Roy v. Human Rights Tribunal of Ontario, 2014 HRTO 423

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clive Roy Applicant

-and-

Human Rights Tribunal of Ontario Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: March 25, 2014 File Numbers: 2013-16000-I; 2013-16001-I; 2013-16094-I; 2013-16095-I; 2013-16096-I; 2013-16097-I; 2013-16098-I; 2013-16099-I; 2013-16100-I; 2013-16169-I; 2013-16170-I; 2013-16171-I; 2013-16172-I; 2013-16173-I; 2013-16174-I; 2013-16175-I; 2013-16176-I; 2013-16177-I Citation: 2014 HRTO 423 Indexed as: Roy v. Human Rights Tribunal of Ontario

WRITTEN SUBMISSIONS

Clive Roy, Applicant Self-represented

Introduction

1This Decision addresses 22 Applications that the applicant filed against the Human Rights Tribunal of Ontario (“Tribunal”). In the Applications, the applicant claimed that the Tribunal discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), with respect to the manner in which it dealt with another set of 58 Applications filed by the applicant against other respondents.

Background to Applicant’s Previous Applications

2By Decision, 2014 HRTO 214, dated February 14, 2014, the Tribunal dismissed the 58 Applications that the applicant had filed against various respondents. Paragraphs 3-22 of that Decision set out some of the background facts that provide the context for the 22 Applications addressed in this Decision. I summarize below only the actions and/or decisions that are relevant for the purposes of this Decision.

3In Case Assessment Directions (“CAD”s) dated September 23 and 26, 2013, the Tribunal directed that a summary hearing by teleconference be held to deal with the applicant’s 58 Applications. The summary hearing was scheduled to determine whether some or all of these Applications should be dismissed in whole or in part because they had no reasonable prospect of success.

4As noted in 2014 HRTO 214 at para. 7, the applicant responded to the CADs by filing multiple objections and Requests for Reconsideration. By CAD dated November 15, 2013, the Tribunal consolidated the applicant’s Applications by organizational respondent. The Tribunal also directed that the parties make submissions at the summary hearing on the question of whether or not the Applications should be dismissed as an abuse of process and/or whether the applicant should be declared a vexatious litigant.

5The applicant responded to that CAD by filing additional multiple Requests for Orders during Proceedings. Among other things, he requested that the Tribunal schedule mediations in his cases.

6On November 20, 2013, the Tribunal issued a CAD providing further directions with respect to the summary hearing. In this CAD, the Tribunal directed the applicant to cease his practice of filing separate applications that addressed essentially the same issues. As well, because of the volume of often repetitive communications, often not copied to other parties, the Tribunal directed the applicant to communicate with the Tribunal only by regular mail except for communications relating to the scheduling of the summary hearing.

7In Decision 2014 HRTO 214, the Tribunal dismissed the applicant’s 58 Applications as having no reasonable prospect of success and/or as an abuse of process. The Tribunal also declared the applicant a vexatious litigant. It ordered that the applicant may not file further applications with this Tribunal without leave of the Tribunal. The applicant filed the 22 Applications addressed in this Decision before the Decision declaring him a vexatious litigant.

Notices of Intent to Dismiss

8On December 6, 2013, the Tribunal issued a Notice of Intent to Dismiss (“NOID#1”) with respect to seven of the applicant’s 22 Applications against the Tribunal. NOID#1 advised that these Applications appeared to be outside of the Tribunal’s jurisdiction. NOID#1 stated as follows:

a. a review of the Applications and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent; and

b. your completed Applications do not appear to raise an issue that the Tribunal has the jurisdiction to resolve as follows:

you allege discrimination based on “reprisal or threat of reprisal” but have failed to explain how the respondent’s behaviour was related to any of the following: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273.

9On December 6, 2013, the Tribunal issued a second Notice of Intent to Dismiss (“NOID#2”), with respect to 15 of the applicant’s 22 Applications against the Tribunal. NOID#2 stated that these 15 Applications appeared to be outside of the Tribunal’s jurisdiction on the basis of the two grounds identified in NOID#1 as well as the following ground:

the respondent is an arbitrator, adjudicator or judge. The Tribunal has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: see Cartier v. Nairn 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp. 2009 HRTO 2180; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115.

10In both NOIDs, The Tribunal directed the applicant to provide written submissions regarding the jurisdictional issues raised in the NOIDs on or before January 16, 2014. The applicant filed submissions opposing dismissal.

Preliminary Issue – Conflict of Interest Allegations

11In his written submissions, the applicant argued that the Tribunal is in a conflict of interest with respect to the 22 Applications dealt with in this Decision. The applicant submitted that the Tribunal should apply to the Superior Court of Justice for the appointment of a “disinterested person” under s. 16 of the Public Officers Act, R.S.O. 1990, c. P.45 (“POA”). The applicant submitted that this conflict with respect to these 22 Applications was “clear”; however he provided no reasons to support this alleged conflict of interest.

