HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peikang Dai
Applicant
-and-
Presbytery of East Toronto, Knox Presbyterian Church, The Presbyterian Church in Canada, Jim Williams, John Vissers, Wayne Hancock, Kevin Livingston, Janis Ryder, Edward Hayley, William Middleton, and William Ingram
Respondents
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Dai v. Presbytery of East Toronto
APPEARANCES
)
Peikang Dai, Applicant ) On his own behalf
)
)
Presbytery of East Toronto, Knox Presbyterian )
Church, The Presbyterian Church in Canada, )
Jim Williams, John Vissers, Wayne Hancock, ) David Elenbaas, Counsel
Kevin Livingston, Janis Ryder, Edward Hayley, )
William Middleton, and William Ingram, )
Respondents )
)
1This Decision relates to three Applications filed by the applicant under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). One of these Applications was filed by the applicant on behalf of his wife.
2The allegations contained in the three Applications before me can be summarized as follows:
a. The Application filed in Tribunal file 2010-04470-I alleges discrimination on the basis of race, colour, place of origin, ethnic origin, and association with a person identified by a Code-related ground. It alleges that this discrimination occurred in employment, goods, services and facilities, and membership in a vocational association.
b. The Application filed in Tribunal file 2010-04530-I alleges discrimination on the basis of race, colour, place of origin, ethnic origin, and association with a person identified by a Code-related ground. It also alleges reprisal or threat of reprisal. The Application alleges that this discrimination occurred in employment, housing, goods, services and facilities, and membership in a vocational association.
c. The Application filed in Tribunal file 2011-8404-I alleges discrimination on the basis of race, colour, place of origin, ethnic origin, family status, marital status, and association with a person identified by a Code-related ground. It also alleges reprisal or threat of reprisal. The Application alleges that this discrimination occurred in employment, housing, goods, services and facilities, and membership in a vocational association.
3In essence, the applicant alleges discrimination based on the following events:
a. The respondents’ decision in June 2009 not to re-certify the applicant’s wife;
b. The fact that the applicant was not permitted to attend the in camera meeting during which the decision not to re-certify the applicant’s wife was made;
c. The fact that the applicant was not permitted to speak and/or vote at a number of meetings, beginning in 2005;
d. The fact that the applicant was refused services, denied an opportunity to make a donation, and removed from the respondents’ property on September 2, 2009;
e. The denial of pastoral care in 2005 and systemic discrimination of the Chinese-Canadian congregation;
f. Reprisal measures, which include allegations of improper conduct against the applicant, an investigation, a trial and his deposition as minister; and
g. Failure to pursue allegations the applicant filed against some of the personal respondents.
4For the reasons that follow, the Applications are dismissed. I find that they have no reasonable prospect of success. In particular, while the applicant has asserted that he has been unfairly treated by the respondents, he has not provided a basis to suggest that the treatment alleged in any of the three Applications is based on a Code-related ground.
BACKGROUND
5The parties to these matters have been involved in considerable litigation. I note that in addition to the Applications at issue in this Decision, the Tribunal has already rendered a final and a number of interim decisions in regards to an earlier Application filed by the applicant under the transitional provisions of the Code (“Earlier Decisions”). See, in particular, Dai v. Presbyterian Church of Canada, 2010 HRTO 883; and Dai v. Presbyterian Church of Canada, 2010 HRTO 2415.
6At the hearing of the earlier Application (as the applicant acknowledges), he had an opportunity to testify and call witnesses. At the conclusion of the applicant’s evidence, the Tribunal dismissed the Application, in part, on the basis that the applicant had failed to establish a prima facie case. The Tribunal addressed the remaining allegations, which concerned comments allegedly made by the Pastoral Case Committee in Dai v. Presbyterian Church of Canada, 2010 HRTO 2415. After a further hearing date, during which it heard additional evience, the Tribunal concluded that many of the alleged comments had not been made. Further, the Tribunal held that, taken together, the remaining comments did not amount to a course of vexatious conduct within the meaning of the Code. The earlier Application was dismissed.
7At the summary hearing held on March 22, 2012, counsel for the respondent advised the Tribunal that the applicant had recently served some of the respondents with a further Application. The new Application does not appear to have been filed with the Tribunal as of the date of this Decision.
THE SUMMARY HEARING
8In a Case Assessment Direction (“CAD”) dated September 20, 2011, the Tribunal directed, on its own initiative, that a consolidated summary hearing be held in these three Applications to determine whether the Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Applications or part of the Applications will succeed.
