HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Conseil scolaire de district Catholique Centre-Sud and Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Nelligan O’Brien Payne LLP and Julie Skinner

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Ontario College of Teachers and Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Conseil scolaire de district Catholique Centre-Sud and Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Sack Goldblatt Mitchell LLP and Association des enseignantes et des enseignants franco-ontariens

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Law Society of Upper Canada and Zeynep Onen

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Ontario Labour Relations Board and Mary Anne McKellar

Respondents

A N D B E T W E E N:

Godfred Kwaku Hiamey

Applicant

-and-

Ontario Judicial Council and Ana Brigido

Respondents

DECISION

Adjudicator: Geneviève Debané

Date: July 6, 2012

2011-08383-I; 2011-10488-I; 2011-10579-I; 2012-10754-I

Citation: 2012 HRTO 1331

Indexed as: Hiamey v. Conseil scolaire de district Catholique Centre-Sud

APPEARANCES

Godfred Kwaku Hiamey, Applicant

Unrepresented

Ontario Judicial Counsel, Respondent

Geri Sanson

Introduction

1The applicant has filed numerous applications that stem from his dismissal as a teacher from the Conseil scolaire de district Catholique Centre-sud (the “Board”). He has filed applications against the Board, the Association des enseignantes et des enseignants franco-ontariens (the “Union”), which decided not to take his grievance to arbitration, and Sack Goldblatt Mitchell LLP, (“SGM”) the law firm that represented his union. He has filed Applications against the Ontario College of Teachers (the “College”), which was investigating a complaint against him, and Nelligan O’Brien Payne LLP (“Nelligan”) and Julie Skinner, the solicitors that represented him before the College. He complained about the union’s lawyer and Ms. Skinner to the Law Society of Upper Canada (“LSUC”), and when the LSUC did not proceed with his complaint, he filed an Application against it and Zeynep Onen, Director, Dispute Resolution. He filed a duty of fair representation application with the Ontario Labour Relations Board (“OLRB”), and when that application was dismissed, he filed an Application against the OLRB and Vice-chair Mary-Anne McKellar, the adjudicator who made the decision. The applicant complained about the OLRB adjudicator to the Ontario Judicial Council (“OJC”). When the OJC advised the applicant that the complaint did not fall within its mandate, the applicant filed an Application against it and Ana Brigido, its Deputy Registrar.

2In a Decision dated February 22, 2012, the Application against the Board was dismissed as untimely, and the Applications against the Board, the Union, SGM, Nelligan, and the College were dismissed on the basis that they have no reasonable prospect of success. See Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 301.

3In a Decision dated March 29, 2012, the Application against the LSUC was dismissed on the basis that it has no reasonable prospect of success. See Hiamey v. Barreau du Haut-Canada, 2012 HRTO 604.

4In a Decision dated April 23, 2012, the Application against the OLRB and the Vice-chair assigned to his case was dismissed on the basis that the Tribunal had no jurisdiction over the subject-matter of the Application because of the doctrine of adjudicative immunity. See Hiamey v. Commission des relations de travail de l’Ontario, 2012 HRTO 814.

5This Decision is with respect to the the following issues:

a. Whether the Application filed against the Ontario Judicial Council and Ana Brigido should be dismissed because it has no reasonable prospect of success;

b. The applicant’s Requests to reconsider; and

c. Whether the Tribunal should declare the applicant a vexatious litigant.

The Ontario Judicial Council

6In a Case Assessment Direction (the “CAD”) dated February 2, 2012, the Tribunal directed, of its own initiative, that a summary hearing be held to determine whether the Application against the OJC and Ana Brigido had no reasonable prospect of success. A conference call summary hearing was convened on May 11, 2012 and the services of a French-English interpreter were made available to the parties.

7The facts are not in dispute. On August 8, 2011, the OLRB dismissed the unfair labour complaint the applicant had filed against his Union. The applicant wrote to the OJC complaining against the Vice-chair who issued the decision. On October 5, 2011, the OJC wrote to the applicant to advise him that it did not have jursidcition over the Vice-chair’s conduct because she was not a provincially appointed judge and that he should address his concerns to the OLRB.

8The applicant did make complaints to the OLRB but then attempted to pursue his complaint against the Vice-chair at the OJC. The OJC once again advised the applicant in January 2012 that it would not be investigating the Vice-chair because she was not a provincially appointed judge.

