HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sonya Zakharia
Applicant
-and-
London Health Sciences Centre
Respondent
A N D B E T W E E N:
Sonya Zakharia
Applicant
-and-
London Health Sciences Centre and Angela Hodgson-Burtch
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Zakharia v. London Health Sciences Centre
APPEARANCES
Sonya Zakharia, Applicant
Michael Anasakta, Representative
London Health Sciences Centre and Angela Hodgson-Burtch, Respondents
Ron LeClair, Counsel
introduction
1At the outset of the summary hearing, the parties made submissions with respect to three preliminary issues:
a. The request by the applicant’s representative that I recuse myself;
b. The request by the applicant’s representative that I adjourn the hearing to allow him to seek judicial review of my decision not to recuse myself; and
c. Whether the applicant’s representative, Mr. Anasakta, is a proper representative permitted to represent the applicant pursuant to Rule A9.1 of the Social Justice Tribunals Ontario’s Common Rules (“the SJTO Common Rules”).
2Two weeks after the hearing Mr. Anasakta asked formally to withdraw the Applications in Files 2013-15461-I and 2013-15773-I. He had made this request orally during the summary hearing. I have addressed this request below.
Recusal Request
3I denied the applicant’s request that I recuse myself after hearing arguments from the parties.
4The legal principles to be applied in considering apprehension of bias are well-established. De Grandpré, J. wrote in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 that:
(...) the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” (Emphasis Added)
5In my view, the applicant’s position is not in accord with what an “informed person…having thought the matter through, would conclude.” The claim that my Case Assessment Direction (CAD) raises an apprehension of bias is not reasonable.
6Mr. Anasakta submitted I had shown bias by predetermining he was providing legal services in more than 3 matters in a year which would preclude him from representing the applicant in this matter.
7Mr. Anasakta relied on a statement I made in a CAD dated April 16, 2014, as follows:
Given Mr. Anasakta is named as the applicant’s representative on all five Applications he has already exceeded the number of applications in which he is allowed to appear as an “unpaid friend”. The respondents note that, in addition, Mr. Anasakta advertises his services on Kijiji.
8I advised Mr. Anasakta I was giving him the opportunity to make submissions with respect to Rule A9.1 and had not made any decision with respect to it, but he disputed that. He submitted a reasonable person would think I had made up my mind already and was biased.
9He further submitted I should recuse myself because I have a conflict because I am a lawyer and am being asked to make a determination with respect to his status as a representative based on rules made by the body that governs lawyers, namely the Law Society of Upper Canada.
10The respondents submitted a CAD is not a decision, in addition to which paragraph 20 of the CAD stated:
The applicant is directed to be prepared at the outset of the hearing to address what exemption applies to Mr. Anasakta to allow him to represent her before the Tribunal.
11They further submitted there is no conflict if I interpret the Law Society Act as part of the SJTO Common Rules because as a Vice-chair of the HRTO, I am tasked with doing exactly that.
12Mr. Anasakta conceded the CAD was not a decision but that did not mean I had not made a decision.
13I declined to recuse myself. I did not predetermine the representation issue and heard arguments about the issue. My statement in the CAD was one of fact because Mr. Anasakta is appearing as the applicant’s representative in all five of these Applications. I advised Mr. Anasakta in the CAD that he should be prepared to make submissions on how he fit into the exemptions, and he did so.
14Mr. Anasakta provided other reasons for my recusal in his Request for an Order During Proceedings, but made no oral submissions. I address them in any event.
15Mr. Anasakta submitted I did not consider his reasons when, in advance of this hearing I made a decision not to adjourn it, which is inaccurate. In any event it is not a reason for recusal. Mr. Anasakta did not seek judicial review of my decision which would have been his right. I declined to adjourn the hearing to allow Mr. Anasakta to seek judicial review of my decision not to recuse myself.
Withdrawal of 2013-15461-I and 2013-15773-I
16Two weeks after the hearing, Mr. Anasakta sought to formalize the request he made at the hearing and filed a Request to Withdraw an Application for Files 2013-15461-I and 2013-15773-I.
17Rule 10.5 of the Tribunal’s Rules of Procedure provides as follows:
Where a Response to the Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine.
