HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
G.M.K. by his litigation guardian S.Y.C.
Applicant
-and-
Lakefield College School
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: G.M.K. v. Lakefield College School
WRITTEN SUBMISSIONS
G.M.K. by his litigation guardian S.Y.C., Applicant
Charlene Da Silva, Counsel
introduction
1This Interim Decision explains why the Tribunal will not permit a paralegal firm, Affordable Immigration and Paralegal Support, to bring this Application on behalf of the applicant. The issue that has arisen is whether a person who is seeking to bring an application on behalf of another person can charge a fee for doing so.
2The Application alleges discrimination with respect to services because of place of origin, citizenship, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent is an independent secondary school. The applicant was a pupil at the school but was expelled. The Application focuses on the events leading up to the expulsion and the expulsion decision itself. The respondent has not yet been directed to file a Response.
3The Application was filed by Affordable Immigration and Paralegal Support on behalf of the applicant. The paralegal firm is charging a fee for doing so.
4While it is perfectly proper for a lawyer or paralegal in good standing with the Law Society of Upper Canada to charge a fee to act as an applicant’s representative, I conclude that it is not permissible under the Code for a person to charge a fee for acting as an applicant by bringing an application on another’s behalf.
5In my view the legislative purpose in allowing a person to bring an application to the Tribunal on behalf of another person is to promote access to justice, and that purpose is undermined if this is done for a fee. Although the Code is silent on the question of whether a fee can be charged, I think that it should not be interpreted in a manner that allows a fee to be charged to the person on whose behalf the application is brought when, if that person had brought the application on their own, they would have done so at no cost. The reasons for this conclusion are set out below.
A person can apply to the tribunal on behalf of another
6In s.34(1) the Code allows a person who believes he or she has been discriminated against to bring an application to the Tribunal in their own right. The Code also allows another person to bring the application on their behalf. The relevant parts of s.34 read:
(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.
(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,
(a) would have been entitled to bring an application under subsection (1); and
(b) consents to the application.
(6) If a person or organization makes an application on behalf of another person, the person or organization may participate in the proceeding in accordance with the Tribunal rules.
(7) A consent under clause (5)(b) shall be in a form specified in the Tribunal rules.
(8) An application under subsection (5) shall be made within the time period required for making an application under subsection (1).
(9) Subsections (2) and (3) apply to an application made under subsection (5).
(10) An application under subsection (5) may be withdrawn by the person on behalf of whom the application is made in accordance with the Tribunal rules.
7When an application is brought on behalf of another person, the Tribunal refers to the person who is bringing the application as the “applicant” and the person whose Code rights are alleged to have been violated as the “claimant” (see: Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795 at para. 7 (“Kacan”)).
8In these circumstances it is the claimant who is a party to the application, not the applicant. Section 36 lists the parties to an application as follows:
The parties to an application under section 34 or 35 are the following:
In the case of an application under subsection 34(1), the person who made the application.
In the case of an application under subsection 34(5), the person on behalf of whom the application is made.
how the issue arises in this case
9In order to avoid confusion as to who is who, from this point on I will refer to the minor whose Code rights are alleged to have been violated as the “claimant” and the paralegal firm as the “applicant”.
10The Application was filed on April 17, 2014. On June 2, 2014, the Tribunal received a Form 27 advising it that Affordable Immigration and Paralegal Support was bringing this Application on behalf of the claimant. Form 27 is the form the Tribunal uses to enable a person to bring an application on another’s behalf.
11Upon the Tribunal receiving that form I issued a Case Assessment Direction (“CAD”) on June 24, 2014. The CAD notes that the claimant appeared to be a minor, and if so, did not have the capacity to bring this Application on his own. I also noted that, as a minor, the claimant would not have the capacity to consent to another person bringing the Application on his behalf. The CAD explains that the Application either had to be brought by a litigation guardian or the litigation guardian had to consent to another person bringing the Application on behalf of the claimant (see the Tribunal’s Practice Directions on Applications on Behalf of Another Person and on Litigation Guardians).
12Then, on June 26, 2014, the Tribunal received confirmation that one of the claimant’s parents is acting as litigation guardian. Along with that confirmation the Tribunal received another completed Form 27, this time from the litigation guardian and again consenting to the paralegal firm bringing this Application on behalf of the claimant.
13I issued another CAD on August 7, 2014. I issued this CAD because, despite the litigation guardian’s apparent delegation of power to Affordable Immigration and Paralegal Support to bring the Application, it was unclear whether the paralegal firm was in fact acting as the claimant’s representative or whether it was bringing the Application on the claimant’s behalf. The CAD makes the following observations:
In most cases the Tribunal deals with that involve an application being brought by a person or organisation on behalf of another, the application is brought by a natural person or by an organisation such as a union or non-governmental organisation. Here the Application is ostensibly being brought by a paralegal firm, an organisation which has as its core purpose the provision of legal advice and representation to clients in exchange for fees for those services.
