HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peter Khaiter
Applicant
-and-
York University, Barry Miller and Rhonda Lenton
Respondents
-and-
York University Faculty Association
Intervenor
Decision
Adjudicator: David Muir
Indexed as: Khaiter v. York University
AppearanceS BY
Peter Khaiter, Applicant ) Self-represented
York University, Barry Miller and ) Catherine Peters and,
Rhonda Lenton, Respondents ) Joanna Rainbow, Counsel )
York University Faculty Association, ) Emma Phillips, Counsel
Intervenor )
1This is an Application filed on April 8, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he has suffered discrimination in the area of employment on the basis of ethnic origin and place of origin.
2This Decision deals with a Request for Order During Proceeding (“Request”) filed by the respondents in July 2009 seeking the early dismissal of the Application on the basis that it discloses no prima facie case and, alternatively, that it is an abuse of the Tribunal’s process. A hearing was held to hear oral submissions on the issues raised by the respondents. For the reasons below, I find that this Application is an abuse of process. As a consequence the Application is dismissed.
Background and Procedural Issues
3In the human rights complaint underlying this Application, the applicant made the following general allegations:
a. Since November 2004 the president of York University did not respond to the applicant’s appeals regarding discrimination, harassment and humiliating treatment and multiple acts of malicious violations of University regulations and common law.
b. Discrimination, harassment and humiliation of the applicant by respondent Lenton in respect of workload in 2006/2007 academic years.
c. Discrimination, harassment, humiliation and bad faith as well as maligning and damaging the applicant’s reputation in the matter of a sick leave and subsequent return to work in September 2006.
4The applicant provided the following particulars elaborating on the general allegations above:
a. Discrimination in contract negotiations in 2000. The applicant alleges that he was not informed of the availability of start up research grants, additional teaching load reduction and teaching stability and this violates the Code simply because, as a newcomer to the country, he was not aware of them.
b. Discrimination in workload assignments in 2001/2002 led to significant overload and multiple violations of the collective agreement. The applicant alleges that being a newcomer to the country, he was unaware of the requirement of Ontario labour laws and was misled about those requirements.
c. Multiple instances of malicious discrimination, harassment and humiliation in an enormously lengthy tenure and promotion process (2001 to present). The applicant alleges that references to his accented English and the discounting of his non-Canadian academic experience were a ground for the denial of tenure.
d. Collecting of a discreditable dossier and failure to adequately deal with the matter from 2001 to present.
e. Discrimination in the issuing of salary increments in 2002.
f. Misuse of his personal file in 2002- 2004.
g. Discrimination in the development of tenure and promotions standards and in handling of the matter in 2003.
h. Multiple instances of discrimination, harassment and humiliation and reprisals in connection with his appeals to various university authorities from 2003 to present.
i. Discrimination and harassing attacks and failure to adequately deal with the matters from 2003 to 2005.
j. Discrimination in his dismissal as the Chair of Hiring Committee in 2004.
k. Discrimination, harassment and humiliation in the matter of a salary anomaly exercise in 2004.
l. Discrimination, harassment and humiliation and reprisals in the matter of teaching load in 2004.
m. Discrimination, harassment and humiliation in denial of vacation entitlement in 2004.
n. Circulation of maligning documents in 2005.
5The respondents state that the applicant is a vexatious litigant and consequently that this Application is an abuse of the Tribunal’s process. The respondents do not seek an Order prohibiting the applicant from filing further Applications with the Tribunal; they seek only the dismissal of this Application.
6The respondents argue that this Application should be dismissed for the following reasons:
The applicant has commenced litigation over essentially the same issues in a multitude of forums, and the applicant launches appeals and/or applications for judicial review of each unfavourable decision. The respondents state that they have been called upon to respond to 11 or more different proceedings launched by or at the instance of the applicant;
In all of the proceedings to which the respondents have been called upon to respond, the applicant makes un-particularized and/or untimely allegations;
The applicant repeatedly makes unfounded accusations of bias and misconduct against tribunal decision makers;
The applicant repeatedly makes unfounded accusations of misconduct by opposing counsel;
The applicant is ungovernable in that he fails to take directions from the Tribunal. He also repeats technical and unfounded arguments that have been rejected in prior proceedings for no apparent purpose other than to tie up the responding party;
Over time the applicant’s allegations have become more elaborate and extravagant;
Some or all of the elements of the proceeding are commenced for an improper purpose or a purpose other than the adjudication of their merits.
