LA v. Hamilton Children’s Aid Society, 2019 CFSRB 66

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LA Applicant

-and-

Hamilton Children’s Aid Society Respondent

DECISION

Adjudicator: Judy Finlay and Brenda Bowlby Date: October 23, 2019 Citation: 2019 CFSRB 66 Indexed As: LA v Hamilton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

LA, Applicant Self-represented

Hamilton Children’s Aid Society, Respondent James Wood, Counsel

Introduction

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “Act”).

2In an Interim Decision dated August 8, 2019 (“the Interim Decision”), the parties were directed to provide submissions on whether this Application should be dismissed for abuse of process.

3The Respondent’s submissions included a request that the Applicant be declared a vexatious litigant.

4This Decision deals with both issues.

BACKGROUND

5A Pre-Hearing/Mediation in this matter was scheduled for February 7, 2019. This Pre-Hearing/Mediation was terminated when the Applicant insisted on recording the Pre-Hearing/Mediation, despite being told by the CFSRB member conducting the Pre-Hearing/Mediation that he would not be permitted to do so. Subsequently, the Applicant sent an email to the CFSRB asserting his right to record the Pre-Hearing/Mediation. In this email, the Applicant acknowledged that it had been explained to him that the CFSRB’s policies did not permit recording of Pre-Hearings/Mediations. He asserted, however, that since he is not an employee of either the Respondent or the CFSRB, “I am not held liable to your policies and do not have to abide by them”. Further, he accused the CFSRB member of violating his legal and human rights and said that he was “in the process of exercising my legal options against the parties involved for their willfull mockery of the rule of law and human rights” [sic].

6A case management pre-hearing was scheduled via teleconference to organize the hearing.

7The hearing was set for June 14, 2019. The hearing was precipitously adjourned when the Applicant declined to follow the CFSRB’s direction that he could not record the hearing pending a decision on the issue of whether he could record the hearing. Subsequently, a Case Management Direction (“the CMD”) dated June 25, 2019 was issued to set out the process for determining this issue.

8In addition, the CMD summarized the applicant’s conduct at the hearing. The points which are significant for the purposes of this Decision are as follows:

• Upon his arrival, the Applicant immediately set up a laptop and attached a cell phone to the computer which he put in front of him. The panel asked the Applicant if he intended to record the hearing and he said it was his right to do so.
• When the panel members attempted to address the Applicant about recording the hearing, the Applicant interrupted to assert his right to record and he began to argue. The members advised the Applicant that his argument regarding recording would be heard. To try to deal with the issue as efficiently as possible, the panel members did not insist that the Applicant turn off the recording device at that point because he had made clear that he would not do so.
• As he was starting his argument on the issue of recording the hearing, the Applicant turned to the Respondent’s representatives and began to question the Respondent’s representative about who she was. He was redirected by the panel to make his argument on recording the hearing.
• It was clear from the Applicant’s argument that he was aware that the CFSRB’s normal procedures did not permit parties to record the hearing – he argued that the CFSRB’s policies and procedures bound the employees of the CFSRB but not the parties.
• The panel heard the balance of the Applicant’s argument and the brief response from the Respondent, then asked the parties to step outside while the panel deliberated. The Applicant was instructed to take his recording equipment with him.
• When the Applicant arrived back in the hearing room, he again began to set up his computer and phone. The panel members instructed him not to do so and pointed out that the main authority on which he relied in support of his argument, s. 136(2) of the Courts of Justice Act, provides that a party must first have approval of the judge before the party can record a hearing, which the Applicant did not yet have.
• The panel members asked the Applicant whether he would stop recording and he indicated that he would and unplugged his phone from his computer. He was then asked by the panel if his phone was recording and he said that it was. He made clear that despite the CFSRB’s direction, and his own initial agreement not to do so upon re-entering the room, that he would continue recording.
• The Applicant then spoke directly to one of the panel members, telling her that he had her Law Society number and that he would be reporting her to the Law Society and to the Arbitrators and Adjudicators’ Society. The Applicant was asked if he was threatening the member and he responded that he was just giving a warning.
• At this point the panel advised the parties that the hearing was at an end and that the parties would be hearing from the CFSRB.
• The Applicant stood up and said words to the effect that: he would make this matter public, so that others could see how incompetent the CFSRB was; that he would be contacting “Brian Mulroney” about one of the members and that she would lose her job as an adjudicator because she was incompetent; and that “this” was a human rights violation that took us right back to the 40s.

