Cordero v. Hydro One Networks Inc., 2015 HRTO 1312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fernando Cordero

Applicant

-and-

Hydro One Networks Inc.

Respondent

DECISION

Adjudicator: Mark Hart Date: October 5, 2015 Citation: 2015 HRTO 1312 Indexed as: Cordero v. Hydro One Networks Inc.

APPEARANCES AND WRITTEN SUBMISSIONS

Fernando Cordero, Applicant Self-represented

Hydro One Networks Inc., Respondent Dana N. McDonald, Counsel

1This is an Application filed on October 21, 2014, alleging discrimination with respect to contracts because of place of origin and ethnic origin, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Application arises in the context of a property owned by the applicant, where he was registered as the customer for the purpose of receiving electricity from the respondent. The applicant purchased this property in January 2011, and shortly thereafter rented the property to a tenant.

3On January 19, 2012, the Ontario Provincial Police (“OPP”) executed a search warrant on the property regarding a suspected theft of power and possible marijuana grow operation at the property. Representatives of the respondent were present at the execution of the search warrant at the OPP’s request. It was discovered during the execution of the search warrant that the hydro meter had been bypassed by means of a splice that was grabbing conductors ahead of the meter, thereby evading charges for electricity consumed at the property. On that date, the respondent disconnected the power supply to the property.

4By the time of the execution of the search warrant, the applicant had returned to Colombia, which is his country of origin. He states that he was contacted by the OPP while he was in Colombia and was informed of the execution of the search warrant on the property he owned, and was advised to return to Canada to look after his property. The applicant returned to Canada in early February 2012, and in May 2012 arranged for the respondent to reconnect power to the property.

5I have before me a bill from the respondent to the applicant regarding the property at issue, dated May 11, 2012 and showing total charges in the amount of $143,885.31. The material before me indicates that this bill represents charges by the respondent to the applicant as the property owner based upon an estimate of the unmetered electricity used during the period from January 15, 2009 to January 19, 2012. The applicant states that he did not receive this bill at or around the time it was issued. The applicant acknowledges that he did receive a bill from the respondent regarding the same property dated February 10, 2012 in the total amount of $513.60, which relates to metered electricity usage at the property from December 20, 2011 to January 19, 2012. This bill was paid by the applicant. From the material before me, this latter bill was sent to the applicant at a different address than the former bill, which on its face appears to have been sent directly to the property at issue. This may explain why the applicant received and paid the latter bill, but states that he did not receive the former bill.

6The human rights issue in this proceeding arises out of a telephone discussion that the applicant had with a representative of the respondent, R.H., on December 16, 2013. The Application alleges that R.H. contacted him and asked a few questions, and then, after R.H. knew that the applicant was from Colombia, R.H. began questioning the applicant rudely and suspiciously. While the Application on its face alleges that this conversation took place in May 2012, it is clear from the material before me that the alleged conversation took place on December 16, 2013.

7The applicant alleges that, after this telephone conversation with R.H., he was faxed a copy of the May 11, 2012 bill for $143,885.31. He states that this was the first time that he had seen the bill. There appears to be no dispute between the parties that this bill was subsequently reduced to $54,466.89 on the basis that the applicant had only owned the property since January 2011, whereas the May 11, 2012 bill contained charges for unmetered use dating back to January 2009.

8When the reduced bill remained unpaid by the applicant, the respondent commenced a civil action against the applicant for payment of the outstanding amount of the reduced bill by Statement of Claim issued on January 14, 2014. The applicant filed a Statement of Defence in the civil action, and subsequently was examined for discovery on June 20, 2014. Respondent counsel in the civil action sent a letter to the applicant dated September 23, 2014 to follow up on undertakings and refusals made by the applicant at his examination for discovery. The applicant responded by letter dated October 20, 2014, in which the applicant alleged that the respondent’s actions against him represented racial profiling of him as being from Colombia. This letter is dated the day before the Application with this Tribunal was filed, which essentially raises the same allegation. Respondent counsel in the civil action replied to the applicant by letter dated November 13, 2014, denying that its actions were due to any discrimination or racial profiling, and stating that it was simply seeking payment from him as the property owner due to the unmetered use of electricity by his tenant. The respondent repeated its request for the applicant to comply with his undertakings and reconsider his refusals.

