HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Banigan
Applicant
-and-
Sheridan College Institute of Technology and Advanced Learning
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Banigan v. Sheridan College Institute of Technology
WRITTEN SUBMISSIONS
Richard Banigan, Applicant
Self-represented
Sheridan College Institute of Technology and Advanced Learning, Respondent
Brenda Bowlby, Counsel
Introduction
1These are three Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age and association with a person identified by a Code ground.
2In Case Assessment Direction dated May 15, 2012 the Tribunal on its own initiative directed that Tribunal Files 2012-11309-I; 2012-11257-I be consolidated and that a telephone hearing be held to determine whether the Applications should be dismissed in whole or in part because:
a. another proceeding has appropriately dealt with the substance of the Application; or
b. it would be an abuse of process for the Applications to proceed.
3In a further Case Direction dated July 9, 2012, the Tribunal directed that a third Application filed by the applicant, Tribunal File 2012-11689-I also be added as it appeared that it raised similar issues as those identified in the previous two Applications.
4The respondent filed a Request for Order During Proceeding (Request) on September 5, 2012 seeking an Order that the applicant be declared a vexatious litigant. The Tribunal directed on September 10, 2012 that the respondent’s Request would also be considered at the hearing on September 21, 2012.
5At the time and place set for the hearing the respondent was in attendance but the applicant was not. In accordance with the usual practice of the Tribunal the hearing was adjourned for half an hour, until 10:00 a.m., to allow the applicant further time to attend.
6At 10:00 a.m. the applicant was not in attendance and the hearing proceeded in his absence. I dismissed these Applications as abandoned at the hearing and then heard the respondent’s submissions on their Request that the applicant be declared a vexatious litigant.
7Subsequent to the hearing concluding the applicant communicated with the Tribunal by email indicating that he was unable to connect to the telephone conference call. The applicant states that he attempted to connect to the call for almost three hours and was unable to communicate with the Tribunal during this entire time.
8In a Decision, 2012 HRTO 1816, I determined that because I had already dismissed these Applications because of the applicant’s non-attendance, the only appropriate way to deal with the applicant’s request to re-schedule was by way of a Request for Reconsideration (Form 20). Accordingly I directed that the applicant deliver and file a Request for Reconsideration and afforded the respondents an opportunity to respond.
9The applicant filed a Request for Reconsideration on September 25, 2012. The applicant reiterated his claim that he attempted to attend on the conference call but was unable to do so. The applicant also requested that the hearing be re-scheduled as an in person hearing because the telephone conference system obviously does not work for him. Alternatively the applicant suggested that he could provide his written submissions on the points in issue in this case.
10The respondents did not consent to the reconsideration. The respondent did submit that if in the Tribunal’s view fairness requires that the applicant be provided with an opportunity to make submissions in this case that it would consent to the applicant’s proposal that he made the submissions in writing.
11The reconsideration request was granted by Decision dated December 7, 2012 (2012 HRTO 2306) and concluded that in all of the circumstances it is appropriate that my dismissal of these Applications on the basis that the applicant failed to attend the hearing be set aside. I also found given the applicant stated preference not to be required to participate in a telephone hearing and his proposal that the Tribunal entertain his written submissions that it would be appropriate to do so in this case. I made the following further directions:
a. The applicant will deliver and file his submissions on whether or not another proceeding in particular Tribunal File # 2010-06813-I, has appropriately dealt with the substance of these Applications or whether it would be an abuse of process to allow these Applications to proceed further in all of the circumstances. The applicant should address in his submissions Tribunal File 2012-11689-I and point to the evidence he can provide to the Tribunal of discrimination in respect of the latest 14 competitions he has allegedly entered without success, within 21 days of the date of this Reconsideration Decision;
b. The respondent will deliver and file their responding submissions on the points above together with their submissions in support of the Request for Order declaring the applicant a vexatious litigant within 14 days of receiving the applicant’s submissions above;
c. The applicant will deliver and file his responding submissions to the respondent’s submissions on its Request for Order that he be declared a vexatious litigant within 14 days of receiving the respondent’s submissions.
d. The respondent may deliver and file their submissions in response to the applicant’s submissions on the vexatious litigant issue, if any, within 7 days of receiving the applicant materials. The Tribunal may make its decision based on the written submissions of the parties.
