HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hans Der Von Felix
Applicant
-and-
Global Payments of Canada GP,
Drake International Inc., and Persila Vachon
Respondents
Decision
Adjudicator: David Muir
Indexed as: Felix v. Global Payments of Canada GP
1This is an Application made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated December 15, 2009. This decision deals with a number of issues arising from the applicant’s failure to comply with the Tribunal’s Rules of Procedure and prior Directions and Orders of the Tribunal.
BACKGROUND
2The applicant has alleged in his Application that his right to be free from discrimination in employment on the basis of race, colour, ethnic origin, place of origin, association and reprisal were infringed by the respondents. The body of the Application also contained what may be allegations that the applicant’s right to be free from discrimination in employment on the basis of creed and family/marital status was violated and that he was subject to sexual solicitation. The respondents are Drake International Inc. (“Drake”) and Global Payments of Canada GP and Persila Vachon (the “Global respondents”).
3This Application was not sufficiently particularized in my view and in a Case Assessment Direction dated June 24, 2011, the applicant was directed to provide further particulars of his claim of discrimination. The applicant did not comply with that Direction other than to state that he had provided all the details already. As well, in an email of June 25, 2011, the applicant indicated that he would not comply with the requirement of the Tribunal’s Rules that he identify his proposed witnesses or provide a summary of their expected evidence in advance of the hearing.
4Consequent to the applicant’s failure to comply with the first Direction to provide particulars, Drake took the position that the Application should be dismissed for that reason. Drake also stated that the Application as against them ought to be dismissed on the basis that it disclosed no prima facie case of discrimination. Finally, Drake further stated that a fair, just and expeditious adjudication of the Application was not possible without the Applicant providing further particulars. The Global respondents, by correspondence dated July 26, 2011, indicated their general agreement with the submissions of Drake on these points.
5In order to ensure a fair, just and expeditious adjudication of the matter and in order to prevent an abuse of the Tribunal’s process while at the same time seeking to ensure that the applicant be given every opportunity to participate in the process, I denied the respondents’ request to dismiss but instead afforded the applicant a further opportunity to provide particulars of his claims of discrimination. I also made directions with respect to the applicant’s announced intention to not identify his witnesses prior to the hearing and provide a summary of their expected evidence (see 2011 HRTO 1423).
6On August 3, 2011, the applicant copied the Tribunal on an email sent to approximately 20 individuals. Attached to the email was a copy of 2011 HRTO 1423. In the email the applicant requested that the unidentified individuals “provide your written statements (must be witnesses (sic) by a Governmental Official) or you may go on location at your own time to provide written (sic) in person at the HRTO downtown location.” In this email the applicant also requested that these individuals notify the Tribunal and himself whether or not they were willing to testify in person. In his email the applicant also seems to suggest that these individuals should be wary of “vendetta”, harassment and intimidation. This email was not copied to the respondents.
7On August 4, 2011, the applicant sent a further email in which he provided a summary of his proposed witnesses’ evidence. The applicant advised as follows:
These witnesses will give their own experiences with Mlle. Persila Vachon (terminated in August 2010) & I. N. (no longer training as of August 2010 or later) training abilities, statements made that I took parts from a PC to put to another as we did not have proper working computers during the training; and also witnessing the events which led to others being terminated (including Mr. Kim and myself).
The applicant did not further identify the witnesses, although later text in this email suggests that they may be the unidentified individuals to whom the August 3, 2011 email was sent. I note that this email is not copied to the respondents and the applicant purported to advise the Tribunal that it was the Tribunal’s responsibility to deliver, if it chose to do so, this material to the respondents.
8On August 11, 2011, the applicant provided the Tribunal, but not the respondents, with a list of potential witnesses. The list was filed in respect of this and another Application potentially raising similar issues. Beside each potential witness’s name there is a very short comment or description of what they are expected to say. For example, the first person listed, M.M., has the following notation beside his or her name – “our training group whom was present, but left due to the environment/lack of training at Global Payments”. All of the other notations are of a similar length and contain vague references to lack of training; inconsistent training; “volatile” or “negative working environments”. One of the individuals listed is said to still be in the workplace and “whom also having difficulty, and saw the abusive treatment at Global Payments”.
9The applicant is included in the witness list. The notation describing his expected evidence provides as follows:
I was terminated after I had filed a Police Report after a meeting with Mr. M. from Drake, Persila Vachon and I. N. : whom had verbally stated that he would damage my property, in which I filed a police report - informed Mr. N. whom informed Karen whom terminated me with Persila Vachon being made aware by I.N.).
