Visic v. Law Society of Upper Canada, 2012 HRTO 1642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anica Visic

Applicant

-and-

Law Society of Upper Canada

Respondent

DECISION

Adjudicator: Ena Chadha

Decision Date: August 28, 2012

Citation: 2012 HRTO 1642

Indexed as: Visic v. Law Society of Upper Canada

APPEARANCES

Anica Visic, Applicant

Self-represented

Law Society of Upper Canada, Respondent

Elliot Spears, Counsel

University of Windsor, Proposed Respondent

Garth Kidd, Counsel

Introduction

1This Application was filed on July 30, 2009, under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to membership in a vocational association on the basis of disability.

2The applicant submitted an application for admission to the Bar of Ontario (“Bar”) as part of the licensing process of the respondent Law Society of Upper Canada (“Law Society”). The applicant alleges that the Law Society subjected her to discrimination and reprisal when it required that she complete an additional period of articling and when it instituted a “good character” review prior to processing her call to the Bar. The applicant claims that the Law Society’s imposition of these additional conditions was based on alleged discriminatory disability-related circumstances arising out of her former articling employment. The applicant asserts that the Law Society perpetuated discrimination and reprisal when it relied on discriminatory information and recommendations provided by her former employers in making its decisions pertaining to her admission to the Bar.

3On October 19, 2009, the Law Society filed a Response denying the allegations. The Law Society submits the requirement that the applicant satisfy certain conditions as part of the licensing process does not constitute discrimination and/or reprisal. The Law Society asserts that the procedures and decisions impugned by the applicant are part of its statutory and regulatory duty to ensure that all candidates to the Bar of Ontario complete appropriate articles and demonstrate “good character”. The Law Society sought dismissal of the Application on various preliminary points, which the Tribunal denied on December 1, 2009, in Interim Decision 2009 HRTO 2068.

REQUEST FOR SUMMARY HEARING

4On September 9, 2010, the Law Society filed a Request for Summary Hearing (“Request”) asking that the Application be dismissed in whole or in part. The Law Society submits the allegation that it engaged in discrimination and reprisal by perpetuating the alleged disability discrimination of the applicant’s former employers has no reasonable prospect of success.

5On September 21, 2010, the applicant filed submissions opposing the Law Society’s Request. The applicant asserts that there is a reasonable prospect that she will succeed in establishing that the Law Society’s imposition of the additional articles and a “good character” review was discrimination based on disability and reprisal because of her previous human rights claims.

6By way of a Case Assessment Direction dated September 30, 2010, the Tribunal placed the Law Society’s Request for a summary hearing in abeyance until a decision was issued in another application filed by the applicant against her former employer, Elia Associates Professional Corporation (“Elia firm”). A Decision in Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, was released on June 28, 2011 dismissing that application.

7By way of a Case Assessment Direction dated November 3, 2011, the Tribunal granted the Law Society’s Request for a summary hearing and ordered that a half-day hearing be held by conference call.

8On January 31, 2012, the applicant filed a Request for an Order During Proceedings asking that the Tribunal add the University of Windsor (“University”) as a respondent to this Application. The applicant alleges that the official grade transcripts from her studies at the University discriminate against her because of her disability and that this has resulted in the Law Society’s discriminatory treatment towards her. The Law Society and the University oppose the applicant’s request as an abuse of process. The University asserts that the Tribunal should declare the applicant a vexatious litigant in relation to it and its agents with respect to the matter of her official transcript.

9On February 15, 2012, the Tribunal issued a Case Assessment Direction indicating that the Tribunal would hear the applicant’s request to add the University during the scheduled summary hearing conference call. The Tribunal indicated that it would also hear submissions with respect to the issues of abuse of process and vexatious litigant.

10Accordingly, a summary hearing by conference call was held on March 12, 2012, at 1:30 p.m. The parties and counsel for the University participated on the conference call. The parties and the University filed extensive documentary material, submissions and case law, all of which I have carefully reviewed in reaching my conclusions as discussed below.

DECISION

Request to Add the University

11The applicant’s request to add the University is denied. The University’s alleged failure to accommodate the applicant’s disability during her law school studies and its refusal to delete information from her official transcript are not the subject matter of this Application. I find that these allegations are too remote in subject and time from the allegations before me as against the Law Society. Consequently, there is no basis to add the University as a respondent to this Application.

