Ignacio Drenic v. The Governing Council of the Salvation Army in Canada and City of Toronto, 2010 HRTO 1667

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ignacio Drenic

Applicant

-and-

The Governing Council of the Salvation Army in Canada and City of Toronto

Respondents

DECISION

Adjudicator: David A. Wright

Date: August 12, 2010

Citation: 2010 HRTO 1667

Indexed as: Drenic v. Governing Council of the Salvation Army

WRITTEN SUBMISSIONS BY

Ignacio Drenic, Applicant ) Self-represented

Governing Council of the ) Blair W. McCreadie, Counsel Salvation Army, Respondent )

City of Toronto, Respondent ) Antonella Ceddia, Counsel

INTRODUCTION

1The respondents ask that this Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), be dismissed on the basis of abuse of process as a result of the applicant’s continuing abusive and insulting statements about the respondents, their counsel, the Tribunal and others. They also ask that the applicant be declared a vexatious litigant and seek an order that he may not commence further applications without leave of the Tribunal.

2In an Interim Decision dated April 27, 2010, 2010 HRTO 921, the Tribunal sought submissions on these issues, and invited the applicant to advise the Tribunal if he wished to make oral submissions. The applicant did not say that he wished to make oral submissions, and so this Request is decided on the basis of the written submissions.

3The orders requested are granted. In this Application, the applicant has filed numerous submissions that are well beyond the bounds of appropriate communication in a Tribunal proceeding, despite his undertaking not to do so. The applicant has made comments about the respondents, their counsel, the Tribunal and others that are unnecessary, highly insulting, and disrespectful. The applicant has filed a large number of applications with the Tribunal in the last two years, using two different names: Ignacio Drenic and Nacon Dioba. In several, he has failed to appear. In many, he has made similar abusive comments to those that were made in this case. An order that he obtain leave before proceeding with new applications is, in my view, appropriate to prevent further abuses of the Tribunal’s process.

BACKGROUND

4The applicant has filed 11 applications with the Tribunal that have resulted in reported decisions. Reported decisions filed by the applicant as Nacon Dioba are: Dioba v. BMO (Bank of Montreal), 2008 HRTO 325, 2009 HRTO 686; Dioba v. Toronto Public Library, 2009 HRTO 165, 2009 HRTO 433, reconsideration refused 2009 HRTO 1503; Dioba v. Ontario (Government Services), 2009 HRTO 651, 2009 HRTO 913, 2009 HRTO 1291; Dioba v. Pusateri’s, 2009 HRTO 1140, 2009 HRTO 1297; Dioba v. Sun King Cleaners, 2009 HRTO 1458; Dioba v. Taddeo, 2009 HRTO 1609, 2009 HRTO 1889, 2009 HRTO 1975; and Dioba v. Gardio, 2009 HRTO 1682. Reported decisions filed by the applicant as Ignacio Drenic are: Drenic v. House of Friendship, 2008 HRTO 344, 2009 HRTO 833, 2009 HRTO 901, 2009 HRTO 901; Drenic v. Governing Council of the Salvation Army , 2009 HRTO 1059,2009 HRTO 1819, 2010 HRTO 514; Drenic v. YMCA of Greater Toronto, 2009 HRTO 1234; and Drenic v. Toronto (City), 2009 HRTO 1961, 2010 HRTO 483.

5As a result of inappropriate communications filed with the Tribunal, the Tribunal required the applicant to provide a written undertaking with respect to how he communicates with the Tribunal. He signed the undertaking, which reads as follows, in October of 2009:

I, Nacon Dioba, undertake that I will comply with the rules of the Human Rights Tribunal of Ontario (HRTO) in any application before the HRTO in which I am a party using any name.

In particular, I undertake to treat HRTO staff, adjudicators and the other parties in any proceeding before the HRTO with respect and courtesy, and will only provide emails or other materials that are related to issues in an application and do not contain any offensive, abusive, profane, lewd or threatening language.

I will not file any material that:

• refers to any party, representative or HRTO staff member using a disparaging name or description;

• contains threats of any nature;

• uses profane language; or

• makes lewd or sexual references.

