Norman Traversy v. The City of Mississauga, Casey Dockendorff and Jeffrey Murrary, 2013 HRTO 835

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy

Applicant

-and-

The City of Mississauga, Casey Dockendorff and Jeffrey Murrary

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: May 16, 2013

Citation: 2013 HRTO 835

Indexed as: Traversy v. Mississauga (City)

APPEARANCES

Norman Traversy, Applicant

John Villella, Representative

The City of Mississauga, Casey Dockendorff and Jeffrey Murray, Respondents

Allison Taylor, Counsel

Introduction

1The applicant filed this Application on April 27, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and membership in a vocational association on the basis of disability, sexual orientation and reprisal.

2On August 20, 2012, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) indicating that it appeared that the Application is outside of the Tribunal’s jurisdiction because the Tribunal has held the relationship between a lawyer and an opposing party is not covered by the Code.

3By Case Assessment Direction dated November 22, 2012 (the “CAD”), the Tribunal determined that a summary hearing would be held to hear the parties’ submissions with respect to the issue of jurisdiction, absolute privilege and to provide the applicant with an opportunity to explain the nature of his allegations and how he intends to prove the connection between the alleged events and the Code’s protections. The summary hearing was held by teleconference on March 27, 2013.

4Rule 19A.1 of the Tribunal’s Rules of Procedure reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

5The issue that Rule 19A requires me to determine is whether the Application, in whole or in part, has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

6In determining whether an Application has a reasonable prospect of success, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of “reasonable prospect of success” is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 - 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7The Tribunal does not determine the merits of an Application at the summary hearing because no evidence has been heard. The question at the summary hearing is whether on the facts set out in the Application, the applicant can draw a link between his treatment and a prohibited ground of discrimination or establish a Code violation in law.

ANALYSIS

8The applicant is a former employee of the City of Mississauga who filed claims with the Workplace Safety Insurance Board (“WSIB”). Some of these claims proceeded to hearings before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

9The applicant attended WSIAT hearings on April 28, 2011 and March 20, 2012. The individual respondents Jeffrey Murray (“Murray”) and Casey Dockendorff (“Dockendorff”) represented the City of Mississauga at the hearings. Murray is a partner at the law firm Stringer LLP and Dockendorff is a solicitor with the City of Mississauga.

10The applicant alleges that Murray engaged in a pattern of harassing conduct relating to the WSIAT proceeding. In particular, he alleges that:

a. Before the hearing began, Murray commented that the applicant “just tells things to his doctors and they believe him”;

b. During the hearing, Murray made a comment that the applicant’s representative should pretend he was on a date with the applicant when he was questioning the applicant;

c. During the hearing, Murray intentionally distracted the applicant and startled him during his evidence knowing that the applicant suffered from post-traumatic stress disorder;

d. During one of the breaks in the hearing, Murray mocked the applicant for his reactions to Murray’s behaviour.

11The applicant alleges that Dockendorff failed to disclose key documents in the litigation and condoned and directed Murray’s behaviour.

12The applicant submits the WSIAT proceeding was part of his workplace and that Murray acted as an employee in that proceeding. He relies on the City of Mississauga’s Policy on Employee Conduct which requires individuals conducting business with or performing work on behalf of the City of Mississauga to adhere to the Policy’s respectful workplace statement of commitment. The Policy defines “workplace” to include all locations where employees or elected officials conduct business or social activities. The applicant argues the WSIAT proceeding was part of Murray’s workplace and an extension of the applicant’s own workplace. I disagree.

13At the time of the WSIAT hearings, the applicant was no longer employed by the City of Mississauga. As such, the WSIAT hearing room was not part of the applicant’s workplace as he was no longer working. Further, to accept the applicant’s argument would mean that all workplace-related litigation becomes part of an employee’s workplace. A hearing room is not part of an employee’s workplace even where the litigation involves a workplace-related dispute because an employer has no control over the hearing room. It is the adjudicator that controls the proceeding.

14The applicant argues further that Murray is an employee of the City. He is not. He is a lawyer in private practice retained by the City to represent it on the WSIAT proceeding. To accept the applicant’s argument would mean that Murray is an employee of all of his clients. Logically that cannot be so. Murray is a partner of his law firm and is not an employee of anyone.

15Finally, the applicant argues that Murray is not exempt from the Code for things that happened outside of the legal proceeding, for example comments made before the hearing or during breaks. The distinction made by the applicant does not change the fact that his complaint is about Murray’s conduct in relation to the litigation. His complaint is about Murray as opposing counsel. It matters not that the conduct complained of occurred before the hearing, during breaks or during the conduct of the litigation.

16The applicant’s complaint regarding Dockendorff is also about her conduct as opposing counsel in the WSIAT proceeding.

17The Tribunal does not have jurisdiction to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall within the five social areas of the Code. The Tribunal’s jurisprudence is clear that opposing counsel does not have an employment or a service relationship with an opposing party. Because the relationship between a lawyer and an opposing party does not fall within a social area of the Code, it is outside of the Tribunal’s jurisdiction. See Cooper v. Pinkofskys, 2008 HRTO 390; Humphries v. General Electric of Canada, 2009 HRTO 1869; Aboutaeib v. Ontario, 2011 HRTO 2092.

18The applicant’s complaints about Murray and Dockendorff relate to their conduct as counsel to the employer in the WSIAT proceedings. As such, the Tribunal does not have jurisdiction to consider this Application.

ORDER

19The Application is dismissed.