Reasonable Prospect of Success

12I find that there is no reasonable prospect that this Application will succeed as the applicant has not demonstrated what evidence, proposed or otherwise, would establish that the Law Society’s decision to require additional articles and its “good character” process were discriminatory and/or intended as retaliation because of the applicant’s previous human rights claims. Accordingly, for the reasons set out below, I dismiss the Application.

Vexatious Litigant Declaration

13I conclude that the applicant’s repeated attempts to pursue the same allegations against the University about her official transcript have reached the point of abuse of process. As such, I determine that a vexatious litigant order is necessary to prevent the applicant from initiating further human rights applications or making requests against the University and its agents with respect to the matter of her official transcript.

Background

14In order to understand the applicant’s allegations against the Law Society and her request to add the University it is necessary to review the background to this Application. Set out below is a chronological summary of events as generally accepted by the parties and described in previous Tribunal and court decisions referenced below.

15The applicant failed two courses in her first year of law school at the University (1999-2000) and was advised by the University that her law school studies would be discontinued. The applicant claimed that her failing grades were due to the University's lack of appropriate accommodation of her disability, specifically pain in her right arm, shoulder, upper back and neck area, that made it difficult for her to sit and write during examinations.

16The University’s Academic Status Committee denied the applicant’s appeal; however, it later re-admitted her into first year law school based on “medical grounds”. The applicant subsequently successfully completed law school at the University from 2002-2005.

17Since the University’s policy is to list all grades received by a student for every year the student is enrolled in the institution, the applicant's official transcript included her 1999-2000 failing grades. The applicant contends that her failed grades do not accurately reflect her academic achievements and that the 1999-2000 grades should be excluded from her official transcript because the failing marks were as result of the University’s inadequate accommodation. The applicant alleges the University's policy of listing all grades in an official transcript is discriminatory and, therefore, she should be entitled to rely upon her unofficial grade reports which do not reference the failing grades.

18In 2005, the applicant commenced a civil action against the University seeking to restrain it from including her 1999-2000 grades in her official transcript. In 2006, the Superior Court of Justice of Ontario denied the applicant’s application for an interlocutory injunction, noting that the deletion of information from a university transcript is a serious matter, as academic communities and third parties rely on the accuracy and reliability of official transcripts. The Court held that it was not convinced that the applicant had a strong case of establishing the University failed to accommodate her, nor that the official transcript misrepresented the applicant’s circumstances: Visic v. University of Windsor, 2006 CanLII 44282 (ON S.C.), at para. 28. The applicant’s civil action against the University remains outstanding.

19In 2005, the applicant filed a human rights complaint with the Ontario Human Rights Commission (“Commission”) against the University and three professors challenging her official transcript. The Commission found the complaint was untimely and refused to deal with it. The applicant unsuccessfully sought judicial review of the Commission’s decision. The Divisional Court held that the continuing effect of the University’s official transcript was neither a new discriminatory act nor ongoing discrimination and, therefore, the Commission was correct in concluding that the applicant’s allegations were out of time: Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (Ont. Superior Court (Div. Ct.)).

20In November 2006, the applicant commenced articling with Payne Law Professional Corporation (“Payne Law”). Payne Law terminated the applicant’s employment before the completion of her articles, in part, because the applicant failed to provide her official transcript and had allegedly misrepresented her unofficial grade reports as final transcripts. The applicant commenced a wrongful dismissal action against Payne Law in June 2007 and also filed a complaint of professional misconduct against Payne Law with the respondent Law Society.

21In June 2007, the applicant secured another articling position with the Elia firm. Although her covering letter to the Elia firm stated that she was enclosing her “Bar, LL.B (sic), graduate and undergraduate transcripts”, the applicant provided her unofficial grade reports of her law school studies from 2002-2005 as part of her package of materials applying for the articling job.

22The applicant commenced her articles with the Elia firm in July 2007. In October 2007, one of the firm’s lawyers came across the Superior Court of Justice decision dismissing the applicant’s request to restrain the University from displaying the failed law school year in the official transcript. The Elia firm subsequently asked the applicant to produce her official transcript, which she provided along with the Academic Committee letter granting her re-admission to law school based on “medical grounds”.

23No further communications occurred between the applicant and the Elia firm regarding her transcript until the termination of her employment approximately seven weeks later when the firm alleged that the applicant misrepresented her unofficial grade reports as her final transcript during the hiring process.