18In these cases, at the Tribunal’s direction, no Responses were filed. The Rules do not address a request to withdraw where a Response has not been filed. Rule 10.5 implies that permission of the Tribunal is not necessarily required where no Response has been filed, although I need not determine that as I allow the withdrawal of these Applications.
19The respondents are concerned that the Applications may simply be re-filed. The respondents do not assert any other prejudice if withdrawal is permitted. If the Applications are refiled the respondents may object at that time.
20The request to withdraw Files 2013-15461-I and 2013-15773-I is granted.
21I turn now to the parties’ arguments respecting whether or not Mr. Anasakta is a proper representative.
Proper Representative
22Rule A9.1 of the Social Justice Tribunals Ontario’s Common Rules, which forms Part 1 of the Tribunal’s Rules of Procedure, states:
Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws.
23As noted in the Practice Direction on Representation issued October 2013, an unlicensed person must fall within a category of persons the Law Society of Upper Canada has exempted from its licensing requirements, as follows [set out in part]:
A person who is not licensed, whose license is suspended or who is not in an exempted category will not be permitted to act as a representative in SJTO proceedings.
UNLICENSED REPRESENTATIVES
An unlicensed person may represent a party in proceedings before the SJTO if that person falls within the specific licensing exemptions established by the LSUC.
A person who is not licensed may be asked by the SJTO to identify the LSUC exemption category to which he or she belongs.
The current exemptions permit the following unlicensed persons, among others, to act as a representative:
· an unpaid friend or neighbour who is not in the business of providing legal services, who does not receive compensation, and who provides legal services in no more than 3 matters in a year
· an employee or volunteer from a trade union or appropriate organization,
24Mr. Anasakta submits he fits into the exemptions because he is either:
a. the applicant’s unpaid friend; or
b. her union representative.
Trade Union Exemption
25Subsection 32(2) of By-law 4 of the Law Society Act states in part:
An employee of a trade union, a volunteer representative of a trade union or an individual designated by the Ontario Federation of Labour [“OFL”] may, without a licence, provide the following legal services to the union, a member of the union, a former member of the union or a survivor:
Give the person advice on her, his or its legal interests, rights or responsibilities in connection with a workplace issue or dispute.
Act on behalf of the person in connection with a workplace issue or dispute or a related proceeding before an adjudicative body other than a federal or provincial court.
26In the Request to Withdraw an Application Mr. Anasakta also asked to be permitted to withdraw his representation of the applicant as her union representative in the remaining three Applications and instead be permitted to act as her “unpaid friend”. I decline this request. This was one of the preliminary issues on which I heard argument at the outset of the summary hearing, and in my view requires a decision.
27Mr. Anasakta first submits he is the president of a union but concedes the union does not fit the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”) definition (even though paragraph 29 of his December 11, 2013 written submission states the opposite). He concedes he does not have standing as a bargaining agent to represent employees, including the applicant, of the respondent. However, he submits he fits the exemption depending on how one defines “union”. He has formed an organization to formalize relationships between employers and employees, and he is serious about helping people, evidenced by undertaking two organizing drives. He has accepted the applicant as a member.
28The respondents submit that for Mr. Anasakta to fall within this category of exemption the “trade union” must meet the LRA definition. Mr. Anasakta’s does not. They submit:
a. the applicant was not a member of a trade union in her employment with the respondent;
b. in order to be an employee or volunteer of a trade union the trade union must be recognized as such; and
c. there is no evidence Mr. Anasakta has been designated by the Ontario Federation of Labour as required under ss. 32(2) of By-Law 4 of the Law Society Act;
29Mr. Anasakta concedes the applicant was not unionized at the respondent’s place of employment.
30The respondents submit in order to have status as a “trade union” under the LRA, one must satisfy the requirements set out in Local 199 U.A.W. Building Corporation, [1977] OLRB Rep. July 472 at para. 10, as follows:
A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings;
The constitution should be placed before a meeting of employees for approval;
The employees attending such meeting should be admitted to membership;
The constitution should be adopted or ratified by the vote of said members; and
Officers should be elected pursuant to the constitution.
31The respondents submit, and I agree, that Mr. Anasakta has provided no evidence in accordance with these requirements that his union has status as a trade union. To allow a person simply to declare himself head of a “union”, without having to satisfy the test for what constitutes a “trade union” which would then allow the person as an employee or volunteer of that trade union to represent a person before this Tribunal would render the exemption meaningless.
