Jogendra v. Ontario (Attorney General), 2009 HRTO 322

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Regis Jogendra

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Michael Bryant, Brian Lennox and Donald Ebbs

Respondents

AND B E T W E E N:

Regis Jogendra

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Kenneth Campbell

Respondents

DECISION

Adjudicator: David Muir

Date: March 19, 2008

Citation: 2009 HRTO 322

Indexed as: Jogendra v. Ontario (Attorney General)

Appearances

Regis Jogendra, Applicant ) On His Own Behalf

Her Majesty the Queen in Right of Ontario ) Christopher Thompson, as represented by the Ministry of the ) Counsel Attorney General, Michael Bryant and ) Kenneth Campbell, Respondents )

Donald Ebbs and Brian Lennox, Respondents ) Paul Stern, Counsel

INTRODUCTION

1These are two Applications were filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") on July 24, 2008.

2The Applications are briefly summarized here:

In Application No. T-0026-08, the applicant, a former Justice of the Peace, alleges that the respondents' failure to assign him a full-time presiding appointment amounted to discrimination with respect to employment on the basis of ancestry, colour, ethnic origin, place of origin and race (the "Progression Application").

In Application No. T-0027-08, the applicant alleges that the respondents' failure to indemnify him for legal costs incurred in defending charges arising within the scope of his employment amounted to discrimination with respect to employment on the basis of ancestry, colour, ethnic origin, place of origin and race (the "Legal Costs Application").

3Each of the parties has raised preliminary matters. In a prior Interim Decision, 2008 HRTO 153, various case management directions were made in respect of the Case Resolution Conference scheduled to take place on February 6, 2009. Amongst those directions was one directing that the parties be prepared to deal with all of the preliminary issues at the Case Resolution Conference.

4At the outset of the Case Resolution Conference the applicant asked that I recuse myself on the basis that in another Interim Decision, 2009 HRTO 36, I had stated that I was not seized of this Application. The applicant did not allege any bias or other conflict but simply relied on my statement from the Interim Decision. That is not a sufficient reason for removing myself. I dismissed the Request.

5The applicant also sought leave to record the proceeding on the basis that he was unable to take notes and make submissions at the same time. I granted the request on the basis that he provide copies of the recording to the respondents at their expense if requested.

6The applicant also sought to have these two Applications heard separately and then when that request was granted in part, he asked to have counsel excluded from the room when the other matter was being dealt with.

7I declined to make the order excluding counsel. One difficulty with the request was that both respondents' counsel are appearing on the Progression Application, making it practically impossible to exclude counsel when that matter was being dealt with. In any event the applicant offered no compelling reason to exclude counsel from what was a public proceeding and I declined to order anyone to leave the hearing room.

Applicant's Motion that Counsel not properly before the Tribunal

8The applicant seeks what amounts to a declaration that neither counsel is entitled to represent the respective respondents. At the Case Resolution Conference I heard lengthy submissions from the applicant on this Request. After hearing the parties' submissions I dismissed the Request. These are my reasons for doing so.

9This argument was largely a technical one and relied to a significant degree on an ambiguity created by the Tribunal's Response (Form B). The Form B as it was when these Applications were commenced requires the signature of the respondent and does not expressly provide for signature by the respondent's representative on behalf of the respondent. Moreover as the Form B includes a section where the respondent is invited to provide authorization for a representative it can be inferred that it was intended that respondents personally sign the Form B. It is not disputed that both Form Bs filed were signed, not by the respondents themselves but by their respective counsel. As a result of this failure to comply with what the applicant characterized as a mandatory requirement that the Form B be signed by the respondents he takes the position that there are no Responses to his Applications before the Tribunal and it follows from that there are no counsel.

10This issue has to some degree been dealt with in 2008 HRTO 241 where a similar argument was made. The Tribunal relied on Rule 3.5 which provides that "a technical defect or irregularity is not a breach of these Rules." In my view, that provision is sufficient to dispose of the applicant's argument that there are no Responses and therefore no respondents and no counsel.

11The other bases for the motion include that that there is no indication that the respondents have authorized either Mr. Stern or Mr. Thompson to represent them and that there is no indication that respondents' counsel are members of the Law Society of Upper Canada. The applicant did not purport to say that counsel had not been retained by their respective clients or that they were not members of the Law Society of Upper Canada and entitled to practice law in Ontario; rather the argument was that there was no formal indication of either. These points added nothing to the argument.