9In the CMD, the Applicant was given a warning about abuse of process and his obligations under the CFSRB’s Rules to treat the CFSRB and all participants with courtesy and respect. He was told he would be given one further chance. The CMD directed that the parties provide written submissions on the issue of recording the hearing.

10Subsequent to the hearing, the Applicant made a complaint to the Social Justice Tribunals of Ontario (now part of Tribunals Ontario) that one of the panel members had a conflict of interest. The Applicant’s complaint was referred to the panel to determine, as is the normal process because it is an adjudicative decision as to whether an adjudicator is biased.

11The Applicant’s complaint of “conflict of interest” focused on one of the panel members. The Applicant’s allegations included a number of pejorative descriptors in which he referred to the panel member as both dishonest and discriminatory, and asserted that she “wilfully lied and fabricated events in the [CMD]”.

12An Interim Decision on the applicant’s right to record the hearing was released on August 14, 2019. The Applicant was found not to have the right to record the hearing. Further, his complaint that one of the panel members had a conflict of interest was dismissed. The CFSRB made clear that the findings set out in the CMD were the joint findings of both members of the panel, not just the member who the Applicant had complained about, and that those findings did reflect the events that unfolded at the hearing on June 14, 2019

13The Interim Decision included a finding that many of the Applicant’s allegations conflicted with the findings in the CMD and that the allegations were simply not correct. The parties were directed to provide submissions on whether the Application should be dismissed on the basis of abuse of process for the reasons that are set out below.

14In the CMD, the Applicant was warned that his conduct (outlined above) was contrary to the requirement that all persons participating in proceedings before the CFSRB conduct themselves in a manner that is courteous and respectful of the CFSRB and other participants in the proceeding. Starting at paragraph 18 of the CMD, we found that:

In reviewing how the events unfolded, it appears to us that the Applicant came to the hearing prepared to challenge the CFSRB’s process rather than addressing the needs of his child or the concerns he had with the Respondent. In this regard, we note that the Applicant had been previously advised that the CFSRB’s practice is not to permit hearings or pre-hearings to be recorded because they are confidential during the Pre-Hearing scheduled for February 7, 2019. This Pre-hearing was terminated when he refused to stop recording.

The Common Rules of the Social Justice Tribunals of Ontario provide as follows:

Rule A7: Courtesy and Respect

A7.1 All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

Rule A8: Abuse of Process

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

Section 50 of Regulation 155/18 permits the CFSRB to dismiss an Application to prevent an abuse of its processes. It reads as follows:

In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complaint under subsection 119(5) or 120(3) of the Act, the Board may make such orders and give such directions in the proceeding as it considers proper to prevent abuse of its processes.

We note that throughout, the Applicant acted in a manner that was disrespectful in that he challenged the panel’s authority and he issued threats against the CFSRB and individual members of the CFSRB. This is unacceptable and if the Applicant wishes his Application to move forward, he will have to commit to follow the CFSRB’s rules and directions.

Notwithstanding the Applicant’s entirely inappropriate and disrespectful behaviour on June 14th, he will be given one further opportunity to proceed with his Application. However, it is important that the Applicant accept our rulings in this case and that the Applicant conduct himself in a manner that is respectful of the CFSRB, its processes, and the other party in the proceeding. The Applicant’s refusal to accept our rulings or to conduct himself in a manner that is respectful of the CFSRB, its processes or the other party will interfere with our ability to deal with this case. In this event, we will request submissions from both parties as to whether the Application should be dismissed for abuse of process.

15In his covering emails and submissions, the Applicant has continued to focus on one of the panel members, accusing her, amongst other things, of being abusive, discriminatory, a bully, a liar, dishonest and of fabricating findings in the CMD.

16We noted in the Interim Decision that this conduct would appear to demonstrate that the Applicant has refused to accept our rulings and/or has conducted himself in a manner that is disrespectful of the CFSRB and its processes which will interfere in our ability to deal with this case.

Applicant’s Submissions

17In the Interim Decision, the Applicant was directed to file his submissions on the issue of abuse of process by August 28th. He did not comply with this direction, but instead filed his submissions 5 days later. He was given an opportunity to file any Reply submissions by September 25th. No Reply submissions were received by that date.

