Atas v. Law Society of Upper Canada, 2016 HRTO 894

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadire Atas Applicant

-and-

Law Society of Upper Canada Respondent

A N D B E T W E E N:

Nadire Atas Applicant

-and-

Dale and Lessman LLP, Stikeman Elliot LLP and Law Society of Upper Canada Respondents

A N D B E T W E E N:

Nadire Atas Applicant

-and-

Peoples Trust Company Respondent

A N D B E T W E E N:

Nadire Atas Applicant

-and-

Ralph Steinberg and Law Society of Upper Canada Respondents

INTERIM DECISION

Adjudicator: David Muir Date: July 6, 2016 Citation: 2016 HRTO 894 Indexed as: Atas v. Law Society of Upper Canada

APPEARANCES

Nadire Atas, Applicant Self-represented

Law Society of Upper Canada, Respondent Ross Gower and Elliot Spears, Counsel

Dale and Lessman LLP, Stikeman Elliot LLP and Ralph Steinberg, Respondents Adam Pental, Counsel

People’s Trust Company, Respondent Christina Wallis, Counsel

1These are four Applications filed by the applicant in August 2011 alleging discrimination with respect to goods, services and contract because of disability.

2This Interim Decision explains why these Applications should be reactivated and deals with a number of other issues raised by the parties.

Background

3In a Case Assessment Direction (CAD) dated November 28, 2011, the Tribunal noted that in light of the applicant’s disclosure that a litigation guardian had been appointed on her behalf in other proceedings, it had strong reasons to believe that the applicant might not have capacity to conduct these proceedings without a litigation guardian. The Tribunal made a number of directions with respect to next steps in these proceedings but did not direct that any of the respondents file a Response to the Application. The Tribunal did not defer these Applications pursuant to Rule 14.

4The Public Guardian and Trustee (PGT), which had been appointed as the applicant’s litigation guardian in some of the other legal proceedings, advised the Tribunal that the applicant had brought a motion to have the PGT removed as her litigation guardian.

5In a CAD dated March 26, 2012, the Tribunal held these Applications “in abeyance” pending the outcome of the applicant’s appeal of a Master’s Order concerning the applicant’s capacity. The Tribunal directed the parties to keep it apprised of any decisions concerning the applicant’s appeal and/or any developments with respect to a Master’s Order dated December 19, 2011. The Tribunal did not defer these Applications pursuant to Rule 14.

6Despite the fact that the Tribunal had not deferred these Applications pursuant to its Rules, on November 21, 2013, the Tribunal sent the standard “DEFERRED APPLICATION – Advise of Status” letters to the parties in Application File Numbers 2011-09558-I, 2011-09578-I and 2011-09579-I. The Tribunal’s letters stated, in part, as follows:

On March 26, 2012 the Human Rights Tribunal of Ontario (HRTO) issued a Case Assessment Direction, deferring this Application pursuant to Rule 14 of its Rules of Procedure pending the completion of court proceedings.

The Applicant is required to advise the HRTO whether the court proceeding is still ongoing and, if possible, when it is expected to be completed, within 30 days of the date of this letter. If the applicant fails to do so, the HRTO may dismiss the Application as abandoned.

The parties’ attention is directed to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the other proceeding.

7A similar letter had been sent to the parties in Application File Number 2011-09579-I on July 11, 2013. The applicant does not appear to have responded to this letter.

8On December 10, 2013, the applicant wrote to the Tribunal with respect to all four Applications. The applicant stated, in part, that all the civil matters and capacity issues were still before the courts and had not been concluded. The applicant also stated that she would “file a request to proceed for all the applications under Rule 14.3 no later than 60 days after the conclusion of the other proceedings”, and referred to Rule 14 of the Tribunal’s Rules of Procedure. In particular, Rule 14.4 provides that:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

9The applicant’s motion was disposed of in January 2014 when the court ordered that the PGT be removed as the applicant’s litigation guardian. The issue which had caused the Tribunal to not process these Applications – or hold them in abeyance – had been resolved at that point.

10On February 26, 2014 the applicant sent an email advising as follows:

On January 30, 2014, Justice made an order that

“Ms. Atas is no longer under a disability and is fully capable of litigating this and her other matters without need for a litigation guardian. A declaration to that effect shall issue.”

11It appears to be agreed amongst the parties that this email was sent. It also appears that it was received by the Tribunal but was not acknowledged and no steps were taken by the Tribunal in response to this email.

12Despite the applicant’s February 24, 2014 email, on May 9, 2014, the Tribunal acknowledged and responded to the applicant’s December 10, 2013 correspondence. The Tribunal advised that in light of the applicant’s December 10, 2013 correspondence, the “Superior Court Proceeding is still ongoing. As such the Application remains deferred.” The parties were reminded again of the requirements of Rule 14.3 and 14.4.

13On December 16, 2015, the Tribunal again sent the standard “DEFERRED APPLICATION – Advise of Status” letters to the parties in all four Applications.