12In respect of Mr. Stern's representation of the respondents Mr. Ebbs and Mr. Lennox, the applicant suggested a conflict because Mr. Stern might have appeared in proceedings where the applicant's decisions as a Justice of the Peace (JP) were being challenged. It was also suggested that Mr. Stern had represented the applicant personally in some previous matter. The applicant could not provide any details but asked that I take his word for these assertions. I am not prepared to do so. As a result, there is no basis for concluding that Mr. Stern has ever represented the applicant personally.

13The applicant also stated that he "understands" that Mr. Stern provided a legal opinion to Marietta Roberts in respect of his request for payment of his legal fees. The respondents deny that there is such an opinion but in any event there is no indication that Mr. Stern provided such an opinion. In any case it is not clear why, even if he had offered such an opinion, Mr. Stern could not represent the respondents in this Application.

14In respect of Mr. Thompson's representation of the respondent Mr. Campbell it was submitted that because Mr. Campbell was a respondent in a human rights application he was acting outside of his authority and therefore the question arises, in the applicant's view, whether or not Mr. Thompson could represent him, or to put it the other way, is Mr. Campbell entitled to be represented by counsel paid for out of the public purse?

15Whether or not Mr. Campbell has violated the Code or was acting outside of his authority when he advised the applicant that his legal expenses would not be reimbursed, are issues going to the merits of the Application. They are not a reason for concluding that Mr. Thompson cannot represent this respondent.

16An important factual dispute near the heart of this dispute flows from a letter from the respondent Ebbs to the applicant dated October 22, 2003, which suggests the applicant was recommended for progression to full time presiding status. The respondents all now state that the letter was in error and that there was no such recommendation. The applicant states that because Mr. Thompson has taken the position that the letter was in error, no representation he makes can be accepted at face value. It does not matter to the outcome of this motion whether the letter in question is in error or not, the applicant's submission in this respect is entirely without merit. He has provided utterly no basis for his oft-stated claim that respondents' counsel have deliberately and knowingly misled the Tribunal.

17Finally the applicant states that the respondents are estopped from resisting his Request because they waited too long before responding to it. This submission is also without merit. The respondents received notice of his position in this regard for the first time on August 22, 2008. They responded to it in a timely fashion.

Respondents' Motions for Early Dismissal

18There are a number of grounds advanced by the respondents supporting an early dismissal of these Applications. All respondents state that the two Applications are out of time as the facts giving rise to them occurred many years ago and there is no evidence that the lengthy delays in bringing the human rights complaints were incurred in good faith. All respondents also state that the Applications are frivolous, vexatious and an abuse of process and for that reason as well should be dismissed. The respondents in the Progression Application also state that the Tribunal does not have jurisdiction over this Application because the applicant was not an employee and the Ontario Court of Justice enjoys judicial and administrative immunity.

19Because the respondents had provided written submissions it was agreed that they would make only brief opening arguments, leaving adequate time for submissions in response and for respondents' reply as required. The applicant made lengthy written and oral arguments.

20In order to understand the issues raised in these motions a bit of background is required. The applicant was appointed a JP in 1993, and then was made a part-time presiding JP in 1994.

21In March or April 1999 the applicant was charged with 10 counts of sexual assault in respect of events alleged to have taken place between June 1997 and March 1999. The allegations involved 10 different women who had come into contact with the applicant during the course of his duties as a JP. As a result, the applicant was placed on non-presiding status which resulted in a reduction of his pay.

22By the end of 2000 it was agreed to resolve the criminal charges on the following basis. The applicant would appear before the Justices of the Peace Review Council, admit to allegations of sexual assault contained in a related complaint to the Justices of the Peace Review Council and resign as a JP. Upon the fulfillment of these conditions the Crown would withdraw the criminal charges. Before this resolution could be implemented a new allegation of sexual assault was made in June 2001. The applicant was acquitted on that charge in May 2003.