18The Applicant’s submissions do not address the issue of abuse of process or why the Application should not be dismissed. Instead, the Applicant reargues his position on recording, reiterates and amplifies his prior allegations against the panel member he alleges is in a “conflict of interest” and threatens to take legal action if a hearing is not set up to hear his Application. His submissions include the following:

• The Applicant raises again his “conflict of interest” objection regarding the Respondent’s counsel and implies that Respondent’s counsel is in violation of the Rules of the Law Society of Ontario and is “Discrediting the Legal Profession.” A similar allegation is made respecting the panel member he alleges is in a “conflict of interest”.
• In respect of this member of the panel, the Applicant makes the following allegations:
  • That her conduct was “abusive, deceitful and misleading”
  • That the CMD is “full of lies and falsehoods fabricated” by the panel member; that it is “also rather discriminatory and conduct unbecoming an officer of the Court”.
  • That this panel member “lied, manufactured statements and has wilfully misled the CFSRB as to what actually took place on June 14th, 2019. The CFSRB has become complacent with this situation and made itself an Accessory after the Fact” to this panel member’s “willful lies”.
  • That the Interim Decision is “biased, false and misleading” and is “rife with outright lies and falsehoods fabricated by” the panel member.
  • That this panel member engaged in “unprofessional conduct” and, by association, so did the other panel member.
  • That he “strongly encourages the CFSRB to terminate its relationship with [this panel member] before she creates further problems for the CFSRB for her deceitfulness and lack of understanding regarding the law.”
• The Applicant suggests that the CFSRB has acted in a manner which does not show respect for “the Rule of Law, the Rule of Equity and Human Rights legislation”. He asserts that the CMD and Interim Decision are “acts of discrimination”. He says, “This is a direct violation of my rights under both The Charter of Rights and Freedoms as well as the Ontario Human Rights Code and will be addressed is this type of behaviour persists.”

Respondent’s Submissions

19The Respondent submits that the Application should be dismissed as an abuse of process for reasons including the following:

• The Applicant has demonstrated an unwillingness to abide by the directions of CFSRB members, as demonstrated in the terminated Pre-Hearing and as identified in the Interim Decision. He has shown continuing contempt of the CFSRB’s authority and direction by submitting his submissions regarding abuse of process 5 days after his submissions were due.
• At the initial CFSRB Pre-Hearing, the Applicant was disrespectful to and non-compliant to directions given by the CFSRB member conducting the Pre-Hearing, as a result of which that Pre-Hearing did not proceed. Subsequently, the Applicant said that he would be bringing a complaint against this CFSRB member.
• Subsequent to the Pre-hearing, the Applicant filed a complaint against Respondent’s counsel with the Law Society of Ontario and he continues to protest the involvement of Respondent’s counsel with the file.
• At the hearing, despite what transpired at the Pre-Hearing, the Applicant was “adamant” that he did not have to abide by the direction of the Board. He disputed the question of whether he had a right to record the hearing and made “intimidating comments which he characterized as “warnings””. He then made a complaint to Tribunals Ontario that one of the panel members had a conflict of interest.
• In his submissions, he continues to threaten, including a threat to “go public” and to make a complaint to the Ontario Government.
• The Applicant has been “patently lacking” in his observance of the Rule that all persons participating before or communicating with the CFSRB must act in good faith and in a manner that is courteous and respectful of the CFSRB and other participants in the proceeding.
• Despite a warning in the CMD that the Applicant would have to commit to follow the CFSRB’s rules and direction, he has shown a “blatant disinclination” to adhere to the CFSRB’s directions. His late filing of submissions shows that he continues to challenge the direction and authority of the panel.
• To proceed with the Application “would unfairly incur expense and time, would be an argumentative interaction and would not result in a productive or helpful outcome.” Therefore, it should not be continued, and should be dismissed as an abuse of process.

20The Respondent’s submissions in support of its request that the Applicant be declared to be a vexatious litigant can be summarized as follows:

• A vexatious litigant includes a person who, without reasonable grounds, conducts a proceeding in a vexatious manner.
• The Applicant was found by the CFSRB in the CMD to have acted in a disrespectful manner in challenging the panel’s authority and issuing threats against the CFSRB and individual members of the CFSRB. He was told that if he wanted his Application to move forward, he would have to commit to follow the CFSRB’s rules and directions. However, he failed to do so in his submissions and in filing his submissions late.
• The Respondent points to DP v Children’s Aid Society of Hamilton (CFSA s.68) 2017 CFSRB 30, paragraph 31:

It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant, the Board must be satisfied on an objective standard that the Applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings. Declaring an individual to be a vexatious litigant is an extraordinary step that should not be taken lightly.