The Applicant’s Complaints
12The genesis of these Applications was a series of events culminating in the applicant’s dismissal from employment with the respondent in 1984. Since that time he has applied for a great number of positions with this and other employers in the College system without success. The narrative of the applicant’s complaints was described as follows in 2011 HRTO 2164:
In his oral submissions, the applicant explained that his claim of discrimination against the respondent college arose out of events that began in 1984. He described, at some length, how his employment with the college ended, his attempts to get the college to reverse a termination decision he clearly disagreed with, and his subsequent filing of a complaint with the Ontario Human Rights Commission on the ground of association with a person or persons identified by a Code ground, specifically citing the fact that his wife and several members of his family are black.
13By way of further background the applicant filed several complaints at the Ontario Human Rights Commission, none of which were referred to a Board of Inquiry. One of these complaints was filed with the Tribunal pursuant to section 53(5) of the Code. This Application concerned a great number of unsuccessful applications for positions with the respondent and other employers in the Community Colleges sector. A number of these allegations were dismissed pursuant to section 53(8) of the Code or because they were out of time. Others of the allegation were dismissed as a collateral attack on an arbitration decision from the mid 1980’s. See 2010 HRTO 631. The remaining allegations with respect to a number of job applications in 2006 were scheduled for hearing. Prior to the scheduled hearing the applicant withdrew that Application.
Analysis and Decision
14Section 23(1) of the Statutory Powers Procedure Act. R.S.O. 1990 c/ S. 22 as amended provides as follows:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
15Rule 1.7 (v.1) of the Tribunal’s Rules of Procedure 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 are courteous and respectful of the Tribunal and other participants.
16One of the circumstances where the Tribunal has concluded that an Application should be dismissed as an abuse of process is where it appears that the applicant is seeking to re-litigate a dispute that has been previously raised and dealt with.
17The applicant made lengthy submissions on the issues raised by the Tribunal. He did not address the abuse of process or s. 45. 1 issues in any meaningful way, nor did he respond to the respondent’s request that he be declared a vexatious litigant. The preponderance of the Applicant’s submissions relate to what these cases appear to be ultimately about, the applicant’s attempt to relitigate an arbitration hearing held in 1986.
18In the first of the Applications we are concerned with here, Tribunal File # 2010-06813-I, (the “prior Application”) the applicant alleged that he was not interviewed for three positions: Dean of the School of Community and Liberal Studies; Dean of the School of Arts, Animation and Design; and Professor of English and Communications. He alleged that he was not granted an interview for these positions because of age, association with a person identified by a Code protected ground, and reprisal. The Application also appeared, as was the case in the earlier 53(5) Application above, to raise again many of the applicant’s concerns going back to 1984. These latter issues were dismissed pursuant to section 53(8) of the Code which bars Applications in respect to matters that had been dealt with by the Ontario Human Rights Commission. The remaining allegations in respect of the three job competitions referred to above were dismissed because the Tribunal concluded that the applicant could point to no evidence linking the fact that the applicant was not interviewed to the Code grounds that he claimed.
19The first of these three Applications, filed on April 4, 2012, on its face raises the identical allegations which were raised in the prior Application. Essentially the applicant alleges that the fact that he was not interviewed for these three positions is merely the latest incidents in an ongoing pattern of discrimination and reprisal beginning in 1984. Consequently the narrative of the Application reiterates and repeats the allegations that were made in the prior Application as well as the s. 53(5) Applications. The applicant does allege that there is new evidence which in his view “establishes” the prior Application however. Tribunal File # 2012-11309-I which was filed 9 days after the first, appears to be identical.
20The applicant does not dispute that these two new Applications are identical to the prior Application. As indicated these allegations have been finally disposed of by the Tribunal’s Decision 2011 HRTO 2164 and reconsideration denied in 2012 HRTO 174.
