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
Indexed as: Vizcaya v. UJA Federation of Greater Toronto
WRITTEN SUBMISSIONS
David Vizcaya, Applicant
Self-represented
UJA of Greater Toronto and Doron Horowitz, Respondents
Paul Rochford, Counsel
Introduction
1This Decision concerns the respondent’s request that the Application be dismissed because the applicant has abused the Tribunal’s process.
2The Application was filed on August 31, 2010. The Application concerned a fundraising event held by the corporate respondent on August 24, 2010. The applicant appeared at the event but was not permitted to attend. The Application alleged that the decision to not allow him to attend the event was discriminatory. The Application indicated that the ground of alleged discrimination was disability. The Application indicated that the applicant has post-traumatic stress disorder. The Application also alleged that the decision to not allow him to attend was a reprisal following earlier occasions when he had been not permitted to attend events and had complained that those refusals were also discriminatory.
3The Response stated that the applicant was known to the respondents on the basis of past events when the applicant had caused a disturbance and security concerns. The Response indicated that the personal respondent was not present at the event on August 24, 2010 but he had previously had interactions with the applicant and had told the applicant subsequent to the August 24, 2010 incident that the applicant would not be permitted to attend future events held by the corporate respondent.
4The Tribunal scheduled a summary hearing by telephone conference call on June 13, 2012 to determine if the Application should be dismissed as having no reasonable prospect of success. At the applicant’s request, the summary hearing was subsequently converted to a written hearing.
5In Interim Decision 2012 HRTO 1356, dated July 9, 2012, I determined that, based on the written submissions of the parties, it was not appropriate to dismiss the Application at that time on the grounds that it had no reasonable prospect of success. The Interim Decision noted that the respondents had provided few details about what they said occurred on August 24, 2010 and on the earlier occasions that preceded that event. The Interim Decision also chronicled some of the procedural issues that had arisen to that point in the processing of the Application.
6At paragraphs 25 - 29 I said:
In this case, the applicant alleges that the respondents denied him access to an event on August 24, 2010 and from all future events because he has a disability. He appears to concede that there may have been a disturbance on August 24, 2010 and also at earlier events, but alleges that the reason he was not allowed access to the event was because he is disabled or because he was presumed to be disabled. The email to which the applicant points appears to show some evidentiary basis that takes this claim out of the realm of mere speculation. The applicant also says that he did not cause a disturbance that would justify his being denied access to events.
If the applicant’s allegations and the inferences he attempts to draw from the email are true, they could form the basis for a finding that the applicant’s Code-protected were infringed because he was denied access to an event and to future events because of disability or presumed disability. On the other hand, if the respondents’ allegations about the applicant’s behaviour are true, there may be a complete non-discriminatory reason for the respondent’s actions.
In my view, in light of the nature of the allegations and facts in this case, the question of whether there is no reasonable prospect that the Application can succeed cannot be determined without hearing some evidence about what actually occurred.
The Tribunal will schedule a half-day, in person hearing. At the hearing the Tribunal will hear evidence from the applicant about what he alleges occurred on August 24, 2010 and at earlier events. The Tribunal will also hear evidence from the respondents about what occurred on August 24, 2010 and at earlier events that caused the respondent to bar the applicant from events.
After hearing this evidence, the Tribunal will make further directions about how the Application will be dealt with. This may include a finding of whether, based on the evidence at the hearing, the Application has no reasonable prospect of success. It may also include directions about the various issues raised by the parties to date including requests for disclosure of documents and to add or remove respondents and any other such issues that may arise prior to the hearing.
7The Tribunal scheduled an in person hearing for October 19, 2012. The respondents asked that the hearing be rescheduled because the personal respondent was not available on the day. The request was granted and the hearing was re-scheduled for March 11, 2013.
8On October 29, 2012, the respondents filed a Request for Order During Proceedings asking that the Application be dismissed as an abuse of process because of the applicant’s conduct and demeanour when dealing with the respondents and the Tribunal. The respondents subsequently made further submissions in support of this request, including an email the applicant sent to the personal respondent on January 24, 2013. The Request also asked the Tribunal to declare the applicant to be a vexatious litigant.
