HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Weihua Shi

Applicant

-and-

Holcim (Canada) Inc. and Anna Maccani

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 6, 2013

Citation: 2013 HRTO 1865

Indexed as: Shi v. Holcim (Canada) Inc.

appearances

Weihua Shi, Applicant ) Self-represented

Holcim (Canada) Inc. and ) Leola Pon, Counsel

Anna Maccani, Respondents ) )

INTRODUCTION

1The purpose of this Decision is to determine whether (1) the Application should be dismissed pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), because another proceeding has appropriately dealt with the substance of the Application, and/or because it is an abuse of the Tribunal’s process, and (2) the applicant should be declared a vexatious litigant with respect to the respondents, and be required to obtain permission from an adjudicator of the Tribunal to file further applications against the respondents. These issues were addressed at a preliminary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2On February 2, 2010, the applicant filed an Application (the “first Application”) under s. 34 of the Code, which alleged that the respondents discriminated against her because of her family status and marital status with respect to employment, and subjected her to reprisal.

3On February 28, 2012, the Tribunal issued a Decision, 2012 HRTO 416, which dismissed the first Application pursuant to s. 45.1 of the Code because it found that a proceeding before the Ontario Labour Relations Board (the “OLRB”) had appropriately dealt with the substance of the Application.

4The applicant then filed a Request for Reconsideration of the Decision. On May 9, 2012, the Tribunal issued a Reconsideration Decision, 2012 HRTO 934, which denied the Request.

5On May 15, 2012, the applicant filed another Application (the “second Application”) under s. 34 of the Code, which alleged that the respondents discriminated against her because of her family status and marital status with respect to employment, and subjected her to reprisal. The allegations in the second Application were essentially the same as those raised in the first Application.

6On May 24, 2012, the Tribunal issued a Case Assessment Direction (“CAD”), which directed that a preliminary hearing be held by teleconference to determine whether the Application should be dismissed because:

(1) Another proceeding has appropriately dealt with the substance of the Application; or

(2) It would be an abuse of process for the Application to proceed.

7On September 13, 2012, the hearing took place. All the parties made submissions.

8On February 22, 2013, the Tribunal issued a Decision, 2013 HRTO 306, which dismissed the second Application because it found that the applicant was attempting to re-litigate the same allegations as in the first Application, which was an abuse of process.

9On March 15, 2013, the applicant filed a second Request for Reconsideration of the Tribunal’s February 28, 2012 Decision, which dismissed her first Application.

10On May 29, 2013, the Tribunal’s Registrar issued a letter, which notified the parties that the Tribunal’s Associate Chair had determined that the Tribunal would not consider the applicant’s second Request for Reconsideration of the February 28, 2012 Decision.

11On June 5, 2013, the applicant filed a further Application (the “third Application”) under s. 34 of the Code, which alleged that the respondents discriminated against her because of her family status and marital status with respect to employment, and subjected her to reprisal. The allegations in the third Application are essentially the same as those raised in the first and second Applications.

12On June 11, 2013, the respondents filed a letter in response, which requested that the Tribunal dismiss the third Application as an abuse of process, and declare the applicant a vexatious litigant.

13On July 23, 2013, the Tribunal issued a CAD, which directed that a preliminary hearing be held by teleconference to determine whether:

(1) The Application should be dismissed because another proceeding has appropriately dealt with the substance of the Application;

(2) The Application should be dismissed because it would be an abuse of process for the Application to proceed; and

(3) The Tribunal should declare the applicant to be a vexatious litigant.

14On October 29, 2013, the hearing took place. All the parties made submissions.

ABUSE OF PROCESS

15The third Application is essentially the same as the second Application, and the submissions that the applicant made at the preliminary hearing on October 29, 2013 with respect to the third Application appear to be essentially the same as the submissions that she made at the preliminary hearing on September 13, 2012 with respect to the second Application.

16In these circumstances, I would simply dismiss the third Application for essentially the same reasons that the Tribunal dismissed the second Application in paras. 8-15 of its February 22, 2013 Decision:

For the reasons set out below, I have concluded that it would be an abuse of process to permit the 2012 Application to proceed.

The Tribunal’s jurisdiction to consider whether or not some or all of an application ought to be dismissed based on abuse of process arises out of subsection 23(1) of the Statutory Powers Procedure Act, R.S.O, 1990, c. S. 22, as amended. That subsection provides that a tribunal may make such orders or give such directions as it considers proper to prevent abuse of its processes. See also: Tribunal Rules – Rule 1.07(v.1) [since removed and replaced by Rule A8 of the Social Justice Tribunals Ontario (the “SJTO”) Common Rules found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure]; section 42 of the Code; Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120 at para. 11 (Div. Ct.).

The doctrine of “abuse of process” is meant, amongst other objectives, to preserve and promote judicial economy, consistency and finality. The Tribunal has held that the doctrine of “abuse of process” can apply in a variety of circumstances. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 35, the Tribunal stated, “[t]here is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end”.

In Matthews v. Chrysler Canada Inc., 2013 HRTO 225, the applicant had filed an Application which had been dismissed by the Tribunal. He then filed a second Application based on the same fact situation as the first one. The second Application was dismissed by the Tribunal on the basis of abuse of process. At para. 48, the Tribunal stated:

I find that allowing the litigation to proceed on that same matter would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. In these circumstances, to permit him to put those self-same allegations before the Tribunal for consideration in a second Application, in order to re-litigate them, would be to permit an abuse of process.

See also Smith v. Ford Motor Company, 2012 HRTO 18 at para. 22.

