Papouchine v. Touram L.P., 2014 HRTO 588

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexandre Papouchine Applicant

-and-

Touram L.P. d.b.a. Air Canada Vacations, Volkswagen Canada, Audi Mississauga, Travel Industry Council of Ontario, Will Davidson LLP, The Dominion of Canada General Insurance Company, and Arthur Bode Respondents

DECISION

Adjudicator: Leslie Reaume Date: April 28, 2014 Citation: 2014 HRTO 588 Indexed as: Papouchine v. Touram L.P.

APPEARANCES

Alexandre Papouchine, Applicant Self-represented

Touram L.P. d.b.a. Air Canada Vacations, Respondent Jean-Francois Bisson Ross, Representative

Volkswagen Canada and Arthur Bode, Respondents Matthew Carroll, Counsel

Audi Mississauga, Respondent David Alli, Counsel

Travel Industry Council of Ontario, Respondent Tracey McKiernan, Counsel

Will Davidson LLP, Respondent No one appearing

The Dominion of Canada General Insurance Company, Respondent No one appearing

INTRODUCTION

1These Applications, with the exception of 2013-14733-I, were the subject of a Case Assessment Direction (“CAD”) dated June 3, 2013. The Tribunal directed that one summary hearing would take place in all of these files in order to determine whether part or all of these Applications should be dismissed for having no reasonable prospect of success and whether the applicant should be declared a vexatious litigant. The last Application, 2013-14733-I, was joined with the other Applications by CAD dated July 16, 2013.

2The summary hearing took place by teleconference on September 12, 2013. The applicant’s request to have the teleconference recorded by the Tribunal was denied. The request was based on his opposition to the Tribunal’s general practice of not recording hearings rather than a Code-related accommodation or other requirement. The applicant was permitted to record the teleconference himself as a supplement to his notes and gave his undertaking that if the recordings were transcribed, he would provide copies to the Tribunal and the other parties.

3The applicant’s request for an adjournment on the basis of the respondents’ late delivery of documents was also dismissed. The documents in question, not all of which were delivered late, were copies of previous decisions involving the applicant before this Tribunal. Accordingly, the applicant was unable to establish any prejudice associated with the Tribunal relying on those decisions.

4The applicant filed submissions following the CAD of June 3, 2013, setting out his argument against declaring him a vexatious litigant. The applicant requested that the respondents be deemed to have accepted his arguments since they did not file submissions in response. This request was denied. The CAD of June 3, 2013 confirmed that the respondents were not required to take any further steps in advance of the summary hearing. The respondents were therefore not deemed to have accepted the applicant’s position that he should not be declared a vexatious litigant.

5Following the summary hearing, the applicant continued to file multiple submissions. In one submission, he indicated to the Tribunal that he did not receive adequate notice of the issues to be addressed at the summary hearing. For that reason and because it contains a summary of the events leading to the decision to hold a summary hearing, I have set out the text of the CAD of June 3, 2013 below.

This Case Assessment Direction addresses seven Applications filed by the applicant against six respondents over the course of just over five months. In each Application the applicant alleges, among other things, that he has been treated in a discriminatory manner contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), because he is east European, Russian, and not noble or a member of the royal family.

These are not the only applications the applicant has filed. Papouchine v. Audi Canada, 2012 HRTO 1860 was dismissed on the basis that it had no reasonable prospect of success, and a Request for Reconsideration was dismissed: 2013 HRTO 88. Papouchine v. Staples Canada, 2013 HRTO 18, was dismissed on the basis that the Application raised no connection to the Code. The Request for Reconsideration was dismissed: 2013 HRTO 821. Another Application was dismissed on the basis that it did not raise allegations of discrimination under the Code: Papouchine v. Smith, 2013 HRTO 646.

The Application in Tribunal File 2012-13045-I, against Touram L.P. d.b.a. Air Canada Vacations, has been delivered to the respondent and a summary hearing has been directed on the issue of whether the Application should be dismissed on the basis that it has no reasonable prospect of success. The applicant has filed a Request for Order During Proceedings seeking production and the Tribunal has directed that the Request will be dealt with by the adjudicator presiding at the summary hearing. The summary hearing has not yet been scheduled.

In Tribunal File 2013-14024-I against Audi Mississauga, the Tribunal has directed a summary hearing, which has not yet been scheduled.

In Tribunal Files 2013-13807-I and 2013-13808-I against Volkswagen Canada, and Tribunal File 2013-14025-I against Travel Industry Council of Ontario, the Tribunal has sought submissions from the applicant on whether the Applications fall within the Tribunal’s jurisdiction. The submissions have been received in Files 2013-13807-I and 2013-13808-I and are due on June 3, 2013 in File 2013-14025-I.

The Tribunal has not yet taken any steps in Tribunal files 2013-14392-I against Will Davidson LLP and 2013-14394-I against The Dominion of Canada General Insurance Company.