24At the end of November 2007, the Elia firm gave the applicant notice of dismissal two days after the applicant had a verbal altercation with a staff member. The firm alleged that the applicant’s employment was terminated because of this incident and concerns regarding her adversarial demeanour, ongoing dissatisfaction with her work performance, as well as a fundamental breach of trust due to the applicant’s misrepresentation of the unofficial grade reports as her final transcript. The applicant denied these allegations and contends she was dismissed because of her disability.

25Although the applicant completed the requisite period of articles in December 2007, in reporting to the Law Society about her articles, the Elia firm stated that the applicant was not ready for admission to the Bar and recommended that the applicant undertake an additional six months of articling.

26The applicant filed a complaint with the Law Society against the Elia firm alleging discrimination and professional misconduct. The applicant argued that additional articles should not be imposed because she had completed ten months of articles through her employment with Payne Law and Elia Law. The applicant asserted that her provision of the unofficial grade reports in lieu of the official transcript did not constitute misrepresentation.

27All candidates applying for admission to the Bar of Ontario must complete a Good Character form which poses a series of questions, including whether the candidate has ever been discharged from any employment where the employer has alleged that there was cause for dismissal. On January 15, 2008, the applicant filed an amended Good Character form with the Law Society based on the fact that she had been discharged “with cause” by Payne Law.

28On January 21, 2008, the Law Society’s Registrar advised the applicant that her file was forwarded to the Professional Regulation Division for investigation of the circumstances leading to the amendment of her Good Character form. Subsequently, as a result of its investigation, the Law Society referred the matter of the applicant’s “good character”, or, in other words, her moral or ethical capacity to satisfy the Law Society’s professional regulations to a hearing under the Law Society Act, R.S.O. 1990, c. L.8.

29From January 2008 and onwards, the Law Society engaged in various correspondence, communications, and mediations regarding the applicant’s complaints against Payne Law and the Elia firm.

30In June 2008, the applicant and Payne Law settled the wrongful dismissal action. Payne Law provided a letter to the Law Society withdrawing the allegations of dishonesty on the understanding that, at the material time, the applicant was in the process of appealing her 1999-2000 grades based on human rights legislation. The applicant withdrew her allegations of professional misconduct against Payne Law.

31In July 2008, the Law Society formally accepted the Elia firm’s recommendation and stipulated that the applicant complete additional articles in order to satisfy the articling component of the licensing process.

32In December 2008, the applicant filed another human rights claim against the University. The Tribunal dismissed that 2008 application for delay and as barred under section 34(11) of the Code because of the applicant’s outstanding civil action asserted similar human rights claims: Visic v. University of Windsor, 2010 HRTO 2196.

33Also in 2008, the applicant filed a human rights application against the Elia firm, which as previously noted, was dismissed by this Tribunal in 2011: Visic v. Elia, 2011 HRTO 1230. Notwithstanding the Tribunal’s dismissal of Visic v. Elia, supra, the applicant nonetheless maintains that she was subjected to disability discrimination and reprisal by the Elia firm. The applicant alleges that the respondent Law Society perpetuated the previous alleged human rights infringements by imposing the additional articles and initiating the “good character” review based on Elia’s recommendation/information.

Analysis & FINDINGS

Request to Add the University

34The applicant asserts that the University ought to be added as a respondent party to this Application because its official transcript is an inaccurate reflection of her academic abilities and gave rise to the Law Society’s discriminatory process and decisions. The applicant submits that the University is a necessary party to this proceeding because it has the ability to correct this situation.

35The Law Society and the University oppose the applicant’s request and characterize the applicant’s attempt to re-litigate the transcript issue as an abuse of process.

36The University also points out this request is the applicant’s third attempt (in addition to the civil suit) to pursue the same allegations against it regarding her official transcript, all previous claims having been dismissed. The University notes that the Tribunal previously determined that it does not have jurisdiction over the applicant’s allegations because of delay and the existence of the parallel civil proceeding pursuant to sections 34(1) and 34(11) of the Code: Visic v. University of Windsor, 2010 HRTO 2196. The University submits that, if granted, the applicant’s request necessitates re-litigation of these jurisdictional issues. The University further asserts that this request is an attempt on the part of the applicant to continue the civil case against it, which it contends may not proceed until the applicant pays outstanding legal costs.

