Worker's paralegal made threats, violated Rules of Procedure
The Ontario Human Rights Tribunal has dismissed a worker’s discrimination complaint due to a failure to follow its instructions, along with bad-faith and discourteous conduct by the paralegal representing the worker.
The worker filed an application with the tribunal alleging discrimination with respect to employment and contracts because of disability and an unlawful reprisal under the Ontario Human Rights Code against the Labourers’ international Union of North America, Local 183 (LIUNA). In January 2021, the worker obtained a paralegal to assist and advise in his application.
Due to several administrative issues, a member of the tribunal held a case management call before advancing to a hearing. The worker’s first language was not English, so the member appointed an interpreter to translate for the worker.
During the hearing, LIUNA’s legal counsel objected to a question posed by the worker’s paralegal. The member ruled in favour of LIUNA and the worker’s paralegal took exception. He refused to continue his cross-examination of the witness and any other witness put forward by LIUNA.
At one point, the worker’s son – who was not party to the proceedings – disagreed with how the interpreter translated something that the worker said. The paralegal raised this and the member asked the interpreter if she was confident in her interpretation. The interpreter stated that she was and the member accepted the official interpreter’s translation. The paralegal also took exception to this decision.
A worker’s discrimination complaint after signing a release was an abuse of process, the Ontario Human Rights Tribunal ruled.
Paralegal threatened judicial review
The paralegal said that he was displeased with the tribunal member’s procedural decisions and threatened to have them judicially reviewed and that he would complain to the registrar. He sent an email to the member and LIUNA stating that he had retained a corporate attorney to begin a judicial review. The email was sent to the member’s direct email rather than the registrar’s as was required by the tribunal’s Rules of Procedure.
The paralegal sent another email to the tribunal member on the evening of the hearing, which was also not sent to the registrar or anyone else. The email said that he would be discussing his “objection of fairness versus economy in which you prejudiced my client by your limitations of other witnesses versus my client,” which led to manipulation of the limitation, according to the paralegal.
In October 2022, the tribunal issued an interim decision that included an order requiring the worker to file written submissions within 21 days. The decision also stipulated that a failure to file submissions on time could result in the application being dismissed for abuse of process.
The worker did not file the required submissions on time or request an extension. LIUNA filed its submissions and the worker’s paralegal emailed LIUNA and the tribunal member to say he was on vacation and he would respond upon his return. He added that his client had instructed him to apply for a judicial review of all matters, particularly “the conduct of the HRTO hearing.”
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Didn’t comply with instructions
On Dec. 7, the paralegal sent an email with submissions that had been made in another proceeding before the Ontario Labour Relations Board. The tribunal member determined that the worker did not comply with the interim decision, which was an abuse of the tribunal’s processes.
The member also found that the paralegal breached the tribunal’s Rules of Procedure, which require “all persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.”
The member also referred to an Ontario Divisional Court decision that stipulated that the Rules of Professional Conduct of the Law Society of Upper Canada included not only courts but also “administrative agencies” such as the tribunal, meaning that counsel has a duty to treat the tribunal “with no less respect than they would a court.”
“I do not believe that the [worker’s] paralegal would refuse to cross-examine witnesses because he did not agree with a procedural ruling of a Justice of the Superior Court,” said the tribunal member. “I do not believe that the [worker’s] paralegal would have sent and ex-parte communication to the direct email address of a Justice of the Superior Court.”
The member found that the worker failed to comply with directions and the paralegal “repeatedly accused opposing counsel of violating the rules of the Law Society of Ontario and threatened to report them,” which was conduct in a direct contravention of the Rules of Procedure. As a result, the member dismissed the worker’s application due to abuse of the tribunal’s processes. See Moreira v. Labourers’ International Union of North America, Local 183, 2023 HRTO 1052.
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