12Ontario courts have held that a decision making body is not automatically disqualified from deciding a case upon being named as an adverse party. See Jogendra v. Human Rights Tribunal of Ontario, 2011 ONSC 3307 at para. 58, upheld 2012 ONCA 71, leave to SCC refused 2012 SCCA 149 (“Jogendra”). In light of the courts’ holdings in Jogendra and in the absence of any information to support the applicant’s conflict of interest claim, there is no reason for the Tribunal to make an application under s. 16 of the POA with respect to the 22 Applications addressed in this Decision.

ANALYSIS AND DECISION

13At this preliminary stage in the proceeding, the Tribunal will dismiss an application only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction. For the reasons set out below, I find that it is plain and obvious that the applicant’s Applications fall outside the Tribunal’s jurisdiction.

Applications Listed in NOID#1

Allegations

14The applicant filed the seven Applications listed in NOID#1 in October and November 2013.

15In the seven Applications listed in NOID#1, the applicant alleged that the Tribunal constructively discriminated against him, reprised against him, and/or caused him arbitrary disadvantage by:

a. communicating with him by regular mail despite his requests that the Tribunal communicate with him via e-mail (2013-15815-I);

b. scheduling a summary hearing to deal with his Applications (2013-15852-I and 2013-15805-I);

c. failing to acknowledge one of his Applications (2013-16000-I);

d. denying him access to mediation when the Tribunal scheduled a summary hearing into his Applications (2013-16001-I); and

e. failing to respond to his procedural and/or legislative objections (2013-16100-I and 2013-16099-I).

16The applicant alleged discrimination based on all of the grounds protected under the Code except for age, receipt of public assistance, record of offences and association with a person identified by a Code ground. Except for the ground of creed, discussed below, the applicant did not provide any information to explain why all of these protected grounds applied to him, nor did he explain why they were engaged in the circumstances described in his Applications. In his Applications, the applicant claimed that the Tribunal reprised against him because he named the Executive Chair of the Social Justice Tribunals of Ontario as a personal respondent to some of his previous Applications to the Tribunal.

Applicant’s Submissions

17In his written submissions in response to NOID#1, the applicant disagreed with the first ground listed in the NOID – that is, that the narratives setting out the incidents of alleged discrimination in his Applications fail to identify any specific acts of discrimination within the meaning of the Code. The applicant submitted that, in each Application, he has identified a decision or failing on the part of the Tribunal which served to impede, obstruct or deny him from having equal access to the Tribunal’s services. The applicant sought to rely upon B. v. Ontario (Human Rights Commission), 2002 SCC 66 and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143.

18In terms of a connection to a ground of discrimination, the applicant submitted that he was discriminated against on the ground of creed. He claimed that his creed is that he believes in standing up for his rights under the laws of Ontario and Canada.

19With respect to his claim of reprisal, the applicant submitted that he had established a basis for an inference of reprisal. He claimed that the Tribunal’s three CADs referred to above were issued with the explicitly stated objective of disposing of every application that he had submitted to the Tribunal.

Findings

20I find that it is plain and obvious that the Applications listed in NOID#1 are outside the Tribunal’s jurisdiction as they fail to identify any specific acts of discrimination or reprisal within the meaning of the Code. That is, they fail to establish any connection between the alleged actions by the Tribunal and a ground protected under the Code. The seven Applications also fail to identify any acts that might constitute a reprisal within the meaning of the Code.

21In his submissions, the applicant argued that he has in fact identified specific acts about which he is complaining. While the applicant has identified a series of impugned actions by the Tribunal, the key point is that he has failed to identify any acts that might constitute discrimination within the meaning of the Code. In other words, the applicant has failed to identify any connection between the acts alleged in his Applications and the grounds of discrimination set out in the Code. Although the applicant selected virtually all of the Code protected grounds of discrimination, he has provided no information linking his allegations to one or more grounds of discrimination found in the Code.

22In his submissions responding to the NOIDs, he sought to rely upon the ground of creed. I find it plain and obvious that the actions of the Tribunal have no connection to the ground of creed. First, the applicant has provided no support for the proposition that the ground of creed includes a person’s belief in standing up for one’s rights. Second, even if the ground of creed could encompass such a belief, the applicant has provided no factual basis to support his assertion that the Tribunal’s actions were in any way connected to such a belief.

23I also find that it is plain and obvious that the Applications do not identify any acts that might constitute a reprisal within the meaning of the Code. The concept of reprisal under the Code has a very precise meaning. As provided in section 8 of the Code and in the Tribunal’s case law, the intention of section 8 is to allow complainants to pursue their rights under the Code without fear of reprisal for doing so. A reprisal occurs when a person is retaliated against for claiming and enforcing his or her rights under the Code, or for instituting or participating in proceedings under the Code. It is established human rights law that reprisal must involve a deliberate intent to retaliate and thus this intention must be demonstrated in order to show that a complainant’s rights under section 8 have been violated. See, for example, Chan v. Tai Pan Vacations, 2009 HRTO 273.

24I find that the applicant has failed to provide any information linking the Tribunal’s impugned actions to previous attempts on his part to enforce his rights under the Code. Although the applicant claims that the Tribunal undertook the impugned actions because he had named the Executive Chair of the Social Justice Tribunals of Ontario as a personal respondent to some of his Applications, his allegations on this point are nothing but bald assertions. Moreover, even if accepted as true, such assertions do not meet the test to establish reprisal within the meaning of the Code.