37Rule 1.7(b) of the Tribunal’s Rules of Procedure (“Rules”) states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party. The Tribunal’s test for adding respondents has been articulated at paragraph 12 of Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

38The onus rests with the applicant to establish that the University should be added as a party. Because the University is an organizational entity, the second factor of the Smyth test does not apply. The analysis, therefore, focuses on the first and third factors. I find that the applicant has failed to persuade me that these considerations favour adding the University.

39The first factor contemplates whether there are allegations made in relation to the Application that could lead to a finding that the proposed respondent violated the Code. Essentially, the applicant’s request can be disposed of at this first step because the Application discloses no allegations as against the University. The applicant does not allege that the University, or any of its agents, were involved in the Law Society’s handling of her application to the Bar. I conclude that the applicant’s claims against the University regarding her law school experience in 1999-2000 are too remote in subject and time from her allegations against the Law Society and, therefore, outside the scope of this Application.

40The present Application pertains to the applicant’s concerns in relation to her vocational membership with the respondent Law Society and the alleged discriminatory conditions she is required to satisfy in order to qualify for a licence to practice law. The temporal period of the allegations with respect to the Law Society appears to be the 2008-2009 licensing process. The main issue is whether the Law Society’s imposition of alleged “extra burdens” on the applicant constituted differential treatment and/or retaliation. Consequently, a hearing into this Application (if it were to proceed) would likely consider the events of 2007, at the earliest, and would focus on events surrounding the licensing process.

41I find that adding the University as a respondent would not assist the Tribunal to answer the question of whether the Law Society violated the applicant’s rights. Although the applicant’s law school experience may serve as the backdrop to the events surrounding her articles, the applicant’s complaints about how she was treated by the University do not need to be resolved in order to address her allegations against the respondent Law Society. While the applicant may perceive the alleged discrimination during the Law Society process traces back to her 1999-2000 failing grades, the Tribunal does not need to examine the propriety of the University’s accommodations and the specific content of official transcript in order to dispose of the allegations against the Law Society.

42I further determine, considering all the circumstances, that it would not be fair to add the University as a respondent party to this Application. In my view, permitting the applicant to add the University as a respondent would detract from the core nature of Application and unduly protract the proceedings by introducing allegations dating back to 1999-2000 and triggering jurisdictional concerns. I find that this would be unfair to the respondent Law Society, as well as the University. Therefore, I conclude that the allegations against the University are beyond the ambit of this Application and it would be inappropriate to add to the University as a respondent.

43In addition, I accept the Law Society’s and the University’s submissions that the applicant’s request is an abuse of the Tribunal’s process. By seeking to add the University as a respondent to this Application, the applicant pursues claims that are duplicative of her past human rights cases, which have been repeatedly dismissed. As previously noted, in 2005, the Commission refused to proceed with the applicant’s complaint and that determination was upheld by the Divisional Court in 2008. In 2010, the Tribunal concluded that the applicant could not pursue her human rights claims against the University. As such, I agree with the respondent Law Society and the University that this request yet again seeks to challenge the inclusion of the applicant’s 1999-2000 failing grades in her official transcript, allegations which the Commission, the Tribunal, and the Divisional Court have all categorically concluded are out of time.

44I am also mindful of the fact that the applicant and the University are currently engaged in an ongoing civil action dealing with the applicant’s law school experiences. I find that it would undermine the interests of fairness and efficiency to compel the University to simultaneously defend itself in multiple proceedings. Further, based on the University’s submissions, there appears to be a concern with respect to whether the applicant’s request to add the University in this Application circumvents her obligation to satisfy outstanding legal costs before she can continue with her claims against the University.

45Consequently, the applicant’s request to add the University as a respondent is denied.

Summary Hearing

46Rule 19A of the Tribunal’s Rules of Procedure states that the Tribunal may hold a summary hearing on its own initiative or at the request of a party on the question of whether the 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.

47In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-9, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing:

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.

48At the summary hearing, the applicant was asked to describe any evidence she has, or is reasonably available to her, that may establish a link between her allegations and the protected ground of disability and to explain how her concerns may constitute an infringement of the Code.

Discrimination

49The applicant alleges that the respondent Law Society discriminated and reprised against her on the basis of her physical disability by imposing additional articles and initiating a “good character” review that has caused her harm by delaying her license to the Bar of Ontario. She claims that an inference can be drawn from the chronology of events leading to the Law Society’s imposition of additional requirements that she experienced disability-based discrimination because the Law Society considered, as part of its licensing process, the information/recommendations arising out of her articling terminations, which she also impugns as discriminatory.

