Zaki v. McCall Dawson Osterberg Handler LLP, 2016 HRTO 1129

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ali Zaki

Applicant

-and-

McCall Dawson Osterberg Handler LLP, Matthew Irish and Douglas Dawson

Respondents

DECISION

Adjudicator: Alison Renton

Date: August 24, 2016

Citation: 2016 HRTO 1129

Indexed as: Zaki v. McCall Dawson Osterberg Handler LLP

1This Application, filed on June 3, 2016, alleges discrimination with respect to goods, services, and facilities because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is a self-represented plaintiff in a civil litigation proceeding and the respondents are several lawyers and their law firm representing the defendant(s). In his Application, the applicant alleges that the respondents are refusing to accommodate his disabilities in a “deliberate bid” to block his access to a vital service provided by the government. The service being blocked, he submits, is the just resolution of his lawsuit through the civil court system.

3He alleges that the respondents have demanded that he attend in-person examinations for discovery, have not accepted the length of time it has taken him to obtain required documentation and fulfil his undertakings, and have indicated that they would bring him before the court to compel him to produce his materials faster. He alleges that he told that respondents that he would be filing an application with the Tribunal, naming them as respondents, and was reprised against when the respondents subsequently sent him motions material.

4The Tribunal has not sent the Application to the respondents to file a Response.

5On July 13, 2016, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) to the applicant, stated that it appeared the allegations were outside of the Tribunal’s jurisdiction because they relate to the conduct of a lawyer representing a party in another proceeding, referred him to some of the Tribunal’s decisions on the issue (Cooper v. Pinkofskys, 2008 HRTO 390, and Belso v. York Region Police, 2009 HRTO 757), and directed that he file submissions addressing this issue.

6The applicant filed 14 pages of typed submissions. It is obvious that the applicant took great care in preparing his submissions and they are thoughtful and reference case law.

The Applicant’s Submissions

7In his submissions, the applicant takes issue with the amount of time between when he filed his Application and the NOID was sent; the deadline by which his submissions were required to be filed; the Vice-chair who wrote the two Tribunal decisions referred to in the NOID; and the fact Cooper and Belso were decided by a sole adjudicator rather than a three-person panel of adjudicators and not subsequently reviewed and upheld by the Courts. For the first time, he alleges that his rights under the Charter of Rights and Freedoms were violated, and provided approximately one and a half pages of new allegations against the respondents which post-dated the filing of his Application. He requests that these new allegations form part of his Application and that the monetary remedies that he is seeking be increased.

8He submits that the respondents have discriminated against him, directly and constructively, by imposing burdens or limiting access to opportunities which are available to other members of society. Specifically, they have required him to attend in-person discoveries and have not given him sufficient time, or extra time, which are required because of his disability, to secure and advance his legal rights in the lawsuit. They are using his disabilities to limit his access to an opportunity that is available to other members of society, specifically the right to have one’s legal disputes resolve on its merits by the civil court system.

9In section 10 of the Code, the applicant submits, there is a definition of what “services” is not. Since the conduct of the respondents is not excluded by the definition of “services”, and “services” should be given a board, liberal and purposive interpretation, the respondents’ actions should be found to be “services” within the meaning of the Code. Belso and Cooper should not be understood as categorically absolving all conduct by lawyers towards opposing parties, and, instead, have been wrongly decided. They are also factually different from the applicant’s situation.

10The applicant submits that neither the spirit nor the letter of the Code requires that a respondent must itself directly provide the services, goods, or facilities to the applicant as section 1 says “with respect to” services. The respondents’ conduct denies him equal treatment with respect to a service provided by the government, the just resolution of his claim against the respondents’ clients through the civil court system. Belso, relying upon “provided a service to”, rather than section 1’s “with respect to” was wrongly decided.

11A direct adversarial relationship between two parties, the applicant submits, does not exclude the possibility of services being directly or indirectly provided in that same relationship. He submits, as an example, that a defence counsel is providing a service to the larger public, of seeing justice done, as well as a duty to their client, when cross-examining a Crown witness, and submits that Cooper was wrongly decided.

