Valentino v. FCA Canada Inc., 2015 HRTO 1556

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angele Valentino Applicant

-and-

FCA Canada Inc., Unifor, Ardis Snow and Leon Rideout Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: November 18, 2015 Citation: 2015 HRTO 1556 Indexed as: Valentino v. FCA Canada Inc.

APPEARANCES

Angele Valentino, Applicant Andrew Lawrence, Representative

FCA Canada Inc., Respondent Clifford Hart, Counsel

Unifor, Ardis Snow and Leon Rideout, Respondents Catherine Bell, Student-at-law

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A summary hearing was scheduled for November 16, 2015 to determine whether the Application should be dismissed as against the respondent Unifor and the individual respondents.

3On November 12, 2015, the respondent FCA Canada Inc. filed correspondence with the Tribunal that was copied to the applicant's representative and Unifor. In this correspondence, FCA raised the issue of whether Mr. Lawrence should be allowed to continue as the applicant's representative in this Application. The correspondence referenced the Tribunal's Rule A9.1 which sets out the requirements for those acting as representatives before the Tribunal and the Law Society of Upper Canada's By-law 4 ("the By-law") which sets out exemptions to its licensing requirements.

4A Case Assessment Direction was issued on November 12, 2015 which directed the parties to be prepared to address the issue of Mr. Lawrence's representation of the applicant at the beginning of the summary hearing.

5At the commencement of the summary hearing, Mr. Lawrence stated that he is representing the applicant as her friend and as a fellow union member. He verified that he is not a licenced lawyer or paralegal and that he is representing the applicant under the "friend or neighbour" exemption in the By-law. Mr. Lawrence also initially indicated that he was exempted under the section of the By-law which allows exemptions for trade unions; however, when it was pointed out to him that this exemption applies only to those who are an employee of a trade union, a volunteer representative of a trade union, or an individual designated by the Ontario Federation of Labour, Mr. Lawrence conceded that this exemption did not apply to him.

Analysis and Decision

6Rule A9 of the Tribunal's Rules of Procedure states that:

[p]arties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws.

7The By-law outlines the classes of Law Society of Upper Canada licensees, and the conditions, limitations and restrictions for practicing law as a licensee in Ontario. In addition, the By-law establishes categories of exemptions for unlicensed persons to be able to represent others.

8Subsection 30.4. of the By-law states:

4. 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.

9Mr. Lawrence has indicated that he is not a licenced paralegal or lawyer and that he does not expect to be compensated for representing the applicant. The question to be addressed when determining whether Mr. Lawrence can continue to represent the applicant is whether he has provided legal services on not more than three matters per year.

10Mr. Lawrence told the Tribunal that in addition to representing the applicant in this Application, he is representing another applicant in an Application that was filed in August, 2015 against a different respondent. He has also been asked to attend the mediation of another Application brought by a fellow union member against FCA Canada Inc.

11Mr. Lawrence is also representing a fellow union member before the Ontario Labour Relations Board (OLRB) on a reprisal application against FCA Canada Inc. and on an application against Unifor for alleged failure to fairly represent the union member. Mr. Lawrence stated that these matters were filed separately during 2015 but they are now being heard together. He claimed that because they were being heard together, they should be treated as one matter. The respondent, FCA Canada Inc. argues that because the applications involve two separate issues and were filed separately, they must be treated as two separate matters regardless of the fact that they will be heard together.

12In June or July 2015, Mr. Lawrence represented another person on a request for reconsideration of a labour arbitrator's decision.

13Mr. Lawrence submits that because this Application was filed in 2013, it should not be counted as one of the matters in the 2015 year. FCA Canada Inc. disagrees with this position and submits that since the Application is still within the Tribunal process it must be counted as one of the matters in the 2015 year.

14Mr. Lawrence claims that those he represents do not have the resources to hire lawyers and that they do not understand the procedures to be followed which can be complicated. He also pointed to the fact that FCA Canada Inc. raised this issue on the eve of the summary hearing which allowed him little time to prepare. He submits that these factors should be considered when I make my decision.

15Black's Law Dictionary defines "matter" as "the subject of litigation". The Merriam-Webster Dictionary defines it as "a subject under consideration or a subject of disagreement or litigation". Applying these definitions, I find that each of the Tribunal Applications; the two OLRB applications; and the reconsideration request are separate matters for the purposes of the By-law.

16The two OLRB applications, although now being heard together, deal with different subjects under consideration or subjects of disagreement and I find that they are separate matters.

17The timing of the filling of this Application is not relevant for determining whether it can be considered a matter for which Mr. Lawrence is providing representation. I find that this Application is a "matter" for which he is providing legal services in 2015.

18Even if I do not count the Application for which he was asked to provide representation at mediation, as he has not yet provided legal services on that matter, he has provided legal services in at least four matters in 2015. I find therefore that Mr. Lawrence cannot rely on the exemption under subsection 30.4 of the By-law as he has acted or continues to act for friends on more than three matters in 2015.

19If he is not exempted under the Law Society By-law, then for the purposes of Tribunal Rule A9, he is not an unlicensed person permitted by the Law Society to provide representation to others at this Tribunal.

Order

1. Mr. Lawrence is not entitled to appear before this Tribunal as a representative in this Application and is removed as the applicant's representative.

2. The summary hearing is adjourned.

3. The Registrar will schedule a new date for a half-day summary hearing by conference call.