Borba v. Toronto Transit Commission, 2015 HRTO 329

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 16, 2015

Citation: 2015 HRTO 329

Indexed as: Borba v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Carla Borba, Applicant

Harry Kopyto, Representative

Toronto Transit Commission, Respondent

Shana French, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The hearing of the Application is scheduled for March 30 and 31, 2015.

2In a Case Assessment Direction, dated February 25, 2015, the Tribunal stated as follows:

The Tribunal recently became aware of the decision of the Law Society Tribunal Kopyto v. Law Society of Upper Canada, 2015 ONLSTH 29. Mr. Kopyto is the applicant’s representative in this Application. In that decision, the Law Society Tribunal denied Mr. Koptyo’s application for a license to practise as a paralegal. Consequently, Mr. Kopyto is not a paralegal licensed by the Law Society of Upper Canada. The Tribunal’s Policy on Representation before the HRTO sets out who may act as representatives before the Tribunal and, following the Law Society Tribunal’s decision, it appears that the applicant’s representative does not comes within any of the permitted categories or exemptions set out in the policy. The policy states as follows:

A party or witness before the Human Rights Tribunal of Ontario (HRTO) may be self-represented or represented by a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC).

A party or witness may be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements. The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. The LSUC’s website contains a complete list of the approved exemptions.

A person who is not licensed, whose license is suspended or who is not in an exempted category will not be permitted to act as a representative in an HRTO proceeding.

3Accordingly, the Tribunal directed the applicant or her representative to file and deliver to the respondent written submissions identifying the category or exemption, as described in the Tribunal’s Policy on Representation before the HRTO or by the Law Society of Upper Canada, within which the applicant’s representative comes that would permit him to act as a representative before the Tribunal. The Tribunal advised that the applicant’s representative may not represent the applicant in this proceeding if he does not come within any of the categories or exemptions as described in the Tribunal’s Policy on Representation before the HRTO or by the Law Society of Upper Canada.

4By e-mail message dated March 26, 2015, the applicant’s representative submitted that he “will be representing Ms. Borba in the above matter as an unpaid friend as permitted by the LSUC exemptions.”

5On March 6, 2015, the respondent filed submissions and took the position that Mr. Kopyto is not entitled to continue to represent the applicant in this matter. The respondent noted that the criteria for acting in the capacity of an unpaid friend are set out at section 30 of the Law Society’s By-Law 4, which state 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.

6Without commenting on whether the applicant and Mr. Kopyto are friends or neighbours, the respondent submitted that Mr. Kopyto does not satisfy the other criteria for acting as an unpaid friend. The respondent submitted that Mr. Kopyto has been and is engaged in the provision of legal services. The respondent submitted that the Law Society Tribunal noted in Kopyto v. Law Society of Upper Canada, 2015 ONLSTH 29 at paragraph 31 (“Kopyto”) that Mr. Kopyto acknowledged providing unauthorized legal services on “hundreds of occasions”, since he was disbarred in 1989. The respondent also submitted that, at paragraph 44 of that decision, the Law Society Tribunal noted Mr. Kopyto’s submission that, if granted a license, he would ignore By-Law 4 to the extent it restricted the scope of his practice and, if denied a license, he would continue to provide legal services when his help is required. The respondent submitted that Mr. Kopyto’s representation of the applicant began when he was retained in a professional capacity, but he is now barred from acting in a professional capacity. The respondent submitted that allowing Mr. Kopyto to continue to represent the applicant would contravene the purpose of the Law Society Tribunal’s decision and the Social Justice Tribunals Ontario rules, which include ensuring individuals receive appropriate representation.

7The respondent also submitted that if Mr. Kopyto received any form of compensation from the applicant, then he would be barred from representing her. The respondent submitted that in Kopyto the Law Society Tribunal found that he provides legal services for compensation, paid in various ways, at paragraph 24.

Analysis and Decision

8Rule A9.1 of the Social Justice Tribunals Ontario Common Rules provides as follows:

Parties 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.

9Mr. Kopyto submitted that he would represent the applicant in the capacity of an unpaid friend, as he is not licensed by the Law Society of Upper Canada. The criteria for acting on behalf of a friend or neighbour are set out above, and are cumulative, i.e., a prospective representative must meet all four requirements to come within the exemption. In my view, Mr. Kopyto does not meet these criteria.

10This Application was filed on December 23, 2013 and on the application form Mr. Kopyto is identified as the applicant’s representative and that he was acting pursuant to his status as a paralegal. The application does not indicate that Mr. Kopyto was acting pursuant to any exemption to the Law Society of Upper Canada’s licensing requirements, which is an option on the form. Accordingly, Mr. Kopyto began this Application as the applicant’s professional advisor. In light of the Law Society Tribunal’s decision not to grant him a paralegal license, Mr. Kopyto now states that he is acting as an unpaid friend of the applicant. The applicant or her representative, however, bears the onus of establishing that the representative meets the criteria set out in By-Law 4. Neither the applicant nor Mr. Kopyto have offered any explanation regarding how their relationship transitioned from professional to personal. Mr. Kopyto’s one-sentence submission does not provide a proper basis for finding that Mr. Kopyto genuinely comes within the exemptions and is not simply a bare assertion intended to circumvent Mr. Kopyto’s disqualification from appearing before this Tribunal. In these circumstances, I am not prepared to find that Mr. Koptyo is providing legal services for a friend.

11It is also clear on the face of the Law Society Tribunal’s decision in Kopyto that Mr. Kopyto has been providing legal services for compensation for many years and intends to continue to do so regardless of whether the Law Society of Upper Canada grants him a licence to practice as a paralegal. To the extent that Mr. Kopyto indicated that he will continue to provide legal services, it is relevant that in response to the Case Assessment Direction, he did not indicate that he is involved in any another professional activity.

12Consequently, Mr. Kopyto does not meet the criteria set out in the Law Society of Upper Canada’s By-Law 4, section 30(5)(i) and(ii) and therefore does not come within the “unpaid friend” exemption. Accordingly, Mr. Kopyto is not entitled to act as a representative before this Tribunal. In these circumstances, adjournment of the hearing may be appropriate and, if so, the applicant should request same promptly.

Order

13The Tribunal orders as follows:

1. Mr. Kopyto is not entitled to appear before this Tribunal with respect to this Application and is removed as the applicant’s representative; and,
2. If needed, the applicant shall request an adjournment of the hearing by the end of the business day on March 23, 2015.