7The respondents state that not all of these factors need be present for there to be a finding that the proceeding is an abuse of process. However, they state that they are all present to some degree.
8The 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 abuse of its process. The Tribunal has applied this power to dismiss Applications where parties have engaged in vexatious conduct in the Tribunal’s process. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667 and the several cases cited therein.
9The power to dismiss an Application on the basis of abuse of process is a strong power and should only be applied in a clear case. Care must be taken to consider and balance several interests. First, of course, is the right of individuals to bring their human rights disputes to the Tribunal. The Tribunal is also the custodian of a scarce and important public resource – an adjudicative process designed to resolve important disputes in a fair, just and expeditious manner. Where the clear inference can be drawn that the purpose of the litigation is not the fair and just adjudication of the dispute but that the litigation in whole or in part was commenced or is being maintained for an improper purpose, such a declaration might be appropriate. Such a finding does not require the conclusion that the litigation was without merit or begun for an improper purpose from the outset but will be determined on the basis of the totality of the surrounding circumstances.
10Having considered the matter carefully and having regard to all of the circumstances, I find that this Application is being maintained at this point in large part to harass or vex the respondents and is no longer being pursued by the applicant to resolve the original dispute that gave rise to his human rights complaint.
11As will be clear from the description of the litigation to date, the respondents rely on and I have considered all of the litigation arising out of the initial workplace dispute between the parties, much of which has taken place in other fora. Given that all of the litigation had its genesis in the identical set of facts, concerns the same issues and involves the same parties, I find that it is appropriate to consider the conduct of the applicant in all of the places where this dispute has been brought. For all of the reasons set out below, I accept the submissions of the respondents that the applicant has by his conduct in this and other related proceedings demonstrated that he is a vexatious litigant and that this Application is an abuse of process.
12In coming to this conclusion I have also considered the submissions of the intervenor, York University Faculty Association (“YUFA”), which took the position that because it had concluded after significant investigation that there was no basis to the applicant’s claims of discrimination and accordingly has not advanced those issues in his grievance arbitration, the applicant ought to be allowed to proceed to have his human rights concerns adjudicated.
BACKGROUND
The Other Proceedings
13To describe the litigation arising out of the workplace dispute underlying this Application as voluminous and in some important respects duplicative would be an understatement. In addition to the human rights proceedings the applicant has pursued the issues underlying this Application in a number of other ways: internally at the University; through the grievance arbitration process; in applications to the Ontario Labour Relations Board (“OLRB:); and by applications for judicial review of tribunal decisions unfavourable to the applicant. The applicant has also advised the Tribunal on more than one occasion in this proceeding that he has launched applications for judicial review of each of the Tribunal’s various decisions in his proceedings here.
Internal complaints
14Internally, the applicant has formally challenged the respondent Linton’s recommendations respecting his tenure and promotion, a key issue in this dispute, twice, in 2003 and 2004. He has written to the past President of the University ten times in respect of the issues raised in the Complaint and has continued to write letters to the new President, installed after the Complaint was filed with the Commission.
Grievances
15The applicant has attempted to file 12 grievances related to some or all of the allegations in the complaint. Of these the YUFA has proceeded with one grievance related to the applicant’s tenure candidacy.
16The applicant was successful in challenging the tenure process through the grievance procedure. The arbitrator concluded there had been a procedural irregularity in the manner in which the respondents had dealt with the applicant’s tenure candidacy and review by an inappropriate committee. See York University Board of Governors and York University Faculty Association, unreported award of Pamela Cooper Picher, October 9, 2009. The tenure process is a key underlying dispute in the human rights complaints before the Tribunal. Following the arbitrator’s decision, YUFA and the University entered into a Memorandum of Understanding (settlement) pursuant to which they have agreed to re-run the entire tenure process.