I understand that if I breach this undertaking, the HRTO may not proceed with my application(s).

I understand that this undertaking does not prevent me from pursuing any recourse that may be available to me through the courts, the Ontario Ombudsman or other legal means.

6Three of the applicant’s Applications – Dioba v. Ontario (Government Services), Dioba v. Pusateri’s, and Drenic v. House of Friendship – were dismissed following hearings, and subsequent requests for reconsideration were dismissed. Four Applications – Drenic v. YMCA of Greater Toronto, Dioba v. Toronto Public Library, Dioba v. Sun King Cleaners, and Drenic v. Governing Council of the Salvation Army – were dismissed when the applicant failed to appear at a hearing or case conference. The Tribunal dismissed Dioba v. Taddeo as abandoned after the applicant forwarded correspondence that the adjudicator characterized (at para. 2) as a “diatribe against the Tribunal”. Two Applications were dismissed because of a lack of jurisdiction: Dioba v. Bank of Montreal and Dioba v. Gardio. The applicant withdrew Drenic v. Toronto (City) after the Tribunal found that he was in breach of his undertaking.

THIS APPLICATION

7The applicant filed this Application on April 27, 2009. He alleges that the respondents discriminated against him on the basis of place of origin, ethnic origin and disability with respect to goods, services and facilities. The Application relates to the applicant’s experiences at a homeless shelter.

8Throughout the Tribunal process, including after he signed the undertaking and after the Tribunal’s Interim Decision of April 27, 2010, the applicant has engaged in highly inappropriate communications with the Tribunal, the respondents and others. I will not reproduce them here as a result of their offensive nature. They include the use of profanity, the making of lewd comments and insults directed at the respondents, their employees, counsel and Tribunal staff and adjudicators. There have been insults and comments based on prohibited grounds directed against municipal politicians. The applicant has made unsubstantiated allegations of corruption, professional misconduct, and unethical behaviour. This behaviour has occurred on numerous occasions, and has not stopped despite cautions by the Tribunal and his undertaking not to do so. He has engaged in similar conduct in other Applications.

ANALYSIS: ABUSE OF PROCESS

9The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335, at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

10In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

11The Tribunal has the power, pursuant to s. 23 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. The Tribunal has applied this power to dismiss Applications where parties have engaged in vexatious conduct in the Tribunal’s process. In Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085, an application was dismissed for abuse of process where the applicant failed to comply with a direction not to publish material on the internet and refused to provide an undertaking to use appropriate language. The Tribunal stated as follows at paras. 18 and 19:

I find that adjournment of this Application is not appropriate here. The conduct of the applicant is different from the conduct at issue in the Dioba case. I agree with the respondents’ concern that the applicant’s ongoing publication of material related to this matter on the internet is an obvious disregard for the Tribunal’s orders. The effect of his failure to comply with the direction is that material that is highly embarrassing about the individual respondents continues to be disseminated. The prejudice to the respondents is not addressed by giving the applicant a further opportunity to file an undertaking. In the circumstances, the Tribunal finds it neither fair nor just to require the respondents to continue to participate in this process in the face of this applicant’s conduct.

The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides the Tribunal with the power to “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” The ongoing refusal by the applicant to abide by the non-publication direction, and his refusal to provide an undertaking about appropriate language and conduct during the Tribunal’s processes, demonstrates his complete lack of respect for the Tribunal and the other parties. It leads to the inference that the Application has been brought for the purpose of harassing the respondents, rather than the advancement of a human rights claim.

12In Okunbor v. Hopewell Logistics, 2009 HRTO 2124, the Tribunal dismissed an Application for abuse of process as a result of the continued failure of the applicant’s representative to comply with Tribunal deadlines.

13In Vizcaya v. University of Toronto, 2010 HRTO 916, the Tribunal dismissed a request for reconsideration on the basis of abuse of process, where the applicant had failed to comply with an undertaking similar to the one given by the applicant here. It held as follows, at paras. 6-7:

The applicant’s Request for Reconsideration makes statements about the respondents and their counsel that are insulting and threatening. It also insults and threatens the Tribunal and its adjudicators. The applicant’s language is vulgar and inconsistent with the principles of equality and respect on grounds protected in the Code. This language is not acceptable for submissions in the Tribunal’s quasi-judicial process and is inconsistent with the undertaking given. I will not reproduce these submissions in this public decision, as a result of their offensive nature.