23In the meantime, pursuant to the mandatory retirement provisions of the Justices of the Peace Act in effect at the time, the applicant was retired effective January 4, 2003. For several weeks or months prior to retirement the applicant did not work and a dispute ensued about his entitlement to long term disability benefits after the expiry of short term sickness benefits. He was ultimately denied long term benefits by the insurer. At the same time as that dispute was unfolding the applicant began requesting from the Associate Chief Justice an ex post facto paid discretionary leave to bridge the gap between the end of the short term sickness benefits he began receiving in 2002 to his retirement date in January 2003. This request was denied.

24A number, but not nearly all, of the JPs also appointed in 1993 were progressed from part-time to full-time status at various points between 1997 and October 2001. The applicant appears to have raised the issue of whether or not he would be progressed to full-time presiding status for the first time when he wrote to the respondent Ebbs, then the Associate Chief Justice, on January 21, 2002.

25While engaged in a lengthy exchange of letters respecting the request for a discretionary paid leave, the applicant also wrote to the respondent Ebbs in October 2003, requesting a retroactive adjustment of his remuneration as if he had been progressed to full-time presiding status in 1999. Despite being fully aware of the circumstances surrounding the decision to remove him from presiding duties, the applicant began to demand particulars of that decision. A lengthy exchange of correspondence on this issue ensued as well. The respondents replied repeatedly that they would not grant either request.

26The applicant did not raise a possible violation of the Code until July 2006. The complaint underlying the Progression Application was made on March 2, 2007.

27The facts surrounding the Legal Expenses Application are more straightforward. As noted above the initial 10 criminal charges were laid in early 1999. Although tentatively settled in 2000 these were not concluded until after the conclusion of the trial on the 2001 allegations in May and June 2003. It appears applicant's counsel first requested payment of legal expenses in 1999 by letter to the Court. A final account was submitted to the applicant in June 2003 and was paid by him before July 2006 when his counsel renewed the request for indemnification, this time from the Attorney General. The request was denied in the same month. The complaint underlying the Legal Expenses Application was made on April 2, 2007.

28In addition to these facts the respondents rely upon the numerous other proceedings the applicant has commenced in relation to these disputes: a small claims court action against Mr. Campbell in respect of the issues raised in the Legal Expenses Application was dismissed on January 14, 2009 as an abuse of process and untimely; complaints to the Ombudsman Ontario; and civil suits against officials of Ombudsman Ontario.

The Progression Application

29The Progression Application is dismissed. The allegations relate to the alleged failure of the respondents to progress the applicant to full-time presiding status along with the other JPs appointed with him in 1993. Those decisions were made between 1997 and the end of 2001. The applicant's first inquiries about what he described in the underlying complaint as discrimination began in February 2002. He then began to ask for a retroactive adjustment to his salary as if he had been progressed, in October 2003. As noted above his complaint was not filed with the Commission until March 2, 2007.

30The applicant offers no real explanation for this delay other than that he continued to ask the respondents to change their position on the various issues discussed above, and they continued to refuse. He also states in argument that the respondents delayed in filing their responses at the Commission in a timely manner and therefore they cannot complain about his late complaint.

31The applicant also submits that the respondents, having attorned to the jurisdiction of the Tribunal by filing a Response, cannot now claim that the Tribunal lacks jurisdiction. In this regard I note that the respondents have always taken the position that the complaint was out of time and that this issue was raised with the Commission whose staff recommended that the complaint not be dealt with. Before the Commission could determine this issue the applicant abandoned his complaint and filed this Application with the Tribunal pursuant to section 53(3). This submission has no merit.

32In the circumstances before me, there is no reasonable explanation for the failure to pursue the applicant's allegations of discrimination under the Code for most of the six years since the last progression he could have participated in, in 2001. Even if I were to consider that the time should run from when the applicant asked for the retroactive salary in October 2003 it was in excess of 3 years before he filed the complaint.

33In coming to this conclusion I have assumed without deciding that the current language of section 34(1) applies, such that the time for filing an application is now a year after the incident or series of incidents complained of. In these circumstances it does not matter as I have concluded that the delay is, as I say above, in excess of three 3 years.

34The applicant is a sophisticated litigant. He was a Justice of the Peace. He has been legally trained and was a barrister and solicitor in another common law jurisdiction. He is also not shy, as the voluminous materials submitted in this Application attest, about asserting his rights. I am satisfied he has not established any good faith basis on which I might exercise my discretion to permit this Application to proceed.