9In a Case Assessment Direction dated February 4, 2013, I determined that it was appropriate to deal with the respondents’ Request in advance of the hearing. I directed that a conference call hearing be scheduled for that purpose. A conference call hearing for that purpose was scheduled for March 11, 2013.
10The applicant asked that the hearing be held in writing. That request was granted and the applicant was directed to provide his submissions by February 22, 2013. The applicant then asked for an extension of time. That request was granted in a Case Assessment Direction dated February 22, 2013. It directed the applicant to file his submissions by March 11, 2013. The hearing scheduled for that day was cancelled.
The applicant’s conduct
11The 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.
12The 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.
13It 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.
The applicant’s submissions
14The applicant submits that the Application should not be dismissed as an abuse of process.
15His first submission on this point was an email sent on March 11, 2013, the date by which he was to provide his submissions. It forwarded a newspaper story about bullying. The accompanying email from the applicant does not explain how this newspaper story is relevant to the issue of whether his Application should be dismissed. It does accuse an individual associated with the respondents of “data rape” a term which he has used in the past and which was noted in the Case Assessment Direction of February 4, 2013 as an example of the applicant’s inappropriate language.
16On March 21, 2013, the applicant sent another email. It concerned un-related medical issues. It also referred to previous submissions of the respondent’s earlier counsel as “forgery”.
17On March 25, 2013, the applicant sent a further email which does more coherently address the abuse of process issue.
18In this submission, the applicant does not deny that he has used “strong language”. He suggests that his past comments about the respondents has actually been “toned down”:
How do you get around the fact that the Respondents are lying criminals? You don't. You call a spade a spade. Does their legal counsel pretend to be a poor reader? I clearly stated that I referred to one or the other security "goons" as a "big dummy" and not as "a big sack of shit" which is what other people said. That would be just one example of me trying to tone it down.
19In previous submissions, the applicant has suggested that his “strong language” is justified because of the gravity of what he alleges the respondents did to him. The applicant’s beliefs about some of the events giving rise to the Application seem to have evolved somewhat. In the original Application, he mentioned that he had food poisoning after attending an event sponsored by the corporate respondent. He indicated that others did not get food poisoning because they wisely avoided eating some soup. In subsequent communications, it appears that the applicant now alleges that he was specifically poisoned by the respondents. He suggests that the fact that he was purposely poisoned justifies his strong language, and his allegations that the respondents are criminals.
20In his March 25, 2013 submission, the applicant suggests that some of the “harsh language” he has used when referring to the Tribunal and its adjudicators is justified because of errors that he alleges have been made in the processing of the Application and in Interim Decisions that have been issued:
[The respondents’] lawyer remembers that the letter with the bloodstain came from Vice Chair David Wright and not from Vice Chair Brian Cook as he alleges. Factual mistakes on the level of reading that the Adjudicators have made would make anyone mad. I recall using some harsh language because those errors get published as "facts." How fair is that?
21The applicant’s email also refers to two letters he has submitted from Dr. Edward Pomer, a general practitioner. The first of these is dated February 6, 2013. It was submitted in support of the applicant’s request that the hearing be conducted in writing. It refers to un-related conditions that Dr. Pomer indicated could make it difficult for the applicant to participate in an oral proceeding. It also indicates that the applicant has post-traumatic stress disorder“which affects his thought processes.”
22The second letter from Dr. Pomer is dated February 26, 2013. It indicates that the applicant has been assessed by several psychiatrists, most recently in 2009, and that “there was a definite diagnosis of Post-Traumatic Stress Disorder”. Dr. Pomer added: “There was a likely diagnosis of Aspberger’s [sic] syndrome. This would explain certain difficulties he has with communication during his case before [the Tribunal].”
23In his March 25, 2013 submission, the applicant refers to this medical information:
Contrary to their lawyer's assertion, the doctor's letter of February 26, 2013 offers the explanation of a diagnosis of Aspergers as the reason for the direct, strong language that arises from time to time. I believe language is an escape valve for my PTSD triggers as well, a diagnosis which is also noted. A simple translation might be that it's just sort of like blowing off steam -- no big deal. That is your "cogent or believable basis."
Quite clearly, someone with my medical condition is in need of a lawyer in order to have fair representation. Otherwise, you just have to tolerate the odd colorful phrase here and there. That's not too much to ask "given the importance of the matters dealt with by the Tribunal."
