de Koning v. St. Louis Bar and Grill Cityplace, 2014 HRTO 1139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephanie de Koning

Applicant

-and-

St. Louis Bar and Grill Cityplace, Julia Anderson, and James Soutar

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: July 30, 2014

Citation: 2014 HRTO 1139

Indexed as: de Koning v. St. Louis Bar and Grill Cityplace

WRITTEN SUBMISSIONS

Stephanie de Koning, Applicant

Self-represented

St. Louis Bar and Grill Cityplace and Julia Anderson, Respondents

Carla V. Nassar, Counsel

James Soutar, Respondent

Self-represented

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, sexual orientation and sexual solicitation. The applicant alleges amongst other things that she was sexually harassed and assaulted in the workplace. She further alleges that after she reported the assault to the police she was treated badly at work and her hours were cut by management. The applicant alleges that she was fired as a result of reporting the assault.

2The Respondents St. Louis Bar and Grill Cityplace and Julia Anderson (“St. Louis”) filed a Response in which they deny that they have violated the Code. These respondents also assert that they are not responsible for the alleged conduct of the respondent James Soutar.

3These respondents also have filed a Request for Order During Proceeding (“Request”) seeking the following:

a. The early dismissal of the Application because it is an abuse of process;

b. An Order striking the Applicant’s Reply in whole or in part;

c. An Order Dismissing the Application as untimely;

d. The removal of the personal respondent, Julia Anderson;

e. The removal of the organizational respondent.

f. The early dismissal of the Application in whole or in part because it has no reasonable prospect of success

Requests to Dismiss

4The Request to Dismiss because the application has no reasonable prospect of success is denied at this stage. The Tribunal’s Rules of Procedure Rule 19A.5 provides that where such a request is denied the Tribunal need not give reasons, and I decline to do so in this case.

5The Request to dismiss the Application in whole or in part because it is untimely is deferred pending mediation between these parties.

6The Request to dismiss because the Application is an abuse of process is denied at this time as premature. Further comment and direction with respect to this issue is set out below.

7The Request to remove the organizational respondent and/or Julia Anderson is deferred pending mediation between these parties.

8The Request to strike all or part of the Reply is deferred pending mediation between these parties.

9The Application as it relates to the St Louis respondents will proceed to mediation.

Requests of the respondent James Soutar

10The respondent Soutar also filed a Response (Form 2) in which he denies the allegations. This respondent also filed a Request on July 23, 2014. In it, the respondent Soutar seeks the following:

a. An Order dismissing the Application on the basis that the applicant’s conduct is an abuse of process;

b. An Order striking the applicant’s Rely in whole or in part;

c. An Order dismissing the Applications as untimely;

d. An Order dismissing the Application in whole or in part because it has no reasonable prospect of success.

11As of this writing the applicant has not responded to this Request. Final determination of the various elements of this Request is deferred pending the receipt of the applicant’s submissions.

12However, the respondent Soutar’s request that the Application be dismissed because it has no reasonable prospect of success is denied. As indicated above the Tribunal’s Rule 19A.5 provides that where such a request is denied the Tribunal need not give reasons and I decline to do so in this case

13The respondent Soutar has not agreed to mediation. If the respondent is agreeable to mediation he must so advise within seven days of the date of this Case Assessment Direction.

Other Matters

14As indicated all respondents seek the dismissal of the Application on the basis that the applicant’s conduct is an abuse of process. I have dismissed the Request as it relates to the St. Louis respondents as premature. I have made that determination based primarily on the nature of the conduct of which these respondents complain, which while problematic and inappropriate, is not sufficiently egregious to justify the dismissal of the Application at this stage. I have also taken into account that the applicant is unrepresented and may be engaging in a legal process for the first time.

15The applicant is reminded of the Tribunal’s Rule 1.12.1:

All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants

16The Tribunal has commented on the responsibilities of parties appearing before it. In Ouwroulis v. New Locomotion, 2009 HRTO 335 at paras. 4-7, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

17In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

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.

