Jubenville v. Algoma Community Legal Clinic Inc., 2016 HRTO 82

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Jubenville Applicant

-and-

Algoma Community Legal Clinic Inc. Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: January 19, 2016 Citation: 2016 HRTO 82 Indexed as: Jubenville v. Algoma Community Legal Clinic Inc.

WRITTEN SUBMISSIONS

Karen Jubenville, Applicant Self-represented

Algoma Community Legal Clinic Inc., Respondent Wendy Bird, Counsel

1By Application filed February 18, 2015, the applicant alleged that the respondent discriminated against her because of disability and receipt of public assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant raised allegations regarding incidents that occurred between 2011 and 2013 and an incident that occurred in 2014. The allegations regarding incidents that took place between 2011 and 2013 relate to the respondent’s legal representation of the applicant before she terminated her retainer with the respondent. The allegation from 2014 centers on the respondent’s denial of any further legal services to the applicant.

2By Case Assessment Direction, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. At the hearing, I also requested submissions from the parties with respect to a timeliness objection raised by the respondent in relation to the applicant’s allegations regarding events that occurred between 2011 and 2013.

3It is clear that the applicant was not satisfied with the legal advice she received from the respondent. It is also clear that she has experienced many frustrations with the legal system in general, especially in regards to her efforts to take legal action against her landlord. However, for the reasons that follow, I find that the applicant’s 2011-2013 allegations must be dismissed as untimely and her allegations regarding the respondent’s denial of services in 2014 must be dismissed as having no reasonable prospect of making out a violation under the Code.

Summary/Preliminary Hearing Process

4The purpose of a summary/preliminary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed or for some other reason – for example, if the Application is untimely.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code, can leave a person with significant financial and emotional damage, not to mention a good deal of frustration. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal that are linked to the prohibited grounds set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

9In addition to the power to dismiss an Application if it stands no reasonable prospect of success, the Tribunal also has the power to dismiss Applications if they are untimely. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident of a “series of incidents”) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.

10Having set out this basic legal framework, I now turn to the facts of this particular case.

Factual Background

11In or around 2011, the applicant was represented by one of the respondent’s lawyers in a legal dispute that she had with her landlord. The lawyer advised her that she should file a claim in small claims court and amend a claim she had filed with the Landlord Tenant Board. The applicant claimed that the lawyer misled her, stalled and failed to communicate with her appropriately. In particular, the applicant claimed that sometime between 2011 and her termination of the retainer in March 2013, the lawyer did not permit a spokesperson for the applicant to participate in one or more meetings between the applicant and the lawyer. The applicant claimed that the lawyer was aware that the applicant had certain epilepsy-related speech and language disorders that would limit her ability to understand the lawyer’s advice. She claimed that the lawyer was aware that she required the presence of a support person as an accommodation for her disability.

12On March 11, 2013, the applicant met with a different lawyer at the respondent legal clinic. The lawyer provided the applicant with advice regarding her small claims court claim. The following day, the applicant wrote to the respondent and informed it that she no longer wished to be represented by the respondent since she had consulted a different lawyer who provided her with more promising advice regarding her case. On March 13, 2013, one of the respondent’s lawyers confirmed that the applicant had terminated her retainer with the respondent.

13On April 22, 2014, the small claims court dismissed the applicant’s claim on the basis that it did not have jurisdiction over the claim. After the small claims court dismissed the applicant’s claim, she once again sought legal representation from the respondent. The respondent refused to represent the applicant, saying that it would not be a good idea. In its Response, the respondent stated that it denied the applicant legal representation due to the applicant’s prior loss of confidence in the respondent as well as the respondent’s limited legal resources and time.

Analysis

Allegations re. incidents between 2011 and 2013

14As noted above, the applicant filed her Application on February 18, 2015.