17Despite this success, the applicant now seeks to set aside the settlement and have the OLRB direct that the grievance be remitted back to the arbitrator for a decision. He also states that he intends to have the OLRB put all of his human rights issues before the arbitrator such that all of the issues raised in this Application might be dealt with there.
18YUFA advised that if the applicant was successful in his application to the OLRB, it would not advance any human rights issues in the arbitration proceeding because, after carefully investigating all of the applicant’s allegations, it could not find any evidence of Code violations. Accordingly, YUFA stated that the applicant should be allowed to raise those issues at the Tribunal. Implicit in YUFA’s position was its belief that the OLRB application had no chance of success. The respondents concurred in that view and urged the Tribunal to not defer this Application but deal with their Request to Dismiss.
19Despite these opinions the applicant’s tactical approach creates the possibility of completely duplicative litigation. Settlement with respect to the tenure issue could have a significant impact on this proceeding. It also evidences an unwillingness on the applicant’s part to have his issues dealt with in one place.
OLRB Applications
20The applicant has commenced eight duty of fair representation (s. 74) applications at the OLRB in which he has alleged that YUFA has not properly represented him in respect of the grievances he has filed or sought to have filed on these issues.
21Six of the eight OLRB applications were consolidated, Khaiter v. York University Faculty Association, 2007 CanLII 30285 (OLRB), and ultimately dismissed on the basis that the applicant had failed to plead a prima facie case. See Khaiter v. York University Faculty Association, 2007 CanLII 55931 (OLRB). The applicant’s conduct of those proceedings was extremely contentious. The applicant took the position that there was a conspiracy between the OLRB and YUFA and asked that the Vice-chair assigned recuse herself for bias.
22He sought reconsideration of the decision dismissing his applications and the Vice-chair’s refusal to recuse herself. In his submissions on the reconsideration request the applicant stated amongst other things that the OLRB had violated its own Rules of Procedure, that its treatment of the parties was inequitable and that it had shown “open favour” to the respondents and that the OLRB’s rulings were “ungrounded, biased and prejudged”. The applicant’s submissions went on to allege that the OLRB had “substantially deviated from its mandate of an independent adjudicative tribunal and acted exceptionally in the interests of the opposing parties” and that it had engaged in “misrepresentation or silencing of his submissions and appeals”. See Khaiter v. York University Faculty Association, 2008 CanLII 10035 (OLRB).
23The remaining two applications before the OLRB were consolidated as well and adjourned sine die. See Khaiter v. York University Faculty Association, 2008 CanLII 23840 (OLRB). The applicant sought reconsideration of that interim decision which was refused. See Khaiter v. York University Faculty Association, 2008 CanLII 45271 (OLRB).
24The applicant has now sought to re-activate the adjourned s. 74 applications and that proceeding is ongoing.
Judicial Review Applications
25The applicant commenced applications for judicial review of each set of OLRB determinations. In one of them the applicant added the OLRB Chair as a respondent. In both the applicant repeated his charges of bias and impropriety on the part of the respondents. He sought damages in the amount of $50,000.00 from the OLRB and $10,000.00 in damages from each of the individual respondents.
26The applicant’s judicial review application of the first OLRB decision dismissing his six applications was refused by the Divisional Court on July 8, 2009. See Khaiter v. Ontario Labour Relations Board, unreported, July 8, 2009.
27The applicant’s application for judicial review of the decision adjourning the remaining two applications was also dismissed with costs. See Khaiter v. Ontario Labour Relations Board, 2009 CanLII 39779 (ON.C.D.C.). In dismissing that application the Court soundly rejected the applicant’s allegations of bias.
16 The applicant alleges that there is a reasonable apprehension of bias because the Vice-Chair had rejected the other six complaints he had made in December 2007 alleging breach of the duty of fair representation, and he had also raised concerns about her impartiality during that process. He had also asked the Chair of the Board to replace her.
17 In our view, there is no basis for the allegation of reasonable apprehension of bias. The applicant has not satisfied us that a reasonable person, informed of all the circumstances and viewing the matter realistically and practically, would conclude that the Vice-Chair was likely to approach the determination of the requests for an extension of the time to file responding materials with a closed mind.