Applications Listed in NOID#2

25The applicant filed the 15 Applications listed in NOID#2 in October and November, 2013.

26In this second set of Applications, the applicant alleged that the Tribunal constructively discriminated against him, reprised against him, and/or caused him arbitrary disadvantage by:

a. denying him access to mediation when the Tribunal scheduled a summary hearing into his Applications in CADs dated September 23 and 26, 2013 and November 15, 2013 (2013-15906-I, 2013-16096-I, 2013-16097-I);

a. attempting to “summarily dispose” of his Applications by scheduling a summary hearing into his Applications in CADs dated September 23 and 26, 2013 and November 15, 2013 (2013-16094-I and 2013-16095-I, 2013-16096-I, 2013-16097-I);

b. attempting to have him designated a vexatious litigant in its CADs dated September 23 and 26, 2013 and November 15, 2013 (2013-16097-I);

c. seeking submissions in the Tribunal’s November 15, 2013 CAD on the question of whether or not the applicant’s allegations should be dismissed as an abuse of process and/or whether the applicant should be declared a vexatious litigant (2013-16098-I); and

d. consolidating his Applications by organizational respondent in the Tribunal’s November 15, 2013 CAD (2013-16169-I, 2013-16170-I, 2013-16171-I, 2013-16172-I, 2013-16173-I, 2013-16174-I, 2013-16175-I, 2013-16176-I, 2013-16177-I).

27In these Applications, the applicant alleged discrimination based on all of the grounds protected under the Code except for age, receipt of public assistance, record of offences and association with a person identified by a Code ground. As with the seven Applications discussed above, except for the ground of creed, the applicant did not provide any information to explain why all of these protected grounds apply to him, nor did he explain why they are engaged in the circumstances described in his Applications. As with the seven Applications addressed above, the applicant claimed that the Tribunal reprised against him because he named the Executive Chair of the Social Justice Tribunals of Ontario as a personal respondent to some of his Applications filed with the Tribunal.

28In his submissions in response to NOID#2, the applicant repeated the same submissions he made in response to NOID#1. He also added submissions on the issue of adjudicative immunity. On this issue, he argued that the doctrine of adjudicative immunity does not apply to CADs. He argued that CADs convey an administrative decision or direction which precedes a hearing where the actual adjudicative process occurs.

Findings

29In my view, the reasons set out above apply equally to the Applications listed in NOID#2. Therefore, I find that these Applications are also outside the Tribunal’s jurisdiction as they fail to identify any specific acts of discrimination or reprisal within the meaning of the Code.

30In addition, I find that the Applications listed in NOID#2 must be dismissed as outside the Tribunal’s jurisdiction due to the application of the doctrine of adjudicative immunity.

31This Tribunal has consistently held that the doctrine of adjudicative immunity applies to both courts and administrative tribunals. Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (“Hazel”) and Taucar v. University of Western Ontario, 2013 HRTO 597 (“Taucar”). The doctrine does not only apply to decisions made in the context of hearings. It applies to adjudicators with respect to those functions that can legitimately be said to be integral to the effective exercise of their duties as quasi-judicial decision-makers. See Hazel, above, at para. 98 and Taucar, above, at paras. 48 and 62. For example, in Hazel, the Tribunal found that an arbitrator was immune from a claim under the Code that sought to challenge how he carried out a mediation which occurred prior to any arbitration being held: see Taucar, above, at paras. 48 and 62 and Hazel, above, at para. 98.

32I find that it is irrelevant that the decisions made by the Vice-chair were set out in CADs rather than decisions. All of the actions complained of in the Applications listed in NOID#2 are actions that were integral to the Vice-chair’s exercise of his duties as a quasi-judicial decision-maker. All of the impugned actions related to interlocutory procedural decisions the Vice-chair made in dealing with the applicant’s Applications – that is, to schedule a summary hearing, to consolidate the Applications by respondent and to seek submissions on the issues of abuse of process and whether the applicant should be declared a vexatious litigant. These impugned actions all relate to his exercise of powers under the Code as well as the Tribunal’s Rules of Procedure. All of these actions were integral to the Vice-chair’s duties as a decision-maker assigned to the Applications before him. As such, they are covered by the doctrine of adjudicative immunity and fall outside the Tribunal’s jurisdiction as a result.

Applicant’s Other Submissions

33In his submissions in response to the Tribunal’s NOIDs, the applicant argued that in dealing with his previous 58 Applications, the Tribunal breached his right to make full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms, that it breached its duty of procedural fairness and that it exceeded its jurisdiction due to a reasonable apprehension of bias.

34I find that these submissions are irrelevant to the question of whether the Tribunal has jurisdiction over the Applications being addressed in this Decision. These claims are assertions that the Tribunal erred in various ways in the treatment of his previous Applications. Even if there were a basis for such assertions, they would not provide the Tribunal with jurisdiction over Applications which are outside the Tribunal’s jurisdiction.

Order

35For the reasons set out above, these Applications are dismissed as outside the Tribunal’s jurisdiction.