• The CFSRB’s Rules allow the Applicant to be declared a vexatious litigant. He has “demonstrated through his demeanor, his disruptive actions, his complaining of the actions of most participants and his continuous failure to respect and follow Board direction and authority that he richly qualifies as a vexatious litigant.”

21The Applicant did not file any submissions in reply to the Respondent’s submissions.

ANALYSIS

Abuse of Process

22The considerations to be taken into account when dealing with the issue of whether to dismiss an Application on the basis of abuse of process were set out by the CFSRB in DD v Children's Aid Society of Toronto (s.120 CYFSA), 2018 CFSRB 56:

Section .20.1 of O.Reg 494/06 [now s. 50 of O.Reg. 155/18] provides the CFSRB with authority to take steps to prevent an abuse of process. It reads as follows:

In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complaint under s.68(5) or 68.1(1) of the Act, the Board may make such orders and give such directions in the proceeding as it considers proper to prevent abuse of its processes.

In addition, … the CFSRB is bound by the SJTO Common Rules. Rule A8.1 of the SJTO Common Rules reads as follows:

The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

The Ontario Court of Appeal considered the common law doctrine of abuse of process in Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459 at paras 30 and 32. Relying on the Supreme Court of Canada’s decision in Toronto (City) v. CUPE Local 79, 2003 SCC 63 (CUPE), the Court of Appeal affirmed that the common law doctrine of abuse of process

(…) engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice".

23Having regard to the forgoing, we conclude that continuing with this proceeding would be oppressive, vexatious and unfair to the point that it is contrary to the interest of justice.

24The Applicant has shown no intention of complying with the CFSRB’s Rules or directives, as demonstrated by his continued abusive comments about the CFSRB and its panel members despite being given clear warnings that he must comply with the CFSRB’s Rule on Courtesy and Respect. This was compounded by his failure to comply with the direction to provide submissions on the issue of abuse of process and to file them by the date stipulated in the Interim Decision. Nothing in the submissions filed by the Applicant, which did not deal with the issue of whether his Application should be dismissed as an abuse of process, gave any assurance that the Applicant will abide by the Rules or the directions of the CFSRB moving forward.

25Moreover, the Applicant has refused to accept the rulings made in the Interim Decision. He has continued to argue that he has a right to record the hearing and has challenged the ruling on his complaint of “conflict of interest.” This, together with the abusive and threatening comments which the Applicant has made towards the CFSRB and its members amounts to contempt of the CFSRB. Nothing in the submissions of the Applicant provides any assurance that the Applicant will alter this behaviour moving forward.

26Based on the Applicant’s behaviour throughout this proceeding, including his continuing challenge to the authority of the CFSRB and his abusive language in respect of members of the CFSRB and Respondent’s counsel, as well as his refusal to accept the CFSRB’s rulings, it can only be concluded that any further proceedings would be subject to the same outcome as the first Pre-Hearing and the Hearing. The Applicant has made clear that unless he is accorded the right to record the hearing, he will continue to argue the point. This would result in wasted resources and time and would thwart any effort by the CFSRB to conduct a fair and just hearing.

27As a result, this Application will be dismissed as an abuse of process.

Vexatious Litigant

28The Respondent has requested that we find the Applicant to be a vexatious litigant. However, we are concerned that this request was made in submissions requested by the CFSRB on the issue of abuse of process in circumstances where the Applicant was not required to file reply submissions. Rather, the Applicant was given the opportunity to file “any Reply submissions” by September 25th.

29We do not believe it would be fair to the Applicant to make a ruling on such a serious issue without according the Applicant a clear opportunity to file submissions in response to the Response.

30Since we are dismissing this Application, we find that it is not necessary to deal with this request at this time. However, we do caution the Applicant that, should he bring another application against the Respondent and should he act in similar fashion as he has done in this proceeding, the Respondent may apply to the CFSRB for permission to rely on this decision in that proceeding should the Respondent wish to renew its request that the Applicant be found to be a vexatious litigant.

ORDER

31This Application is dismissed as an abuse of process.

CONFIDENTIALITY ORDER

32Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.