35Having dismissed the Application as being out of time there is no need to consider the other arguments made by the respondents in this Application.

Legal Expenses Application

36The delay in this Application is not as lengthy. The legal fees were incurred between 1999 and 2003. The applicant first requested those fees be paid in 1999. He was not refused but told to direct his enquiries to the Attorney General. Although he appears to have paid his legal account in 2003 the applicant did not ask the Attorney General for reimbursement until July 2006 and received a negative response the same month. The applicant offered no explanation for the delay in requesting reimbursement from the Attorney General. The complaint was filed with the Human Rights Commission on April 2, 2007.

37The respondents insisted the time should run from the date the applicant received the June 2003 statement of account from his lawyer. However, I am satisfied that, if the decision or part of it to refuse payment was discriminatory, this event occurred in July 2006 when the request was made to the correct entity and Mr. Campbell, on behalf of the Attorney General, refused it.

38A consideration of delay in this case squarely raises the question of which time limit applies to an Application where the underlying complaint at the Commission was on its face out of time but where the Commission had not finally dealt with that issue. At the time the complaint was filed s. 34(1)(d) provided that complaints should be filed within six months of the allegedly discriminatory incident or the last in a series of incidents. Section 34(1) of the current Code provides that an applicant must bring their application within a year of the incident or last in a series of incidents. I heard no submissions from either party on the effect of the amendments to the Code and am inclined not to decide this question in the absence of submissions. Therefore, assuming without deciding that the current provisions of the Code apply, I find that this Application is not untimely.

Is the Application an abuse of Process?

39The respondents also take the position that the Legal Expenses Application is frivolous, vexatious and an abuse of process. In large part this submission is predicated on the respondents' position that it is entirely without merit. While the respondents used the terms "frivolous" and "vexatious" in their submissions, which is language used in the repealed provisions of s. 34(1)(b) of the Code, this issue now falls to be determined under the principle of abuse of process.

40The applicant describes the respondents' position on this issue as the "height of folly and outrageousness" and submits that it is the respondents themselves who have acted in bad faith, in a vexatious manner and abused the human rights process. He further described the respondents' position as technical and frivolous and accused the respondents of misleading the Tribunal with false allegations. These submissions are not particularly responsive to the respondents' various positions. The allegations that the respondents have deliberately misled the Tribunal in a multitude of ways are baseless and are themselves scandalous.

41The respondents state that the applicant's reliance upon the doctrine of judicial immunity as his foundation for the request for indemnification of his legal fees is, in the circumstances here, preposterous. Accordingly the respondents say that there can be no basis for claiming that the Attorney General's denial of the request was discriminatory. I agree.

42As indicated above, the applicant complains that he was not indemnified for his legal expenses in defending a number of criminal charges which he claims arose out of and in the course of his duties as a JP. This is an astonishing position to take given the nature of the charges laid against him. His claim that these charges arose out of and within the course of his employment seems to flow from the fact that the victims of his actions were women he met during the course of his work and the assaults took place at or near the court house. That is simply not what is contemplated by the notion of judicial immunity. I also note that a significant portion of the legal fees claimed would have been incurred defending the charge that went to trial which related to events alleged to have occurred on the T.T.C. The assertion that because the alleged assaults would have occurred while he was traveling to and from his office brings the related criminal charge within the course of his employment as a judicial officer is a particularly specious claim.

43The applicant also claims that the other 10 charges might not have been properly laid, as they were ultimately withdrawn by the Crown. This submission is entirely without merit as it is plain from the facts that the charges were withdrawn as part of the agreement he made with the Crown described above.

44Despite the patent absurdity of the claim to immunity and for indemnification, the applicant maintains his position others have been treated differently than he was in this regard. But he has provided no credible evidence to counter the position of the respondents that the Attorney General does not reimburse judicial officers for expenses incurred in defending criminal charges.

45An application that has absolutely no chance of success, is an abuse of process and should be dismissed (see Currie v. Halton (Region) Police Services Board 2003 CanLII 7815 (ON CA), [2003] O.J. No. 4516 (C.A). This is such an application.

46For all of the above reasons these two Applications are dismissed.