18 The Board was not obliged to respond to the applicant's request that another Vice-Chair be assigned to hear his complaints. A decision maker is not disqualified simply by virtue of a party having made negative allegations against her. Nor should a litigant be permitted to disqualify an adjudicator who has ruled against him simply by making complaints against her. Indeed, it was reasonable of the Board to assign the same adjudicator to cases involving similar facts and the same parties. The Board could reasonably conclude it would be inappropriate to grant the request for another decision-maker, thus allowing the applicant to "shop" for an adjudicator.
28Notwithstanding the Divisional Court’s very strong language the applicant sought leave to appeal both Divisional Court decisions to the Court of Appeal. Motions for leave in both cases were dismissed with costs on February 3, 2010. See Khaiter v. Ontario Labour Relations Board, Court file M37864, February 3, 2010, unreported; and Khaiter v. Ontario Labour Relations Board, Court file M38066, February 3, 2010, unreported.
History of HRTO Applications
Application Against YUFA
29In addition to all of the litigation described above, the applicant also brought a human rights complaint against YUFA alleging discrimination contrary to the Code in its handling of the various grievances described above. The Tribunal dismissed that Application for failure to disclose a prima facie case. See 2008 HRTO 241. The applicant sought reconsideration of that decision, 2009 HRTO 386, and, when unsuccessful, he commenced an application for judicial review of those decisions.
30In his Application against YUFA the applicant sought to add the OLRB Chair and one of its Vice-chairs as well as the Ombudsman of Ontario as respondents. That issue became moot after the Application was dismissed.
31In the YUFA Application the applicant made a request for Order that the Alternate Chair recuse herself on the grounds she had been a member of the OLRB more than a decade earlier and this amounted to a conflict of interest. The Request was dismissed. See 2008 HRTO 241.
Application against York
32The applicant’s conduct of this Application has resulted in numerous Registrar’s letters, five Interim Decisions, including two Requests for Reconsideration, and several Case Assessment Directions. Much of this Tribunal work was unnecessary and in response to the unsubstantiated charges of the applicant made about the respondents’ conduct or positions taken by them on various issues as well as the charges of bias and impropriety in the manner in which the Tribunal has processed this Application.
33Allegations of impropriety against the Tribunal and the respondents have been repeatedly made during the course of the processing of this Application as summarized below:
in a July 28, 2009 letter the applicant, without foundation, alleged that the respondents had dishonestly falsified or misstated the facts and that they knew their statements were untrue. The applicant went on to allege that the conduct of the respondents was deliberately misleading to the Tribunal and was an abuse of process, and that the statements were inflammatory, defamatory and offensive.
in a letter dated August 14, 2009, the applicant alleged that the respondents had engaged in improper ex parte communications with the Tribunal, and that the Tribunal was dealing with his matter in a manner inconsistent with a fair, just and expeditious resolution of the dispute and that the parties were not being treated equally;
in a letter dated September 8, 2009, the applicant alleged the Tribunal “objectively takes the side of the [respondents]”, was in violation of the Code, its Case Assessment Direction was inconsistent with the duty of fairness, reiterates the allegation of ex parte communications and states that the respondents “enjoy a luxury of favoritism and privilege of non-compliance” with the Tribunal’s Rules;
in a Request for Reconsideration of an interim decision defining the scope of this Application the applicant alleged bias and impropriety and, by refusing to allow certain amendments to his Application had “indulge[d] the respondents for not stopping and continuing the discrimination … and provokes further instances of discriminatory treatment.”
in his response to the Request to Intervene filed by YUFA, the applicant without any justification stated that the Request was made “with multiple violations of the Tribunal’s Rules, in bad faith, for improper and irrelevant purposes and, as such, in abuse of the Tribunal’s process.”
in his request to reconsider the decision granting YUFA’s request to intervene the applicant alleges the Tribunal was biased, had pre-judged the issue, and the decision violated procedural fairness and natural justice.
in a further Request for Reconsideration of the “final aspects” of an Interim Decision the applicant repeats his allegations of bias and impropriety;
on the eve of the hearing requested an adjournment of the hearing alleging the date of the hearing was set in contravention of the Tribunal’s Rules and stating that the processing of the Application had been “unreasonable, unjust, unfair, prejudged and biased in the interests of the respondents”. The applicant advised that he had commenced Applications for Judicial Review of all of the Tribunal’s decisions in this and the YUFA Application. For these reasons the applicant alleged a reasonable apprehension of bias and asked that the Tribunal remove me as the adjudicator.