21The applicant’s assertion that he discovered new facts after March 22, 2012 relating to the competitions at issue in Tribunal File 2012-06813-I are as follows:
a. For the position of Dean, School of Community and Liberal Studies, the applicant states that this position was apparently filled but there is no listing for such a position on the College’s website.
b. for the position of Dean of the School of Arts, Animation and Design, the applicant asserts that the person hired was a part-time teacher with no experience in animation, which he says contradicts the College’s previous position that the College was looking for someone with relevant experience to support its high profile animation program. The applicant also asserts that while he lacked a qualification for the position, the incumbent must have as well; and
c. for the position of Professor, English and Communication, the applicant states that an M.A. in English is not required for such a position at a college as opposed to a university. He also asserts that he has the equivalent of an M.A. in English.
22I find that the first two of the new Applications must be dismissed as an abuse of process. They should also be dismissed pursuant to s. 45.1 of the Code because they have been appropriately dealt with.
23With regard to the position of Dean, School of Community and Liberal Studies, the respondent took the position that the applicant submitted his application after the first round of interviews already had been completed and a second round was being conducted with individuals emerging from the first round. It is not clear to me how the alleged new facts asserted by the applicant in relation to this competition are inconsistent with this submission.
24With regard to the position of Dean of the School of Arts, Animation and Design, the respondent’s position was that the applicant and five others were screened out because they did not meet the minimum required qualification of having recent administrative experience in a post-secondary institution that focused on the arts. Once again, it is not clear to me how the alleged new facts asserted by the applicant in relation to this competition are inconsistent with this submission.
25With regard to the position of Professor, English and Communication, the minimum requirement for an M.A. in English was set out by the College, and it is not clear to me that it is relevant whether such a requirement is imposed by other colleges or how that would support the applicant’s claim of discrimination or reprisal.
26In any event, it seems to me that these are issues that ought to have been raised (and to some extent appear to have been) by the applicant at the Summary Hearing or in seeking reconsideration of the Tribunal’s Decision in the prior Application, rather than through filing new applications. I understand that the applicant asserts that he did not discover these alleged new facts until after the Tribunal’s reconsideration decision was rendered on January 24, 2012, but that does not explain why the applicant could not have discovered this allegedly new information in a timely manner as much of what he is asserting comes either from the College’s website or appears to have otherwise been available to him. In short, this is not new evidence in the sense that it was not discoverable by the applicant.
27I would also observe that much of it is not new and in large part is mere assertion and supposition. For example while the applicant acknowledges that he lacks recent administrative experience, a qualification for one of these positions, he asserts that the incumbent also must lack such experience. He offers no facts to support this assertion. I also note that the applicant uses language such as “I believe” or “it is likely that” throughout the applicant’s submissions on these points.
28In my view these two Applications must be dismissed as an abuse of process.
29The third of these three Applications was filed on June 4, 2012. It is largely identical to his other Applications. It does include an allegation that he applied for 14 positions in the year prior to the Application being filed for which the applicant was not offered an interview. The applicant alleges that many of these applications were submitted to the respondent while his prior Application was before the Tribunal and it must be inferred that he was screened out of these competitions in reprisal for the prior Application. The applicant makes other complaints about the Tribunal process as well as the process before the Ontario Human Rights Commission with which he has been engaged with “this case” for 27 years.
30With regard to Application 2012-11689-I, once again this application sets out a repetition of the allegations raised in the previous two applications as well as in Application 2010-06813-I with the addition in paragraph 1 of Section 8 of the Application form, which sets out a list of 14 positions that the applicant states that he applied for at Sheridan College in the preceding year. In the context of this hearing the applicant also filed what appear to be his applications for these positions. With regard to these allegations the question before me is whether or not the applicant has pled any facts which would tend to support his claim that he was screened out of these competitions in whole or in part because of the grounds of discrimination he has claimed.
31I find that there is no reasonable prospect that this Application can succeed because there is no evidence to which the applicant can point to substantiate his claims. Indeed he admits as much in his submissions where his position is primarily that the respondent has not proved that the most qualified individuals were interviewed and appointed to the position. The onus rests on the applicant to point to the evidence reasonably available to them which would tend to support the inference that a violation of the Code has occurred. The Tribunal is always mindful of the fact that it is often the case that this evidence is in the hands of the respondent however more is normally required of an applicant than the assertion that they are a member of a protected group and did not get a job. There must be some basis to conclude that there is evidnce tending to establish o a link between the decision making complained of and the discriminatory grounds claimed.
