Ormesher v. Schwarz Law LLP, 2014 HRTO 1757

Human Rights Tribunal of Ontario

Between:

Leslie Ormesher Applicant

-and-

Schwarz Law LLP and Jayson B. Schwarz Respondents

Interim Decision

Adjudicator: David Muir Date: December 5, 2014 Citation: 2014 HRTO 1757 Indexed As: Ormesher v. Schwarz Law LLP

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. This Interim Decision deals with the respondents’ request that this Application be dismissed pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in another proceeding, or, that it be dismissed because it is an abuse of process.

2A preliminary issue hearing was scheduled to take place on November 12, 2014, by telephone conference call. The parties then agreed to deal with this matter in writing and the applicant in particular has waived her right to make oral submissions.

3In a Case Assessment Direction issued to the parties on November 6, 2014, amongst other directions, the respondent was directed to address the effect of the Decision of the Supreme Court of Canada, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), as well as previous cases in which the HRTO has considered the application of s. 45.1 following Penner, including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, and K.M. v. Kodama, 2014 HRTO 526. Further written submissions were received from both the respondents and the applicant.

4The applicant was an employee of the respondents, a law firm and a partner of the firm respectively. In her Application the applicant alleges sexual harassment of herself and other female colleagues. She alleges that she was sexually assaulted by the personal respondent and that the termination of her employment was discriminatory.

5In addition to filing this Application the applicant made a complaint of professional misconduct against the personal respondent to the Law Society of Upper Canada (“LSUC”). The complaint to the LSUC did not progress beyond the investigation stage because it was determined that there was insufficient evidence to substantiate the complaint. The respondents argue that this Application should be dismissed because the investigation of the applicant’s complaint by the LSUC appropriately dealt with the substance of this Application.

Analysis and Decision

6I have reviewed the parties’ submissions. For the reasons below I find that the respondents’ request to dismiss this Application must be denied.

7Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

8The Tribunal has interpreted section 45.1 as requiring a two-part analysis: (1) whether there has been another “proceeding”; and (2) if so, whether the other proceeding has appropriately dealt with the substance of the Application.

9The parties differ on the first part of the test. I note that the Tribunal has determined in at least one case that the investigation of a complaint by the LSUC is a proceeding within the meaning of section 45.1. See Mathurin v. Scully, 2010 HRTO 2340. Although there may be reasons to question this result, in light of my conclusions below there is no need to re-consider the question of whether an investigation of the nature conducted by the LSUC is a proceeding.

10Assuming without deciding that the investigation of the complaint was a proceeding within the meaning of section 45.1 the question becomes whether or not the substance of this Application was appropriately dealt with in the proceeding.

11The general approach the Tribunal has taken to the application of section 45.1 is reasonably well defined. In broad brush the Tribunal has interpreted section 45.1 as being a provision that seeks to prevent the re-litigation of issues that have previously been determined by another decision-maker with the authority to consider the Code in their deliberations. The Tribunal has also determined that section 45.1 includes the doctrines of res judicata, issue estoppel, issue estopped and other legal mechanisms seeking to limit the unfairness and inefficiency of re-litigation of issues that have already been determined.

12To the extent that there were still questions surrounding the Tribunal’s responsibility to prevent re-litigation these appeared to have largely been settled by the decision of the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”).

13The majority of the Supreme Court of Canada in Figliola articulated a three-part test to determine whether the substance of an application before a human rights tribunal has already been “appropriately dealt with” in another proceeding. The three parts to this test were articulated as being: (1) whether there was concurrent jurisdiction to decide human rights issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. See Figliola at para. 37.

14As clear as these instructions may have appeared at the time, it is fair to say that the landscape changed somewhat with the release of a further decision of the Supreme Court in Penner, which in my view has narrowed somewhat the application of the principles confirmed in Figliola by clarifying the factors going to what is ultimately an exercise of the Tribunal’s discretion, to apply section 45.1 or alternatively, the doctrine of abuse of process if that is a different thing.

15On this latter point the respondents argued that abuse of process is not entirely captured by section 45.1. In some sense this is obviously the case as the doctrine of abuse of process has purposes much broader than the prevention of re-litigation and while I agree with the respondent, in the circumstances of this case I see no material difference and have found that the Application should not be dismissed pursuant to section 45.1 or because it would be an abuse of process for it to be continued in the Tribunal process.