34I heard the parties’ submissions at the hearing the following day. Essentially the applicant argued that the Tribunal had made a number of decisions rejecting his position and accordingly the Tribunal was biased against him. This is an argument the applicant knew would not succeed having made it unsuccessfully in the Application for Judicial Review discussed above. The inescapable inference is that the applicant brought the Request for purposes of potentially delaying the hearing of the respondents’ request. I dismissed the Request.
35Subsequent to the hearing the applicant wrote at least three letters to the Tribunal alleging further misconduct on the part of the respondents in bringing the Request, repeating his allegations of improper communications, alleging unfairness and suggesting the Tribunal has an interest in the handling of this Application in “a manner corrupted by dishonest and abusive conduct” of the respondents.
36He also filed a Request seeking the following relief:
a. A declaration that in their submissions to the Tribunal, the respondents have abused the Tribunal’s process, by mis-stating the facts, provisions of the law and by-laws, by misleading the Tribunal, by insulting, harassing and distressing attacks on the applicant;
b. A declaration that the respondents are a dishonest and abusive party, barred from filing any further submissions in the instant Application without leave of the Tribunal;
c. An Order dismissing the respondents’ Response dated May 19, 2009 for malicious practices of dishonest submissions misleading the Tribunal and abusing its processes;
d. An Order deeming the respondents to have failed to respond to the application and have accepted all of the claims stated in the applications;
e. An Order granting all of the remedies requested by the applicant in this Application;
f. An Order dismissing the respondents’ Request for early dismissal of the Application on the basis that they are legally unfounded and an abuse of the Tribunal’s process;
g. Alternatively an Order scheduling a hearing on the substance of the Application.
37In a Case Assessment Direction I advised the parties that I considered the Applicant’s Request to be entirely without merit and an abuse of the Tribunal’s process. I directed as well that the portion of the hearing dealing with the respondents’ Request for early dismissal had concluded and that no further submissions would be entertained on the issues raised by the respondents except with leave of the Tribunal.
38The applicant also routinely and without any basis has accused the responding parties and their representatives of improper conduct and that this conduct is intended solely to vex and harass the respondents. The applicant has made allegations of impropriety against both Mr. McDonald and Ms. Lace, both of whom have represented YUFA in the proceedings described above. The applicant has also filed complaints against both lawyers to the Law Society of Upper Canada.
39The applicant’s submissions in this Application are replete with similarly baseless allegations of impropriety on the part of counsel and routine allegations of abuse of process by the respondents.
40The applicant also sets out his positions in inflammatory and offensive language. In submissions filed on March 18, 2010 amongst other comments about the conduct of the respondents, the applicant stated as follows:
Apparently, the respondents act based on the Dr. Goebbles’ (sic) principle that “a lie repeated many times becomes the truth”. Respondents’ conduct is an obvious abuse of the Tribunal’s process.
This characterization of the respondents’ position is repeated more than once in the applicant’s submissions.
ANALYSIS
Ulterior Purpose
41At the hearing the applicant explained to me that he had engaged in a strategy of taking every possible legal avenue available to him because he believed that, so long as he keeps the University tied up in litigation, it will be unable to fire him. That he believes he is at risk of having his employment terminated is a central theme in the applicant’s analysis of the ongoing workplace dispute. In his view the University has, from almost the moment it hired him, been conspiring to fire him because of his ethnic origin and place of origin.
42I would also include in this element of the analysis the tendency to name un-necessary respondents including other tribunal decision makers. The applicant has engaged in a pattern, in this and other proceedings, of seeking to add parties with no substantial connection to the issues in dispute, including other tribunal decision makers and agency heads.