32The applicant in this case claims to have applied for a great number of positions over the last 27 years. He has rarely if ever been given an interview. He claims to be associated with a member of a protected group. There is no evidence to which the applicant can point which would tend to support this assertion. Similarly the applicant contends that his failure to secure an interview for a position over the last 27 years has been in reprisal for his many earlier and ongoing human rights complaints. Again there is no evidence to support this assertion. I also note that to prove a reprisal allegation the applicant must show that the respondent intended the action as a reprisal for a human rights complaint. See Noble v. York University 2010 HRTO 878. There is no evidence that this is the case. Finally the applicant alleges that he is being discriminated against on the basis of age. Again he asserts that the respondent must know his age because amongst other things he worked for the respondent 27 years age, and he is not successful in securing an interview. These facts are insufficient without more to establish a violation of the Code.
33In considering these submissions I am mindful of the fact that the applicant has raised essentially the same allegations for decades. He has been unsuccessful in advancing the claims he has advanced in what he understands to be an ongoing case beginning with what he believes was his wrongful dismissal in 1984. The fact that he continues to make the same claim over and over without success and has announced that he will continue to do so until justice is done, is in my view, in these circumstances, an abuse of the Tribunal’s process and must be stopped. Accordingly these Applications must all be dismissed.
Is the Applicant a vexatious Litigant?
34In their Request the respondent sought a declaration that the applicant be declared a vexatious litigant and that he be prevented from filing further Applications against it without leave of the Tribunal.
35The respondent submits that the declaration it seeks is justified in the circumstances of this case. It relies on the fact that since 2009, the Applicant has brought four Applications against Sheridan College, all making virtually identical allegations as follows:
a. TR-0467-09 which was withdrawn on July 12, 2010, just prior to a hearing which had been scheduled on July 22, 2010 pursuant to an Interim Decision dated March 23, 2010, which limited the issues to be dealt with and dismissed a number of allegations in the Application. The applicant sought reconsideration of this Interim Decision, which was dismissed.
b. 2010-06183-I raising many of the same allegations as in TR-0467. This Application was ordered to a Summary Hearing in a Case Assessment Direction dated May 24, 2011 to determine if the Application should be dismissed because it had no reasonable prospect of success. The Application was dismissed because it had no reasonable prospect of success in 2011 HRTO 2164. The applicant sought reconsideration of this Decision, which was denied in 2012 HRTO 174.
c. The Applicant has filed these 3 additional, almost identical Applications (2012-11257-I; 2012-11309-I and 2012-11689-I, all raising issues dealt with in 2010-06183-I and TR-0467-09.
36The respondent also relies upon conduct of the applicant in its treatment of the respondent and the Tribunal which the respondent characterized as dismissive and demeaning. The respondent points to the Case Assessment Direction issued by the Associate Chair on August 19, 2012 admonished the applicant for comments made about the respondent and respondent’s counsel.
37The applicant made a number of submissions in response. The applicant argues that he is the victim and that the respondent’s request is vexatious. The applicant argues that his repeated complaints and Applications can not do any damage to the respondent and he asserts that the respondent is merely trying to cover up its mis-deeds. The applicant makes a submission about a letter he received in 1998 from the respondent in which the respondent demanded the applicant cease and desist in making frivolous and vexatious complaints against it, much as they are doing with this Request.
38I have carefully considered the parties’ submissions on this point and after reviewing the materials filed by the applicant in these and the other Applications referred to above and the various Decisions in these other cases, I am satisfied that it would be appropriate to grant the Request of the respondent.
39Rule 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”. As previously noted section 23(1) of the SPPA and Rule 1.7 (v.1) authorizes the Tribunal to “make such orders or give such directions as are necessary to prevent abuse of its process and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants”.
40The Tribunal has on several occasions held that it has the authority, in order to prevent an abuse of process, to declare a party before it vexatious. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; and Khaiter v. York University, 2010 HRTO 1901.