In all the circumstances, I find it appropriate to direct that a joint summary hearing be held by teleconference in all of these files to determine whether some or all of these Applications should be dismissed pursuant to Rule 19A of the Tribunal’s Rules of Procedure on the basis that they have no reasonable prospect of success and/or are outside the Tribunal’s jurisdiction.

The Tribunal will also hear submissions on whether the applicant should be declared a vexatious litigant and prohibited from future applications without leave of the Tribunal, as was ordered, for example, in Abdul v. University of Toronto, 2011 HRTO 2299.

6The CAD of June 3, 2013 also advised the applicant he would proceed first during the teleconference to make argument about why the Applications should not be dismissed on the basis that they have no reasonable prospect of success, and/or on the basis that they are outside the Tribunal’s jurisdiction. The applicant was further advised that with respect to the Application against Will Davidson LLP, he should be prepared to make argument on whether that Application falls outside the Tribunal’s jurisdiction because the respondent was a lawyer for another party in litigation. The HRTO has found that the relationship between a lawyer and an opposing party is not covered by the Code: Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390.

7In addition, the CAD’s dated July 16, 2013 and February 15, 2014, provided the applicant with a full description of the summary hearing process and the issues he was required to address. I am satisfied that the applicant was provided with proper notice of the issues he was required to address at the summary hearing.

8The applicant argued subsequent to the summary hearing that he had been prejudiced because the issue of timeliness was raised during the hearing. I have not decided any of these Applications on that basis and therefore there is no reason to address this concern. I have disposed of these Applications on the basis that they have no reasonable prospect of success and therefore, it is not necessary for me to consider other issues or jurisdictional arguments.

No Reasonable Prospect of Success

9In all of the Applications before me, the applicant alleges discrimination on the basis of ancestry, place of origin and ethnic origin in the context of goods and services. The applicant self-identifies as east European, Russian. In each case, the applicant describes a situation which has caused him some disadvantage and asserts that he can think of no other reason for the treatment he allegedly received other than discrimination on the basis of his ancestry, place of origin and ethnic origin. The applicant is seeking monetary remedies in these Applications in the range of $15,000.00 to $100,000,000.

10In the Applications against Air Canada Vacations and the Travel Industry Council, the applicant describes a complaint he made about food handling procedures which occurred while he was on vacation. He alleges that his complaints were not investigated or addressed appropriately by either respondent.

11In the Applications against Volkswagen Canada and Arthur Bode, the applicant alleges that while he was at an auto show in 2012, he was told that he could obtain further information about Volkswagen vehicles by visiting Volkswagen Canada. The applicant also alleges that he is a shareholder in the company and as such, he has the right to visit the company and see a list of other shareholders at any time. He alleges that when he decided to visit Volkswagen Canada, instead of receiving the information he was seeking, the applicant was asked to leave.

12In the Application against Audi Mississauga, the applicant alleges discrimination on the basis of disability and sex in addition to the other prohibited grounds relied upon in the previous applications. He alleges that he was not provided with a place to sit while he waited for the police to arrive following an altercation with the Manager of the dealership. In the applicant’s mind, if he had been a woman or a disabled person, he would have been offered a seat while he waited for the police to arrive and investigate the allegations against him.

13In the Application against Will Davidson LLP, the applicant alleges that he requested, but did not receive, a bill of costs from a lawyer acting for another party in litigation involving the applicant. In the Application against The Dominion of Canada General Insurance Company, which appears to involve a trial in 2012, the applicant alleges that the respondent took a different position than the applicant about the implications of what he describes as the Commercial General Liability Policy.

14The applicant also alleges that his experiences of poor service are based, in part, on the fact that he is not royal or of noble birth. During oral submissions for example, the applicant alleged that Volkswagen has close ties with members of the royal family and that Prince Harry and Prince William would receive more favourable service because of their ancestry as compared to the applicant.

15It is hard to quarrel with the applicant’s belief that customer service befitting a Prince is elusive to all but an actual Prince. However, what lies at the root of the many applications filed by this applicant is a fundamental misunderstanding of what constitutes discrimination under the Code. The applicant’s allegations are bereft of any connection between the prohibited grounds he relies on and the conduct allegedly engaged in by the respondents – a critical element in proving discrimination. The applicant assumes this connection exists because he cannot think of any other reason for the alleged conduct on the part of the respondents. However, in order to proceed to a hearing, the applicant must point to evidence which is reasonably available to support these assumptions. See for example Dabic v. Windsor Police Service, 2010 HRTO 1994.

16The applicant has filed multiple applications and myriad documents describing his grievances and his belief that he is the victim of discrimination. Three previous applications were dismissed as were his requests for reconsideration. With respect to the applications before me, the applicant was provided with an opportunity for oral submissions in order to elaborate on the facts and arguments raised in the applications. Despite that, it remains clear that the applicant is unable to point to evidence or allege sufficient facts which could support a finding of discrimination. These applications therefore have no reasonable prospect of success because the applicant is unable to point to evidence which could establish a connection between the conduct of the respondents and the grounds of ancestry, place of origin and ethnic origin.

