Samuray Diler v. Cambridge Memorial Hospital, 2012 HRTO 1113

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuray Diler

Applicant

-and-

Cambridge Memorial Hospital

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 6, 2012

Citation: 2012 HRTO 1113

Indexed as: Diler v. Cambridge Memorial Hospital

appearances

Samuray Diler, Applicant ) Self-represented

Cambridge Memorial Hospital, Respondent ) Erik Marshall, Counsel

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, and whether the applicant should be declared a vexatious litigant and prohibited from filing further applications without leave of the Tribunal. These issues were addressed at a summary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2On March 3, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her because of her disability and sex with respect to services, and subjected her to reprisals.

3The Application at hand is the third in a series of four applications that the applicant has filed against the respondent.

4On March 9, 2009, the applicant filed an Application which alleged that the respondent discriminated against her because of her place of origin, citizenship and disability with respect to services. Specifically, she alleged that between 2002 and 2006 her treating psychiatrist made a number of disparaging remarks to her about her religion, country of origin and disability, and gave her unsafe dosages of medication. On December 11, 2009, the Tribunal dismissed the Application as outside its jurisdiction because it was untimely. See Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143, upheld on reconsideration, 2010 HRTO 392.

5On March 14, 2010, the applicant filed an Application which alleged that the respondent discriminated against her because of her disability with respect to services. Specifically, she alleged that that while she was hospitalized in 2005, nurses employed by the respondent decided to give away her pet cat. On June 1, 2010, the Tribunal dismissed the Application as outside its jurisdiction because it was untimely. See Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224.

6On May 3, 2011, the applicant filed an Application which alleged that the respondent discriminated against her because of her place of origin, citizenship, disability, and creed with respect to services. Specifically, she alleged that between 2001 and 2006 two doctors at the hospital prescribed her, without her knowledge, a controlled drug. On September 15, 2011, the Tribunal dismissed the Application as outside its jurisdiction because it was untimely. See Diler v. Cambridge Memorial Hospital, 2011 HRTO 1700.

7In 2010 and 2011, the applicant also filed two civil claims against the respondent and two of its doctors (Samuray Diler v. Cambridge Memorial Hospital and Janet Elizabeth Sproat, SC-10-00000618-0000, and Samuray Diler v. Dr. Sidhu and Cambridge Memorial Hospital, SC-11-00000006-0000), which repeated some of the allegations in her fourth Application before this Tribunal. After the defendants filed Defence forms which requested that the claims be dismissed with costs, the applicant withdrew her claims.

8The Application at hand and subsequent materials filed by applicant appear to set out two allegations:

1. In a recent court case, the applicant brought a motion to have her case heard urgently because of needs related to her disability and sex. The respondent’s counsel opposed her motion, which was both discriminatory and an act of reprisal.

2. The applicant requested medical records from the respondent with respect to her first Application. The respondent refused to provide the records to her, which was an act of reprisal.

9On June 30, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success, and whether the applicant should be declared a vexatious litigant and prohibited from filing further applications without leave of the Tribunal.

10On January 24, 2012, the respondent filed written submissions which addressed the issues set out in the CAD.

11The summary hearing took place by teleconference on February 7, 2012. At the beginning of the hearing, the applicant stated that she was on a break at work and was unable to attend the hearing for longer than 15 minutes. I allowed the applicant to make her submissions first. She quickly made submissions and abruptly left the teleconference six minutes after she called in.

12In her submissions, which were very brief, the applicant opposed being declared a vexatious litigant. She stated that she is not legally trained, apologized for the number of applications that she had filed, and promised not to file any further applications. With respect to her allegations of discrimination and reprisal, she merely repeated her second allegation in paragraph 7 above. She did not explain how this allegation has a reasonable prospect of success, and did not address the first allegation at all.

REASONABLE PROSPECT OF SUCCESS

13Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

14Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

15In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. I find that the applicant’s allegation of discrimination is outside this Tribunal’s jurisdiction because it pertains to the conduct of a lawyer representing another party in another legal proceeding. This Tribunal has consistently held that the relationship between a lawyer and an opposing party does not fall within the ambit of services in s. 1 of the Code. See, for example, Abi-Mansour v. Ontario College of Teachers, 2011 HRTO 601; Humphries v. General Electric of Canada, 2009 HRTO 1869; and Cooper v. Pinkofskys, 2008 HRTO 390.

16With respect to the applicant’s allegations of reprisal, in Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

17The applicant did not clearly explain how the respondent’s actions were related to the applicant having claimed, or attempted to enforce a right under the Code, and even if she had, she did not demonstrate that there is a reasonable prospect that evidence she has, or that is reasonably available to her, can show an intention on the part of the respondent to retaliate against her for claiming her rights under the Code.

18Accordingly, the Application is dismissed.

VEXATIOUS LITIGANT

19The Tribunal has powers pursuant to, among other things, s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, to declare an individual a vexatious litigant and prohibit him or her from filing further applications without leave of the Tribunal. In doing so, the Tribunal typically considers the frequency and number of applications filed without merit or apparent merit, as well as the conduct of the party. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Carlos v. Scher Law, 2010 HRTO 2019; and Bingham v. Roach Schwartz Law Office, 2011 HRTO 15.

20In Drenic, supra, the Tribunal also stated at para. 19:

(…) 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….

See also Stancheff v. Stancheff, [2006] O.J. No. 276, 2006 CanLII 22144 (S.C.J.), upheld on appeal, [2006] O.J. No. 4874, 2006 CanLII 40979 (C.A.).

21In its submissions, the respondent pointed out that it has expended significant legal costs responding to the applicant’s four applications. I have no doubt that this is true. 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. See Ouwroulis v. New Locomotion, 2009 HRTO 335, at para. 5. Furthermore, unlike in the civil process, the respondent is unable to recover any costs resulting from this process, including where the application lacks merit or apparent merit, because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.

22In my view, the frequency and number of applications filed without merit or apparent merit has reached the threshold where it is appropriate to declare the applicant a vexatious litigant with respect to this respondent, and prohibit her from filing further applications against the respondent and its doctors, nurses and staff without leave of the Tribunal. I appreciate that the applicant is a layperson who does not have legal training, and I am also cognizant of the fact that she is a person with a mental disability. That said, she has filed three applications against the respondent with this Tribunal which were untimely; two civil claims against the respondent which had some of the same allegations as her fourth human rights Application and which she later withdrew; and a further application (the case at hand) with this Tribunal which has no apparent merit. In addition, in the case at hand, she left the teleconference hearing six minutes after she called in, which I believe demonstrates that her goal is to vex the respondent rather than seriously pursue a legal claim.

ORDER

23The Tribunal makes the following orders:

1. The Application is dismissed.

2. The applicant is declared to be a vexatious litigant with respect to this respondent, and is prohibited from filing further applications against the respondent and its doctors, nurses and staff without leave of the Tribunal.