That is not to say that a law firm or paralegal firm cannot bring an application to the Tribunal on behalf of a claimant. A plain reading of s.34(5) suggests that a law firm or paralegal firm is an “organisation” within the meaning of s.34(5). However, the Tribunal has the authority and the duty to control the integrity of its own process. See Rules A8.1, A8.2 and especially A9.4 of the SJTO Common Rules found in Part 1 of the HRTO’s Rules of Procedure. The circumstances of this case appear to raise questions about how the applicant in this case should be permitted to exercise its role in bringing an application on behalf of the claimant.
14The CAD then quotes the Tribunal’s decision in Kacan at paras. 9-14. That excerpt from Kacan explains the distinctions between the role of a person making an application on behalf of another and the role of a representative. The CAD directs the paralegal firm to:
a.) Advise whether it is charging a fee to the litigation guardian for bringing this Application on behalf of the claimant;
b.) If so, it is directed to provide submissions on whether it is entitled to charge a fee, having regard to the provisions of s.34(5) of the Code, the Law Society Act and By-Laws, the Law Society’s Paralegal Rules of Conduct and any other authorities;
15In addition, in relation to the particular circumstances of a law firm or paralegal firm bringing an application on behalf of another, and regardless of whether or not it is charging a fee, the CAD directs the paralegal firm to:
c.) Advise whether it has or is going to retain counsel; and
d.) If it has no intention of retaining counsel, it is directed to provide submissions on why it is under no obligation to do so, having regard to the provisions of s.34(5) of the Code, the Law Society Act and By-Laws, the Law Society’s Paralegal Rules of Conduct and any other authorities.
16Submissions were requested in relation to item d. because when a law firm or paralegal firm acts as an applicant on behalf of another, it may have professional and ethical obligations to retain counsel in order to avoid a conflict of interest between their dual roles as licenced law professional and applicant before the Tribunal. It seems to me that other persons (such as natural persons, unions or non-governmental organisations) who bring an application on behalf of another are under no similar obligation.
17A copy of the Application and the CADs were provided to the respondent and it was given an opportunity to make submissions on the above issues, but did not do so.
18The applicant provided submissions but they are of no help at all. If anything, they demonstrate that the applicant does not understand the difference between a representative and a person who brings an application on another’s behalf. I say this because the submissions use the two terms and the underlying concepts interchangeably.
19In relation to item a. the submissions confirm that the applicant is receiving a fee for bringing the Application.
20In relation to item b. the submissions simply assert that the applicant is entitled to charge a fee because it is doing so in accordance with Rule 5.01 of the Law Society’s Paralegal Rules of Conduct. The submission fails to grasp the distinction between charging a fee to bring an application on a person’s behalf and charging a fee to act as that person’s representative. As such, it does not respond to the original question.
21In relation to items c. and d., neither of these issues is addressed. The submissions just state: “…the Paralegal is responsible to provide representation in a manner that is in compliance with the LSUC Rules of Professional Conduct, the Law Society Act and By-Laws”.
The only issue for determination is whether an applicant can charge a fee to a claimant
22As the applicant has confirmed that it is charging a fee to bring this Application on behalf of the claimant, the only issue that needs to be determined is whether it is permitted to do so under s.34(5) of the Code.
23Although the applicant was requested to indicate whether it had or intended to hire counsel and, if not, whether it is under any obligation to do so, it has not responded to these questions. Because I have decided that the applicant cannot continue in the capacity of applicant, this second issue does not need to be determined, at least not at this stage of this Application.
analysis
The legislative purpose underlying s.34(5) is to promote access to the Tribunal’s process
24As the Code is silent on the issue of whether a fee can be charged to bring an application on behalf of another, a determination of this issue requires an interpretation of the legislative purpose underlying s.34(5). It is well settled that statutes are interpreted “…in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58.
25In both Kacan (para. 12) and CAW-Canada v. Presteve Foods, 2010 HRTO 796 (“CAW-Canada”) (para. 11), the Tribunal notes that s.34(5) was enacted to promote access to the Tribunal’s process. It does so by enabling a person whose Code rights are alleged to have been violated to delegate the authority to bring an application to another person.
26The appointment of an applicant to bring the application on behalf of a claimant is not linked to any lack of capacity – whether because of age or disability – on the part of the claimant. This distinguishes a delegation in accordance with s.34(5) (which is an act of choice on the part of the claimant) from the appointment of a litigation guardian (which is required by law because a litigant lacks capacity).