9A summary hearing was held by telephone conference on March 20, 2012. At that time, I heard submissions from the applicant and from counsel for the respondents. The parties made submissions on the issue of whether there is no reasonable prospect that the Applications will succeed. I also heard submissions on a number of preliminary issues raised by the parties.
10I note that the respondents dispute some of the facts as alleged by the applicant. As I indicated orally to the parties, for the purposes of this summary hearing, however, I have determined whether the Applications have no reasonable prospect of success assuming (without finding) that the facts alleged by the applicant are true.
11Finally, the applicant complained that the respondents had not given him access to certain docments in advance of the summary hearing. In particular, he referred to minutes of a number of meetings. Summary hearings are typically conducted before either party is required to comply with their disclosure obligations under the Tribunal’s Rules of Procedure. I see no need to deviate from this practice in the circumstances. However, I invited the applicant to refer to any undisclosed documents during his submissions at the summary hearing and to explain how those documents could support his allegations or establish that they have a reasonable prospect of success. The applicant agreed to this process, however he did not refer to any such documents in his submissions.
ANALYSIS
Application Filed on Behalf of the Applicant’s Wife
12The applicant has sought to raise allegations of discrimination in regards to his wife. He argues that the respondents discriminated against her by, among other things, de-certifying her.
13Section 34(5) of the Code contemplates actions brought on behalf of another. It states:
A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,
(a) would have been entitled to bring an application under subsection (1); and
(b) consents to the application.
14As the respondents point out in their Response to this Application, the applicant has not filed a Form 4 along with the Applications, or any other document establishing that his wife has consented to him bringing an Application on her behalf.
15At the summary hearing, the applicant explained that his wife has not consented to him bringing or pursuing Applications on her behalf. He did not request a further opportunity to file documents establishing her consent.
16The Code specifically provides that, in order for an Application to be brought by an applicant on behalf of another, consent must be given in a form specified by the Tribunal Rules of Procedure. The Applications do not meet this requirement. For this reason, those portions of the Applications that contain allegations of discrimination concerning the applicant’s wife are dismissed.
Is There a Connection Between the Allegations and the Code?
18As the Tribunal explained in its earlier CAD, the issue before me in determining this summary hearing is whether or not the Applications have no reasonable prospect of success within the meaning of Rule 19A.1. In considering this issue, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. Therefore, in order to proceed following the summary hearing, the applicant must be able to show that he has a reasonable prospect of establishing a link between a respondents’ alleged actions and a Code ground.
19In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, 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.
20The applicant has provided extensive written and oral submissions and it is evident from these that the applicant feels mistreated by the respondents. During the summary hearing, I invited the applicant to explain why he believes the respondents’ alleged mistreatment of him amounts to discrimination based on a Code ground. He argued that this is because:
a. the respondent failed to properly follow the Book of rules (and other internal church procedures) in its dealings with him;
b. the applicant is the only minister within the church of Chinese origin;
c. although the organizational respondents serve a large Chinese population, the respondents deposed the applicant, its only minister of Chinese origin;
d. the allegations that lead to his deposition were laid and/or pursued shortly after the applicant initiated a human rights proceeding; and
e. white members of the church generally were given the “green light”, while the applicant faced only “red lights”. For example, the respondents pursued charges against the applicant laid by a white member of the church. However, they declined to pursue allegations the applicant made about that same member.
21The applicant acknowleged that some of the allegations are contained in the present Applications (including the denial of pastoral service and the allegations of systemic discrimination of the Chinese congregation) were also part of the Earlier Application. He argues, however, that the Tribunal did not appropriately deal with these allegations in the Earlier Decisions. While he acknowledges that he gave evidence and had an opportunity to call witnesses, he states that none of his proposed witnesses attended the hearing and that, as a result, the Tribunal rendered its Earlier Decisions based only on the evidence of white witnesses.
22It is not necessary for me to determine whether any of the allegations contained in the Applications before me have been appropriately dealt with in the Earlier Decisions within the meaning of section 45.1 of the Code. This is because I find that the applicant has no reasonable prospect of establishing that the respondents’ alleged behaviour is related to a Code ground. I find that his arguments (set out in paragraph 20), whether taken individually or as a whole, do not amount to anything more than speculation and accusations. As the Tribunal has explained in Forde, supra, this is not a sufficient basis for an application to proceed.
