Vizcaya v. UJA Federation of Greater Toronto, 2013 HRTO 1142

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Vizcaya

Applicant

-and-

UJA Federation of Greater Toronto and Doron Horowitz

Respondents

DECISION

Adjudicator: Brian Cook

Date: June 28, 2013

Citation: 2013 HRTO 1142

Indexed as: Vizcaya v. UJA Federation of Greater Toronto

WRITTEN SUBMISSIONS

David Vizcaya, Applicant

Self-represented

UJA Federation of Greater Toronto and Doron Horowitz, Respondents

Paul Rochford, Counsel

INTRODUCTION

1This Decision deals with the respondents’ request that the Tribunal declare the applicant to be a vexatious litigant. The respondents’ request arises from their dealings with the applicant in respect of an Application that was filed by the applicant alleging that the respondents’ discriminated against the applicant by not permitting him to attend an event and not permitting him to attend future events.

2The Application was dismissed in Vizcaya v. UJA Federation of Greater Toronto, 2013 HRTO 666, on the grounds that the applicant’s conduct towards the respondents and the Tribunal was such that permitting the Application to proceed would result in an abuse of the Tribunal’s process. The Decision noted the following with respect to the applicant’s conduct:

The applicant’s inappropriate conduct was outlined in a Case Assessment Direction dated February 4, 2013. As noted in that Case Assessment Direction, the applicant has continually been abusive towards the respondents, their counsel, and people associated with the respondents. He has also been very abusive towards the Tribunal and its adjudicators. This conduct has persisted even though the applicant has been told and reminded on numerous occasions, in letters from the Registrar, Case Assessment Directions and Interim Decisions, that he must deal with the Tribunal and other parties to the Application in a respectful manner and that failure to do so could cause the Tribunal to dismiss the Application as an abuse of process.

The email the applicant sent to the personal respondent on January 24, 2013 is particularly disturbing. While it does not contain a direct threat, it contains thinly veiled threats of violence towards the personal respondent and his children.

It is noted that this email was sent after the respondents had filed a Request for Order During Proceedings asking that the Application be dismissed because the applicant’s conduct was abusive

3The applicant has earlier filed three other Applications that proceeded to a hearing. In two of these cases, the Tribunal directed that a summary hearing be held. In one of these cases the summary hearing proceeded and the Application was dismissed: Vizcaya v. Imaginenative Film and Media Arts Festival, 2011 HRTO 1130. In the second case, the applicant initially failed to attend the summary hearing but the matter eventually proceeded to a summary hearing following which it was dismissed: Vizcaya v. Mount Sinai Hospital, 2011 HRTO 216. The applicant subsequently filed a Request for Reconsideration that was denied in Vizcaya v. Mount Sinai Hospital, 2011 HRTO 734.

4In the third case, a hearing was scheduled which the applicant did not attend, after filing an adjournment request on the Friday afternoon before the Monday hearing. The Application was dismissed when the Tribunal determined that the applicant had not provided an adequate explanation for his failure to attend: Vizcaya v. University of Toronto, 2009 HRTO 2128, and Vizcaya v. University of Toronto, 2010 HRTO 7.

5The applicant filed a Request to Reconsider those Decisions, which was denied in Vizcaya v. University of Toronto, 2010 HRTO 916. The Tribunal determined:

In view of the history of the applicant’s conduct in this matter, to allow this matter to be reconsidered would lead to an abuse of process and be unfair to the respondents. It would not be appropriate to consider granting this discretionary remedy in these circumstances. Accordingly, the Request for Reconsideration is dismissed.

6I note that all three of the earlier Applications alleged that the various respondents had discriminated against the applicant when he was not permitted to attend an event or events sponsored by the various respondents. This is essentially the same allegation that was alleged in the present case.

7In the present case, Decision 2013 HRTO 666 dismissed the Application and noted the respondents’ request that the applicant be declared a vexatious litigant. The Decision stated:

The Tribunal’s Rules allow it to control its own process. The Tribunal has found that in exceptional circumstances, it has the power to declare a person to be a vexatious litigant. The consequences of such a declaration is to require an applicant to seek and obtain the consent of the Tribunal before filing future applications. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Abdul v. University of Toronto, 2011 HRTO 2299 and Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331.

In Hiamey, at paragraphs 27 and 28, the Tribunal reviewed the test to be applied when determining whether a person is a vexatious litigant:

The 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.):

(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 [person’s] conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

The Tribunal added at paragraph 29:

It 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.

THE APPLICANT'S SUBMISSIONS

8The applicant had previously confirmed that he wished to have matters relating to the Application dealt with on the basis of written submissions. The applicant was accordingly invited to make written submissions on the respondents’ request that he be declared a vexatious litigant.

9The applicant submits that he should not be declared a vexatious litigant. He essentially re-states his earlier submissions on the issue of whether the Application should be dismissed as an abuse of process. The applicant submits that any concerns about his behaviour are either justified by the alleged infringement of his rights and alleged attempts to harm him, or are justified because of his disability. The tone of his submissions, and in particular his final reply submissions, is consistent with his previous disrespectful tone.

CONCLUSIONS

10A declaration by this Tribunal that a person is a vexatious litigant does not mean that the person cannot make an Application if the person feels that his Code-protected rights have been infringed. It only means that the person must obtain the consent of the Tribunal before he can file the Application. This protects respondents from having to deal with vexatious Applications and ensures that Tribunal resources are not unnecessarily wasted dealing with vexatious Applications. If the person can explain why a new Application is not vexatious and will not result in an abuse of the Tribunal’s process, the Tribunal may allow the Application to be filed.

11In the case of this applicant I find that it is appropriate to conclude that the applicant is a vexatious litigant. He has now filed several Applications which have been dismissed as having no reasonable prospect of success or as an abuse of process. Each of them have consumed considerable Tribunal resources and have resulted in expense and lost time for respondents. The Applications have all arisen out of similar situations in which the applicant has presented at an event and not been permitted to attend. In the present case, the applicant has consistently communicated in inappropriate ways while acknowledging that he has been warned about the consequences of doing so. The same sort of behaviour was described in Vizcaya v. University of Toronto, 2010 HRTO 916, noted earlier.

12I conclude that in order to control its process it is appropriate for the applicant to be required to obtain leave of the Tribunal before he is permitted to file any future Application with the Tribunal.

DECISION

13The applicant is declared to be a vexatious litigant. As such, the applicant is required to seek leave of the Tribunal if he wishes to file future applications with the Tribunal. If the applicant seeks leave to commence any future application, he must include submissions with his proposed Application that outline why he is legitimately asserting his Code rights, why he is not vexing the respondent, and why filing the application will not result in an abuse of process.