HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sathasivam Thambipillai Applicant
-and-
Toronto District School Board Respondent
DECISION
Adjudicator: Geneviève Debané Date: August 21, 2014 Citation: 2014 HRTO 1240 Indexed as: Thambipillai v. Toronto District School Board
WRITTEN SUBMISSIONS
Sathasivam Thambipillai, Applicant Self-represented
Toronto District School Board, Respondent Wendy Lopez, Counsel
1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The respondent has filed a Response denying the allegations in the Application and requested that the Tribunal deal with this Application on a preliminary basis. The applicant has waived his right to an oral hearing and requested that the Tribunal address these preliminary requests in writing.
3On February 25, 2014 the Tribunal issued a Case Assessment Direction which directed the parties to file submissions on the following issues:
a. Whether the substance of the Application has been appropriately dealt with in another proceeding initiated at the Tribunal;
b. Whether the Application was filed in a timely manner;
c. Whether the Application ought to be dismissed because it has no reasonable prospect of success; and
d. Whether the Tribunal should allow the respondent's Request to declare the applicant a vexatious litigant.
4Both parties filed written submissions based on the time-line provided to the parties. In addition, the applicant filed additional submissions received on June 2, 2014 and the Tribunal provided the respondent with the opportunity to respond to these submissions. The Tribunal will decide the preliminary issues based on the written materials that have been filed by the parties.
Background and scope of the current Application
5The applicant filed Applications 2010-05592-I (the "first Application") on May 4, 2010 and Application 2011-09975-I (the "second Application") on September 30, 2011. The Applications relate to allegations that the applicant was not successful in various job competitions.
6On March 10, 2011 the Tribunal issued Interim Decision 2011 HRTO 487 which determined that the allegations in the first Application with respect to job competitions which occurred on December 2005 and October 2007 were untimely. The Tribunal found that the allegations with respect to events in May 2009 were timely.
7The Tribunal eventually directed that a Summary Hearing would be held on January 21, 2012 to determine if the May 2009 allegation and second Application (which related to job competitions in May and June 2011) should be dismissed because they had no reasonable prospect of success.
8On April 25, 2012 the Tribunal issued Decision 2012 HRTO 843, which dismissed the first and second Applications. The Tribunal noted that during the Summary Hearing the applicant withdrew his allegation that the May 2009 events were discriminatory. The Tribunal dismissed the remaining allegations as having no reasonable prospect of success. The applicant filed a Request for Reconsideration which was dismissed by the Tribunal in Reconsideration Decision 2012 HRTO 1184 issued on June 15, 2012.
9On September 5, 2013 the applicant filed the current Application in which he indicates that the last incident of discrimination occurred on October 15, 2012 when the applicant applied for the Maintenance Team Leader positions and the Caretaking Team Leader positions. The applicant also references that he applied for over 40 vacancies since October 2007 for which he was not successful. In his written submissions the applicant also refers to two new positions for which he applied: Assistant Project Supervisor-Mechanical/Electrical on January 23, 2014 and Assistant Project Manager-Mechanical on February 5, 2014.
Section 45.1
10In his additional submissions filed on May 28, 2012, the applicant advised that he was not relying on any incidents that occurred prior to September 2012 other than as "background evidence". I find that the applicant cannot raise these incidents as allegations of discrimination because the Tribunal has already dealt with these allegations in previous Applications and I find that Section 45.1 of the Code applies to dismiss them.
11Section 45.1 of the Code states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
12There are two parts to the analysis of s. 45.1. First, I must determine whether there has been another "proceeding". If that part of the test is satisfied, I must then decide whether that proceeding "appropriately dealt with the substance of the Application".
13Clearly, the adjudication of the first and second Applications before this Tribunal was a proceeding.
14The key issue in dispute in this Application is whether this proceeding appropriately dealt with the substance of the Application. In British Columbia (Worker's Compensation Board) v. Figliola, ("Figliola") 2011 SCC 52, [2011] 3 S.C.R. 422 the Supreme Court of Canada considered provisions similar to s.45.1 in the British Columbia Human Rights Code. The Supreme Court of Canada states at paras. 34 to 38 in Figliola:
At their heart, the foregoing doctrines exist to prevent unfairness by preventing "abuse of the decision-making process" (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:
It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone,at para. 61; Boucher, at para. 35; Garland, at para. 72).
