Abdalla Mohamed Ali v. AVIS Budget Group and Ajmer Pabla, 2015 HRTO 1243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdalla Mohamed Ali Applicant

-and-

AVIS Budget Group and Ajmer Pabla Respondents

-and-

United Food and Commercial Workers, Local 175 Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott Date: September 18, 2015 Citation: 2015 HRTO 1243 Indexed as: Ali v. AVIS Budget Group

APPEARANCES

Abdalla Mohamed Ali, Applicant Self-represented

AVIS Budget Group and Ajmer Pabla, Respondents Jordan Winch, Counsel

Union Food and Commercial Workers Local 175, Intervenor Catherine Davis, Counsel

1This Application was filed on October 17, 2011, but was deferred pending completion of a grievance process and subsequent judicial review application. It was re-activated on January 30, 2015, pursuant to Interim Decision 2015 HRTO 143.

2Mr. Kopyto was retained to represent the applicant in this matter in 2012. On business letter head identifying him as a legal agent, Mr. Kopyto advised the Tribunal that he had been retained. Attached to the letter was an authorization and direction authorizing Mr. Kopyto to represent the applicant in this matter. From this, it appears that Mr. Kopyto was representing the applicant in a professional capacity.

3By decision dated February 3, 2015, the Law Society of Upper Canada (the “Society”) denied Mr. Koptyo’s application for a license to practise as a paralegal (“Class P1 license”). The Society found that Mr. Kopyto did not meet the good character requirement of the Law Society Act, R.S.O. 1990, c.L.8, and as a result, his application for a Class P1 licence was dismissed. See Kopyto v. Law Society of Upper Canada, 2015 ONLSTH 29.

4On March 17, 2015, the Tribunal wrote to Mr. Kopyto to advise him that he could no longer act as a representative in matters before the Tribunal because his application for a paralegal licence had been denied by the Society. The Tribunal advised Mr. Kopyto that pursuant to the Practice Direction on Representation before Social Justice Tribunals Ontario, a party may be represented by a lawyer or paralegal licensed by the Society or by an unlicensed person that the Society has exempted from its licensing requirements.

5On April 28, 2015, Mr. Kopyto advised the Tribunal that he fit within the unpaid friend exemption because: he is entitled to represent persons as a friend on three occasions each year; he is no longer carrying on the profession of a paralegal, and he is not receiving remuneration. Mr. Kopyto advised the Tribunal that he has fulfilled these conditions and that they apply to his representation of the applicant in this case.

6A teleconference took place on September 3, 2015 to obtain further submissions from Mr. Kopyto regarding his ability to represent the applicant in this case. Counsel for the respondent and the intervenor attended the teleconference. Neither took a position on whether Mr. Kopyto could represent the applicant on this matter.

ANALYSIS

7The criteria for acting in the capacity of an unpaid friend are set out at section 30 of the LSUC’s By-Law 4, which states as follows:

Providing Class P1 legal services without a licence

30. (1) Subject to subsection (2), the following may, without a licence, provide legal services in Ontario that a licensee who holds a Class P1 licence is authorized to provide:

31. An individual,

i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii. who provides the legal services only for and on behalf of a friend or a neighbour,

iii. who provides the legal services in respect of not more than three matters per year, and

iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

8All of these criteria must be satisfied in order to fit within the unpaid friend exemption.

9During the teleconference, Mr. Koptyo advised the Tribunal that he was originally retained by the applicant in 2012 in a professional capacity, prior to the Society’s decision denying him a paralegal licence. At that time, there was no agreement by the applicant to pay Mr. Kopyto at the commercial rate, on an hourly basis or to pay him a percentage of any recovery on the Application. Mr. Kopyto stated the applicant paid him small amounts of money that may have been sufficient to cover expenses.

10Mr. Kopyto stated that he is no longer receiving any money from the applicant. There is no arrangement for the payment of funds, including disbursements, and if money was paid by the applicant, it would be returned to him. Mr. Kopyto advised that he has no interest in obtaining any financial benefit from this case and that his motivation is to ensure the applicant has access to justice. He stated his reward is making a contribution to the betterment of those that are in the most need.

11When asked if he was providing legal services generally, Mr. Kopyto advised that he is permitted to act on three matters per year. In addition to this matter, Mr. Kopyto is acting on a duty of fair representation application before the Ontario Labour Relations Board and on a matter before the Workplace Safety and Insurance Board. Mr. Kopyto advised that he is not acting on any other matters in any other fora.

12Although Mr. Kopyto has acted on several matters before this Tribunal prior to the Society’s decision, the Tribunal’s records confirm that he is not listed as a representative on any active files before the Tribunal.

DECISION

13The issue in this case is whether, given the decision of the Society, Mr. Kopyto can appear before the Tribunal under a category the Society has exempted from its licensing requirements. The Society’s decision did not address this question directly.

14During the good character hearing before the Society, Mr. Kopyto advised the panel hearing the matter that he would be retiring from active paralegal practice, but would continue to help people who required his assistance. Mr. Kopyto stated that if granted a Class PI license, his stated intention would be to continue to disregard By-Law 4 insofar as it restricted the scope of paralegal practice when his conscience so dictated. If a Class PI license was denied, Mr. Kopyto indicated his intention was to disregard the law and continue to provide legal services when his help was required.

15The Society refused to license Mr. Kopyto because it found that he was ungovernable and that this aspect of his character was inconsistent with a finding that he was of good character. The Society found that a person who asserted that he or she would not follow the rules of the paralegal profession they seek to enter was not of good character. It stated that “within a profession devoted to upholding the rule of law, it is expected that licensees will obey the law”.

16Although Mr. Kopyto took the position before the Society that he would disregard the law and would continue to provide legal services, he did not take this position before the Tribunal. Rather, Mr. Koptyo accepted the licensing requirements and stated that he fit within the unpaid friend exemption because he is not carrying on a profession or occupation that includes the provision of legal services or the practice of law, is acting on three matters, and is not receiving any compensation. There is no evidence before me that contradicts these submissions. The Tribunal’s own records are consistent with these submissions in that Mr. Kopyto is not listed as a representative in any active files before the Tribunal. As stated earlier, counsel for the respondent and union did not take a position on whether Mr. Kopyto could act in this matter.

17In the absence of any contradictory evidence, I accept that Mr. Kopyto fits within the unpaid friend exemption at this time. He is currently acting on three matters, is not getting paid, and is not carrying on a profession or occupation that includes the provision of legal services or the practice of law. As such, he will be permitted to represent the applicant at the next stage in this proceeding – the preliminary hearing to determine whether the substance of the Application has been appropriately dealt with by the grievance arbitration decision. Following a decision on that issue, a determination will be made as to whether Mr. Kopyto continues to fit within the unpaid friend exemption.

18If, at any time, it comes to the Tribunal’s attention that Mr. Kopyto no longer fulfills the requirements of the unpaid friend exemption, he will not be permitted to represent the applicant and it may bar him from appearing before the Tribunal on any matter in the future.

19The Assistant Registrar will be in contact with the parties to arrange a date for the preliminary hearing.

This Dated at Toronto, this 18th day of September, 2015.