32Mr. Anasakta also provided no evidence that he has been designated by the OFL. For these reasons, Mr. Anasakta does not fit within the trade union exemption.
Unpaid Friend Exemption
33Mr. Anasakta submits he fits within the unpaid friend exemption because he is not in the business of providing legal services, is not receiving compensation, and is not providing legal services in more than 3 matters in a year.
34The applicant and Mr. Anasakta confirm they are friends who go out drinking together and the applicant confirms she is not paying Mr. Anasakta for representing her. I have no reason to disbelieve this evidence.
35The question then is whether Mr. Anasakta is in the business of providing legal services and whether he provides legal services in no more than 3 matters a year. As indicated, two weeks after the hearing he sought to reduce to three the number of Applications in which he is the representative for the applicant.
36At the hearing, he also argued he is representing the applicant on only one “matter” before the Tribunal despite his having commenced five Applications on her behalf because all five matters result from one set of circumstances. He asked that he be permitted to continue to act for the applicant on all five Applications because if he was not allowed to do so, then if an employer contravened the Code on more than three occasions giving rise to more than three Applications, an applicant would be precluded from using an unpaid friend as her representative.
37The respondents argue the Tribunal need not consider if Mr. Anasakta is representing the applicant on more than three matters because he held himself out as being in the business of providing legal services by advertising on Kijiji.
38Mr. Anasakta responds that he advertised because he hoped to generate business through people paying union dues, but after reading the respondents’ submissions he placed no further advertisements and accepted no legal work because he realized he had made a mistake.
39The respondents further submit that despite Mr. Anasakta’s retroactive attempt to reduce the number of matters on which he is acting as a representative, he already has acted on more than three matters in a year.
40I find no reason to doubt Mr. Anasakta’s submission that he ceased advertising on Kijiji. However, I agree with the respondents that, despite now withdrawing two of five Applications, Mr. Anasakta has exceeded the number of matters in a year on which he is permitted to act as an unpaid friend.
41I must point out at this juncture that Mr. Anasakta commenced two of the five Applications “on behalf of” the applicant pursuant to s.34(5). In ordinary circumstances and in accordance with Kacan v. OPSEU, 2010 HRTO 795, the Tribunal treats Mr. Anasakta as the applicant in those two Applications. However, in these particular circumstances, this does not change my decision that Mr. Anasakta has exceeded the number of Applications in which he can provide legal services in a year as an unpaid friend.
42I say this having regard to an earlier Request for an Order During Proceedings seeking to amend the title of proceedings of any and all Applications Mr. Anasakta brought either as representative for Ms. Zakharia or on behalf of Ms. Zakharia to name Ms. Zakharia as the applicant. I am satisfied, based on those submissions and the fact Mr. Anasakta identifies himself as both filing “on behalf of” as well as Ms Zakharia’s representative in 2013-15734-I that his real intention was to appear as Ms. Zakharia’s representative.
43I also do not agree with Mr. Anasakta’s submission that a “matter” is defined by the facts alone and not by the number of Applications he has commenced as a representative. The Oxford online dictionary defines “matter” in a legal context as “a case”. To find that “matter” means something different than “case” in this context would not be a plain reading of the term. It would render the numerical limitation meaningless and unworkable. It would necessitate an analysis of every application in which an unpaid friend sought to appear as a representative to determine if any of them together could be considered to constitute one matter. I do not accept that interpretation.
44For all these reasons, Mr. Anasakta is removed as the applicant’s representative pursuant to Rule A9.4.
order and direction
45The title of proceedings in Files 2013-15353-I and 2013-15734-I are amended to name Sonya Zakharia as the applicant.
46The Applications in Files 2013-15461-I and 2013-15773-I are withdrawn.
47Mr. Anasakta is removed as the applicant’s representative. The applicant must provide written confirmation of her current contact information to the Tribunal and the respondents by no later than September 2, 2014.
48Within 21 days of the receipt of this Interim Decision, the respondents’ counsel is directed to contact the applicant to identify a mutually-available half day after September 30, 2014, and before December 19, 2014, for the summary hearing teleconference, and to provide this information to the Tribunal by no later than September 10, 2014.
Dated at Toronto, this 19th day of August, 2014.
“Signed By”
Dawn J. Kershaw
Vice-chair