17Since the summary hearing, the applicant has filed nine further applications which have not been served on the respondents pending my decision on whether the applicant should be declared a vexatious litigant.

Vexatious Litigant

18Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides:

A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

19Rule A8 of the SJTO Common Rules also provides:

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

20The 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 further applications without first obtaining leave of the Tribunal. Such Orders can prevent the filing of applications against anyone or may be confined to one or more respondents. In doing so, the Tribunal typically considers the frequency and number of applications filed without merit or apparent merit, as well as the conduct of the party. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Carlos v. Scher Law, 2010 HRTO 2019; Bingham v. Roach Schwartz Law Office, 2011 HRTO 15; Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 (“Hiamey”); and Dai v. Presbyterian Church in Canada, 2012 HRTO 1975, recently upheld in Dai v. Presbyterian Church in Canada, 2013 ONSC 6650; and Roy v. Toronto (City), 2014 HRTO 214.

21In Hiamey, at paragraph 27, 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.

22The Tribunal added at paragraph 28:

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.

23In their submissions, the respondents stated that they have incurred significant legal costs responding to the applicant’s Applications. In addition, they argue that they are unable to recover their costs before the Tribunal and as a result, there is no disincentive to the applicant from filing applications over and over again. I have no doubt that this is true. When an individual files a human rights application, he or she is commencing a legal proceeding that requires a respondent to take immediate steps. This may involve the expenditure of significant resources. See Ouwroulis v. New Locomotion, 2009 HRTO 335, at para. 5.

24I am satisfied on an objective standard that a sufficient number of factors relied on by this Tribunal in declaring an application a vexatious litigant exist in this case. The Tribunal has made clear, through various Case Assessment Directions, Decisions and Reconsideration Decisions, that the applicant’s allegations fail to identify acts on the part of respondents which are linked in some way to the prohibited grounds he has relied upon. The applicant persistently resists the Tribunal’s directions by repeating his allegations and arguments through myriad submissions filed in electronic form. In the most recent submissions and new applications which were filed after the summary hearing took place, the applicant repeats his allegations once again, seeking to have the Tribunal reconsider its decision to hold a summary hearing.

25In Papouchine v. Smith, 2013 HRTO 646, the Tribunal made a statement which aptly describes all of the Applications before me:

In my view it is plain and obvious that this Application is outside of the Tribunal’s jurisdiction. Aside from the obvious problem that it is unclear what act or inaction on the part of the respond is being complained about, it is entirely clear that the Application 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. The applicant has a question, a suspicion, and a desire to know if something the respondent did or did not do was discriminatory. The allegations at their highest amount to an assertion that the applicant is a member of a protected group and something happened to him. This is insufficient.

26For all of these reasons it is appropriate, in my view, to declare the applicant to be a vexatious litigant. I find that the applicant should be prevented from filing an application against any respondent, not just the ones identified in these cases, without leave of the Tribunal. The allegations against the various respondents in the Applications before me are not the same but they are similar in nature and derived from the applicant’s tendency to default to discrimination as the explanation for conduct with which he disagrees. This conclusion does not mean that if the applicant believes that he has experienced discrimination prohibited by the Code he may not file an application; only that he must first obtain the Tribunal’s consent before it will be processed by demonstrating that the application is not vexatious but a legitimate assertion of his Code rights.

27I also consider it appropriate to direct the applicant to cease filing material of any kind with the Tribunal in electronic form. The Tribunal will only accept material from the respondent by regular mail.

28I have reviewed the nine applications filed by the applicant since the summary hearing took place: 2014-17014-I, 2014-17133-I, 2014-17194-I, 2014-17196-I, 2014-17260-I, 2014-17261-I, 2014-17262-I, 2014-17263-I. The applicant is directed to make submissions in writing by regular mail within 15 days of the date of this Decision, failing which, they will be dismissed as abandoned. In his submissions the applicant will explain why he believes these applications are not intended to vex or harass the named respondents and how they represent a legitimate assertion of his Code rights.

Order

29The Tribunal makes the following orders:

1. These Applications are dismissed because they have no reasonable prospect of success.

2. The applicant is declared to be a vexatious litigant, and is required to obtain leave (permission) from an adjudicator of the Tribunal to file further applications against any respondent.

3. The applicant will communicate with the Tribunal by regular mail and not electronic mail.

4. With respect to Applications 2014-17014-I, 2014-17133-I, 2014-17194-I, 2014-17196-I, 2014-17260-I, 2014-17261-I, 2014-17262-I, 2014-17263-I), the applicant will make submissions in writing by regular mail within 15 days of the date of this Decision, failing which, they will be dismissed as abandoned. In his submission the applicant will explain why he believes these applications are not intended to vex or harass the named respondents and how they represent a legitimate assertion of his Code rights.

5. If the applicant seeks leave to file a future application against any respondent, he must file a complete Application by regular mail, and include written submissions, explaining why the Application is a legitimate assertion of his Code rights, is not vexatious, and is not an abuse of process.