16The facts in Penner can be summarized as follows. Penner was arrested for disruptive behaviour in an Ontario courtroom. He filed a complaint against two police officers under the Police Services Act (“PSA”), alleging unlawful arrest and unnecessary use of force. He also commenced a civil action claiming damages arising out of the same incident. A hearing officer appointed by the Chief of Police under the PSA found the police officers not guilty of misconduct and dismissed the complaint. That decision was reversed on appeal by the Ontario Civilian Commission on Police Services on the basis that the arrest was unlawful. On further appeal, the Ontario Divisional Court restored the hearing officer’s decision. The police respondents then successfully moved in the Superior Court of Justice to have many of the claims in the civil action struck on the basis of issue estoppel. The Court of Appeal upheld this decision and the matter proceeded to the Supreme Court of Canada.

17In Penner, the majority of the Court concluded that it would be unfair to apply the result of the complaint process to preclude the claimant from pursuing his civil claim against the police officers. The Court held that the doctrine of issue estoppel provides a discretionary authority for decision makers to prevent the re-litigation of issues that have already been determined but arguably reinvigorated the scope of this discretion in accordance with the principles articulated in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, 2 S.C.R. 460.

18While the Court acknowledged that finality is an important value in our legal system, it will be unfair in some circumstances to apply the doctrine of issue estoppel even where the technical requirements of the doctrine were present. Amongst the factors that the Court found should have been considered in that case were the following:

a. The fairness of the prior proceeding.

b. Whether it would be unfair to use the results of the prior proceeding to preclude the re-litigation of the issues – amongst the considerations on this point were whether there were significant differences between the purposes, processes or parties’ stakes involved in the two proceedings.

c. Whether it is desirable having regard to the purposes of the other proceeding to burden it with the consequence of an estoppel arising out of the decision in that proceeding. This consideration goes both to the reasonable expectation of the parties in respect of the prior proceeding and the possible effects the burdening of the other proceeding with such consequence on parties’ approach and conduct in the prior proceeding. Equally significantly the court was a concerned that the public interest in individuals making public interest complaints against police officers might be impacted if a complainant’s right to bring a civil action would be prejudiced as a result.

19The Court overturned the decision of the Court of Appeal, concluding that while the process was fair, the Court of Appeal had failed to properly consider the fairness of applying the result of the complaint process to preclude Penner’s civil action.

20In my view the rationale in Penner requires that the respondents’ Request be denied. In my view it would be unfair, having regard to the nature of the proceeding, the parties’ respective stakes in it, and the parties’ reasonable expectations about the impact of that proceeding, to prevent the applicant from bringing the same claim to the Tribunal for adjudication.

21I make this finding for essentially two reasons. One I find that the purposes of the two proceedings are substantially different. The purpose of a complaint of this kind to the Law Society is almost entirely concerned with the public interest in ensuring that lawyers live up to their professional responsibility. There is no personal remedy available to the applicant. While I acknowledge that there is a public interest in the elimination of discrimination in our society, an Application pursuant to section 34 of the Code is essentially a private claim of civil wrongdoing and primarily concerned with providing a remedy to the applicant. Related to this is the other consideration informing the decision in Penner, being the concern that it would not be appropriate to create a significant disincentive to individuals making public interest complaints to regulatory bodies like the LSUC. In the end I find that the reasonable expectations of the parties cannot have been that a determination, one way or the other, with respect to an allegation of professional misconduct, would prevent the applicant from seeking damages for that conduct in another proceeding.

22Turning to consider the respondents’ arguments briefly. I agree with the respondents that the technical requirements of the rules preventing re-litigation are present here whether considered in light of the doctrines of issue estoppel or abuse of process. The issues raised by the applicant in the two proceedings were in substance the same if not identical. I also acknowledge that the applicant could have chosen to seek a review of the investigator’s conclusions. I also agree that there is no reason not to believe that the investigation was thorough and fair and conducted by an individual with the expertise to get to truth of the matter.

23The respondents argue that the applicant’s decisions to raise her allegations against the personal respondent in multiple legal contexts have caused him an injustice. The respondents argue that it is simply unfair to the respondents that the applicant be permitted to continue to proceed with this Application.

24In response to my direction that the respondents should address the effect of the decision in Penner, the respondents argued that the investigation process by the LSUC was fair to the applicant. As indicated earlier, I agree that it appears that the investigation was fair to the applicant.

25As regards the other elements of the analysis in Penner, the respondents argued that the differences between the two proceedings are not sufficiently significant to prevent the application of abuse of process or section 45.1 of the Code. On this point the respondents take a very narrow focus and argue that the purpose of the two proceedings is largely the same because the central facts raised in the two cases are exactly the same. They are, but the interests at play, both those of the parties and of the public, are substantially different in the two proceedings. I will have more to say on this point below.

