ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00004137

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/03/2017

Procedure:

1. In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

 Background:

1. The dispute involves a claim by the Complainant that he was discriminated against in the provision of free legal services by reason of his religion or religious outlook.

Summary of Complainant’s Case:

1. The Complainant submitted that he wrote to the Respondent requesting legal representation and advice in regard to bringing a constitutional challenge to the Gender Recognition Act 2015. The Complainant contended that he was discriminated against on grounds of religion because the Respondent refused to provide him legal aid or legal advice. The Complainant also maintained that he was discriminated against because he was advised the Respondent would not be in a position to represent him make a constitutional challenge as it had represented Dr Lydia Foy in the case that led to the enactment of the Gender Recognition Act. The Complainant contended that this decision amounted to discrimination by the Respondent withholding a service of providing legal representation and legal advice to him.

 On the basis that the Service has provided representation for Dr Lydia Foy the Complainant argued that this amounted to less favourable treatment of him in a similar circumstance, and where the basis of the refusal was due to his religion.

 The position held by the Complainant was that the Gender Recognition Act 2015 amounted to a gender blurring ideology, that it was evil, and it was against his religious beliefs.       The Complainant identified himself at the hearing as being a member of the Roman Catholic faith.

 The Complainant submitted that the reason given to him at the time, as being a conflict of interest for Respondent, was not sustainable and he cited where Kevin Brophy Solicitors represented David Quinn, John Waters and Breda O’Brien when they were contemplating taking a Defamation Action against the national broadcaster RTE over broadcast accusations they were homophobic. With reference to his own complaint, the Complainant maintained it was a matter of fact that Kevin Brophy Solicitors had previously represented Senator Katherine Zappone in her bid to have her Canadian marriage legally recognised and where this representation did not exempt Kevin Brophy Solicitors him from subsequently representing the aforementioned plaintiffs.

 In being refused the service the Complainant maintained that Respondent advised him that “We seek to take cases that will have a wider effect than just on the individual client concerned and that have a capacity to change the law, or practices that have been developed by decision making bodies, or their interpretation of the law”. The Complainant maintained that his constitutional challenge has a capacity to change the law and were it to succeed it would have a positive effect on the many people who hold the same religious beliefs as he does. He maintained that whilst he was not representing the Catholic church, many of his religion would hold the same beliefs as he does.

1. The Complainant also maintained that the Gender Recognition Act for trans, gender fluid etc. persons to have a record on their Birth Certificate and Passport that would indicate their original sex as recorded on their birth certificate at the time of their birth in addition to their legally recognised gender) - tramples over the Human Right to Freedom of (intimate) Association and who also finds this to be wrong, absurd, discriminatory and immoral.

1. The Complainant also argued that he was marginalised in that the Gender Reassignment Act 2015 treated him unfairly and excluded from having the full protection of the Human Right to Freedom of (intimate) Association. He explained that he is not seeking to repeal the right of legal recognition of an individual’s preferred gender. What he is seeking is an obligation for such an individual to also have displayed a record of their original birth gender on their legal Identity documents. As such the Complainant argued that providing him with the legal aid to bring forward his constitutional challenge falls quite comfortably within Respondent’s strategic litigation policy. He maintained therefore for Respondent to adopt a position that it will not legally represent him or legally advise him on this issue, and to subjectively deem him as not meeting its strategic litigation policy as a justifiable reason for adopting that position is discriminating against him for the religious beliefs he holds. The Complainant referred elements of the Act that he believed were unconstitutional and which he asserted impacted on his right of association, and these issues included original gender on birth certificates and passports.

1. The Complainant also argued that whilst he did speak with a solicitor when he called the Respondent, and where he found the person was helpful and listened to his concern, he was referred the Irish Council of Civil Liberties inferring it would not be a body that would be inclined to hold his views and as such the advice provided by the Respondent was not appropriate.

1. The Complainant also maintained that he could have been advised at that time of a right to raise a Judicial Review and that it was astonishing to him that such advice was not provided by the legally qualified person who first spoke with him.

