or otherwise advise or seek instruction from the applicant;
b. Mr. Gernon acknowledged that he left for vacation two days after he received the respondent’s RFOP, he did not respond to the RFOP nor did he request on extension of time to respond;
c. Mr. Gernon did not send the full Response to the applicant or otherwise advise or seek instruction from the applicant;
d. Mr. Gernon did not file timely submissions and amended Reply as directed to in the October 4, 2013, Interim Decision;
e. Though the October 4, 2013 Interim Decision directed that various medical documents be delivered to the respondent by October 25, 2013, during the call it appeared that the paperwork had been submitted on October 23 and 24, 2013.
20I find therefore, that Mr. Gernon has not provided a satisfactory reason for his repeated failure to comply with my directives and that he will not be permitted to represent the applicant in these proceedings.
Adjournment
21I have some concerns that the applicant may not be able to obtain representation for the scheduled hearing. If the applicant seeks an adjournment of the hearing then he is to request one within five days of the date of this Interim Decision. The respondent will have three days to respond to this request.
Dated at Toronto, this 14th day of November, 2013.
“Signed by”
Geneviève Debané
Vice-chair