50The Law Society counters that it was acting in accordance with its statutory and regulatory duties to require the applicant to satisfy certain conditions as part of the Bar licensing process The Law Society contends that there is no evidence that the applicant’s disability was a factor in its process or decisions and that there was nothing in its licensing requirements or procedures that could be viewed as discriminatory or retaliatory.

51I find that the Application must be dismissed as having no reasonable prospect of success because the applicant did not point to any evidence or expected evidence that could establish a nexus between the respondent Law Society’s alleged conduct and the Code ground of disability.

52The applicant argues that the chronology of events expose the Law Society’s imposition of additional articles and a “good character” review as independent direct discrimination; however, I disagree with this characterization. While the events surrounding the applicant’s articling employment are part of the chronology leading to the events involving the Law Society, this chronology does not in of itself support a connection or link between the applicant’s disability and the impugned process and decisions of the Law Society. Other than referencing the chronology, the applicant did not highlight any evidence of a correlation or nexus between her disability or disability-related needs and the alleged discrimination.

53In essence, the applicant’s argument is that the Law Society’s imposition of additional articles and a “good character” review must constitute discrimination because those decisions were based on recommendations and information gleaned through the events surrounding her allegedly discriminatory dismissal from the Elia firm. These submissions are made notwithstanding the Tribunal’s decision in Visic v. Elia, supra, where this Tribunal held that the Elia firm did not violate the applicant’s Code rights.

54The Law Society submits that, in view of the Tribunal’s findings in Visic v. Elia, supra, it would be inconsistent for this Tribunal to conclude that its reliance on Elia’s information/recommendations perpetuated discrimination. I agree. In Visic v. Elia, supra, this Tribunal determined that neither the applicant’s past disability, nor any perceived disability, were a factor in the law firm’s decision to terminate her employment. The Tribunal held that production of an official transcript does not necessarily induce, or unavoidably trigger, disability disclosure. The Tribunal noted that the duty to accommodate did not require the Elia firm to excuse the applicant’s provision of her unofficial grade reports as her final transcript in the hiring process. The Tribunal also held that Elia’s recommendation of additional articles was non-discriminatory and did not constitute reprisal. The Tribunal concluded that Law Society’s “good character” investigation involved confidential and privileged information and, therefore, could not form the basis of Code violations.

55In light of the Tribunal’s determination that the Elia firm did not directly or indirectly discriminate and reprise against the applicant, I am satisfied that the applicant cannot demonstrate that the Law Society’s decisions and process were related to the applicant’s disability or disability-related needs. Further, even if assuming that Elia had discriminated or reprised against the applicant, that does not necessarily mean that the respondent Law Society also engaged in discrimination or reprisal.

56The applicant asserts that once she is in a hearing of the merits of the Application she will be able to demonstrate discrimination and reprisal through the chronology of events. However, the applicant did not indicate where and how the sequence of events is in any way disputed between the parties or supports a link between the alleged unfair treatment and her disability. In fact, as a previously noted, the chronology of events is well-documented and the parties were in general agreement about the factual history, albeit held differing perspectives of the interpretation or import of the events.

57As such, I find that it is not enough for the applicant to ask the Tribunal to not dismiss the Application at the summary hearing stage based on her assurances that at the hearing the chronology will substantiate the allegation of human rights violations. When faced with the question of whether or not there is a reasonable prospect of success, it is not sufficient for an applicant to submit that a theory of the case will be made out at the hearing. Rather, it is the applicant’s responsibility to provide the Tribunal with something more than theoretical conjecture to support the merits of the Application.

58I appreciate from the applicant’s perspective that the impetus for the Law Society’s impugned process and decisions may be traced back to her articling experiences which she attributes to the alleged discrimination during her law school studies. However, the applicant was unable to demonstrate how the Law Society undertook its process or decisions because of, or in relation to, her disability. Further, even if I were to accept the facts as asserted by the applicant that she experienced disability discrimination while at law school, the applicant has not provided any evidence or potential evidence that would link the Law Society’s decisions and process to her disability.