9In brief, the applicant alleges that his place of origin and/or ethnic origin as being from Colombia was a factor in how he was treated by the respondent’s representative, R.H., during the telephone discussion on December 16, 2013 and in what he alleges was the respondent’s subsequent decision to seek payment from him regarding the unmetered use of electricity as set out in the May 11, 2012 bill, as later reduced, and pursue the civil action against him. This is based on the applicant’s belief that the respondent was racially stereotyping him as a drug dealer and as somehow being implicated in the grow operation and unmetered electricity usage by his tenant, on the basis that the applicant is from Colombia.

10Prior to service of the Application on the respondent, the applicant was sent a letter by the Tribunal dated November 19, 2014, stating that it appeared that the Application was outside of this Tribunal’s jurisdiction because it had been filed more than one year after the last alleged event. This letter was sent to the applicant on the basis of his incorrect allegation in the Application that the telephone conversation with R.H. had occurred in May 2012, well more than one year prior to the filing of the Application. The applicant provided submissions in response to this letter on December 12, 2014.

11Upon review of the applicant’s submissions, the Tribunal issued Interim Decision 2014 HRTO 1806, dated December 19, 2014, stating that it was not plain and obvious that the last alleged event at issue in the Application had occurred more than one year prior to the Application being filed, and directing that a preliminary teleconference hearing be scheduled to hear submissions from the parties on the delay issue. The respondent was provided with a copy of the Application, the applicant’s further submissions and other material from the Tribunal’s file, but was not required to file a formal Response. All parties were invited to file any additional written materials at least 14 days prior to the teleconference hearing.

12By Notice of Hearing dated February 5, 2015, the teleconference hearing was scheduled to take place on April 29, 2015. On April 13, 2015, the respondent filed its submissions for the preliminary hearing. In these submissions, in addition to addressing the delay issue raised by the Tribunal, the respondent also requested that the Application be dismissed as being barred by the doctrine of absolute privilege, on the basis that the Application arises out of steps taken by the respondent in a judicial proceeding.

13At the teleconference hearing on April 29, 2015, I heard oral submissions from the parties on the delay issue. I was concerned, however, that the Tribunal had not given notice to the applicant that it would consider the issue of absolute privilege at this teleconference hearing, and I wanted to afford the applicant a fair opportunity to make submissions on this issue. I also requested further clarification from the parties regarding certain partial documents that had been filed with the Tribunal by the applicant, and the dates upon which certain events (primarily the telephone conversation between the applicant and R.H.) had occurred.

14Accordingly, I issued a Case Assessment Direction dated May 5, 2015 raising these issues and inviting further submissions from the parties on the issue of whether the Application was barred by the doctrine of absolute privilege, and particularly whether absolute privilege extended to the telephone conversation between the applicant and R.H., prior to the Statement of Claim being issued. I also invited submissions from the parties on the issue of whether the Application had a reasonable prospect of success.

15The respondent filed its submissions on May 26, 2015, and the applicant filed his submissions in response on June 25, 2015. I did afford the respondent an opportunity to file any written submissions in reply, which it did by brief submissions on July 31, 2015.

Is the Application barred by the doctrine of absolute privilege?

16This Tribunal has held that the doctrine of absolute privilege extends to bar Applications before this Tribunal based upon statements or actions taken by the respondent or its legal counsel related to an actual or contemplated legal proceeding. This privilege extends to statements or actions which are intimately connected to a legal proceeding the initiation of which was being seriously considered by the respondent, including all preparatory steps taken with a view to legal proceedings: see Ornelas v. Casamici Restaurant, 2010 HRTO 1078; M.H. v. Office of the Children’s Lawyer, 2012 HRTO 2365.

17On the basis of the doctrine of absolute privilege, the applicant’s allegations regarding the initiation of the civil action by the respondent, the conduct of the examination for discovery, and the letters from respondent counsel in the civil action following up on undertakings and refusals made by the applicant at the examination for discovery are clearly barred.

18The only issue for me to consider is whether the doctrine of absolute privilege extends to the telephone conversation between the applicant and R.H. on December 16, 2013. There are obvious differences as between the applicant and R.H. as to what transpired during their telephone contact on December 16, 2013. R.H. states that he had a brief telephone conversation with the applicant about the outstanding bill on December 16, 2013, following which he faxed a copy of the bill to the applicant. R.H. states that thereafter, he and the applicant had a fuller conversation, which resulted in the bill being reduced. The applicant states that the bill was not faxed to him until after he had spoken with R.H., and only after R.H. had discovered that the applicant was from Colombia.