Summary of Respondent’s Case:

1. The Respondent argued that at no stage was it aware of the religion of the Complainant, and for it to discriminate the Complainant it would have to had known the basis of the discrimination to allow it discriminate. The Respondent therefore maintained that as it had no idea at any stage about the religion of the Complainant it therefore could not have discriminated him.

1. The Respondent acknowledged that it received a written request for legal representation from the Complainant on 12^th February 2016 in which the Complainant sought legal representation in order to bring certain legal proceedings with the stated objective of having the Gender Recognition Act, 2015 amended. The         Respondent advised that after consideration of the request it replied by letter dated 7^th March 2016 advising the Complainant of the priorities of its organisation, and its limited resources, and therefore on that basis it could not provide the legal representation in relation to the specific legal proceedings he proposed.

1. In its response, the Respondent outlined its policy and strategic plan as regards the provision of legal representation to the public. The Respondent maintained that it had prioritised its core activities in its published strategic plan where this plan had defined that its resources would be focused on the areas of the administration of the social welfare system, consumer lending and borrowing, and debt enforcement.       These areas had therefore become its published key priorities at the time the Complainant had sought representation.   In that regard the Respondent argued that what the Complainant was seeking was for the Respondent to disregard its own strategic litigation policy in order to pursue the personal views of the Complainant with regard to the Gender Recognition Act, 2015. The Respondent provided sample letters of refusal to other applicants at the time the Complainant was seeking free legal services, and where it is asserted in some of these refusals that as the application was not within the Respondent’s priority areas and therefore it was not in a position to be of assistance. It argued that no applications received support at this time that were outside its strategic priorities. The Respondent outlined that it had only one salaried solicitor who had retired in December 2015 and had been replaced by a locum solicitor. It therefore had to make a decision not to take on any new cases over this time, and at the time the Complainant made his application. The Respondent’s priority was to manage its current cases. A new solicitor was appointed in May 2016 and the only cases it took one at that point related to social welfare, credit and debit issues. The Respondent also stated that it representation with the Dr Foy case had not actually closed until June 2016.

1. Furthermore, the Respondent argued that it had in fact provided legal advice to the Complainant and this was acknowledged by the Complainant in his original written complaint. The Respondent therefore maintained that it should not be required to defend an alleged refusal of a service where the Complainant has admitted he received that service.

1. The Respondent further argued that the basis of the legal challenge being comprehended by the Complainant, and for which he was seeking the Respondent’s assistance, was not sustainable as the Gender Recognition Act, 2015 had been enforced, time had lapsed for a judicial review of the legislation, where the proposed legal proceedings have no legal merit, where the Complainant has no locus standi to bring any such proceedings, where the Complainant was incorrect in some of his assertions regarding the Act, and where such proceedings are bound to fail. Additionally, the Respondent argued that the proposed proceedings are contrary to the public interest in that they seek to diminish the rights of transgender persons and could never achieve the outcome, or address the perceived flaws in the Gender Recognition Act, 2015 which the Complainant contends for. In this regard the Respondent submitted that the present complaint has been brought for an improper purpose, and while it is accepted that the Complainant may subjectively believe that his wish to challenge the Gender Recognition Act, 2015 is reasonable, an objective analysis would find that it is not.  

1. Furthermore, the Respondent submitted the Complainant cannot show that he has suffered any disadvantage in being refused legal representation by the Respondent. It argued that it would be un-ethical for the Respondent to knowingly provide legal representation to an individual to bring legal proceedings in circumstances where this would be adverse to the interests of that person. In the context of the present claim, the Respondent argued that   the Complainant's proposed constitutional action is wholly without merit, and it would be of no benefit to him if the Respondent were to give him legal representation, and expose him to the consequences of a negative costs order and having his claim dismissed in a public forum.

1. The Respondent contended that the claim was wholly misconceived, and has asked that consideration be given to the opinion that the complaint has been made in bad faith or is frivolous, vexatious, or misconceived, or relates to a trivial matter. The Respondent stated that "frivolous" or "vexatious" draws on well-established jurisprudence of the Superior Courts and is applied not necessarily as a pejorative finding in relation to the litigant, but rather reflects the reality that the proceedings have no reasonable prospect of success. The Respondent advised the test of what is frivolous or vexatious was set out by Barron J. in Farley v. Ireland [Supreme Court, 1st May, 1997, at p. 3] where he stated: "If [a plaintiff] has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something that cannot succeed and the law calls that vexatious."