The 2010 Application sets out allegations during the applicant’s employment with the corporate respondent, concluding with her termination, and makes allegations about the personal respondent’s treatment towards her. In it, the applicant alleges discrimination on the grounds of family status, marital status and reprisal. The 2012 Application sets out virtually the same allegations, although some in different format, as well as what appear to be submissions describing the concerns the applicant has with the Tribunal’s reasons in the Decision and the Reconsideration Decision. The applicant essentially repeated these points in her submissions during the hearing. It is clear that the substance of the 2012 Application is the same as the 2010 Application.

It is also clear that the applicant disagrees with the conclusions in the Decision and the Reconsideration Decision. However, the applicant cannot challenge a previous decision of this Tribunal simply by filing another application. The appropriate route, if a request for reconsideration is not successful, is to file a further Request for Reconsideration or seek judicial review of the Decision. See Hunter v. Farlake Dairy, 2011 HRTO 1906 at para. 13. (…)

In these circumstances, to permit the applicant to put forward the same allegations before the Tribunal in a second Application, in order to re-litigate them, would be to permit an abuse of process. I am not prepared, because of the principles of abuse of process, to permit the 2012 Application to continue and it is dismissed.

In light of my conclusion, I do not need to address whether or not section 45.1 of the Code applies in this situation.

VEXATIOUS LITIGANT

17Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

18Rule A8 of the SJTO Common Rules also provides:

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

19As such, to prevent abuse of its processes, the Tribunal has the authority to find that a person is a vexatious litigant, and to require him or her to obtain permission from the Tribunal to file further applications. 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; Bingham v. Roach Schwartz Law Office, 2011 HRTO 15; Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331; and Dai v. Presbyterian Church in Canada, 2012 HRTO 1975, recently upheld in Dai v. Presbyterian Church in Canada, 2013 ONSC 6650.

20In Hiamey, above, the Tribunal set out at paras. 27-28 a number of factors that have been considered by the courts in determining whether a person is a vexatious litigant, and concluded:

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.

21In Drenic, above, the Tribunal also stated at para. 19:

(…) The Tribunal should not lightly subject a particular individual to an additional step in bringing a human rights application…. At the same time, the Tribunal has a duty to ensure that public resources, and those of respondents, are not abused by a series of vexatious applications….

22In her submissions, the applicant admitted that all three of her Applications are basically the same. However, she stated that the Tribunal should not find that she is a vexatious litigant because she is not vexatious. Rather, she stated, the Tribunal acted vexatiously by refusing to accept her first Application, and that it should rescind its February 28, 2012 Decision dismissing that Application. When I asked the applicant why she did not file an Application for Judicial Review with the Divisional Court, rather than re-filing her Application with this Tribunal two more times, she stated that it would not be appropriate to go to the Divisional Court because this Tribunal, not the Divisional Court, has a mandate to hear her human rights issues. The applicant admitted that she knows how to file an Application for Judicial Review with the Divisional Court because she recently filed one with respect to an OLRB decision that she disagreed with. When I asked the applicant if she plans to file a fourth Application with this Tribunal if her third Application is dismissed, she responded that she did not know. Factors similar to these were present in Dai v. Presbyterian Church in Canada, 2012 HRTO 1975, and the Tribunal’s declaration that Mr. Dai was a vexatious litigant and required to obtain permission from an adjudicator of the Tribunal to file further applications against the Presbyterian Church in Canada and others was upheld by Divisional Court (see Dai v. Presbyterian Church in Canada, 2013 ONSC 6650, esp. at para. 20).

23In their submissions, the respondents stated that they have incurred significant legal costs responding to the applicant’s second and third Applications. I have no doubt that this is true. When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. This may involve the expenditure of significant resources. See Ouwroulis v. New Locomotion, 2009 HRTO 335, at para. 5.

24The respondents also stated that, because this Tribunal has no authority to award costs, there is no disincentive to the applicant to continue filing the same Application over and over again. I have no doubt that this is also true. Unlike in the civil process, a respondent is unable to recover any costs resulting from this process because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. The lack of costs awards surely makes the Tribunal more accessible to vulnerable members of the public who believe that they have been discriminated against. However, to be fair to respondents and the broader public, whose tax dollars fund the Tribunal, the Tribunal also has to be vigilant to ensure that the lack of costs awards does not facilitate vexatious litigation.

25I am satisfied on an objective standard that the applicant has persistently and without reasonable grounds instituted vexatious proceedings. Given that the applicant has filed essentially the same Application with this Tribunal three times, views the filing of each subsequent Application as a form of internal appeal, refuses to file an Application for Judicial Review with the Divisional Court even though she knows how to do so, and did not undertake not to file the same Application with this Tribunal again, her conduct falls squarely within the factors and standard discussed by the Tribunal in Dai v. Presbyterian Church in Canada, 2012 HRTO 1975 (see also Dai v. Presbyterian Church in Canada, 2013 ONSC 6650).

26Accordingly, I find that it is appropriate to declare the applicant a vexatious litigant with respect to the respondents, and require her to obtain permission from the Tribunal to file further applications against the respondents. I appreciate that the applicant is a layperson who does not have legal training, but it is simply not acceptable for her to continue imposing costs on the respondents and using the Tribunal’s resources by filing the same Application over and over again.

ORDER

27The Tribunal makes the following orders:

1. This Application is dismissed because it is an abuse of the Tribunal’s process;

2. The applicant is declared to be a vexatious litigant with respect to the respondents, and is required to obtain permission from an adjudicator of the Tribunal to file further applications against the respondents; and

3. If the applicant requests permission to file a future application against the respondents, she must file a complete Application, and include written submissions that explain why the Application is a legitimate assertion of her Code rights, is not vexatious, and is not an abuse of process.