Mauch v. Golding, 2014 HRTO 1601

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jane Mauch

Applicant

-and-

Ellen Golding, Kyle Armagon, Cheryl Bartlett and Walker Head Lawyers

Respondents

AND:

Nadja-Natasha Mauch

Applicant

-and-

Ellen Golding, Kyle Armagon and Walker Head Lawyers

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: October 30, 2014

Citation: 2014 HRTO 1601

Indexed as: Mauch v. Golding

APPEARANCES

Jane Mauch, Applicant

Self-represented

Nadja-Natasha Mauch, Applicant

No one appearing

Walker Head Lawyers, Kyle Armagon and Cheryl Bartlett, Respondents

Alexandra Lev-Farrell, Counsel

BACKGROUND

1The Application filed by Jane Mauch on November 1, 2013 alleges discrimination with respect to contracts because of race, place of origin, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application filed by Nadja-Natasha Mauch on November 5, 2013 alleges discrimination with respect to contracts because of disability, age and reprisal contrary to the Code.

3By Case Assessment Direction dated January 9, 2014, the Tribunal directed that a summary hearing be held to determine whether the Applications should be dismissed for the following reasons:

a. Delay;

b. Jurisdiction;

c. No reasonable prospect of success.

4The Case Assessment Direction directed the respondents to file a brief summary of their interactions with the applicants. They were not required to file Responses to the Applications.

5The summary hearing was conducted by teleconference on September 26, 2014.

6On the consent of all parties, these Applications were consolidated for the purposes of this summary hearing decision.

the facts

7In June 2009, the applicant Jane Mauch, her spouse Konrad Mauch, and the respondent Ellen Golding, entered into a partnership agreement to operate a restaurant called the Sunrise Grill. The business was operated under the company name Nator Limited (“Nator”). All three individuals were shareholders of the company. Ellen Golding ran the restaurant.

8The applicant Nadja-Natasha Mauch is the daughter or Jane and Konrad Mauch She worked at the restaurant from June 2009 to December 2010. Nadja-Natasha Mauch purchased the restaurant in March 2010.

9Ellen Golding’s physical involvement in the restaurant ceased when Nadja-Natasha Mauch purchased the restaurant in March 2010.

10Jane Mauch and Ellen Golding have been involved in extensive litigation over their failed business venture and the purchase of the restaurant by Nadja-Natasha Mauch. This litigation includes a small claims court action commenced by Ellen Golding on March 31, 2010 and a counterclaim by Jane Mauch. Both claims were dismissed on December 16, 2012. It also includes a small claims court action against Ellen Golding by Nator. This matter was adjourned on May 4, 2011, and the court directed their claims be dealt with by arbitration in accordance with the shareholders’ agreement.

11On July 8, 2011, Ellen Golding commenced an action in the Superior Court against Jane and Konrad Mauch, and Nator. In 2013, Jane and Konrad Mauch and Nator counterclaimed in this action. Ellen Golding was represented by the respondent Kyle Armagon of Walker Head Lawyers in the Superior Court action. The respondent Cheryl Bartlett is a law clerk at the firm. This action is ongoing.

12In her Application to the Tribunal, Jane Mauch complains that Ellen Golding made racial comments to her during the time she was operating the restaurant. She complains further that Ellen Golding continued to make discriminatory comments during a hearing before the Landlord and Tenant Board on March 15, 2011 (over Ellen Golding’s alleged non-payment of rent) and in a meeting on October 31, 2012 in relation to a motion in one of the small claims court actions. Jane Mauch complains the respondents committed many acts of perjury in the litigation and alleges these acts were acts of retaliation because of her complaints about Ellen Golding’s discriminatory conduct. Jane Mauch alleges further that Walker Head Lawyers, Kyle Armagon and Cheryl Bartlett, allowed Ellen Golding to commit acts of discrimination and reprisal. In the Application, she states she complained about their conduct to the Law Society.

13During the summary hearing, Jane Mauch stated she was prepared to withdraw her allegations against Walker Head Lawyers, Kyle Armagon and Cheryl Bartlett because she could pursue them before the Law Society, but that she wanted her allegations against Ellen Golding to proceed.

14In her Application, Nadja-Natasha Mauch alleges Ellen Golding discriminated against her during her employment by not allowing her to learn trade skills, by harassing her, by paying her less, and by ultimately terminating her employment. She alleges further that she experienced age discrimination because Ellen Golding is disputing the legitimacy of her purchase of the restaurant because of her age. This dispute is the subject of ongoing litigation between the parties.

ANALYSIS

Delay

15Section 34 of the Code provides that an application must be filed within one year of the incident to which the application relates, or within one year of the last incident in a series of events.