43The applicant has also exhibited a pattern of making bald and general allegations without particulars that would connect those allegations to a violation of the statute or rule in question.
44Both in the Applications at the Tribunal and in the related OLRB proceedings, decision-makers have concluded that the matters before them ought to be dismissed for failure of the applicant to plead a prima facie case. In each case the applicant is found to have provided only vague and general allegations. The Complaint underlying this Application is also largely bereft of particulars; instead it consists of general, vague and essentially bald allegations devoid of any facts that would connect those allegations to the Code.
45I also note that the unparticularized allegations pre-date the filing of the Complaint by as many as six or seven years with the bulk of them occurring three to six years prior to the Complaint being filed. At this stage the respondents have not sought the dismissal of any part of the Application on the basis that it is untimely but that argument would certainly be available to them.
46In my view, the applicant has also engaged in a pattern of abusive conduct by his use of routine unfounded allegations of bias and impropriety against tribunal decision makers and external counsel.
47The applicant has crossed the line between vigorously defending his position and failure to take the Tribunal’s direction. He has commenced trivial and vexatious interlocutory matters for no apparent purpose other than to vex and harass the respondents.
48As well when afforded an extraordinary opportunity to particularize the bare bones paragraphs of the human rights complaint the applicant did not comply with my direction made at the hearing but instead submitted a 178 page document. It is not in compliance with my Direction at the hearing in that it is not an exposition of particulars related to each of the allegations made in the complaint and set out above – although scattered through it are alleged facts that appear to relate to some of the allegations made. Rather it is a detailed reply to the respondents’ Response to this Application including lengthy passages of argument. It also includes entirely new allegations that were never part of the complaint.
49The applicant’s manifest failure to comply with the Direction at the hearing and his attempt again to expand the scope of the allegations in the complaint by the addition of entirely new and unrelated matters, despite the earlier Decisions and Directions, is a serious concern and I find was intended largely to vex and harass the respondents.
50In addition to the directions and decisions of the OLRB and the Courts commenting on his conduct, the applicant has been admonished for similar conduct by the Tribunal in the YUFA application at 2008 HRTO 241:
In light of the fact the applicant was not a lawyer expected to be familiar with the common practice of being required to respond to case law introduced at a hearing, I decided that it would be fair and just to offer the applicant an opportunity to make further written submissions in response to the case law. I specifically directed the applicant to restrict his written submissions to responding to the case law.
The applicant disregarded my express directions and instead filed written submissions comprising 96 paragraphs reiterating his oral submissions at the hearing, only one of which made any reference to any case law submitted by the respondents. In addition, in paragraphs 44 to 63 the applicant raised events post-dating the original complaint, and which were not addressed by any party at the case resolution conference. In the circumstances these will not be considered for the purpose of this
Decision.
51The applicant also repeatedly makes technical submissions that he knows or ought to know will be dismissed, having unsuccessfuly advanced the same submission in prior proceedings. For example, the applicant made lengthy submissions respecting the authority of counsel for YUFA to sign the Request to Intervene form. This challenge was strikingly similar to an early challenge he made in the other Application before the Tribunal as well as in his OLRB proceedings.
52It is also clear from a review of the file that as time goes by the applicant has articulated his human rights claims in increasingly extravagant terms.
53In the human rights complaint form the applicant makes brief claims of what he believed were incidents of discrimination and harassment. At their highest the respondents’ alleged mis-conduct is described as “discrimination, harassment and humiliation”. As time has passed the characterizations of the respondents’ behavior have become significantly more extreme.
54In submissions filed by the applicant on March 8, 2010, the applicant described his experience at the hands of the respondents as “continuous and malicious workplace hostility, harassment, torture, humiliation virtually on an every day basis”. On March 18, 2010 in a further submission provided by the applicant, he used the following language to describe the alleged behavior of the respondents:
hostility, harassment, humiliation, torture, sadism, psychological terror;
…
persistent continuation with the practices of discrimination and harassment and malicious aggravation of employment hostility to the level of sadism and psychological terror;
by the respondents’ malicious practices of workplace hostility, sadism, psychological terror, harassment, discrimination, humiliation and torture
55The applicant’s characterizations of his experience are inflammatory and disproportionate – the language stretches the meaning of the words used beyond any reasonable person’s understanding of them. I find that the applicant has begun employing this inflammatory language solely for the purpose of vexing the respondents.
