Sonya Zakharia v. London Health Sciences Centre, 2014 HRTO 512

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sonya Zakharia

Applicant

-and-

London Health Sciences Centre

Respondent

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: April 10, 2014

Citation: 2014 HRTO 512

Indexed as: Zakharia v. London Health Sciences Centre

WRITTEN SUBMISSIONS

Sonya Zakharia, Applicant

Michael Anasakta, Representative

Introduction

1On December 17, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 2079, dismissing this Application as against a respondent, Filion Wakely Thorup Angeletti LLP (“the respondent law firm”), on the basis that the Application as against the respondent law firm was outside the Tribunal’s jurisdiction because the issues raised in the Application related to the conduct of a lawyer representing a party in another legal proceeding.

2This Application is one of five related Applications (2013-15379-I; 2013-15353-I; 2013-15773-I; 2013-15734-I), all of which are scheduled for a summary hearing on June 3, 2014.

THE REQUEST FOR RECONSIDERATION

3The applicant asks the Tribunal to reconsider its Interim Decision dismissing this Application as against the respondent law firm. The applicant’s submissions were inadvertently sent to an incorrect e-mail address and therefore were not considered by the Tribunal when reaching its decision.

decision

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a decision.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

5The Tribunal’s Rules of Procedure govern such requests. Rule 26 states in part:

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6I am satisfied that the applicant intended to make submissions in response to the Notice of Intent to Dismiss her claim against the respondent law firm and that those submissions would have been received by the Tribunal in a timely manner but for her representative’s emailing error. As a result the applicant’s claim as against the respondent law firm was dismissed as abandoned. In my view these circumstances outweigh the public interest in the finality of Tribunal decisions and I am prepared to exercise my discretion to re-open the Application as against the respondent law firm and consider the applicant’s submissions with respect to her claim against the respondent law firm.

7The applicant submits that her Application against the respondent law firm is not about the conduct of a lawyer representing a party in a legal proceeding, but arises out of the related Application alleging discrimination in employment on the basis of sex and sexual harassment. The respondent law firm represents the respondent London Health Sciences Centre in all five Applications.

8According to the applicant, the respondent law firm reprised against her by threatening legal action in one of the related Applications if she disclosed to any prospective employers that she had filed a Human Rights Application against their client.

9That the events arise in the context of a related Application does not change the fact that the allegations against the respondent law firm arise out of actions taken by it in the course of advising its client. The Tribunal has found that this is not in the nature of “services” as protected by the Code. See Cooper v. Pinkofskys, 2008 HRTO 390; Belso v. York Region Police, 2009 HRTO 757. In Cooper the Tribunal explained at para 11:

Applying the above principles to this Application, unlike the situation in Hogan and Braithwaite, the cases cited by the applicant in support of his argument, defence counsel is neither providing services to a larger public of which the applicant is a member nor is there a direct service relationship between defence counsel and a Crown witness. Rather, the role of defence counsel at a criminal trial puts that counsel into an adversarial position with all prosecution witnesses called by the Crown in order to secure a conviction of that counsel’s client. Even applying a large, liberal and purposive interpretation of the Code, it cannot be said that defence counsel is providing services to or is in a service relationship with an adverse witness, given the duty of that counsel to fully and fearlessly advance the interests of his client. In no way are the “services” provided by the defence counsel of benefit or of assistance to the prosecution witness. (See also: Crawford v. 2176534 Ontario, 2009 HRTO 1028)

10In my view, these principles apply in this case and result in a finding that the allegations against the respondent law firm are not within the jurisdiction of the Tribunal. I find that in providing legal representation to another respondent the respondent law firm was not in a service relationship with the applicant and therefore the allegations do not fall within the jurisdiction of the Code.

11The Application as against the respondent law firm is dismissed.