Ruban Sivanadian v. The Law Society of Upper Canada, Kevin Fox and Kenneth Alexander, 2013 HRTO 381

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruban Sivanadian

Applicant

-and-

The Law Society of Upper Canada, Kevin Fox and Kenneth Alexander

Respondents

DECISION

Adjudicator: Paul Aterman
Date: March 6, 2013
Citation: 2013 HRTO 381 Indexed as: Sivanadian v. Law Society of Upper Canada

WRITTEN SUBMISSIONS

Ruban Sivanadian, Applicant

Self-represented

Introduction

1This Application was filed on January 7, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of services because of race, colour, place of origin, ethnic origin, disability, sex, family status, marital status, and age. Reprisal is also alleged.

2On January 22, 2013 the Tribunal issued a Notice of Intent to Dismiss on the grounds that the last alleged incident of discrimination occurred more than a year before the filing of the Application. The applicant was invited to provide written submissions as to why the Application should not be dismissed.

3For the reasons set out below I conclude that this Application should be dismissed for lack of jurisdiction due to the delay in filing the Application.

background

4The personal respondent Kevin Fox is a lawyer. He was retained by the applicant in 2004 to represent him in a wrongful dismissal lawsuit. The parties entered into settlement discussions at a 2007 pre-trial hearing before a judge. The matter settled, but then the applicant refused to sign a release because he wished to retain the right to pursue a federal human rights complaint and other action against his former manager. The defendant in the suit removed the clauses from the release which prevented the applicant from pursuing these remedies. The judge then signed an order dismissing the suit on the grounds that it had been settled.

5The applicant was not satisfied with this result and alleges that in the course of his dealings with Mr. Fox over the settlement, Mr. Fox and the personal respondent Kenneth Alexander, another lawyer who works with Mr. Fox, verbally abused him by making rude and discriminatory remarks. The applicant alleges that in 2006 and 2008 he called the Ontario Human Rights Commission and this Tribunal to complain about the personal respondents and was directed to file a complaint with the Law Society of Upper Canada.

6In January of 2008 the applicant filed a complaint with the Law Society in relation to Kevin Fox. The complaint was initially dismissed in April of 2010, but the applicant provided new information to the Law Society in February 2011. The Law Society reactivated the complaint. By letter dated November 18, 2011 the Law Society advised the applicant that Mr. Fox had been cautioned for a lack of civility and that the complaint was now closed. The applicant maintains that he received this decision on February 16, 2012.

7The applicant alleges that the sanction imposed by the Law Society on Mr. Fox was insufficient for the gravity of Mr. Fox’s conduct. He claims that the Law Society’s decision is itself tainted by discrimination on the grounds he cites in this Application.

analysis and decision

8Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

9In this case the one-year period runs from January 7, 2012. The alleged incident of discrimination which follows that date is given by the applicant as the decision of the Law Society, which the applicant claims to have received on February 16, 2012. The applicant argues that the content of that decision is discriminatory as the sanction of the lawyer is far too mild and that this weak sanction reflects a failure of the Law Society to take seriously and investigate the applicant’s allegations of discrimination.

10The Tribunal does not have jurisdiction to review the content, reasons and result of a decision which is rendered by a statutory decision-maker. In Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 the Tribunal stated at para. 12:

The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal’s jurisdiction.

11The principles set out in Baird above have been held by the Tribunal to apply to the results of the Law Society’s complaints process (See: Williams v. Law Society of Upper Canada, 2009 HRTO 794). As the scope of the Tribunal’s jurisdiction does not extend to reviewing the substance of the decision of the Law Society, this means that the decision and its communication to the applicant in February of 2012 do not constitute incidents of discrimination within the meaning of s.34 of the Code. For the same reasons, the substance of the initial decision of the Law Society, which was communicated to the applicant in April of 2010, is also not an incident of discrimination under s.34.

12The remaining incidents of alleged discrimination took place in 2006 and 2007, well over a year before the filing of this Application. In order to come within the exception to the prohibition on filing late Applications the applicant needs to show that in relation to those incidents the delay in filing was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

13The applicant claims that in 2006 staff of the Ontario Human Rights Commission and the Tribunal caused him to believe that he had to pursue a complaint with the Law Society before he could initiate an Application. He refers to the Commission and the Tribunal interchangeably. Assuming that the applicant was in fact given such information in 2006, the applicant goes on to state that he did not file a complaint with the Law Society until 2008 because he continued to be the client of the lawyer whose conduct had offended him. This negates any good faith explanation for his choice in pursuing a complaint with the Law Society, as he then allowed more than a year to pass before he took action in making that complaint.

14In any event, the Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application (see for example Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, and Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 301). Beyond his account as to why he pursued a complaint with the Law Society, the applicant has not cited any further reasons that would support a good faith explanation for the delay in this case. In light of this I am not satisfied that the delay in this case was incurred in good faith.

15Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

order

16The Application is dismissed for delay.