Decision
24For the reasons that follow, I conclude that the Application should be dismissed as an abuse of process. In light of this finding, it is not necessary for the Tribunal to determine if the applicant should be declared a vexatious litigant at this time.
Analysis
25I will deal first with the applicant’s general submissions on the abuse of process issue and then with the question of his medical condition and how this relates to the abuse of process issue.
26The Tribunal has recognized that applications before it are often accompanied by strong emotions. In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913, the Tribunal commented:
It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.
27This passage was quoted in Vizcaya v. University of Toronto, 2010 HRTO 916, another Tribunal Decision involving the applicant, in which a request by the applicant that a Decision be reconsidered was denied because of his inappropriate conduct in that case:
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.
28In that Decision, it was noted that the applicant had used inappropriate and offensive language when referring to the respondents in that case and to the Tribunal’s staff and adjudicators. He had previously undertaken not to do so. The Decision noted:
The applicant’s Request for Reconsideration makes statements about the respondents and their counsel that are insulting and threatening. It also insults and threatens the Tribunal and its adjudicators. The applicant’s language is vulgar and inconsistent with the principles of equality and respect on grounds protected in the Code. This language is not acceptable for submissions in the Tribunal’s quasi-judicial process and is inconsistent with the undertaking given. I will not reproduce these submissions in this public decision, as a result of their offensive nature.
29This Decision is dated April 27, 2010. This is significant because it predates August 31, 2010, when the present Application was filed. Thus, even before the present Application was filed, the applicant had full knowledge of the Tribunal’s expectations about the conduct of parties, and the potential consequences if those expectations are not met. In the present case, the applicant has been reminded of this on several occasions.
30In his submissions, the applicant attempts to characterize his abusive language as “strong” or “harsh”, “blowing off steam” or “the odd colourful remark”. In my view, the applicant’s language cannot be characterized in this way. It is rather characterized as offensive, insulting and vulgar, as his language was characterized in the Tribunal’s Decision in University of Toronto, quoted above. In addition, in the present case, the applicant has resorted to veiled threats of physical violence and death.
31In my view, and for the reasons cited in Cochrane, quoted earlier, the applicant’s abusive language cannot be justified by the seriousness of what he now believes occurred.
32The applicant suggests that his behaviour should be excused because he has a medical condition referred to by Dr. Pomer. These include post-traumatic stress disorder and a “likely” diagnosis of Asperger’s syndrome. In effect, the applicant appears to be asking that his disability be accommodated by toleration of his inappropriate conduct.
33In Shaikh v. York Condominium Corporation #60, 2012 HRTO 1588, the Tribunal commented (at paragraphs 15 and 17):
The Tribunal has a Policy on Accessibility and Accommodation; it attempts to accommodate needs of participants in an Application that arise from personal characteristics reflected in the Code’s grounds of discrimination, of which disability is one. However, the Tribunal must also balance the needs of any one party with its responsibility to provide a fair, just and expeditious hearing.
The Tribunal has both a procedural and a substantive duty to accommodate personal characteristics reflected in the Code’s grounds of discrimination in the provision of its services, and is willing to do so. However, it is the responsibility of the individual requesting accommodation to provide the Tribunal with sufficient information that the individual's needs may be assessed and balanced with the requirements of the Application process, and accommodation may be planned.
34In my view, to the extent that the applicant is asking that his behaviour be excused as an accommodation of his disability, the information provided by the applicant falls short of the information that would be sufficient to allow the Tribunal to assess an accommodation request.
35For all of these reasons, I am satisfied that to permit the Application to proceed would result in an abuse of the Tribunal’s process. The Application is dismissed on that basis.
Request for vexatious litigant
36As noted above the respondents’ October 2012 Request also provided detailed submissions asking that the applicant be declared a vexatious litigant. .
37The 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.
38In 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 respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
39The 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.
40If the applicant wishes to make submissions on whether he should be declared a vexatious litigant, he shall do so by May 3, 2013. The respondents may file brief reply if they wish to do so by May 10, 2013.
Dated at Toronto, this 22^nd^ day of April, 2013.
”signed by”
Brian Cook
Vice-chair