Hewage v. Greater Sudbury (City), 2013 HRTO 2100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Neville Hewage Applicant

-and-

City of Greater Sudbury; Nick Benkovich; Kevin Fowke; Karen Matthies; Gary Comin and Drew Peloquin Respondents

-and-

Canadian Union of Public Employees, Local 4705 Affected Party

A N D B E T W E E N:

Neville Hewage Applicant

-and-

Nick Benkovich; Kevin Fowke; Kristen Newman; Janet Tullock and Andrew Williams Respondents

Interim Decision

Adjudicator: David Muir Date: December 19, 2013 Citation: 2013 HRTO 2100 Indexed As: Hewage v. Greater Sudbury (City)

WRITTEN SUBMISSIONS

Neville Hewage, Applicant ) Self-represented Nick Benkovich; Kevin Fowke; Kristen Newman; Janet Tullock and Andrew Williams, Respondents ) Patricia G. Murray, Counsel

1These are two Applications filed pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging reprisal on the part of the various respondents. The respondents have filed a Request for Order During Proceeding seeking the removal of an individual respondent who is counsel for the respondents in these matters. The applicant sought an extension to file a Response (Form 11) to the Request and opposes the Request.

2The Request is granted and the style of cause amended accordingly.

3In these Applications the applicant alleges, amongst other things, that he was arrested on January 10, 2013. The applicant then alleges that the respondent who was counsel for the respondents in a prior human rights Application wrote a letter to the Tribunal on January 17, 2013. The applicant asserts that the individual respondent, Ms. Khoraych, was "clearly involved and was the one who mainly instigated and purported (sic) the criminal charges against me". The applicant alleges the individual respondent requested that the Tribunal dismiss the prior Application "based on these criminal charges." The applicant makes these assertions without any particulars to support them.

4The letter in question was filed with the Tribunal on or about January 17, 2013 and related to an earlier Application filed by the applicant. The letter raised several issues related to the conduct of the applicant. The letter does as the applicant asserts advise the Tribunal of the criminal charges. The respondent City of Sudbury submitted that the issues giving rise to the charge were of a similar character to many other issues of concern to the respondents in that Application. The respondent outlined its concerns about the applicant's conduct in relation to the respondents and the Tribunal's process and made submissions in support of an Order that the applicant be found to have abused the Tribunal's process and sought several remedial orders in that regard. The prior Application was dismissed because it was found that it had no reasonable prospect of success. The other matters raised by the respondent in its January 17, 2013 correspondence do not appear to have been addressed.

5The applicant made a number of arguments about conflict of interest and the respondents' right to counsel of its choosing. The applicant argued that the Decision dismissing his previous Application was incorrectly decided (2013 HRTO 558). He made argument about solicitor client privilege and judicial immunity, neither of which are at issue here.

6The applicant does address the issue raised here – that the Tribunal does not have jurisdiction over complaints about the conduct of opposing counsel while in the course of representing a party before it or in another proceeding. The applicant argues essentially that because he has made an assertion of misconduct by this individual they are not opposing counsel because the alleged act of fabricating criminal charges are not duties of counsel.

7The Tribunal has held on several occasions that an Application cannot be sustained against opposing counsel for any acts or omissions they may have committed in their role as counsel for an opposing party. The Tribunal has held that there is no service or employment relationship between opposing counsel and a party on the other side of the dispute such as would engage the Code's protection. See for example Jang v. Singh, 2013 HRTO 1612, and the cases cited therein; in particular Cooper v. Pinkofskys, 2008 HRTO 390. I agree with the analysis and result in those Decisions and adopt their reasoning.

8I do not agree with the applicant. Aside from the fact that there are no facts plead that would support the assertion that the respondents' counsel fabricated criminal charges, the material makes clear that at the time of the alleged acts this individual was counsel for the respondents in prior Applications. The question boils down to this – what was the service relationship between the applicant and this individual? The applicant does not assert that there was such a relationship between himself and Ms. Khoraych and it is clear that there was no service relationship between them at any material time. Accordingly this individual respondent must be removed and the style of cause amended accordingly.

9I am not seized of this case.