HRTO applies Penner in letting case proceed despite earlier LSUC dismissal

A Toronto lawyer has failed to quash a former employee’s discrimination complaint at the Human Rights Tribunal of Ontario even after a Law Society of Upper Canada investigation cleared him in regards to the same allegations.

The interim ruling, the first to apply the Supreme Court of Canada’s Penner v. Niagara (Regional Police Services Board) decision in a human rights case involving a lawyer, means Jayson Schwarz, the principal at Schwarz Law LLP in Toronto, must now prepare for a full hearing of the allegations made against him by his former bookkeeper, Leslie Ormesher.

Ormesher filed her Human Rights Code application in February 2013 after her termination from the law firm. She alleged she experienced a poisoned working environment throughout most of her employment there. Ormesher also claimed in the application that Schwarz had sexually harassed her and other female employees. None of the claims have been proven.

Schwarz denied all of Ormesher’s allegations in a response filed with the tribunal and instead raised concerns about her work performance.

Ormesher also made a complaint to the LSUC about Schwarz’ conduct, and an earlier interim decision of the HRTO deferred the application until that process had run its course. After the LSUC investigated and dismissed the complaint because there was insufficient evidence to substantiate it, Schwarz moved to have the human rights application dismissed under s. 45.1 of the Human Rights Code. It allows for dismissal where “another proceeding has appropriately dealt with the substance of the application.”

However, in a decision released last month, HRTO vice chairman David Muir ruled against the lawyer.
“It would be unfair, having regard to the reasonable expectations of the parties, that the determination of a public interest complaint in which the applicant had no direct personal interest would be conclusive of any civil claim she may have for damages resulting from the same allegedly unprofessional and discriminatory conduct,” wrote Muir.

Schwarz’ lawyer, Maureen Salama of Toronto law firm Brauti Thorning Zibarras LLP, said in a statement that her client also faced a full criminal investigation as a result of Ormesher’s allegations that resulted in no charges against him.

“Our client has now been cleared by both a criminal investigation and an administrative body. It is truly disturbing how many times professionals like Mr. Schwarz have to defend themselves against these types of allegations before the matter is finally laid to rest,” wrote Salama.

Patty Murray, a partner in the Toronto office of Hicks Morley Hamilton Stewart Storie LLP, says the HRTO has become less and less likely over time to grant s. 45.1 motions for dismissal in cases involving parallel proceedings at regulatory or disciplinary bodies for professionals such as lawyers, dentists, doctors or police officers.

“In the old days, there is no question in my mind that the respondent here would have been successful in seeking a dismissal,” says Murray.

“For years, the tribunal was routinely tossing out applications. The message was: You’re out of luck.”

Indeed, in Mathurin v. Scully, a 2010 HRTO case with similar facts to Ormesher v. Schwarz Law LLP, the tribunal ruled the other way. It granted the lawyer’s application to have the human rights case tossed after the LSUC found insufficient evidence to support the applicant`s complaint.

Murray says things changed in 2013 when the Supreme Court of Canada released Penner. In that case, the majority found it could sometimes be unfair to apply issue estoppel even when the technical requirements of the doctrine are met. The top court directed decision-makers to assess the fairness of applying the result of a disciplinary complaint to a civil action considering, amongst other things, the differences in the purposes of the two proceedings and the parties’ stakes in each of them.

In his decision, Muir concluded that the purposes of an HRTO application and the LSUC complaint process were “substantially different.” While the law society concerns itself with the “public interest in ensuring that lawyers live up to their professional responsibility,” the human rights application is “essentially a private claim of civil wrongdoing and primarily concerned with providing a remedy to the applicant,” according to Muir.

In addition, he said dismissing Ormesher’s application would create a “significant disincentive to individuals making public complaints to regulatory bodies like the LSUC.”

Jeremy Schwartz, a partner at Toronto’s Stringer LLP and no relation to the respondent in this case, says two distinct lines of case law are emerging at the HRTO on s. 45.1 motions. He says adjudicators are much more willing to prevent repeated litigation when the original decision was from an administrative tribunal, such as the Workplace Safety and Insurance Board, with the ability to consider human rights issues.

“There’s a lot more overlap there between what the human rights tribunal does and what the workers’ compensation regime sets out to do,” he says.

“I’m always very careful when advising clients to tell them that this is an area that is in flux. The jurisprudence is still developing, and we’re getting landmark decisions every year.”

Murray agrees that the case law is in flux and says yet another reversal in approach from the HRTO is still possible due to an ongoing appeal of its interpretation of Penner in several cases involving police officers.

The Divisional Court is to hear a judicial review of those decisions in the spring with the officers arguing Penner has no application at the HRTO because the claim for damages was in court rather than at a human rights tribunal.

“Penner talks about the doctrine of issue estoppel and the discretion inherent in the court,” says Murray.

“That’s different from a statutory provision such as s. 45.1 where it’s crystal clear there is legislative concern over the re-litigation of matters. There is a concern that Penner has opened wide an avenue for re-litigation of decisions by a whole host of bodies, including the law society, that we had thought had been foreclosed.”

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