Malaika Kaunda v. Niagara Neighbourhood Housing Cooperative Inc., 2016 HRTO 1684

Human Rights Tribunal of Ontario

B E T W E E N:

Malaika Kaunda Applicant

-and-

Niagara Neighbourhood Housing Cooperative Inc. Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: December 28, 2016 Citation: 2016 HRTO 1684 Indexed as: Kaunda v. Niagara Neighbourhood Housing Cooperative Inc.

WRITTEN SUBMISSIONS

Malaika Kaunda, Applicant

Clive Roy, Representative

1This Application alleges reprisal and 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").

2On November 21, 2016, the Tribunal issued a Case Assessment Direction ("CAD") which stated, in part:

The Application in this matter indicates that the applicant is represented by "Cooperative Housing Alliance", an "unincorporated association of members from twelve non-profit housing cooperatives, who provide pro bono human rights and legal advocacy support". The contact person listed for the unincorporated association of members is Clive Roy.

While the Application indicates that Malaika Kaunda is the applicant, it also attaches a Form 27 which indicates that "Cooperative Housing Alliance" (contact person: Clive Roy) is filing on behalf of Ms. Kaunda. The applicant should note that the Human Rights Tribunal of Ontario ("the Tribunal") declared Clive Roy a vexatious litigant and he may not file any applications without leave of the Tribunal (See Roy v. Toronto (City), 2014 HRTO 214).

Rule 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.

The Tribunal's Policy on Representation before the HRTO sets out who may act as representatives before the Tribunal. 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.

The applicant should note that under the Law Society's By-Law 4, any unpaid friend or neighbour seeking to provide legal services may provide legal services in no more than three (3) matters per year. Therefore, if Mr. Roy is an unpaid friend or neighbour, he would not meet the Law Society's exemptions given that he is representing in more than three (3) matters before any Board or Tribunal. Mr. Roy is representing in four (4) matters presently before the Tribunal. See section 30 of the Law Society's By-Law 4 which states 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.

3The applicant was directed to file submissions explaining which exemption applies to the applicant's representative, and, if she wished Mr. Roy to represent her, to disclose the number of matters before any Board or Tribunal where he is representing or providing legal services besides the four matters at the Human Rights Tribunal of Ontario in which he appears to be acting presently.

4The applicant's response to the CAD states that Mr. Roy is an unpaid member and co-chair of the Co-operative Housing Alliance ("CHA"), an unincorporated alliance of members of a housing co-operative. The applicant's response states that as an unpaid member of the CHA, Mr. Roy meets the exception in the Tribunal's Practice Direction on Representation before the Social Justice Tribunals of Ontario because he is a "volunteer from a trade union or appropriate organization," but the applicant's response provides no explanation of how an informal alliance of members of a housing co-operative might be considered a certified trade union or like body.

5There does not appear to be any objective recognition of the CHA, and I do not find that it is an "appropriate organization" as contemplated by the Practice Direction. To address any argument that Mr. Roy is able to offer legal services because he is an unpaid member of the CHA, I find that the CHA is not an organization that would allow Mr. Roy to represent the applicant.

6Also, with respect to the requirement that an unpaid individual provide legal services in no more than three matters per year, the applicant made the following argument:

In the decision of Hansen v. Toronto (City), 2010 HRTO 13, HRTO Adjudicator David A. Wright provided the following response with respect to an individual who was representing five colleagues before the HRTO:

"Representing a group of colleagues who have similar interests on particular issue, in my view, falls within the meaning of 'occasionally' providing legal services with the By-law."

7The Hansen decision was issued in 2010. At that time, the Law Society's By-Law 4 allowed an unpaid friend to provide legal services "occasionally". The Law Society's By-Law 4 has since been amended to remove the word "occasionally" and to specify that an unpaid friend may represent in no more than three matters per year. (In the CAD, the applicant was provided with the wording of the Law Society's By-law 4 that is presently in force).

8Mr. Roy is presently representing in four matters at this Tribunal. The applicant's submissions did not follow the Tribunal's specific direction to disclose the number of matters before any Board or Tribunal where he is representing or providing legal services besides the four matters at the Human Rights Tribunal of Ontario in which he appears to be acting presently. I can only assume that Mr. Roy is providing legal services in more matters than the matters at this Tribunal, but even if I were mistaken, the fact that he is providing legal services in four matters at this Tribunal means that he does not fall within a category the LSUC has exempted from its licensing requirements.

order

9For the above reasons, I order that Mr. Roy be removed as the applicant's representative.

directions

10This Interim Decision, the Application and the CAD are being delivered not only to Mr. Roy, but also to the applicant herself. The applicant or any new representative must confirm that she has received the documents and must confirm her contact information. After she does so, the Tribunal will continue to process the Application.