41The respondent also referred me to the Tribunal’s Decision in Visic v. Law Society of Upper Canada, 2012 HRTO 1642. In considering the issues raised in these Applications, I found the following comments helpful at paragraphs 77 to 80:
As 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.
The 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.
In 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.
In 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.
42As previously indicated the SPPA and 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 and to prevent an applicant from filing an Application without first obtaining consent of the Tribunal. See amongst other Decisions, Drenic v. Governing Council of the Salvation Army, above, and Abdul v. University of Toronto, 2011 HRTO 2299.
43In Hiamey v. Conseil scolaire de district catholique Centre-Sud, 2012 HRTO 1331, at paragraphs 27 and 28, the Tribunal reviewed some of the factors 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.
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.
44In my view several of the factors discussed in the cases above are present in this case. I have reviewed the Applications filed by the applicant as set out above. The allegations in them are essentially the same and date back to the applicant’s employment and subsequent termination by the respondent in 1984. As can be seen from the Tribunal’s Decisions issued in TR-0467-09 (2009 HRTO 1239; 2010 HRTO 631 and 2010 HRTO 1150) the applicant filed several complaints with the Ontario Human Rights Commission which raised similar issues. None of these prior complaints were referred to a Board of Inquiry under the prior Code and all but the final complaint were closed by the Commission. It is plain on the face of these materials that the applicant is making the same claim in all of these various complaints going back almost 30 years. This historical narrative is largely repeated in each of his subsequent Applications in including the three we are concerned with here.
45The applicant’s essential claim in these cases is that he has been discriminated against on the basis of variously his age, association with a person identified by a Code protected ground; and reprisal for his having filed prior human rights complaints. The applicant has repeatedly claimed that he has been screened out of dozens of job competitions since the late 1980’s for the reasons cited above and with each new Application simply adds several more unsuccessful job applications to the ever growing list of unsuccessful applications.
46Of particular concern is the applicant stated intention to continue to apply for employment and every time an application for employment did not result in an interview being granted he would file a new Application to the Tribunal until “justice was done”. See 2011 HRTO 2164. This is precisely what the applicant has done since in the filing of these three new Applications which make the same allegations in respect of more recently posted positions.
47However in filing these new Applications the applicant remains unable to provide any facts which would establish a link between the fact that he is not granted interviews and any of the Code grounds cited, or any evidence of an intention on the part of the respondent to reprise against him.
48In my view the serial filing of essentially the same Application which was dismissed as having no reasonable prospect of success in 2011 HRTO 2164 constitutes an abuse of process and is a hallmark of the vexatious litigant. My conclusions are reinforced by the applicant’s apparent intention to continue to file Applications notwithstanding the Tribunal’ Decision in 2011 HRTO 2164.
49In my view the applicant’s repeated filing of essentially the same application is an indication that he does not accept the Tribunal’s decision making or its processes as well as indication of his contempt for the respondent and its interests in the fair and expeditious resolution of these disputes.
50I have also considered the fact that in each of these complaints and Applications it appears that a significant issue in the case amounts to an attempt to relitigate issues that were resolved in arbitration proceedings in the mid 1980’s despite the Tribunal’s Decisions that these matters can not be re-litigated.
51The applicant’s approach to what he sees to be an ongoing case from 1984 has engaged significant public and private resources in responding to each of his complaints and Application, none of which have been successful. In my view fairness requires that the Tribunal take the extra-ordinary step to end the abuse or the Tribunal’s process and protect the respondent from further harassment by the applicant by declaring the applicant a vexatious litigant before the Tribunal.
52For all of these reasons, I find that these Applications are an abuse of the Tribunal’s process and that the applicant should be declared a vexatious litigant.
Order
53The Tribunal makes the following Order:
a. These Applications are dismissed as an abuse of process for the reasons set out above.
b. The applicant is declared a vexatious litigant and may not file any further Applications against the respondent Sheridan and any of its agents or employees alleging discrimination in employment or reprisal without leave of the Tribunal. In order for leave to be considered, the applicant must allege facts in any such Application which would tend to support his claims of discrimination in employment and reprisal.
Dated at Toronto, this 29th day of April, 2013.
”signed by”
David Muir
Vice-chair