12Furthermore, the respondents reprised against the applicant. He submits that reprisal within the meaning of the Code can occur even where discrimination is not found, and cites case law on this point.

Law and Analysis

13Section 1 of the Code says:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

14Section 10(1) states:

“services” does not include a levy, fee, tax or periodic payment imposed by law.

15Reprisal is defined in section 8 as:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

16“Constructive discrimination” is found in section 11 as:

(1)A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) The requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) It is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

17An application will only be dismissed at a preliminary stage, before it is served on a respondent, if it is “plain and obvious” on the face of the application and any other submissions that it does not fall within the Tribunal’s jurisdiction. See, for example, Patterson v. MPW Industrial Service, 2010 HRTO 2140.

18The applicant is correct in stating that human rights legislation is to be read in a broad, liberal and purposive manner. See C.N.R. v. Canada (Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 at para. 24, and Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (Div. Ct.) at para. 39.

19However, the Tribunal does not have the power to inquire into claims of discrimination about every relationship or interaction. The Tribunal’s jurisdiction is limited to the social areas set out in the Code. The question before me is whether the respondents’ conduct is a relationship over which the Tribunal has jurisdiction.

20In several decisions, the Tribunal and Divisional Court have found that a “service” must mean something of benefit that is provided by one person to another or to the public. See, for example, Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, rev’d on other grounds Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON SCDC).

21The applicant is correct that the definition of “service”, set out above, identifies what is not a service, and that the allegations that he has against the respondents are not identified by the definition of “services”. However, mere interaction between parties is not enough to establish a service relationship.

22In Riad v. Waterloo Regional Police Services Board, 2016 HRTO 739, the Tribunal dismissed all but one of the applicant’s allegations against his neighbours, a police officer and crown counsel, finding that there was no service relationship between them. The one allegation that remained was something the police officer neighbour was alleged to have done while engaged in services to the public.

23In Suhanovs v. Toronto Transit Commission, 2010 HRTO 1240, the applicant alleged that the air vents of the respondent’s physical plant were excessively noisy and disrupted him while he was at home. The Tribunal dismissed the application, finding that the vents were not a benefit to service users of the public transit, the noise did not relate to or impact on the applicant’s ability to use the public transit, and there was no service relationship between the parties on this issue.

24In Padayachee v. Peel Children’s Aid Society, 2010 HRTO 709, the Tribunal dismissed an application where the applicant was dissatisfied with the respondents’ manner of interacting with him before and after they began provision of services to his children. The Tribunal held, at para. 13, that this did not relate to services to the applicant under the Code and there was no service relationship.

25In Babic v. Kroma Management, 2015 HRTO 15, the Tribunal dismissed an application against a personal respondent finding that there was no service relationship between the applicant, a mother, who disagreed with the treatment the personal respondent, a psychiatrist, was given to her son.

26I agree that the adjudicator in Belso, in para. 21, used the words “provided a service to” rather than “with respect to”, the language that appears in section 1 of the Code. I also agree that Belso and Cooper were written by the same Vice-chair, who was a lawyer in private practice before his appointment to the Tribunal, and after he left the Tribunal. I do not agree that Belso and Cooper were wrongly decided.

27Belso and Cooper have been consistently applied by the Tribunal when considering whether there is a service relationship under the Code between an applicant and opposing counsel. See, for example, Jaconello v. Unger, 2010 HRTO 789 at para. 11; Free v. Magnetawan (Municipality), 2016 HRTO 715 at para. 13; Thomas v. Amelin Property Management 2014 HRTO 225 at para. 8; Hewage v. Greater Sudbury (City), 2013 HRTO 2100 at para. 7; and Martin v. The Bank of Nova Scotia, 2016 HRTO 608 at para. 4.

28The Tribunal has stated many times that the relationship between a lawyer and an opposing party is not covered by the Code because there is no service relationship between them. I agree with the analysis and result in those decisions and adopt their reasoning. The respondents are not providing a service to the applicant, they are in a direct adversarial relationship, and as such it is plain and obvious that there is not a service relationship between them.

29Accordingly, the Application against the respondents is dismissed as it is plain and obvious that it does not fall within the jurisdiction of the Tribunal.