Konesavarathan v. Law Society of Upper Canada, 2017 HRTO 1270

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

Law Society of Upper Canada

Respondent

DECISION

Adjudicator: David Muir

Date: September 27, 2017

Citation: 2017 HRTO 1270

Indexed as: Konesavarathan v. Law Society of Upper Canada

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods and services on the basis of race, colour, place of origin, ethnic origin, citizenship, age and disability.

2In his Application the applicant alleges that the respondent discriminated against him in failing to ensure that its members with whom he has interacted with as opposing counsel or adjudicators are competent in human rights law. Although 6 of the lawyers identified in the Application are lawyers who were counsel for parties opposed to the applicant in prior Applications, the focus of the narrative is the alleged incompetence of a Member of this Tribunal. The applicant alleges that the lawyers have demonstrated that their “ethical learning, ethnical competence and ethical conduct are very low.” The applicant alleges that these “facts” imposed an extra burden on his accessing the Tribunal process as a member of one or more protected groups. The applicant also alleges that the lawyers opposed to him did not act with due diligence and made misrepresentations to the Tribunal.

3On May 15, 2017 the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application because it appeared to be outside of the Tribunal’s jurisdiction to decide. Specifically the Tribunal directed that the applicant respond to the following issues:

a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The Tribunal does not have jurisdiction over general allegations of unfairness unless the unfairness is connected, in whole or in part, to one of the grounds specifically set out in Part I of the Code (e.g. race, disability, sex, etc.); see, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389).

the Application does not allege that any of the rights of the applicant have been infringed and the Application is not made on behalf of another person or persons pursuant to s. 34(5) of the Code: see Oliphant v. Ontario (Attorney General), 2009 HRTO 1902 and Freitag v. Penetanguishene (Municipality), 2010 HRTO 1704.

4The applicant filed lengthy submissions in response to the NOID. These have been reviewed in detail but in the end they fail to address the fundamental flaws in the applicant’s theory of this case. With his submissions in response to the NOID the applicant also filed a Request for Order During Proceeding (“Request”) seeking leave to add the Tribunal as a respondent to the Application.

THE APPLICANT’S REQUEST

5The Request is denied. The Request is difficult to understand. In support of the Request the applicant quotes extensively from the decision of the Tribunal in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 on the question of exclusive versus concurrent jurisdiction. The applicant then offers the following in support of adding the Tribunal to the Application:

When considering the above principle, I feel whether the Law Society has exclusive jurisdiction to address the adverse impact imposed on Code protected individuals in our right to equally participate in the HRTO process by the poor standard of learning and professional competence with regards to Human Rights maintained by the members of the Law Society is yet to be determined by conducting the complex analysis. The analysis may conclude that it is within the Law Society’s exclusive jurisdiction or that this Tribunal has overlapping, concurrent, or even exclusive jurisdiction on that particular matter. Therefore, it is necessary to add HRTO as a respondent in this proceeding, and I am attaching a Form 10 along with this response.

6In my view it is plain on the face of the Request that there is no basis for it. The applicant does not allege that the Tribunal has discriminated against him. Indeed to the extent that the Request can be understood at all, it is an attempt to re-litigate prior Applications which have been dismissed.

IS IT PLAIN AND OBVIOUS THAT THIS APPLICATION MUST BE DISMISSED?

7Under the Tribunal’s jurisprudence, an application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

8I find that that this Application must be dismissed because it is plain and obvious that the Application is outside of the Tribunal’s jurisdiction to decide.

9The applicant does not plead any facts to support his underlying contention that the counsel opposite him or the adjudicators with whose decisions he disagrees lacked competence. Assuming for the moment that there is some free-standing obligation on the part of the LSUC in these circumstances – a doubtful proposition, I find that taking positions opposed to the applicant or making submissions or representations with which the applicant disagrees is not discrimination. Similarly a decision with which the applicant disagrees is not evidence of an incomplete or faulty understanding of the Code and is not discrimination.

10Moreover the applicant pleads no link between any of the grounds claimed and the alleged difficulties he has allegedly experienced. Logically, incompetent counsel opposite would more likely be an advantage for an applicant. The true limitation on his access to justice, as he pleads it at length, is that he has been self-represented and that fact allegedly imposed an extra burden on him as a member of one or more protected groups. There are no facts plead beyond these that would establish a link between his lack of success in these various proceedings; any alleged lack of human rights expertise on the part of counsel and decision maker(s); and any of the grounds of discrimination cited.

11In my view it is plain and obvious that there are no acts of discrimination or rights of the applicant as contemplated by the Code alleged in this Application.

12I would also observe that this case is an ill-disguised collateral attack on previous Tribunal decisions denying the applicant’s requests in prior Applications and as such is an abuse of process. In at least two prior Applications the applicant has sought the recusal of the member assigned to hear the case. See Konesavarathan v. Wellington-Dufferin-Guelph Public Health, 2017 HRTO 199 and Konesavarathan v. College of Physicians and Surgeons of Ontario, 2017 HRTO 973.

13The applicant has also in at least one prior Application requested that counsel opposite him be sanctioned and removed from the record. See Konesavarathan v. College of Physicians and Surgeons of Ontario, above which sets out some of the procedural history of one prior case. It is plain on the face to the applicant’s submission that this Application is another complaint about counsel opposite in prior proceeding as well as prior Tribunal decision making.

14For these reasons the Application is dismissed.