9During the conference and in his written submissions to the Tribunal it was the applicant’s position that the Vice-chair is governed by the OJC because she has to exercise judgment in the course of rendering a decision. Further, it is the applicant’s position that she is a provincially appointed judge and the OJC’s refusal to admit this is a “strategy” and a “discriminatory alibi” so that the OJC can “get rid” of the applicant.

10The OJC argued that it is an independent body with a very specific public mandate to investigate provincially appointed judges in accordance with the Courts of Justice Act, R.S.O. 1990 c.C. 43 (CJA) which does not include jurisdiction over administrative tribunal members. Further, the OJC’s sole involvement with the applicant was to advise him that it did not have jurisdiction over the subject-matter of the Application. The OJC argued that there was no reasonable prospect that the Application could be successful, that it was commenced frivolously and vexatiously, and was an abuse of process.

11The OJC also argued that the CJA prohibits actions being initiated against the OJC and its employees in the good faith execution of their duties. The OJC also relies on the doctrine of judicial immunity.

12Having reviewed the detailed submissions of the parties I find that this Application has no reasonable prospect of success. It is clear that the OJC does not have jurisdiction over complaints made against administrative tribunal members, which includes the OLRB. The OJC’s mandate is restricted to investigating conduct of provincially appointed judges. The OJC sent two very simple letters explaining the scope of its jurisdictional mandate to the applicant which he does not accept as the truth. However, even if the applicant believes that the OJC’s interpretation of its mandate under the CJA is incorrect, there is absolutely no evidence to support the applicant’s belief that the OJC’s interpretation was a pretext to defeat his claim because of a prohibited ground. Having reviewed the correspondence between the parties and the submissions of the parties I find that there is no evidence of any possible conduct by the OCJ or its employees that reasonably could establish a breach of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Having determined that this Application has no reasonable prospect of success, I will not deal with the other arguments advanced by the OJC.

13The Application against the OJC and Ana Brigido is dismissed.

Reconsideration

14Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules:

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

15The Tribunal has issued Rules governing such requests. Most relevant to this Decision is Rule 26, which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

16As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

17The applicant filed Requests to reconsider Decisions 2012 HRTO 301, 2012 HRTO 604 and 2012 HRTO 814 (collectively the “Decisions”). None of the Requests for Reconsideration were filed within 30 days of the Decision in question. However, there is no need to deal with the timeliness issue in view of my conclusion that the test for reconsideration has not been met. The Tribunal did not direct the respondents to file any submissions with respect to the the Requests for Reconsideration.

18The Tribunal has received extensive and voluminous correspondence from the applicant, which all repeat similar allegations which are also raised in the Requests for Reconsideration:

a. That the adjudicators assigned to the Applications, including myself, demonstrated bias against the applicant, are in a conflict of interest, are not impartial and are working for the interests of the respondents, engaged in lies and are acting as a mafia to defeat his Applications, and should be removed as decision-makers;

b. That the applicant refuses to be bound by the Tribunal’s “dirty” jurisprudence;

c. That the respondent employer has admitted to breaching the Code and that I made such finding in decision 2012 HRTO 301;

d. The applicant also renews many of the arguments that he made and were rejected by the Tribunal in the Decisions.

The allegation of bias

19The issue of bias was canvassed in Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322. See also Persuad v. Toronto Community Housing Corporation, 2010 HRTO 2550. Further the legal principles to be applied in considering apprehension of bias are well established. In Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, De Grandpré J. stated:

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-marker], whether consciously or unconsciously, would not decide fairly.

20In support of his allegations of bias, the applicant refers to various letters from the Registrar and Case Assessment Directions, which directed that preliminary issues and summary hearings be held in the Applications. The applicant takes the position that these demonstrated that the Tribunal had pre-judged his Applications.

21The Tribunal’s Rules empower the Tribunal to deal with applications in a fair, just and expeditious manner. This includes dealing with jurisdictional issues even before applications are delivered to respondents and initiating summary hearings without requiring responses to be filed. Identification of issues and active case management is central to the Tribunal’s approach to adjudication, and does not suggest pre-judgment. Rather it directs parties to issues so that they can address those relevant to the application and provides an opportunity for fairness and access to justice, supporting each party’s right to be heard on those issues. I therefore do not accept the applicant’s argument that the Tribunal demonstrated pre-judgment of his Applications.