10On August 11 and 12, 2011, the applicant delivered a number of documents including what are described as statements of several individuals who may or may not be called by the applicant or come forward to give evidence. This material appears to have been sent to the respondents. This material adds nothing to what the applicant had previously provided. The documents, which are said to be statements of individuals who may or may not, according to the applicant, give evidence, disclose nothing that could support a finding that the Code had been violated by these respondents.
11In another email dated August 11, 2011, the applicant wrote to the Tribunal reiterating the prior communication to the effect that the Tribunal could, if it wished, release the names of his proposed witnesses to the respondents but that the Tribunal would be responsible for any consequences for those individuals, in particular those who remain in the workplace.
12In a Case Assessment Direction dated September 1, 2011, I advised the parties that upon review of the materials provided by the applicant the applicant remained non-compliant with my Directions and the general allegations in the Application remain unparticularized. I also noted that the applicant remained non-compliant with the Tribunal’s Rules and my Direction that he identify the witnesses he intended to call and provide a summary of their expected evidence. Because of the applicant’s non-compliance, it was entirely unclear whether any of the identified individuals are witnesses the applicant actually proposes to call as a witness at the hearing. In any event, they have not been properly identified to the respondents and after reviewing the limited material provided it seemed unlikely that any of the individuals listed had any relevant evidence to give.
13As a consequence of the applicant’s continuing failure or refusal to particularize the allegations he has made and his failure to comply with the Tribunal’s Rules and directions respecting witnesses, a fair, just, and expeditious hearing of this Application is not possible. In 2011 HRTO 1423, I indicated that failure to comply with my directions may result in the dismissal of the Application as an abuse of process. The respondents have all stated that the Application should be dismissed for that reason and made full submissions on the point. Drake also continued to maintain that the Application as against it should be dismissed because there are no allegations made against it which raise Code issues. Because the applicant had not ever responded to the respondents’ request that the Application be dismissed, the applicant was afforded a further opportunity to respond.
14In light of all of the above circumstances the hearing that was scheduled to begin on September 26, 2011, was cancelled and the applicant was directed to file his submissions in response to the respondents’ request that the Application be dismissed within 30 days of the September 1, 2011 CAD.
15The applicant did not comply with these directions. In an email sent to the Executive Director of the Tribunal on September 1, 2011, in apparent response to the September 1, 2011 CAD, the applicant indicated the he would not be filing any further documents. In this email the applicant made a number of comments impugning the composition and fairness of the Tribunal and its members. On October 3, 2011, counsel for Drake wrote to the Tribunal asking that the Application be dismissed for all of the reasons elaborated by them earlier. The next communication from the applicant was a copy of an email sent to counsel for the respondents dated October 3, 2011 which states - “We are not worried at all - Just beginning............................................. ”.
16The applicant has also begun sending email directly to myself and other members of the Tribunal casting aspersions on the integrity of other Tribunal members and the Tribunal generally, despite having already been admonished for doing so in the context of another proceeding (see Felix v. Shopper’s Drug Mart, 2011 HRTO 89). Although in that case the communication was related to the case at hand, which is clearly improper, it seems to me that it is equally improper and potentially an abuse of the Tribunal’s process for a party to communicate directly with a Tribunal Member to make bald allegations about the Tribunal.
17In a further CAD dated October 17, 2011, I made the following determinations and Directions:
Having regard to the applicant’s failure to comply with my prior Orders and directions and his subsequent failure to respond in any meaningful way to the Tribunal’s directions for submissions on the requests to dismiss, the applicant appears to be declining to participate further in this proceeding and may be deemed to have abandoned it.
DIRECTIONS
If the applicant intends to proceed further with this Application he may do so by providing his written submissions on the following points:
a. The applicant will deliver and file within 10 days of the date of this CAD his submissions in response to the respondents’ various requests to dismiss on the basis that his past failure to comply with the Tribunal’s directions is an abuse of process and that the applicant has not plead a prima facie case of discrimination in respect of the respondent Drake. In his submissions the applicant will explain why he failed to provide his submissions in accordance with the Tribunal’s direction in the September 1, 2011 CAD.
b. The applicant will deliver and file within 10 days of the date of this CAD his submissions with respect to his failure to comply with prior Tribunal directions to not communicate directly with Tribunal Members. The applicant should address the question of whether or not it is an abuse of process to have done so in this case.
c. If a response to the applicant’s submissions is required, the Tribunal will so direct.
d. In the event that the applicant fails to comply with these Directions, the Application will be dismissed as abandoned.