19It is not my purpose in the context of a teleconference hearing and written submissions to assess credibility or resolve conflicts in the evidence. At this stage of the proceeding, I only have the applicant’s oral and written submissions, and an affidavit from R.H. on which he has not been cross-examined.

20What I do need to assess, however, is whether R.H.’s actions at the relevant time on December 16, 2013 were “intimately connected to a legal proceeding the initiation of which was being seriously considered by the respondent” or were “preparatory steps taken with a view to legal proceedings”.

21The material before me indicates that R.H. is a paralegal employed in the respondent’s Asset Protection & Investigative Services department. He commenced his employment with the respondent on November 21, 2013. In his position, one of his responsibilities is to review outstanding monies owing to the respondent arising from theft of electricity, and then to take the requisite steps necessary to collect upon those outstanding debts, including commencing litigation.

22R.H. states that he assumed carriage of the file related to the applicant’s property on December 12, 2013. The material before me indicates that on this date, R.H. conducted an execution search on the applicant and title search of the property. He states that these are ordinary steps that he takes in preparation for anticipated litigation. He also states that he spoke with the OPP officer who investigated the grow operation at the property. His call to the applicant took place on December 16, 2013, after he had completed these initial steps.

23There is no dispute that R.H. spoke with the applicant by phone on December 16, 2013, and also on that day faxed to him a copy of the bill dated May 11, 2012. R.H. states that the purpose of his contact with the applicant on that date was to attempt to secure payment of the amount owing to the respondent. There also is no dispute that shortly afterwards, the bill was reduced to $54,466.89 on the basis that the applicant did not become the legal owner of the property until January 2011. The material before me indicates that there was e-mail correspondence between the applicant and R.H. in the period following their telephone conversation on December 16, 2013, up to at least December 23, 2013, where the applicant was attempting to send R.H. further material regarding the property at issue.

24Finally, there is no dispute that, when the reduced bill remained unpaid, the civil action was commenced on January 14, 2014, less than one month after the telephone discussion between R.H. and the applicant on December 16, 2013.

25In 1522491 Ontario Inc. v. Stewart et al., 2010 ONSC 727, the Divisional Court identified a number of factors that may be considered in determining whether statements were made or actions taken on an occasion of absolute privilege, including: (i) whether steps had been taken to prepare for litigation when the statements were made or actions taken; (ii) whether the decision to litigate had already been made; and (iii) whether legal action was commenced shortly after the statements or actions at issue: see paras. 51ff.

26In the instant case, I am mindful of the fact that R.H. is a paralegal. In my view, the searches conducted by R.H. and action taken in speaking with the OPP officer, both of which preceded the telephone discussion with the applicant on December 16, 2013, can properly be regarded as steps taken to prepare for litigation. Clearly, the civil action was commenced shortly after the telephone discussion.

27With regard to whether the decision to litigate had already been made, in my view this is not a determinative factor. In Dingwall v. Lax, 1988 CanLII 4716 (ONSC), the Court addressed a situation where a draft Statement of Claim had been sent to the prospective defendants in advance of the claim being issued, together with an invitation to discuss potential resolution of the matter without litigation. It was found that this was a communication to which absolute privilege applied.

28In the instant case, I have found that R.H., as a paralegal, was in the process of taking steps to prepare for litigation. While his call to the applicant was not accompanied by a draft Statement of Claim, it was clearly for the purpose of trying to see whether the outstanding bill would be paid by the applicant without the need for litigation. As a result of his discussion with the applicant and confirmation that the applicant had not owned the property until January 2011, the respondent compromised the claim to a much reduced amount and less than 40% of the original claim. In my view, R.H.’s actions in communicating with the applicant on December 16, 2013, in the context of the other actions taken by him at that time and the initiation of the civil action shortly thereafter, properly can be regarded as “preparatory steps taken with a view to legal proceedings”. On the same basis, I also regard R.H.’s actions in communicating with the applicant on December 16, 2013 as having been “intimately connected to a legal proceeding the initiation of which was being seriously considered by the respondent”.

29As a consequence, I find that the telephone discussion between the applicant and R.H. on December 16, 2013 which gives rise to the applicant’s allegation of discrimination in violation of the Code is protected by the doctrine of absolute privilege. Accordingly, the Application is dismissed in its entirety as barred by absolute privilege.

30Given my disposition on this issue, it is not necessary for me to address the issues of delay or reasonable prospect of success.

ORDER

31For all of the foregoing reasons, I hereby order that the Application is dismissed in its entirety as barred by the doctrine of absolute privilege