Michael Ford (post until Oct. 31/18)

SCC decision applied in human rights case

It’s unfortunate that professionals who have been cleared in criminal investigations and by administrative bodies sometimes have to continue to defend themselves, Toronto criminal lawyer Maureen Salama says in Law Times.

She makes the comment in the legal publication in connection with the case of her client, Jayson Schwarz, the principal at Schwarz Law LLP in Toronto. He is currently preparing for a full hearing of the allegations made against him by his former bookkeeper, Leslie Ormesher.

“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 in a statement to Law Times.

While a Law Society of Upper Canada investigation cleared him in regards to the same allegations because there wasn’t enough evidence to substantiate them, he still has to appear before a Human Rights Tribunal of Ontario hearing.

“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 Ormesher filed her Human Rights Code application in February 2013 after her termination from the law firm,” says Law Times. “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.”

In addition, the bookkeeper made a complaint to LSUC about his conduct and an earlier decision of the HRTO deferred the application until the administrative process with the law society was completed. Following the decision from LSUC, Schwarz moved to have the human rights application dismissed under s. 45.1 of the Human Rights Code, which allows for dismissal where “another proceeding has appropriately dealt with the substance of the application,” says the article.

But in a new decision, HRTO vice chairman David Muir ruled against the request.

“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.

In Penner, the high 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," says Law Times.

Muir concluded in his decision "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,'” says the article.

He also says dismissing Ormesher’s application would create a “significant disincentive to individuals making public complaints to regulatory bodies like the LSUC.”

Law Times also notes in its article that "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."

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