14In apparent response, the applicant filed Requests for Orders During Proceedings (“Requests”) on January 8, 2016, seeking, among other things, re-activation of all four Applications. The applicant also sought anonymization. The applicant made other requests which need not be addressed.

The Parties’ Positions

15The applicant initially provided no reasons for her seeking reactivation of these Applications and offered no explanation for the delay in making her Request.

16In responses to the applicant’s Requests, the respondents, Dale and Lessman LLP and Stikeman Elliot LLP (in Application File Number 2011-09578-I), Peoples Trust Company (in Application file Number 2011-09579-I), and Ralph Steinberg (in Application File Number 2011-09588-I) oppose the applicant’s re-activation requests and submit that the requests should be denied because of the extensive delay.

17On January 11, 2016, the respondent, Peoples Trust Company (in Application File Number 2011-09579-I), also filed a Request seeking dismissal of this Application because Peoples Trust Company is a federally-regulated business. On January 21, 2016, the applicant filed a Response, opposing this Request.

18In response to the respondents’ delay argument the applicant took the position that the issue of re-activation has to be considered within the context of the Tribunal’s decision to defer the Applications and the events that took place in the civil matters. The applicant submitted, in part, that, since June 2012, “a stay had been put on all matters by” the Court. The applicant also submits that, on December 21, 2015, at a case conference, the Court “made an endorsement that responding to the Human Rights Tribunal would not be a breach” of the Judge’s previous orders.

Issues

19In a CAD issued on February 25, 2016, the Tribunal directed that a telephone conference call be scheduled to hear the parties’ submissions on two issues:

a. Whether these Applications should be reactivated having regard to the delay in filing the Request;

b. Whether the Application 2011-09587-I is outside the Tribunal’s jurisdiction because the respondent is a federally-regulated business.

20The preliminary hearing took place by telephone conference call on June 21, 2016. All parties participated.

Decision

21I have considered this matter carefully and am unable to conclude that it would be fair, just or expeditious to deny the applicant’s Request to reactivate.

22Rule 14.4 of the Tribunal’s Rules of Procedure provides as follows:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

23Rule A4.2 provides the Tribunal with the discretion to vary the time limits set out in its Rules. In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal specifically discussed on what basis the time limit for reactivating a deferred application might be extended if there was “good reason” to relieve against the time limits, namely whether the delay was incurred in good faith and whether any substantial prejudice would result if the time limit was extended. These factors are similar to those considered whether to exercise discretion to deal with an otherwise untimely application under section 34(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

24There are a number of problems with the application of these principles to these cases. To begin with, the Tribunal did not originally defer these Applications pursuant to its Rules. Rather it held them “in abeyance” pending the resolution of an issue of the applicant’s capacity raised in the civil proceedings, of which there are many.

25Despite the Applications not being deferred pursuant to Rule 14, the Tribunal treated the Applications as if they had been deferred. It is for that reason that the Tribunal issued the standard deferred status update letters. The letters did not refer to any particular proceeding but rather indicated that the Applications had been deferred “pending the completion of court proceedings.” Given the multitude of court proceedings ongoing this direction is less than clear. Moreover the applicant did comply with the direction made in the March 26, 2012 Case Assessment Direction and apprised the Tribunal of the lifting of the litigation guardian order in February 2014. Although it is clear that the Tribunal received this email, it was not acknowledged or responded to by the Tribunal. Instead the Tribunal issued a letter in May 2014 responding to the applicant’s earlier December 10, 2013 communication and confirming that the cases remained deferred pending the conclusion of the “Superior Court Proceeding”.

26The text of the May 9, 2014 letter from the Tribunal was in part as follows:

On November 21, 2013, the Human Rights Tribunal of Ontario (HRTO) wrote to the applicant to request an update on the status of the other proceeding to which this Application was deferred.

The applicant notified the HRTO on December 10, 2013 that the Superior Court Proceedings is still ongoing. As such, this Application remains deferred.

The parties’ attention is directed to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the other proceeding.

27In my view this last communication from Tribunal confirms that in the Tribunal’s view these Applications remained deferred pending the “Superior Court Proceedings”. As such, other than complying with the direction in the March 26, 2012 CAD to keep the Tribunal apprised of the outcome of the capacity issue, which the applicant did do, there was nothing for the applicant to do pending the conclusion of the Superior Court proceedings, which in fact remain ongoing. In my view it would be neither fair nor just in these circumstances to deny these Requests to reactivate.

28I appreciate that the responding parties take a different view of these circumstances. They are also not responsible for the extensive delay in these Applications being moved forward in the Tribunal process. However, the fact is that I am unable to conclude that the applicant has not provided a reasonable explanation for what the respondents see as delay in making these Requests. It is also clear that the Tribunal did not process the Applications once it was in receipt of the information that had been requested in the March 26, 2012. This is regrettable, but it is not the fault of the applicant.