27Persons who may not lack capacity, yet are in a vulnerable position for other reasons, can access the Tribunal’s process by having someone else bring an application on their behalf. The facts leading to the decision in CAW-Canada serve as an example that illustrates this well, in that the vulnerability of the claimants in that case was due to their immigration status rather than to any lack of capacity.
28In addition to facilitating access to the Tribunal for persons in vulnerable situations, there may be a range of other circumstances, unrelated to a particular vulnerability, which lead a person whose Code rights may have been violated to have someone else bring an application on their behalf.
29There is a threshold requirement to the delegation of authority to another person to bring an application, and that is that the claimant must also be able to bring the application in their own right. As the Tribunal observes in Carasco v. University of Windsor, 2012 HRTO 195 at paras. 7-14, the Legislature did not intend s.34(5) to be used as a vehicle for public interest litigants to launch applications in the absence of a delegation of authority to do so from a claimant who alleges a violation of their Code rights.
30Apart from this threshold requirement, the only preconditions to the delegation of authority to another person to bring an application are that the claimant have the capacity to both consent to and revoke the authority (Kacan at paras. 18-22) and that the claimant actually consent (s.34(5)(b)).
31The absence of any further limiting conditions on the exercise of that power of delegation indicates a legislative intent to allow s.34(5) to be used in a wide range of circumstances. The inference that I draw from this lack of qualifying conditions is that s.34(5) is aimed at promoting access to the Tribunal’s process. By not imposing any further conditions, the Legislature has not restricted the scope of the use of s.34(5) to any particular set of circumstances. In my view the logic of this policy choice is underscored by the fact that the range of possible reasons that claimants might have for wanting someone else to bring an application on their behalf would be difficult to categorise exhaustively and set rules around.
32This reading of s.34(5) is supported by an examination of its legislative history. When the Legislature’s Standing Committee on Justice Policy conducted public hearings into Bill 107, the legislation that amended the Code (i.e. the Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30), it heard submissions from 11 different advocacy groups from communities across the province on the need for an amendment to the Code that would enable applications to be brought by a third party on behalf of another. The submissions all say essentially the same thing, and that is that access to justice for vulnerable and marginalised individuals would be enhanced if applications could be brought on their behalf by third parties, such as unions, advocacy and support groups.
33No reasons other than the promotion of access to justice were put forward in support of this amendment. For the purposes of dealing with the issue raised in the present case, what is notably absent from any of the submissions is any mention of the notion that access to justice would be enhanced by the third party charging a fee to act as an applicant.
34The amendment was adopted without debate. While there was no debate on the amendment, in my view the only inference that can be drawn about the legislative intent underlying this subsection is that the Legislature decided to give effect to the clear and consistent position reflected in the various submissions it received in relation to the need for third party applications. For these reasons I conclude that the legislative intent underlying s.34(5) is to enhance access to the Tribunal’s process by not limiting access only to those applicants who bring applications in their own right.
Charging a fee to bring an application undermines the legislative intent
35As is noted in Kacan, an essential characteristic of the delegation of authority from a claimant to an applicant to bring an application is that it creates a fiduciary relationship. The applicant is the fiduciary and the claimant is the beneficiary. Citing the Supreme Court of Canada in Galambos v. Perez, 2009 SCC 48 (at paras. 48-86), the Tribunal in Kacan found a fiduciary obligation to exist (para. 24) because of the “power-dependency” relationship between the applicant and claimant, the existence of a mutual understanding and an implied undertaking that the applicant would act in the claimant’s best interests. It is this broad discretion vested in the applicant to make decisions affecting the claimant’s interests that creates an obligation on the applicant to act in the claimant’s best interests.
36Similarly, the elements of a fiduciary relationship are present in this case. Although a litigation guardian has been appointed, the claimant in this case is a minor, and both the claimant and litigation guardian are dealing with the applicant remotely. After being expelled by the respondent, the claimant left Canada and returned to his country of origin, where his parents reside. As neither the claimant nor the litigation guardian now reside in Canada, they are not in a position to deal directly with the applicant. This means that there is the potential for less direct accountability on the part of the applicant than there would be if the claimant and his litigation guardian were present in Ontario and had personal access to the applicant over the course of the proceedings. These are circumstances particular to this Application that require that the applicant represent the interests of the claimant with the utmost good faith.
37In addition, the requirement that a claimant consent to the applicant bringing the application under s.34(5) triggers a mutual understanding between claimant and applicant that the applicant will act in the claimant’s best interests. By agreeing to bring this Application on behalf of the claimant, the applicant is undertaking to act as a fiduciary.
