A paralegal firm has been removed as the Applicant in an Ontario Human Rights matter, in an interim decision that clarifies whether those wishing to file applications on behalf of others may charge a fee. The firm had charged a filing fee in the case, while at the same time representing the claimant before the Tribunal.
The case is G.M.K. v. Lakefield College School, 2014 HRTO 1581 (CanLII). Adjudicator Paul Aterman, Vice-chair, held that the legislative purpose in allowing applications to be brought on behalf of another is undermined when a fee is charged:
“Although the Code is silent on the question of whether a fee can be charged, I think that it should not be interpreted in a manner that allows a fee to be charged to the person on whose behalf the application is brought when, if that person had brought the application on their own, they would have done so at no cost.”
The Applicant is a former student who was expelled. Through his litigation guardian, the former student alleges discrimination with respect to services because of place of origin, citizenship, ethnic origin and disability. Affordable Immigration and Paralegal Support filed an application with the Tribunal on G.M.K.’s behalf.
Section 34(1) the Code allows another person to bring an application on behalf of another who believes their Part I Rights have been infringed, and if the claimant consents. The adjudicator determined that the Legislature did not intend the section to be used “as a vehicle for public interest litigants to launch applications in the absence of a delegation of authority to do so from a claimant who alleges a violation of their Code rights.”
A Case Assessment Direction (CAD) had found that:
“In most cases the Tribunal deals with that involve an application being brought by a person or organisation on behalf of another, the application is brought by a natural person or by an organisation such as a union or non-governmental organisation. Here the Application is ostensibly being brought by a paralegal firm, an organisation which has as its core purpose the provision of legal advice and representation to clients in exchange for fees for those services.
“That is not to say that a law firm or paralegal firm cannot bring an application to the Tribunal on behalf of a claimant. A plain reading of s.34(5) suggests that a law firm or paralegal firm is an “organisation” within the meaning of s.34(5). However, the Tribunal has the authority and the duty to control the integrity of its own process. See Rules A8.1, A8.2 and especially A9.4 of the SJTO Common Rules found in Part 1 of the HRTO’s Rules of Procedure. The circumstances of this case appear to raise questions about how the applicant in this case should be permitted to exercise its role in bringing an application on behalf of the claimant.”
Another Tribunal decision, Kacan v. Ontario Public Service Employees Union, drew distinctions between the role of a person making an application on behalf of another, and the role of a representative. With that decision as a reference, the Adjudicator in G.M.K. directed the paralegal firm to provide submissions on whether it is entitled to charge a fee, whether it intends to retain counsel, or why it is not obliged to retain counsel, as the applicant. Aterman referred Affordable Immigration and Paralegal Services to the provisions of s.34(5) of the Code, the Law Society Act and By-Laws, and the Law Society’s Paralegal Rules of Conduct, in its CAD response.
“When a law firm or paralegal firm acts as an applicant on behalf of another, it may have professional and ethical obligations to retain counsel in order to avoid a conflict of interest between their dual roles as licenced law professional and applicant before the Tribunal,” Aterman wrote.
Demanding payment ‘not in the interests of the claimant’
While the paralegal confirmed she was charging a fee to bring the application, the adjudicator found that the submissions provided by the paralegal firm failed to address the issues. They were “of no help at all.” If anything, Aterman found, “they demonstrate that the applicant does not understand the difference between a representative and a person who brings an application on another’s behalf. I say this because the submissions use the two terms and the underlying concepts interchangeably.”
Aterman held that charging a fee to bring an application on behalf of a claimant is unfair. A fiduciary relationship exists between applicant and claimant. The applicant is obliged to act in the claimant’s best interests. Other applicants are not required to pay a fee to access the Tribunal’s process, Aterman notes.
Demanding payment is not in the interests of the claimant and “runs counter to the Tribunal’s institutional interest in having an accessible process for all applicants, whether they are applying in their own right or on behalf of another.”
Aterman concluded that: “Allowing the applicant to charge a fee for bringing this Application would require the Tribunal to turn a blind eye to an action that undermines the fiduciary nature of that relationship.” He removed the paralegal firm as Applicant.