29Several of the respondents argued that they would be prejudiced if these Applications were reactivated. I am not persuaded at this stage that any of the respondents can establish substantial prejudice. Accordingly, the Applications are re-activated subject to the directions below.

Anonymization

30Under Rule 3.11 of the Tribunal’s Rules of Procedure, the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal has invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.

31The Tribunal’s Practice Direction on Anonymization of HRTO Decisions provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so. However, such an order is only made in exceptional circumstances. When determining whether to make an anonymization order, the Tribunal’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

32The Tribunal does not grant anonymization in all cases where someone alleges that they have a private and sensitive medical condition or where they are seeking medical services they claim to be private and sensitive. However, the Tribunal has granted requests for anonymization where it is persuaded that the proceeding deals with medical information or medical services that are particularly private and sensitive due to the social stigma attached to them.

33The applicant argues that in the course of this proceeding certain information might be revealed about her which could be stigmatizing. As can be seen from the reasons above, no sensitive personal information has been revealed in this proceeding to date. The applicant relies on the mere fact that in other proceedings a litigation guardian was appointed as a consequence of a transitory disability. As indicated above, the Tribunal does not subvert the open court principle merely because a party was or is a person with a disability. This aspect of the applicant’s Request is denied.

The Jurisdiction Issue

34People’s Trust Company argued that it is a federally-regulated business, it is governed by the Trust and Loan Companies Act. S.C. 1991, c. 45, and regulated by the Government of Canada’s Office of the Superintendent of Financial Institutions. In support of its position the respondent relies on Tribunal’s Decisions Guerrier v. Canadian Imperial Bank of Commerce, 2009 HRTO 124, Forde v. Royal Bank of Canada, 2010 HRTO 1573, and Tyrrell v. Royal Bank of Canada, 2014 HRTO 1134. However, I note those cases involve banks which are clearly federally-regulated pursuant to section 91 of the Constitution Act.

35The applicant opposes the Request on the basis that the respondent is a trust company, not a bank, and is not listed in Schedules I, II or II of the Bank Act. The applicant also argues that none of the respondent’s regular and habitual activities fall under any other federal head of power.

36I am not satisfied at this stage that the respondent is a federally-regulated work or undertaking such that it is outside of the Tribunal’s jurisdiction. Clearly Canada has exercised some regulatory authority over the respondent, but that fact alone does not make it a federal work or undertaking or subject only to Canadian law. At this stage it appears that this is no more than Canada exercising its authority over the incorporation of this business. See Canadian Pioneer Management v. Labour Relations Board of Saskatchewan, 1979 CanLII 180 (SCC), [1980] 1 S.C.R. 433, which held that trust companies established under the federal Trust Companies Act may be subject to provincial regulation pursuant to the property and civil rights power in section 92 of the Constitution Act.

37This is not a final decision on this point but in light of the other issues canvassed below I leave it for further consideration.

Other Matters

38Each of the respondents has raised substantial issues going to the Tribunal’s jurisdiction to hear these Applications that have yet to be addressed. The Law Society of Upper Canada has argued that the Applications as against it should be dismissed because they have no reasonable prospect of success. The respondents Dale and Lessman LLP, Stikeman Elliot LLP and Ralph Steinberg argue that the Tribunal has no jurisdiction to deal with those Applications because there was no service relationship between the applicant and the lawyers involved. Finally, People’s Trust Company advised at the preliminary hearing that the applicant has raised human rights issues in one or more of the civil proceedings she has commenced against it, raising the possibility that this Application should be dismissed pursuant to section 34(11) of the Code.

39Some of these issues have been raised and to some degree at least, argued by the parties in their written submissions. This is not the case with the potential section 34(11) issue. To the extent that these Applications are within the Tribunal’s jurisdiction to decide it also may be appropriate to defer them pending the conclusion of the civil proceedings.

40In my view the most straightforward manner of proceeding is for the responding parties to raise their respective issues using the appropriate Form, affording the applicant an opportunity to respond to them. To the extent that any party has already filed such a Request and is satisfied with their submission they may so indicate in writing identifying the submission thereby triggering the applicant’s obligation to respond to the Request.

41Some of the issues raised by the responding parties are jurisdictional and can be dealt with in writing. The parties should be mindful of that when determining whether to provide further submissions or simply relying on submissions that have been submitted previously. If the Tribunal determines that it requires further or oral submissions on any point it will contact the parties for that purpose.

Orders and Directions

42The Tribunal makes the following Orders and Directions:

a. The applicant’s Request to reactivate these Applications is granted;

b. The applicant’s Request to anonymize these Applications is denied; and

c. The responding parties are directed to deliver and file within 14 days of the date of this Interim Decision any Request they may wish to make seeking the early dismissal of these Applications. Any party wishing to rely on a prior Request or prior submissions may comply with this Direction by identifying, within 14 days, the prior Request and submission, thereby triggering the applicant’s obligation to respond.