1. While the Respondent did not wish to comment harshly on the bona fides of the Complainant, it submitted that his claim is wholly without legal foundation within the Equal Status Acts, and for that it must be regarded as frivolous, and in requiring the Respondent to attend an adjudication hearing was oppressive on the Respondent, and therefore it argued the claim was vexatious. The Respondent asked the hearing to consider the findings of Irvine J. in Behan v. McGinley [2011] 1 I.R. 472, where Irvine J approved what she termed a non-exhaustive list of "indicators" of the kinds of action that might be regarded as frivolous or vexatious. Referring to the list of indicators, the Respondent submitted that specifically "the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction”; and where “the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights” applied in this case.

1. In relation to the present complaint the Respondent submitted that these indicators are equally relevant to the jurisdiction conferred by section 22 of the Equal Status Act.

1. The Respondent further submitted that the claim herein is frivolous, vexatious and misconceived as there is no link between any particular religion, religious outlook or background, and the service he sought from the Respondent, namely legal representation to bring a constitutional challenge. It argued that the Complainant, in asserting he has received less favourable treatment, refers to a named client of the Respondent, but drew no distinction between his own religious belief or outlook and the religious beliefs of his named comparator. Whilst he acknowledged at the hearing that he was of Catholic faith he did not know the religion of the named comparator. The Respondent submitted this is fatal to the Complainant’s claim.

Findings and Conclusions:

1. The matter referred for adjudication is whether or not the complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(e) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my findings I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

1. A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the Respondent to rebut the presumption of discrimination.

1. Section 2 of the Equal Status Acts defines “service” as a service or facility of any nature which is available to the public generally or a section of the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes a professional service

1. I am satisfied that the Respondent was providing a professional service to the public and/or sections of the public in relation to legal services and therefore I am satisfied that the complainant’s claim comes within the above definition.

1. Having considered the evidence, the complainant did not demonstrate how he was treated less favourably on the grounds of his religious belief. He submitted that he was discriminated because another person was provided legal services, but because he was a Roman Catholic he was not provided the services, and that the non-provision of the services would likely affect Roman Catholics   However, he could not attest to the religion of the other person who was provided services. He also acknowledged that he received advice from the Respondent, but that he was not satisfied with this advice.

1. The evidence provided by the Respondent supported that it has limited resources, that it was applying its published strategy regarding how it prioritised its services, and where the legal support the Complainant was seeking was outside of the Respondent’s declared priorities.       The Respondent also demonstrated it had refused a number of applications over the same time the Complainant had applied, as those applications were also not within its declared priorities. Equally it objectively assessed the basis of the support sought by the Complainant and decided on a legal basis the case had no merits and would most probably fail resulting in a likely adverse impact on the Complainant.

1. Notwithstanding the objective basis of the Respondent’s decision not to provide the service- in that it was outside the Respondent’s strategic priorities and equally the pursuit of the case would likely fail particularly on the locus standi principle- I can find no evidence to demonstrate a nexus between the alleged treatment and the complainant’s religious belief or outlook particularly in circumstances where the complainant had not given his religion to the Respondent, and where they had only become aware of that at the hearing. In the circumstances, I find that the complainant was unable to discharge the elementary probative burden and therefore, his complaint fails.

1. Whilst the Respondent has sought a finding for the complaint to be deemed frivolous and vexatious, I do not find so on this occasion. I am satisfied that the Complainant, who had no legal representation, appeared genuine in his concerns regarding the Act, and whether such concerns regarding his interpretation of the Act were misguided or otherwise are outside the remit of the hearing within.       Nevertheless, I have found his complaint under the Equal Status Act fails, where I am satisfied the Complainant had made the complaint on the basis, albeit it erroneously, that as a Roman Catholic he felt he was being denied a service.

Decision:

1. Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. Based on all the foregoing, I find that the Respondent did not discriminate against the Complainant, on the ground of religion or religious outlook or background, contrary to the Equal Status Acts.

Dated:   30 August 2017