18The applicant did not respond to the October 17, 2011 CAD in a timely way. In an email sent directly to myself, the Tribunal and several other persons after the close of business on October 28, 2011, the applicant repeated his prior advice that he would not provide any further particulars of his allegations and would not identify his witnesses or provide a summary of their expected evidence. The applicant repeats in somewhat more extravagant language his earlier allegations respecting the composition, competence and fairness of the Tribunal and its members. On Sunday, October 30, 2011, the applicant sent this email again to myself, the Tribunal and several other persons under cover of an email in which the applicant expresses his anger with being forced to disclose in advance of the hearing what his witnesses are expected to say.
ANALYSIS AND FINDINGS
19In the circumstances, I find that the applicant’s conduct warrants dismissal of the Application. I find that the applicant, despite repeated requests and directions, has failed to comply with the Tribunal’s Rules and its directions to particularize the Application, identify his proposed witnesses and provide a summary of their expected evidence. I find that the applicant has effectively abandoned the Application by ending any meaningful participation in it and has engaged in an abuse of process, justifying its dismissal for that reason as well.
20In Ouwroulis v. New Locomotion, 2009 HRTO 1498, the Tribunal dismissed an Application in face of the applicant’s “continued failure to comply with the Tribunal’s Rules and the Tribunal’s directions and her failure to attend the scheduled teleconference hearing despite having received notice”. In LeNeve v. Point Edward Casino, 2009 HRTO 1574, the Tribunal dismissed an Application as abandoned based on conduct of the applicant amounting to a “clear expression of refusal to participate in the Tribunal’s process or communicate with the Tribunal”.
21Section 23(1) of 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.” Rule 1.7(v.1) of the Tribunal’s Rules similarly provides that “in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may… 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”.
22An application to the Tribunal is a legal proceeding. The parties to these proceedings are expected to make their best efforts to comply with the Tribunal’s Rules and directions with a view to ensuring a fair, just and expeditious proceeding. The applicant has been made aware on several occasions that his Application is deficient and he has been directed on several occasions to provide further information to the Tribunal and the respondents, and has been advised on several occasions what kind of information was required. Allowance has been made for the fact that the applicant is unrepresented. The applicant has made no apparent attempt to comply.
23The applicant’s failures are not trivial matters. The right of the parties participating in this process to have some level of disclosure of the other parties’ case is central to a fair, just and expeditious adjudication of these claims. The applicant has been advised on several occasions that his failure to particularize the assertions in the Application and to comply with the Tribunal’s Rules with respect to witnesses have made it impossible for a fair, just and expeditious hearing to take place. Finally, the applicant was advised in a CAD dated September 1, 2011 that the hearing would not proceed until he complied with the earlier directions. In the same CAD the applicant was invited to make submissions in response to the respondents’ Requests that the Application be dismissed. The applicant’s only response has been to indicate that he will provide no further documents and to question baldly, without any particulars, the fairness of the Tribunal’s processes, its composition and the fairness of its Members. The applicant has treated the Tribunal, its processes, as well as the respondents, with disdain bordering on contempt.
24I have considered whether the applicant, being self-represented, may have failed to appreciate what has been asked of him. In all the circumstances I am unable to come to that conclusion. From his various communications with the Tribunal and the other parties, it is reasonably clear that he understands exactly what is required of him but he has chosen not to comply. I also note that the applicant has filed many applications with the Tribunal and has participated in several hearings. He is not unfamiliar with the Tribunal’s Rules and its procedures.
25In addition to all of the above, the applicant has begun sending correspondence by email directly to me, contrary to the Tribunal’s Rules which require that the parties communicate with the Tribunal via the Registrar. The applicant is fully aware of this requirement, having been admonished by the Tribunal in another proceeding which was ultimately dismissed by the Tribunal as an abuse of process. (see Felix v. Shopper’s Drug Mart, 2011 HRTO 89). Despite being reminded that it is inappropriate and contrary to the Tribunal’s Rules in my CAD of October 17, 2011 the applicant sent two further emails directly to me.
26The applicant was given one final opportunity to comply with the Tribunal’s Directions in the October 17 CAD and provide responses to the respondents’ request to dismiss the Application. The applicant was advised that if he did not respond the Application would be dismissed as abandoned. The applicant has not responded to these latest directions except as set out above.
27I light of the circumstances set out above, I find that the applicant has made it clear that he will not participate in any meaningful way in this Application and has offered no reasonable basis for his failure to do so. I find therefore that the Applicant has effectively abandoned this Application.
28I also find that by his refusal without reason to comply with the Tribunal’s Rules and prior Directions the applicant has engaged in an abuse of the Tribunal’s process. I include in this regard the applicant’s apparently wilful violation of the Tribunal’s Rules, which require that the parties to a proceeding communicate with the Tribunal through the Registrar’s Office and not with Members directly.
29For all of these reasons the Application is dismissed.
Dated at Toronto, this 2nd day of November, 2011.
“Signed by”
David Muir
Vice-chair```