23First, in all of the circumstances of this case, I cannot accept that the respondents’ alleged failure to follow church policies and procedures is any basis for a finding of discrimination. As I explained to the parties during the hearing, the Tribunal’s role is not to ensure fairness or adhesion to particular internal policies. My task is to determine whether the respondents’ behaviour was in breach of the Code. I accept procedural differences could amount to discrimination where it is established that a Code-related ground was a factor in that differential treatment. However, in this case, the applicant has provided no basis beyond speculation to suggest that his Code-related characteristics were a factor in the application of the church’s policies and procedures.
24Second, the fact that the applicant is of Chinese origin or that he may have been the only minister of Chinese origin does not, without more, assist him in establishing that his race, place of origin, or other Code grounds were factors in the respondents’ behaviour towards him. Again, the applicant’s arguments in this regard are merely speculative.
25Third, even based only on the applicant’s version of events, it is clear that there is a longstanding conflict between him and the respondents. The applicant has pursued litigation and has filed over one thousand petitions with the organizational respondents. Further, in a number of instances, when he was asked to leave the organizational respondents’ premises, he refused and police became involved.
26As I have indicated, in the Earlier Decisions, the Tribunal concluded that the applicant had not established a prima facie case of discrimination in regards to a number of allegations, including some which he seeks to raise again in these Applications. The Tribunal reached these conclusions after hearing the applicant’s testimony and after giving him an opportunity to call witnesses in support of his allegations.
27In all of these circumstances, the applicant’s bald allegations that his Code-related characteristics were a factor in the respondents’ decisions or behaviour, or that they resulted in him facing a “red light” do not, in my view, lead to a conclusion that the Applications have a reasonable prospect of success. Once again, the applicant has presented nothing beyond accusations and speculation in suppot of his allegations.
28Finally, the applicant alleges that the respondents reprised against him by undertaking disciplinary proceedings shortly after he filed an application with the Tribunal. At the summary hearing, I asked the applicant whether, in order to establish reprisal, he intended to rely on anything other than the proximity in time between the two events. In answer to my questions, the applicant argued that the timing of the disciplinary proceeding and the fact that he was the only Chinese minister are the basis of his reprisal allegation.
29The relevant provision of the Code is section 8, which states:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
30The issue for me to determine is whether the applicant has a reasonable prospect of showing that the respondents reprised against him in the sense that they acted or made a threat with the intention of retaliating against the applicant because he had asserted rights under the Code. See Noble v. York University, 2010 HRTO 878, at paras. 33-34.
31In the circumstances, the mere fact that the disciplinary proceedings were initiated shortly after the applicant filed an application is not a sufficient basis to establish that his allegation of reprisal has a reasonable prospect of success. Nor is the bald allegation that his Code-related characteristics were factors in the decision to pursue discipline against him.
32As I have indicated, there has been considerable litigation between these parties. The applicant filed a complaint under the Code as early as January 2007: see the Earlier Decisions. The fact that the disciplinary proceeding coincides in time with one of many applications filed by the applicant is not sufficient to establish a reasonable prospect of success. Similarly, the applicant’s bald allegation that the disciplinary proceedings were related to him being the only minister of Chinese origin amounts to no more than speculation and accusations. It does not lead to a conclusion that the applicant has a reasonable prospect of establishing reprisal.
33For all of these reasons, the Applications are dismissed.
VEXATIOUS LITIGANT
34At the summary hearing, counsel for the respondent argued that the Tribunal should designate the applicant as a vexatious litigant and refuse to allow him to file any further applications without leave of the Tribunal.
35Although the respondents had not raised this issue in advance of the hearing, I agreed to hear submissions on the issue from their counsel at the summary hearing. I indicated that, if necessary, I would give the applicant an opportunity to respond to the respondents’ request.
36In the circumstances, it is not necessary for the applicant to provide further submissions on this issue. I appreciate that the respondents have been inconvenienced by the fact that the applicant has filed four Applications that have now been dismissed and deemed to be without merit. I understand also that the applicant may be pursuing at least one additional matter under the Code. However, at this stage, I am not satisfied that the applicant can be said to be a vexatious litigant.
37In the past, the Tribunal has exercised its 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 prevent the filing of future applications without leave. 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.
38While the applicant has filed four meritless Applications that raise overlapping issues, I am not satisfied that the circumstances warrant declaring him to be a vexatious litigant. In particular, the applicant has not filed applications in the numbers or with the frequency of some of the litigants referred to in the case law cited above. Further, there is no basis to conclude that the applicant’s conduct in the course of the proceedings has been inappropriate.
SUMMARY
39The Applications are dismissed.
40The respondents’ request that the applicant be declared a vexatious litigation is denied.
Dated at Toronto, this 29th day of March, 2012.
”signed by”________________
Michelle Flahery
Vice Chair