Tag Archives: tribunal

Law Society of Ontario v Bogue, 2020 ONLSTA 11

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An Indigenous lawyer from Ontario brought two motions seeking various relief, the majority related to issues considered and rejected in other proceedings. The lawyer was disrespectful and issued threats of legal proceedings against the panel. Though the lawyer did raise three new issues, the motions are dismissed, but without prejudice to bringing these motions again. If he does proceed with his motions, he would have to file the necessary materials, conduct himself in a civil manner, and pursue only matters that had not already been determined.

Indigenous Law Centre – CaseWatch Blog

Gina Papageorgiou Spirit Warrior [“Lawyer”] is an Ontario lawyer who identifies as non-status Métis and as a member of the Kinakwii Nation/Confederacy. The Lawyer has been before the Law Society Tribunal [“Tribunal”] in a number of motions related to his capacity and his competence. In this matter, he brought two motions seeking 10 heads of relief. His motions were dismissed without prejudice to his bringing these motions again, upon the filing of proper materials. The Lawyer did not file a motion record, factum or book of authorities as required by Rule 8.2 of the Tribunal’s Rules of Practice and Procedure [“Rules”].

At the outset of the motions hearing, it was advised that it was not possible to consider his motions without the required materials. The Lawyer refused to follow instructions so that a schedule could be established for the exchange of materials to allow his motions to be heard on their merits. This is an abuse of the Tribunal’s process. Parties before tribunals are expected to conduct themselves with courtesy and respect (Cameron v Ontario (Training, Colleges and Universities), 2011 HRTO 2240). The Lawyer’s attempt to re-litigate matters already raised, determined against him and under appeal is an abuse of process. He addressed the participants in a disrespectful manner and issued threats.

The Lawyer’s threat that the adjudicator would become a personal defendant before the International Court of Justice if there is no agreement to his demands was an abuse of process. Although the Lawyer was representing himself, the Rules of Professional Conduct still apply, which specifically prohibits lawyers from threatening legal proceedings to achieve a quid pro quo. Like previous panels in this matter, the Tribunal acknowledges the historical mistreatment of Indigenous People in Canada and the need for reconciliation. The fact of this history, however, does not mean that the Tribunal lacks jurisdiction, that its panel members are automatically biased or that there has been any attempt in these proceedings to be disrespectful or cause cultural genocide.

If there is respectful conduct and compliance with the Rules, he could complete his appeal materials and pursue his appeals on their merits. The items in his motions which are new are: 1) his request for an order to consolidate the two appeals. His last motion in this regard was dismissed because the capacity proceedings were not yet concluded, but they are now and so this request can be made again; 2) an order for relief from compliance with the Rules regarding transcripts in respect of the capacity appeal. His request for relief from compliance with the Rules regarding his competence appeal was dismissed, but has not yet been adjudicated with respect to the capacity appeal; and 3) an order that the Law Society of Ontario [“LSO”] pay for a lawyer for the Lawyer for his appeals and his motion for relief from compliance with the Rules.

This is an interesting motion raised by the Lawyer, who says that having found that he is incapacitated, the LSO cannot then expect the Lawyer to act for himself in his appeals (Law Society of Ontario v Burtt, 2018 ONLSTH 63). The Lawyer did not provide any evidence as to what attempts he has made to retain a lawyer, what circumstances prevent him from doing so or any information as to whether he has sought assistance from volunteer duty counsel. For greater clarity, until the Lawyer files the required materials, no hearing or management conferences should be scheduled.

Kim v Vancouver Native Health Society and another, 2020 BCHRT 153

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The British Columbia Human Rights Tribunal dismissed a complaint under s. 27 (1)(c) of the Human Rights Code on the basis that it had no reasonable prospect for success. The Complainant unsuccessfully argued discrimination in employment based on race and place of origin by the Vancouver Native Health Society.

Indigenous Law Centre
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Ms. Ji Kim is an immigrant from Korea and a former employee of the Vancouver Native Health Society [“Respondent”]. She alleged that she was not afforded the same funding opportunities as other team members, experienced bullying, false accusations, and different performance standards applied to Aboriginal employees. She also alleged that her termination was due to her not being an Aboriginal person and that this amounts to discrimination in employment based on race and place of origin contrary to section 13 of the Human Rights Code [“Code”]. The Respondent denies the allegations and seek to dismiss the complaint on the basis that it has no reasonable prospect for success as per section 27 of the Code.

The Tribunal must consider the whole of the evidence to determine whether there is no reasonable prospect that the complaint will succeed (Workers’ Compensation Appeal Tribunal v Hill, 2011 BCCA 49). When assessing the evidence, the Tribunal looks for internal and external consistency and considers it in the context of the overall relationship between the parties and the circumstances in which the alleged discrimination occurred (Ritchie v Central Okanagan Search and Rescue Society and others, 2016 BCHRT 110).

Race must be proven as a factor in the adverse impact that Kim experienced. Direct evidence of race-based discrimination is rarely available and as a result, it is necessary to draw inferences from the evidence to prove such (Mezghrani v Canada Youth Orange Network (No. 2), 2006 BCHRT 60). In regard to the allegation of discrimination pertaining to the funding opportunities, neither the complaint nor the response to the application explains how her race was a factor in the decision not to approve the funding requests for her Indigenous clients requiring support. There were other workers seeking funding for their clients that were not Aboriginal, but Kim did not explain nor provide any evidence from which a reasonable inference could be drawn as to what would single her out.

Kim does not deny that many issues arose during the course of her employment nor that she had several conflicts with her co-workers. There has been no reference to Indigenous identity in the communications made to her and the allegations regarding “inappropriate racial comments” are found to have been too vague. They allege that she was a poor performer, had poor interpersonal skills and despite months of coaching and guidance, she did not demonstrate signs of improvement. The Respondent assured that the decision would have been the same regardless of whether she was Aboriginal or not.

The Tribunal decided that the complaint had no reasonable prospect of success at a hearing. The application was granted, and the complaint dismissed in its entirety under section 27 (1)(c) of the Code.