59Having considered the applicant’s submissions and materials, I find that there is no reasonable prospect of success that her concerns regarding the Law Society could be found to amount to a violation of the Code. Assuming the applicant was able to show that the imposition of additional articles and the “good character” review were unduly harsh (which she did not indicate that she could demonstrate), the applicant did not point to any evidence that suggests that the Law Society treated her differently or unfairly because of her disability or disability-based needs. There is no basis in the allegations or proposed evidence to suggest that a non-disabled candidate would have been treated better or less harshly by the Law Society in similar circumstances of accusations of misrepresentation and dishonesty. Nor was the applicant able to identify any evidence that may demonstrate the Law Society’s defence of statutory and regulatory-mandated duties was merely a pretext to cover the disability-based discriminatory decision or processes.

60The applicant has not persuaded me that the impugned decisions and process of the Law Society manifest a direct or constructive link to her disability. The applicant did not provide an alternate theory of differential treatment or evidence of disability discrimination by the respondent Law Society. The applicant did not allege that the Law Society or its agents engaged in any specific disability-based conduct or comment towards her or failed to accommodate disability-related needs. The applicant did not highlight any evidence or potential evidence that would demonstrate the Law Society treated her unequally on the basis of disability or denied her accommodation in processing her application for license.

61There is no doubt that the applicant strenuously disagrees with the steps and decisions taken by the Law Society. However, while the Law Society clearly placed the applicant under some level of scrutiny, even unfair or excess scrutiny by the Law Society, without any evidence of a nexus between the impugned negative treatment and a Code ground, cannot buttress a claim of discrimination. The Tribunal does not have a general power to inquire into claims of unfairness outside of the grounds listed in the Code. As stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

62Consequently, I conclude that there is no reasonable prospect that the Application will succeed with respect to the allegation of discrimination.

Reprisal

63Section 8 of the Code prohibits reprisals or threat of reprisals for exercising rights under the Code. Reprisal has been held to be a separate ground of liability distinct from the discrimination and harassment protections of the Code. The test for reprisal includes a requirement that there be some evidence of the respondent’s intention to reprise or evidence of a link between the applicant’s invocation of rights and the respondent’s subsequent conduct that is considered to be retaliatory. See Smith v. Menzies Chrysler, 2009 HRTO 1936, at para. 162.

64In Noble v. York University, 2010 HRTO 878, the Tribunal identified the following elements of reprisal:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant 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.

65As such, in order to demonstrate reprisal, the applicant must be able to point to evidence that the Law Society’s decisions or actions were taken with the intent to punish or retaliate against her for pursuing her human rights under the Code. The applicant claims that the Law Society was motivated by an intent to retaliate against her because of her human rights claims against the University and her articling employers.

66While there is no doubt that the applicant invoked her rights under the Code with respect to the University and the Elia firm, the applicant was unable to highlight any evidence to demonstrate that Law Society’s decisions and process were intended as retaliation against her for those human rights claims. Other than her bare allegations, the applicant had no information to bolster her suspicions of a retaliatory motive. Even accepting that the applicant could prove that the various representatives of the Law Society who made the impugned decisions knew about her human rights claims, without some evidence or indicia of intention on the part of those individuals, mere knowledge of the human rights claims is not sufficient to support a finding of intention to reprise under section 8 of the Code.

67I find, on all the material and information the applicant has put forward and the submission of the parties, that there is no reasonable prospect that the applicant can establish that the Law Society’s decisions and process were undertaken in retaliation for her previous human rights claims.

68In sum, given my conclusions regarding the absence of any evidence of discrimination in the chronology of events as noted above and the absence of any evidence of an intention to reprise, I find there is no reasonable prospect that the applicant will succeed in making out her allegations.

Request for Vexatious Litigant Declaration

69In responding to the applicant’s request that it be added as a respondent to this proceeding, the University submitted that the Tribunal should declare the applicant a vexatious litigant because of her repeated claims against it with respect to her official transcript. The University argues that, in order to prevent a further abuse of process, the applicant must be barred from bringing any future applications against it and its agents regarding the inclusion of her 1999-2000 grades in her official transcript. The University further submits that the applicant’s pursuit of this human rights claim is an attempt to avoid her obligation to pay outstanding costs in the civil courts.

70The applicant opposes the proposition that she is a vexatious litigant with respect to the University and the issue of her official transcript. The applicant denies that there has been a multitude of proceedings. The applicant submits that the merits of her allegations against the University have never been determined. The applicant asserts that any new proceedings she has undertaken were warranted because of new facts or circumstances. The applicant submits that it would be unfair to bar her from pursuing her human rights.

