HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Harry Felix

Applicant

-and-

Shoppers Drug Mart, Mamak Shaifi, Jamie Jones, National Computer Professionals, Robert Lombardi and Adrian Lombardi

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: October 29, 2010

Citation: 2010 HRTO 2179

Indexed as: Felix v. Shoppers Drug Mart

WRITTEN SUBMISSIONS BY

Hans Felix, Applicant ) Self-represented

Shoppers Drug Mart, Mamak Shafai and ) Allyson Fischer, Counsel

Jamie Jones, Respondents )

[1] This Interim Decision addresses a Request for Order During Proceedings filed by the respondent Shoppers Drug Mart (“SDM”), in which it seeks the following orders: (i) an order prohibiting the applicant from communicating directly with or harassing any employees of the respondent; (ii) an order prohibiting the respondent from attending at any locations of the respondent; (iii) an order that the applicant control his conduct in accordance with the principles of courtesy and respect expected of all parties to Tribunal proceedings.

FACTS

[2] Prior to filing the Application, the applicant communicated with the President and CEO of SDM by e-mail. By letter dated September 22, 2010, counsel for SDM, Allyson Fischer of Hicks Morley Hamilton Stewart Storie LLP, wrote to the applicant directing that a response to the emails would be forthcoming, and asking that he refrain from contacting anyone at SDM directly, as Hicks Morley had been retained to represent it. The applicant responded to that message, copying various SDM employees. On September 23, 2010, Ms. Fischer wrote to the applicant again requesting that correspondence be directed to Ms. Fischer, and indicating that various legal actions could be taken to stop that communication. The applicant responded to that letter, again copying various SDM employees.

[3] On September 24, 2010, the applicant filed his Application with the Tribunal alleging discrimination in employment on the basis of race, colour, ethnic origin, and association with a person identified by a prohibited ground as well as reprisal. The Application relates to a four-month period during which the applicant provided information technology services to SDM through an agreement with the co-respondent, National Computer Professionals. The applicant sent the Application not only to the Tribunal Registrar, but to various employees at SDM, Ms. Fischer, and individuals in other organizations, including the media. The email was also copied to me and to a Vice-chair of the Tribunal at our government email addresses. The cover email referred to “vile” events ongoing at SDM and suggested that the respondents and suggested that the respondents were “so called Canadians” who could “influence the justice system”.

[4] In his Application, when identifying the individual respondents, the applicant invented fictitious middle names for two of them, identifying one as “deception/disrespectful” and the other as “the new David Smith”.

[5] On the evening of September 24, the applicant sent an email to counsel for SDM, various employees of SDM and individuals in other organizations, including the media. The email accused counsel of providing “false, misleading fabricated evidences”, and suggested the law firm would “embarrass itself in the public eye”.

[6] Since September 24, 2010, the applicant has continued to send correspondence about his Tribunal matter and demands for a settlement of that matter to SDM employees and others outside the organization, and Ms. Fischer has continued to request that he refrain from doing so. He has continued to copy me and a Vice-chair of the Tribunal on correspondence despite directions from the Registrar of the Tribunal that correspondence must be directed through the Registrar.

[7] While I will not refer to all of this correspondence, in emails of October 1 and October 5, 2010, the applicant stated that he would attend at SDM site with police officers to demand money because he believed it was theft. In an email of October 5, 2010, copied to the Registrar, SDM employees, the Interim Chair of the Tribunal and a Vice-chair, he compared the individual respondents to Nazi SS soldiers and again stated that he would attend with a police officer to collect money he said he was owed.

RELEVANT STATUTORY PROVISIONS AND TRIBUNAL RULES

[8] I begin by setting out the relevant rules and statutory provisions. Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, reads as follows:

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

[9] The follow provisions of the Tribunal Rules apply:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(v.1) 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.

1.12 All written communications with the Tribunal, including e-mail correspondence, must be addressed to the Registrar, with a copy delivered to all other parties.

1.12.1 All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants.

1.21.1 When a party has a representative, documents must be delivered to the representative.

ANALYSIS

[10] The 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.

[11] In 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.

[12] The making of such comments has been found to constitute an abuse of the Tribunal’s process, resulting in dismissal of an Application or Request for Reconsideration: see Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667, Vizcaya v. University of Toronto, 2010 HRTO 916. See also Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.

[13] In various materials filed with the Tribunal, including the Application itself, the applicant has gone beyond the acceptable bounds of Tribunal submissions, in particular in his use of fictitious middle names for the individual respondents, in accusing the respondent’s counsel of fabricating evidence, and in comparing the individual respondents to Nazis. He has also copied these materials, which relate to the Tribunal’s process, to other individuals, despite the direction by SDM counsel that she was the contact person. He has failed to communicate with the Tribunal only through the Registrar despite Rule 1.12 and the direction not to communicate with Tribunal members directly.

[14] The Tribunal has the power to make orders controlling the abuse of its process and ensuring that the Tribunal process is free from abusive comments by any participant. However, the broad orders requested by the respondent that the applicant not communicate with SDM employees and not attend at SDM premises go beyond the Tribunal’s role in controlling its own process and relate to the general interaction between the parties. The Tribunal does not have general injunctive powers. Accordingly, I decline to make the first two orders requested by the respondent.

[15] In order to ensure that the Tribunal’s rules are respected, and that its process is respectful of all participants and free of abuse of process, the Tribunal orders as follows:

(1) The applicant shall deliver to the respondents and file with the Tribunal a new copy of the Application without the insulting middle names for the individual respondents within seven (7) days of the date of this Interim Decision. The date for Response to the Application, currently November 18, 2010, is extended until 35 days after the date the respondents receive a new Application that is free of comments that are disrespectful of other participants.

(2) All communications from the applicant regarding the Tribunal Application, including any offers of or requests for settlement shall be directed only to the Registrar, Ms. Fischer, Robert Lombardi, Adrian Lombardi, and National Computer Professionals. If Robert Lombardi, Adrian Lombardi and National Computer Professionals advise the Tribunal and the other parties that they have a representative, communication with those parties shall only be through the representative.

(3) The applicant shall not copy any materials relating to this Application to employees of Shoppers Drug Mart or to anyone at the Tribunal other than the Registrar.

(4) All communications regarding this Application shall be courteous and respectful of other participants.

(5) Failure to comply with these orders may result in a dismissal of the application for abuse of process.

Dated at Toronto, this 29th day of October, 2010.

“Signed by”

David A. Wright

Interim Chair