56In this regard the respondents point out that the applicant has recently claimed new and extravagant remedies, in particular punitive damages in the amount of $50 million from the respondent university and $50,000.00 from each of the individual respondents. The applicant regularly cites Tribunal case law in his submissions. He knows that the remedies he is seeking are so far beyond what is possible as to be incredible. The applicant is a sophisticated and intelligent litigant and I infer that these extraordinary remedial requests are advanced solely for the purpose of vexing the respondents, particularly the individuals involved in this Application.
57In the conduct of this proceeding the applicant brought interlocutory motions solely for the purpose of delay and putting the respondents to the expense of responding to them. For example, the applicant sought an adjournment of the hearing primarily on the basis of alleged concern about the Tribunal’s authority to deal with this Request and alleged confusion about the precise issue to be determined. It cannot have been more clear what the issue for determination was, having been described in the Tribunal’s communications with the parties, including a Case Assessment Direction, dated September 16, 2009, a Tribunal letter, dated October 15, 2009 and a further Case Assessment Direction, dated January 14, 2010. I find that the reasonable inference to be drawn from these facts is that the applicant’s request was made for no other purpose than vexing the respondents by avoiding the hearing of the respondents’ Request.
58Similarly, the Request for Order seeking the dismissal of the respondents’ Request on specious grounds and after the matter had been argued constituted in my view a vexatious act on the applicant’s part, serving only to vex the respondents and put them to the further expense of responding to it.
Conclusions
59The Tribunal has had occasion to comment on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 425, 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.
60As noted above, the remedy sought by the respondents in this case is a strong one which should only be exercised in a clear case. Based on everything set out above, I find that this Application is vexatious and consequently an abuse of process.
61In my view, it is a reasonable inference that this Application, whatever its initial merits, is now being maintained for a purpose unrelated to the merits of the Application.
62The applicant has also shown on a multitude of occasions that he will not conduct this Application with courtesy and respect for the respondents or the Tribunal as evidenced by his repeated unfounded allegations of misconduct and impropriety on the part of the respondents, the intervenor, the parties’ representatives, and the Tribunal. This conduct is ongoing in this proceeding and has been repeated in related proceedings at the OLRB, the Divisional Court as well as in the YUFA Application.
63It is also clear to me that this Application, whatever its initial merits might have been, is now being used to harass or vex the respondents. In this regard as well the applicant’s continued use of inflammatory and unfounded language about the respondents’ conduct has created a hostile atmosphere for the respondents and intervenor, and is employed solely for the purpose of vexing the respondents. I also find that the exploding remedial demands made by the applicant stretch credulity and again are advanced in my view, solely for the purpose of vexing the respondents. It is significant in my view that the egregiousness of the applicant’s conduct has increased over time and despite his being on notice that his approach to this litigation was an issue.
64Based on his voluminous submissions and from what can be gleaned from the public record in the other proceedings, it is clear that the applicant is a sophisticated, educated and intelligent man. He communicates clearly and is able to cite Tribunal and other jurisprudence with facility. He knows what he is doing.
65The kind of conduct described above can occur to a greater or lesser degree in the course of a proceeding. I have come to these conclusions based on the totality of the applicant’s conduct with respect to his workplace dispute in all the Tribunal, the OLRB and Court proceedings.
66In my view and for all of the reasons set out above, it would be unfair to the respondents, the Tribunal’s process, and contrary to the public interest if this matter was to continue. Accordingly, the Application is dismissed.
67Having disposed of the Application on this basis, I need not deal with the respondents’ argument that it be dismissed for lack of a prima facie case.
Dated at Toronto, this 21st day of September, 2010.
“Signed by”
David Muir
Vice-chair