16The Applications were filed in November 2013. The applicants’ allegations of harassment and discrimination took place when the restaurant was being operated by Ellen Golding. The relevant time period is between June 2009, when the partnership was entered into, and March 2010, when Nadja-Natasha Mauch purchased the restaurant. Allegations in 2009 and 2010 are clearly outside of the one-year time limit under section 34(1) of the Code.

17Under section 34(2) of the Code, the Tribunal can accept an application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the application. To show that a delay was incurred in good faith, the applicants must provide a reasonable explanation for their failure to pursue their rights under the Code in a timely manner.

18During the summary hearing, the applicant Jane Mauch stated she delayed filing the Applications because of the ongoing litigation with Ellen Golding. Jane Mauch stated she did not want to add further litigation because she was hoping to resolve her disputes with Ellen Golding. Jane Mauch stated further that she did not know about the existence of the Tribunal until recently.

19The reasons provided by Jane Mauch for the delay in filing the Applications do not amount to good faith. Although ignorance of one’s rights may in some circumstances amount to good faith, the applicants must establish that they had no reason to make inquiries about their rights. In this case, the applicants have been pursuing their legal rights since 2010. They have failed to provide any explanation as to why they did not, or could not have made inquiries about their human rights in order to ensure that these Applications were filed in a timely manner. See Simmons v. Ontario (Transportation), 2010 HRTO 1884.

20The applicants have failed to establish a good faith explanation for their delay. In light of this finding, it is not necessary to address the issue of prejudice.

21The applicants’ allegations of discrimination and harassment in 2009 and 2010 when Ellen Golding was operating the restaurant are dismissed for delay. As such, they are outside of the Tribunal’s jurisdiction.

Remaining Allegations of Discrimination

22Nadja-Natasha Mauch alleges that she experienced age discrimination because her purchase of the restaurant is being contested by Ellen Golding because of her age. This dispute is the subject of ongoing legal proceedings.

23Legal positions taken by parties in the context of litigation cannot be the subject of human rights complaints because they are protected by the doctrine of absolute privilege. Absolute privilege is a common law principle that prohibits legal proceedings that are based on statements set out in pleadings or affidavits, or statements made by an adjudicator, counsel, or witness in a legal proceeding. See Williams v. Toronto Transit Commission, 2014 HRTO 327 at para. 36. Thus, any complaint regarding the legal position taken by Ellen Golding in the litigation concerning the purchase of the restaurant by Nadja-Natasha Mauch is protected by absolute privilege.

24The applicants allege further that Ellen Golding made discriminatory comments to Jane Mauch when attending various court/tribunal appearances. They assert this discrimination is in relation to the social area of contracts. During the summary hearing, Jane Mauch added the social area of services.

25In order for the Code to apply, the allegations must relate to a social area. There is no service or contractual relationship between Ellen Golding and Jane Mauch in relation to comments allegedly made by Ellen Golding during litigation. The Tribunal does not have jurisdiction over every interaction that takes place between individuals. Its jurisdiction is limited to the social areas under the Code. For this reason, I find the Tribunal does not have jurisdiction over comments allegedly made by Ellen Golding during the course of litigation.

26The applicants allege further that Walker Head Lawyers, Kyle Armagon and Cheryl Bartlett allowed Ellen Golding to make discriminatory comments and committed many acts of perjury when it acted for Ms. Golding. Again, these allegations are unrelated to the social areas of contracts or services. The Tribunal has stated many times that the relationship between a lawyer and an opposing party is not covered by the Code because there is no service relationship between them. See Belso v. York Regional Police, 2009 HRTO 757 and Cooper v. Pinkofskys, 2008 HRTO 390. The Tribunal has also found that the doctrine of absolute privilege prevents applicants from pursuing applications to this Tribunal concerning the conduct of opposing counsel in litigation. See G.A. v. York Region District School Board, 2012 HRTO 1787.

27During the summary hearing, Jane Mauch attempted to add a new allegation against Walker Head Lawyers. She asserted that it was in a conflict of interest when it represented Ellen Golding. Jane Mauch advised that she contacted the law firm December 2009 to retain it in connection with her litigation against Golding. Even if I were to accept that this new allegation is related to a social area under the Code, it is out of time.

28These Applications are dismissed as being outside of the Tribunal’s jurisdiction because: (a) the 2009 and 2010 allegations are out of time; (b) the claims against Ellen Golding in the context of the litigation do not relate to a social area under the Code; (c) the legal position taken in the litigation regarding the purchase of the restaurant by Nadja-Natasha Mauch is protected by absolute privilege; and (d) the allegations against opposing counsel are not covered by the Code and/or are protected by absolute privilege.

ORDER

29These Applications are dismissed.