71Although the Law Society agrees that the applicant’s request constitutes an abuse of process, the Law Society took no position with respect to the issue of whether or not the applicant should be declared a vexatious litigant.

72I find that it is open to the Tribunal consider the issue of whether the applicant is a vexatious litigant with respect to the University and its official transcript in order to protect the integrity of its process. It is well established that the Tribunal has broad powers to control its proceedings to ensure fairness, efficiency and accessibility and to prevent abuse of process.

73Rule 1.1 of the Tribunal’s Rules provides that the Tribunal’s Rules will be “liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it”. Rule 1.7 (v.1) authorizes the Tribunal to “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”. See also section 23(1) of Statutory Powers Procedure Act, R.S.O. 1990, c S.22.

74These Rules have been interpreted to allow the Tribunal, on its own initiative, to declare an individual a vexatious litigant: Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331, and Abdul v. University of Toronto, 2011 HRTO 2299. The rationales for undertaking an assessment of whether an applicant is a vexatious litigant are to protect respondent parties from vexatious conduct, to ensure that the Tribunal’s resources are not wasted and that the integrity of the Tribunal’s process is safeguarded from abusive tactics.

75In Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667, the Tribunal determined that, although an extraordinary relief, the Tribunal has the power to declare an individual a vexatious litigant and prevent the filing of future applications without leave where there has been a history of past vexatious applications and/or abuse of the Tribunal’s process. Some of the factors considered by the Tribunal included the applicant’s conduct towards the Tribunal, as well as the other parties, and the repeated pattern of unsubstantiated allegations.

76The University indicated that this is the applicant’s third attempt to pursue the same allegations of Code discrimination against it. I note that this request to add the University is, in fact, the applicant’s fourth attempt to proceed against the University with respect to the same human rights allegations. In the Reconsideration Decision of Visic v. Elia, supra, this Tribunal declined to grant the applicant’s request to add the University as a respondent party to that proceedings without notice to the University: Visic v. Elia Associates Professional Corporation, 2011 HRTO 1933, at para. 13. While the University may not have incurred expense to respond because of the absence of notice, the applicant’s request necessitated use of public resources by engaging the Tribunal’s effort and time to consider and determine the request, as well as involving the respondents in that case to address the applicant’s arguments.

77As such, the applicant has now attempted to pursue human rights claims against the University on four occasions, those being the original 2005 Commission complaint; the 2008 Application; the Elia Reconsideration; and the current request. In addition, while pursuing these claims, the applicant also launched or participated in numerous proceedings before the civil courts regarding her claims against the University, including alleged infringements of her human rights.

78The applicant has repeatedly advanced the same human rights allegations and the same arguments against the University with respect to her official transcript. The applicant does not appear to accept the judgement of the Divisional Court that her concerns regarding the continuing effects of the University’s transcript are out of time under human rights legislation and appears to resile from the Superior Court’s conclusion that an official transcript should include all grades.

79In light of the fact the fact that the applicant has been repeatedly told through her litigation before the Commission, the Divisional Court and this Tribunal that her allegations against the University with respect the issue of the official transcript are untimely, I find that the University is now in need of protection from any future similar applications by the applicant. I find that the applicant’s conduct is particularly vexing given her familiarity with the law and legal process and presumably her understanding of the principles of delay and res judicata. I conclude that the applicant should be required to obtain leave of the Tribunal prior commencing an application against, or making any requests about, the University and its agents concerning her official transcript.

80In these circumstances, the Tribunal determines that it is appropriate to declare that the applicant is a vexatious litigant with respect to the University and its agents regarding the issue of her official transcript. As such, the applicant is required to seek leave of the Tribunal if she wishes to file any future applications with the Tribunal in relation to the University and its agents with respect to the inclusion of her 1999-2000 grades in her official transcript.

81If the applicant seeks leave to commence a future application involving the University regarding the matter of her official transcript or makes a request to add the University to another application in relation to the official transcript, written submissions must be included with her materials outlining why the application or the request is intended as a legitimate assertion of her Code rights, is not intended to vex the University or its representatives, and will not result in an abuse of process.

Conclusion

82I find that the applicant has not demonstrated that there is a reasonable prospect that any evidence she has, or that is reasonably available to her, can make out a connection between the respondent Law Society’s decisions and process and the Code ground of disability, nor could establish an intention to reprise.

83Accordingly, the Application is dismissed and the applicant is declared a vexatious litigant in relation to the University and its agents with respect to the matter of her official transcript.