In view of the history of the applicant’s conduct in this matter, to allow this matter to be reconsidered would lead to an abuse of process and be unfair to the respondents. It would not be appropriate to consider granting this discretionary remedy in these circumstances. Accordingly, the Request for Reconsideration is dismissed.

14As in the above cases, it would in my view be an abuse of process for this Application to continue. The applicant has shown on numerous occasions that he will not conduct this Application with courtesy and respect for the respondents or the Tribunal. It is clear that the application process is being used to harass or vex the respondents and the applicant’s continued use of highly inappropriate language is creating a hostile and inappropriate atmosphere for other participants in the process. It would be unfair to the respondents, the Tribunal’s process, and the public if this matter were allowed to continue given the manner it has proceeded. Accordingly, to prevent further abuses of process, this Application is dismissed.

VEXATIOUS LITIGANT DECLARATION

15I turn now to the issue of whether the Tribunal has the power to declare the applicant a vexatious litigant and require that he have leave of a Tribunal adjudicator before filing any other applications.

16As discussed above, s. 23 (1) of the SPPA allows the Tribunal to make orders necessary to prevent abuses of its process. Rule 1.1 of the Tribunal rules, reflecting s. 41 of the Code, provides that “liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it”. Rule 1.7 (v.1), which came into effect on July 1, 2010, enables the Tribunal to “make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants”.

17The Tribunal has commented in the past that it might have the power to make such a declaration as part of its power to control abuses of its process: Stangret v. Toronto Transit Commission, 2009 HRTO 596 at para. 27. The Ontario Labour Relations Board has found that it has the power to order that an applicant may not commence further applications against a particular respondent without leave of the Board: see Windsor Regional Hospital, [2009] O.L.R.D. No. 1821 (QL).

18In my view, in controlling its process and preventing abuses of that process, the Tribunal can declare an individual a vexatious litigant, and prevent the filing of future applications without leave, on the basis of the filing of other applications that have led to the vexing of respondents and abuse of the Tribunal’s process. This also flows from the power of the Tribunal to ensure the fair, just and expeditious resolution of applications before it.

19In my view, as with the power of the courts to make similar orders, contained in s. 140 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, this is a discretion that should be exercised in exceptional circumstances. The Tribunal should not lightly subject a particular individual to an additional step in bringing a human rights application, and should recognize that in some cases, an individual’s improper conduct during Tribunal proceedings may be linked to a mental disability under the Code. At the same time, the Tribunal has a duty to ensure that public resources, and those of respondents, are not abused by a series of vexatious applications. Moreover, the Tribunal must ensure that all parties and their representatives are treated with dignity and respect when they participate in the Tribunal process.

20In my view, the circumstances in this case warrant an order declaring the applicant to be a vexatious litigant and requiring him to seek leave of the Tribunal if he wishes to file future applications with the Tribunal. In reaching this conclusion, I take into account in particular the following facts:

• The applicant has filed 11 applications, none of which have been upheld. On four occasions, he has commenced applications and pursued them but failed to attend hearings or case conferences. The respondents were subject to the requirement and costs of responding and preparing for hearings, but the applicant did not attend so that the merits could be decided.

• This applicant has continually used inappropriate, disrespectful and abusive language toward other participants in the Tribunal’s process and Tribunal staff and adjudicators, which has doubtless caused hurt and upset to the respondents and others targeted.

• The applicant has repeatedly failed to comply with directions of the Tribunal and his own undertaking regarding the manner in which participants in Tribunal proceedings must conduct themselves.

21Accordingly, this Application is dismissed. I order that Ignacio Drenic, also known as Nacon Dioba, may not commence further applications at the HRTO without leave of an adjudicator of the Tribunal.

22If the applicant seeks leave to file future applications, he must include with his complete Application submissions that outline why the Application is intended as a legitimate assertion of his Code rights, is not intended to vex the respondents, and will not result in an abuse of process.