26The respondents also argued that a primary concern for the Court in Penner was the ability of the Chief of Police to insulate his service from liability by appointing the adjudicator of the claim. This factor is evidently not present in this case but I do not agree that this was a primary factor in the Court’s determination; it was one factor amongst several, although one that the majority found particularly troubling in the particular circumstances of that case.

27It seems to me however that there were several other factors beyond the role of the Chief of Police in Penner which were of equal importance to the Court’s reasoning. Ultimately the decision of the majority in Penner requires that we consider whether it would be unfair, despite a fair process, to impose the result of the other process considering the reasonable expectations of the parties having regard to the nature and purpose of the process, the parties’ respective stakes in it and the public interest in the other process.

28On these points the respondents argue that there is no argument that the application of abuse of process undermined the LSUC investigation. I agree that it did not, but that is not the end of the inquiry. I do not agree that the potential of negative impacts on an administrative regulatory regime such as the LSUC discipline process is not a factor to be considered here.

29As I understand the majority reasons in Penner, the concern was not primarily that the application of these doctrines could directly impact the conduct of the other proceeding, although the potential for the judicializing of administrative law proceedings was a concern for the Court. However, the broader concern for the Court in Penner was the possibility that individuals might become reluctant to make public interest complaints (such as a complaint of professional misconduct by a lawyer) if they understood that they would as a result be prevented from seeking damages for any wrong they suffered as a consequence of the impugned conduct. This potential mischief is clearly at play here and I can make no principled distinction between that public interest in relation to the conduct of police officers as opposed to lawyers. Following the reasoning of the majority in Penner it seems to me that it is in the broader public interest that individuals feel free to make complaints to the LSUC without prejudicing their ability to seek damages in another proceeding for the same conduct. It is also unfair to impose on such complainants the burden of giving up their right to civil redress if they choose to make a public interest complaint about the conduct of a police officer, or a lawyer.

30This issue brings into focus some of the important differences in the two proceedings which the respondents downplay. As previously noted, the LSUC complaint is primarily, if not exclusively, concerned with the public interest in ensuring that lawyers conduct their practices in accordance with the Rules of Professional Conduct. In the appropriate case the LSUC has the authority to impose discipline up to the disbarring of a lawyer for professional misconduct. On the other hand the LSUC can offer no remedy to the applicant for any damages she may have suffered as a consequence of the alleged professional misconduct in this case. In contrast an Application to the Tribunal is largely if not exclusively concerned with providing a personal remedy to the applicant for any damages suffered by the applicant as a result of the actions of the respondent. Importantly, in my view, while the LSUC can impose discipline in the public interest on a lawyer whose conduct may constitute professional misconduct, strictly speaking the Tribunal could not make a finding of professional misconduct and in any case has no authority to discipline a lawyer. In my view there is a significant public interest in not creating disincentives to individuals making public interest complaints against lawyers who they believe have behaved unprofessionally.

31The respondents argue that it cannot be ignored that if the applicant was unhappy with the result of the investigation she could have and should have requested a review of the conclusions of the investigator. As indicated previously, I acknowledge that the applicant could have chosen such a review, but has chosen to abandon the LSUC proceeding and continue with this Application which she filed at the same time as the LSUC complaint. However, I find that this makes no difference to the analysis. Strictly speaking, the result of the applicant’s actions may be that there is a final decision of the LSUC in relation to her complaint but that says nothing about the application of section 45.1 or the doctrine of abuse of process in light of the Supreme Court’s decisions above.

32The respondents argue repeatedly that it would be unfair to them to not apply the doctrine of abuse of process but do not articulate why it would be unfair. Evidently they have been called to answer the applicant’s allegations once and now will be required to do so again and to that extent the circumstances might be in some sense unfair. On the other hand the respondents downplay the factor, which appeared to be important in Penner, that the applicant has no personal stake in the LSUC proceedings. In my view the fact that a complainant in a LSUC disciplinary proceeding may have no personal stake in that process will usually be considered an important factor when considering the application of issue estoppel, abuse of process or section 45.1

33Ultimately, as I have said above, it seems to me, in light of the approach outlined in Penner, that it would be unfair, having regard to the reasonable expectations of the parties, that the determination of a public interest complaint in which the applicant had no direct personal interest would be conclusive of any civil claim she may have for damages resulting from the same allegedly unprofessional and discriminatory conduct.

34The Registrar will schedule a two-day hearing for this case.

35I am not seized.