22With respect to the other bold allegations of bias made by the applicant, I find that no reasonable person viewing the matter realistically and practically could conclude that the adjudicators held an apprehension of bias against the applicant. Therefore, I find that this is not an appropriate ground to reconsider the Decisions and I will not recuse myself from adjudicating this matter.

23Having reviewed the submissions of the applicant, I do not find that the Decisions should be reconsidered. In essence, the applicant is making the same arguments that he has made in the past in support of his Applications. I find that the applicant has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Final Decision.

24The Requests for Reconsideration are denied.

Vexatious litigant issue

25In an Interim Decision, 2012 HRTO 414 dated February 22, 2012 the Tribunal sought submissions with respect to whether the applicant should be declared a vexatious litigant. The Union and the applicant filed written submissions with respect to this issue. During the May 11, 2012 conference call the applicant declined to make oral submissions on the issue, stating that he had made fulsome written submissions. His submissions on this issue are almost identical to the submissions in his Requests for Reconsideration.

26The Tribunal has the power pursuant to s. 23(1) of Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (SPPA), to make orders or give such directions in a proceeding before it to prevent abuses of its process. It has previously used this power to declare an individual a vexatious litigant. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667 and; Abdul v. University of Toronto, 2011 HRTO 2299.

27The seminal decision on the factors that Courts have considered in determining whether an individual is a vexatious litigant were described by the Ontario Court of Appeal in Foy v. Foy (No.2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220. These factors are summarized in the decision of Lang Michener Lash Johnston v. Fabian, [1987] O.J. No . 355 (H.C.):

(20)(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

28It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. In order to declare the applicant to be a vexatious litigant, I must be satisfied on an objective standard that the applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings.

29I am cognizant of the fact that to declare an individual a vexatious litigant is an extroardinary remedy; however, having reviewed this matter, I find that the applicant should be declared a vexatious litigant.

30I have considered the history of this matter and note that the applicant has filed Applications against twelve respondents. All of these Applications stem from the termination of his employment with the Board. I find that he has “rolled forward” this initial issue into subsequent Applications against lawyers and independent decision-making bodies. Every time the applicant is disatisfied with the conduct of an organization he accuses it of being in conflict of interest, bad faith, and working for the benefit of his former employer and files Applications against it at the Tribunal alleging discrimination. He has demonstrated a persistent pattern of filing Applications which have no merit, which has resulted in the Code and the Tribunal’s process being used as a mechanism to appeal any decision which is not favourable to the applicant.

31I also find that the applicant’s conduct during these proceedings has been vexatious. The applicant has bombarded the parties and the Tribunal with weekly repetitive correspondence in which he makes increasingly egregious claims against the respondents. Despite the fact that I dismissed the Application against the Board because it had no reasonable prospect on the merits, he continues to assert that the Board admitted that it had terminated his employment for discriminatory reasons and that I have made such a finding. His correspondence and Requests are also repetitive in nature. He continuously writes to the Tribunal making increasing demands for remedies against the respondents. The applicant continues to write to the Tribunal every time he receives correspondence from the College of Teachers, accusing it of harassment and discrimination. The applicant does not accept previous Tribunal decisions and he has openly stated, repeatedly, that he refuses to be bound by the Tribunal’s “dirty” caselaw.

32Since the applicant has filed a series of Applications against respondents who are becoming increasingly distant from the initial termination of employment with the Board, I find that it is appropriate to put some restrictions on the applicant’s ability to file applications with respect to this issue.

33Taking into account the whole history of the Applications made by the applicant to this Tribunal and his other persistent and unsuccessful claims made against the respondents, I therefore declare the applicant to be a vexatious litigant in relation to issues stemming from or connected with the termination of his employment with the Board or proceedings relating to that termination, and he cannot commence any application at the Human Rights Tribunal of Ontario with respect to such issues without first obtaining leave of the Tribunal.

Order

34The Tribunal Orders as follows:

a. The Application against the Ontario Judicial Council and Ana Brigido is dismissed as having no reasonable prospect of success;

b. The Requests for Reconsideration are dismissed; and

c. The Tribunal declares Godfred Kwaku Hiamey to be a vexatious litigant in relation to issues stemming from or connected with the termination of his employment with the Board or proceedings relating to that termination, and he cannot commence any application at the Human Rights Tribunal of Ontario with respect to such issues without first obtaining leave of the Tribunal.

Dated at Toronto, this 6^th day of July, 2012.

Signed by

Geneviève Debané

Vice-chair