15The applicant filed her Application approximately two years or more after the events that occurred between 2011 and the date on which she terminated her retainer with the respondent in March 2013. Therefore these allegations are untimely under s. 34(1) of the Code unless they form part of a “series of incidents” with her allegations relating to the respondent’s denial of representation in 2014. If these allegations do not form part of a “series of incidents”, as that term has been interpreted by the Tribunal, they must be dismissed unless the applicant can provide a reasonable explanation for her delay in filing the Application in relation to these incidents.

16The fact that different incidents occur between the same parties is not enough for them to be considered a “series of incidents”. The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a “series of incidents” within the meaning of s. 34(1) of the Code. A series cannot be comprised of incidents relating to discrete and separate issues. Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of one year or more between incidents.

17In this case, I find that the applicant’s allegations regarding events occurring between 2011 and March 2013 do not form a “series of incidents” with her allegations relating to the respondent’s refusal to provide her with legal representation after she contacted the legal clinic again in April 2014. There was a gap of 1-3 years between the incidents that took place between 2011-2013 and the respondent’s denial of legal services in 2014. The applicant had no direct contact with the respondent during this time period. Due to this gap of over a year, the allegations from 2011-2013 cannot be said to form part of a series of incidents with the respondent’s refusal of services in 2014. For this reason, I find that the allegations relating to events that occurred between 2011 and 2013 are untimely.

18The Tribunal may permit untimely allegations to go forward if it is satisfied that the applicant has provided a reasonable explanation for his or her delay in filing the Application and no substantial prejudice would result to the respondent. When I asked the applicant why she did not file an Application relating to the 2011-2013 allegations sooner, she said that she was waiting for the conclusion of her small claims court case. The Tribunal has consistently held that waiting for another proceeding to be completed is not a reasonable explanation to justify an applicant’s delay in filing their Application. See Mu v. Cargill Foods, 2011 HRTO 846 at paragraph 42. This is especially the case when the other proceeding had no bearing whatsoever on the substance of the applicant’s human rights Application.

19For all these reasons, I find that the applicant’s allegations relating to events that occurred between 2011-2013 must be dismissed as untimely. In addition, I note that her allegations about any alleged errors in the legal advice provided by the respondent would also have no reasonable prospect of success under the Code, as the applicant could not point to any evidence available to her to show a discriminatory link between her disability and the advice provided by the respondent.

Allegations re. incident in 2014

20In my view, the allegations regarding the respondent’s refusal to provide legal services to the respondent after the small claims court dismissed her claim in 2014 must be dismissed as having no reasonable prospect of success under the Code.

21As noted above, for an application to continue in the Tribunal’s process following a summary hearing there must be a basis beyond mere speculation to believe that an applicant could show discrimination on the basis of one of the grounds listed in the Application.

22It is clear that the applicant’s claim of discrimination on the ground of receipt of public assistance has no reasonable prospect of success. This ground is only available in cases that allege discrimination with respect to housing. Although the applicant sought legal services from the respondent regarding a dispute with her landlord, the relationship between the applicant and the respondent is a service relationship and not a housing relationship. Therefore, the alleged discrimination in this case was with respect to the provision of services (s. 1 of the Code). Receipt of public assistance is not a protected ground under s. 1. Therefore, the applicant’s allegation of discrimination on the ground of receipt of public assistance has no reasonable prospect of success.

23With respect to the applicant’s disability-related claim, I asked her what evidence she intended to advance at a hearing to establish that the respondent denied her legal representation in 2014 at least in part because of her disability. She indicated that she would rely upon medical reports and the denial of her small claims court claim. In my view, neither of these documents would establish a link between her disability and the respondent’s decision to denial her legal services. In other words, these pieces of evidence would not establish that her disability was a reason why the respondent denied her legal services.

24In light of the above, I find that there is no reasonable prospect that the applicant would be in a position to bring forward evidence to establish a violation of the Code in this case.

ORDER

25For the reasons set out above, the allegations in the Application relating to events that occurred between 2011 and 2013 are dismissed because they are untimely. The allegations regarding the respondent’s denial of legal services to the applicant in 2014 are dismissed on the basis that they have no reasonable prospect of success under the Code.