HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Harel Davidson on behalf of Gerald Richardson
Applicant
-and-
Condominium Management Group, Carleton Condominium Corporation No. 73, Ian Davidson, Andrea Burns, Pat Gosson, Lisa Bedard, Susan Marthaler and Kevin Wiltshire
Respondents
A N D B E T W E E N:
Harel Davidson on behalf of Willene Richardson
Applicant
-and-
Condominium Management Group, Carleton Condominium Corporation No. 73, Ian Davidson, Andrea Burns, Pat Gosson, Lisa Bedard, Susan Marthaler and Kevin Wiltshire
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Date: September 15, 2016
Citation: 2016 HRTO 1218
Indexed as: Richardson v. Condominium Management Group
WRITTEN SUBMISSIONS
Harel Davidson on behalf of Gerald Richardson and Willene Richardson, Applicants
Self-represented
Nelligan O’Brien Payne LLP, Respondent
Susanne M. Sviergula, Counsel
1These Applications allege discrimination with respect to housing because of disability.
2On April 15, 2016, in Harel Davidson on behalf of Gerald Richardson, and on April 25, 2016, in Harel Davidson on behalf of Willene Richardson, the Tribunal issued Notices of Intent to Dismiss the Application (“NOIDs”) against the respondent Nelligan O’Brien Payne LLP (the “Firm”) because it appears the allegations against it are outside the Tribunal’s jurisdiction. The Tribunal requested written submissions from the applicant by May 14, 2016, and May 30, 2016, respectively.
3The applicant filed submissions to the NOIDs on April 22, 2016, and April 29, 2016, respectively.
4On May 25, 2016, the Tribunal issued a Case Assessment Direction (“CAD”) directing the Applications to be processed together, indicating that the Applications would continue to be processed against the Firm and directing the Firm to file a complete Response to the Applications no later than 35 days following the date of the CAD.
5The Firm filed a Request for an Order During Proceedings on June 17, 2016, requesting the dismissal of the Applications against it (“request to dismiss”). The Firm filed its Response to the Applications on June 29, 2016.
6On June 30, 2016, the applicant filed the Response to the request to dismiss.
7This Interim Decision addresses the request to dismiss.
submissions
8The Firm is a legal partnership that was retained by Carleton Condominium Corporation No. 73 (“the Corporation”) to provide legal services to it. The Corporation is a 76-unit residential condominium corporation located in Ottawa. The claimants, Mr. and Ms. Richardson, own a unit in the Corporation. The Firm argues that at no time did it enter into a retainer agreement or lawyer-client relationship with the claimants and it has never provided legal services to them. The Firm maintains that a condominium corporation is a distinct legal entity separate from its unit owners. It argues that the Corporation, and by extension the Firm, which represents the interests of the Corporation, are in an adversarial relationship with the claimants. As such, the Firm could not have been in a service relationship with them. The Firm also maintains that the source of the claimants’ complaints against the Firm arises from correspondence prepared by the Firm for its client, the Corporation, in contemplation of litigation and is therefore protected by absolute privilege.
9The applicant argues that the Firm was not in an adversarial relationship with the claimants when the claimants made their requests for accommodation. The applicant maintains that it is the Firm’s conduct during this period that forms the basis of the Firm’s involvement in relation to the Applications. The applicant argues that some comments made by the Firm cannot be protected by absolute privilege as they form the basis for the denial of the accommodation. The applicant argues that the Firm was in a service relationship with the claimants as they are part owners of the Corporation.
Analysis and decision
10Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party.
11The Tribunal does not have jurisdiction to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall within the five social areas of the Code. See Marsden v. Board of Directors of the Halton Condominium Corporation No. 41, 2013 HRTO 1462 (“Marsden”). For the Code to apply here, the claimants must show that they are in a “service” relationship with the Firm.
12The Firm was retained by the Corporation to provide legal services to it. It was not retained to provide legal services to the claimants. A corporation is a distinct legal entity separate from its directors and shareholders. See Rice v. Smith, 2013 ONSC 1200 at para. 26 (“Rice”). Likewise, a condominium corporation is a distinct legal entity from its unit owners. Underscoring this separation is the condominium corporation’s duty to take all reasonable steps to ensure that unit owners comply with the Condominium Act, 1998, S.O. 1998, c. 19, s. 17(3).
13When the interests of a condominium corporation and its unit owners diverge, the parties are in an adversarial relationship and will often require separate and distinct legal representation. See Rice, above at para. 32. Legal counsel has a duty to fully and fearlessly advance the interests their client and it cannot be said that a direct service relationship exists where the parties are in an adversarial relationship. See Cooper v. Pinkofskys, 2008 HRTO 390 at para. 11. Tribunal jurisprudence has consistently stated that the Code does not cover relationships between a lawyer and an opposing party. See Marsden, above.
14The Corporation retained the Firm to provide legal services in a situation where the interests of the Corporation and the claimants were adverse to each other. Therefore, there is no direct service relationship between the claimants and the Firm.
order
15The request to dismiss the Applications against Nelligan O’Brien Payne LLP is granted. The style of cause is modified accordingly.
16I am not seized of this matter.
Dated at Toronto, this 15th day of September, 2016.
“Signed by”
Josée Bouchard
Vice-chair