11The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. The Tribunal has applied this power to dismiss Applications where parties have engaged in vexatious conduct in the Tribunal’s process. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085, Okunbor v. Hopewell Logistics, 2009 HRTO 2124, and Vizcaya v. University of Toronto, 2010 HRTO 916.

18The applicant and individuals associated with her are directed to comply with the Tribunal’s Rules and expectations while engaged with the Tribunal’s process. The applicant’s repeated comments about the other parties and their representative are inappropriate and non-compliant with the Tribunal’s Rules. So for example referring to the Response as a “pathetic lawyers attempt to help him” or in another passage an apparent reference, even on the applicant’s version of it, to the Response as “legal scum”. Similarly a public campaign against the respondent which implicates this proceeding even tangentially may be inappropriate.

19In responding to this aspect of the St. Louis respondents’ Request the applicant often compounds the potential abuse by repeating it. The repeated personal attacks on counsel are notably inappropriate, as in for example apparently referring to counsel as an “uncompromising fool lawyer” or the reference to the respondent’s submissions as a “pathetic lawyers attempt” to avoid responsibility for what is alleged to have occurred. As indicated the Tribunal will, in the appropriate case, dismiss an Application to prevent the abuse of the Tribunal’s process. Comments such as those noted above and which are replete in the Reply and various responses to the respondents’ Request are not appropriate and cannot continue.

20I appreciate that the applicant is unrepresented and/or represented by a family member and may be unfamiliar with the process. The allegations of the applicant are serious ones and will be dealt with by the Tribunal in a fair, just and expeditious manner. The applicant also claims to have suffered considerable psychological harm because of the events she has described in her Application.

21The applicant is entitled to vigorously advance her position. However, the purpose of Reply is to respond to the assertion of facts made by the other side. In doing so the applicant is entitled to forcefully advance her version of the facts and strongly challenge the facts advanced by the respondent. But inappropriate, intemperate language and name calling in an attempt to make a point is not helpful and only distracts from the real issues in the case, which as the applicant repeatedly states are relatively straightforward.

22The respondent also complains that the applicant or an associate has made a complaint to the Law Society of Upper Canada. The applicant is entitled to do so if she believes there is some basis to her complaint. I would only observe that based on my review of the materials before me there appears to be no basis to complain about the conduct of counsel.

23In this regard the applicant continually refers to the Charter protection for “thought belief, opinion and expression” and accordingly she believes that she is entitled to express her opinion of the respondents, their counsel and their position in this litigation in any way she chooses. Whatever the extent of such constitutional protections, they do not protect all speech and it is not at all clear that they provide licence for the kind of language used to characterize the respondents and their positions in this case. The applicant is entitled to her view of the respondents of course, but the Tribunal requires, and the orderly adjudication of cases such as these demands, that the parties be civil with each other.

24It is important to note that my comments relate the St Louis respondents’ Request only and do not include any consideration of the issues raised by the respondent Soutar’s Request. The Request of the respondent Soutar is different. If the applicant has not already done so, she is directed to respond to that Request, particularly as it relates to the alleged abuse of process.

Orders and Directions

25The Tribunal makes the following Orders and Directions:

a. The Requests of the respondents that the Application be dismissed because the Application has no reasonable prospect of success are denied;

b. The Request of the St. Louis respondents that the Application be dismissed because the applicant’s conduct of it has become an abuse of process is denied at this stage;

c. All other Requests of the St. Louis respondents are deferred pending mediation;

d. The applicant is directed to deliver and file her Response to the Request of the respondent Soutar in accordance with the Tribunal’s Rules; and

e. The Registrar will schedule a half-day mediation in this case for those parties agreeable to mediation. The respondent Soutar is directed to advise whether he agrees to mediation within seven days of this Direction.

26I am not seized.