38However, requiring a fee for bringing an application on behalf of the claimant is a breach of that fiduciary obligation. I appreciate that lawyers and paralegals owe a fiduciary duty to their clients and yet charge fees for their services. But this is because they are exercising specialised professional skills in their role as representative of a client. The fee is for the exercise of the authorised representative’s skill and judgement.
39By contrast, bringing an application on behalf of another does not require any specialised professional skills. It simply requires integrity and common sense on the part of the applicant. This is because the legislative scheme places a s.34(5) applicant in exactly the same position as a s.34(1) applicant. Both types of applicants can initiate an application and neither the Code nor the Tribunal’s Rules of Procedure differentiate between them for the purposes of moving an application through the Tribunal’s process. The Tribunal’s process is intended to be accessible to anyone and should not depend on the applicant having any specialised training, professional qualification or knowledge.
40In circumstance where all other applicants are not required to pay a fee to access the Tribunal’s process yet this claimant is, the applicant is making a demand of the claimant that is in its interests but not in the interests of the claimant. To the extent that charging a fee to bring an application inhibits access to the Tribunal’s process, this is contrary to the legislative intent underlying s.34(5). It also runs counter to the Tribunal’s institutional interest in having an accessible process for all applicants, whether they are applying in their own right or on behalf of another.
41Further, the Tribunal has an interest in safeguarding the integrity of its own process by upholding the fiduciary character of the relationship between an applicant and a claimant. Allowing the applicant to charge a fee for bringing this Application would require the Tribunal to turn a blind eye to an action that undermines the fiduciary nature of that relationship. For these reasons I conclude that it is improper for an applicant to charge the claimant a fee for bringing the Application on his behalf.
What is the appropriate way to deal with this issue?
42The Tribunal has a broad authority under Rule A8.1 of the Social Justice Tribunals of Ontario Common Rules of Procedure to control the integrity of its own process. Rule A.8.1 states:
The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
43In relation to overseeing the integrity of its process where an application has been brought on behalf of another, the Tribunal stated the following in Kacan at para. 25:
Moreover, in my view the Tribunal must, in appropriate cases, exercise its powers to remove a s. 34(5) applicant who may have a conflict of interest with the claimant or to make appropriate orders to ensure competent representation of the claimant’s interests in accordance with the applicant’s fiduciary duties to him or her. In this case, at this stage, where the applicant is represented by counsel, there is no reason for any concern in this regard and no need for the Tribunal to make any such order.
44Unlike the circumstances in Kacan, the applicant here should be removed as an applicant. Charging a fee to bring this Application is impermissible and is unfair to the claimant.
45In addition, in this case the applicant’s failure to understand the difference between its role as an applicant and the role of counsel to an applicant indicates to me that the claimant’s best interests are not safeguarded by the applicant continuing in the former role. For these reasons the applicant paralegal firm should not be allowed to continue as the applicant appointed under s.34(5).
next steps
46The claimant, through his litigation guardian, may choose to appoint someone else as an applicant to bring the Application on his behalf in accordance with s.34(5). As long as that new applicant understands their role and does not charge a fee for bringing the Application, there should be no obstacle to that person acting as the applicant. It would be open to the new applicant to decide whether to hire an authorised representative to represent them before the Tribunal.
47If the claimant, through his litigation guardian, chooses instead to bring the Application in his own right in accordance with s.34(1), that is also perfectly acceptable. In that case it would also be open to the litigation guardian to decide whether to hire an authorised representative to represent them before the Tribunal.
48In order for the claimant’s litigation guardian to decide how next to proceed, Affordable Immigration and Paralegal Support is directed to provide a copy of this Interim Decision to the litigation guardian within seven days of the date of this Interim Decision.
49Within 21 days of the date of this Interim Decision, the litigation guardian is directed to inform the Tribunal in writing whether another person will bring the Application on behalf of the applicant in accordance with s.34(5), or whether the litigation guardian will bring the Application in accordance with s.34(1).
50Notwithstanding the present uncertainty as to who is bringing this Application, the effective date of the filing of the Application remains April 17, 2014, the date the Tribunal received the form outlining the allegations of discrimination.
order
51Affordable Immigration and Paralegal Support is removed as the applicant appointed to bring this Application on behalf of the claimant. The style of cause is amended accordingly.
52Affordable Immigration and Paralegal Support is directed to provide a copy of this Interim Decision to the claimant’s litigation guardian within seven days of the date of this Interim Decision.
53Within 21 days of the date of this Interim Decision, the claimant’s litigation guardian is directed to inform the Tribunal in writing whether another person will bring the Application on behalf of the claimant in accordance with s.34(5), or whether the litigation guardian will bring the Application in accordance with s.34(1).
Dated at Toronto, this 27th day of October, 2014.
“Signed by”
Paul Aterman
Vice-chair