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).
15The facts in this case are similar to the Tribunal's decision in Hunter v. Farlake Dairy, 2011 HRTO 1906 which dismissed that Application pursuant to s. 45.1 finding that an applicant cannot revive dismissed allegations by filing a new Application.
16Having reviewed the materials filed by the applicant I find that all allegations prior to October 2012 were appropriately dealt with during the course of the other proceeding. The Tribunal issued three decisions which dealt with the substance of these allegations, including finding that some of the allegations were out of time and that the resulting allegations had no reasonable prospect of success. The applicant is trying to relitigate and revive these issues which have already been dismissed by the Tribunal by referring to them in this Application in support of his position that he has been discriminated against by the respondent. In these circumstances I exercise my discretion and dismiss all of the allegations prior to October 2012 pursuant to s. 45.1 of the Code.
Summary Hearing
17The two remaining allegations are whether the applicant's rights under the Code were infringed, specifically whether he was denied the Maintenance Team Leader positions and the Caretaking Team Leader positions in October 2012 for discriminatory motives or as a reprisal for having filed two Applications with the Tribunal.
18The approach in a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
19This case is of the second type. The issue at the summary hearing stage is whether there is no reasonable prospect that the applicant can prove a link between a prohibited ground of discrimination or reprisal in the respondent's decision not to award him either position after his interview.
20The theory of the applicant's case is premised on the fact that he believes that he was treated differently because he does not have "Canadian Experience". Putting aside the fact that he does in fact have over twenty years working experience in Canada, the applicant has not established that this alleged lack of "Canadian Experience" was even considered by the respondent. The applicant attended the job interviews and was asked to answer different kinds of questions which were unrelated to any Canadian Experience.
21The respondent has disclosed the interview scores of the successful candidates and the applicant received significantly lower scores. The applicant has not explained why he believes that his interview should have been marked higher than those of the successful candidates. In fact, on October 15, 2012, almost three weeks after his interviews, the applicant sent an email to the respondent attempting to answer these questions again in writing and trying to expand on his answers.
22The applicant has not provided the Tribunal with any proposed evidence to support his belief that he is more qualified than the successful candidates. This evidence is central to the success of his Application. See for example Zhao v. Toronto Community Housing Corporation, 2012 HRTO 2187 at paragraph 10.
23In his additional submissions filed on May 28, 2014, the applicant filed examples of other job positions available for a multitude of non-related employers and what they prefer, which appears were obtained by the applicant on the internet. These submissions are completely irrelevant to the issues before the Tribunal and do not provide any useful evidence in support of the applicant's case.
24Having considered the matter, the applicant has no reasonable prospect of establishing that he was denied the Maintenance Team Leader positions and the Caretaking Team Leader positions for discriminatory motives. He also has no reasonable prospect of success in establishing that he did not obtain these positions as a reprisal for having filed two Applications with the Tribunal because he has no evidence in support of his belief that the respondent intended to reprise against him.
25The Application is therefore dismissed as having no reasonable prospect of success.
Vexatious Litigant
26Section 23(1) of the Statutory Powers and Procedures Act allows the Tribunal to make such orders as it considers proper to prevent an abuse of its processes. Similarly, Rule A8 of the SJTO's common rules found in Part 1 of the HRTO's Rules of Procedure allows the Tribunal to issue a declaration finding someone to be a vexatious litigant where the Tribunal finds that the person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner. A vexatious litigant declaration requires the litigant to obtain permission from the Tribunal to commence further proceedings or take further steps in a proceeding.
27I have considered the respondent's Request to declare the applicant a vexatious litigant pursuant to the Tribunal's case-law in Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 ("Hiamey"). The Tribunal stated in Hiamey that declaring an applicant to be a vexatious litigant is an extraordinary remedy. Though I have some concerns that the applicant is filing repeated Applications that have been dismissed by the Tribunal it does not yet rise to the extraordinary conduct required to declare the applicant a vexatious litigant. Having considered the matter I do not find it appropriate in these circumstances to declare the applicant a vexatious litigant and I decline to do so.
Order
28The Application is dismissed.
Dated at Toronto, this 21st day of August, 2014.
"Signed by"
Geneviève Debané Vice-chair