Hurrell v. Kent Trusses Limited, 2014 HRTO 913

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Hurrell Applicant

-and-

Kent Trusses Limited and Brian Harmer Respondents

INTERIM DECISION

Adjudicator: Geneviève Debané Date: June 20, 2014 Citation: 2014 HRTO 913 Indexed as: Hurrell v. Kent Trusses Limited

WRITTEN SUBMISSIONS

David Hurrell, Applicant

Leonard Kerrigan, Representative

Kent Trusses Limited and Brian Harmer, Respondents

Sheryl Johnson, Counsel

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 disability, record of offences and reprisal.

2On January 13, 2014, the Tribunal issued Interim Decision 2014 HRTO 49, which deferred the Application pending the conclusion of the proceeding before the Workplace Safety and Insurance Board (“WSIB”) with respect to the applicant’s reemployment with the respondent.

3This Interim Decision deals with a number of Requests for Orders that have been made by both parties.

Reactivation of the Application

4On April 28, 2014, the applicant filed a Request seeking to reactivate the Application on the basis that the proceeding before the WSIB has concluded because the Appeals Resolution Officer (the “ARO”) issued a decision on April 4, 2014 in favour of the applicant.

5On June 11, 2014, the Tribunal received confirmation from the respondent that it is appealing the decisions of the ARO to the Workplace Safety and Insurance Tribunal (“WSIAT”).

6Having considered the matter, I remain of the view that the continued deferral of the Application is appropriate for the reasons expressed in Interim Decision 2014 HRTO 49. The Application is deferred pending the conclusion of the proceeding before the WSIAT with respect to the applicant’s reemployment with the respondent.

Declaration of Vexatious Litigant and Request for an Interim Remedy

7In its response to the request to activate, the respondents seek a number of remedies including that the applicant and/or his representative be declared a vexatious litigant. In support of this Request the respondents rely on a number of reasons including that:

a. The applicant has brought numerous complaints against the respondent;

b. That the applicant brought the Request to reactivate prematurely because the respondent had until at least October 2014 to file an appeal of the ARO’s decisions; and

c. The applicant’s representative sent correspondence directly to the respondent instead of counsel, and did this knowingly.

8The applicant filed a Request for Interim Remedy because he believes that the allegations made against himself and his representative are slanderous and abusive. The applicant also asserts that he is having difficulty receiving mail from the respondents and he requests an extension of time to respond.

9The Registrar issued a Letter advising that the respondents did not have to respond to the applicant’s Request for an Interim Remedy.

Decision

10Section 23(1) of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, 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.

11In Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 at paragraph 27, the Tribunal reviewed the test to be applied when determining whether a person is a vexatious litigant:

(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.

12The Tribunal is aware of three complaints, including this Application, initiated by the applicant against his former employer with respect to the termination of his employment. The applicant filed a complaint under Employment Standards Act for the payment of his termination and severance pay. The complaint was determined by an ESO who found in favour of the applicant. At this time the applicant has been successful in two of these proceedings, subject of course to the respondent’s appeal before WSIAT. This Application remains deferred.

13The applicant was entitled to bring the Request to reactivate the Application when he received the ARO’s decision in April 2014. Though the respondents had indicated in December that they intended to appeal an unfavorable decision, there is no obligation on the applicant to wait six months to determine whether the respondents in fact did appeal the ARO’s decision. Therefore, I do not agree with the respondents that the applicant and/or his representative “mislead” this Tribunal.

14In this case the applicant has not engaged in any conduct which the Tribunal would consider to be either vexatious or abusive and the respondent’s request is without any merit.

15It does appear that the applicant’s representative did not copy the respondents’ counsel. In future, the applicant’s representative must send correspondence to the respondents’ counsel and not either of the respondents directly.

16Similarly, the applicant’s Request for Interim Remedy has no merit. There is no basis to find that the respondents’ counsel has engaged in any abusive conduct which should be sanctioned by this Tribunal. The respondents are entitled to bring requests for orders to be considered by the Tribunal and to make submissions in support of these requests.

17Further, if the applicant requires more time to file a response to a request the proper procedure is to write to the Registrar, with a copy to the respondents’ counsel, seeking an extension of time. It is not appropriate procedure to make a Request for Interim Remedy.

Conduct

18I have reviewed this file and I have some concerns with respect to the personal attacks that are being made between the parties and their respective representatives. The sole issue before the Tribunal in a Request to reactivate is whether the other proceeding is concluded. However, the parties escalated this issue by filing unnecessary inflammatory accusations and requests for orders. Though I do not find that this conduct is uncourteous, the parties should endeavour to focus their efforts with respect to the merits of their respective positions.

Order

19The Tribunal orders:

a. The Application is deferred pending the conclusion of the proceeding before the WSIAT with respect to the applicant’s reemployment with the respondent;

b. The respondents’ Request to declare the applicant and/or his representative a vexatious litigant is dismissed; and

c. The applicant’s Request for Interim Remedy is dismissed.

20The Tribunal reminds the parties that pursuant to Rules 14.3 and 14.4, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding.

21I am not seized.

Dated at Toronto, this 20th day of June, 2014.

“Signed by”

Geneviève Debané

Vice-chair