HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tomasz Raba
Applicant
-and-
Vito Vaccarelli
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Raba v. Vaccarelli
APPEARANCES
Tomasz Raba, Applicant
Self-represented
Vito Vaccarelli, Respondent
Self-represented
background
1It appears from the narrative portion of this Application that the applicant alleges discrimination with respect to services because of ethnic origin and place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant lived in a building owned by Frank Vaccarelli, an elderly man who had delegated responsibility for the management of the building to his son, Vito Vaccarelli. The superintendent of the building, Paul McMahon, is employed by Frank Vaccarelli.
3The applicant alleges that when he was a tenant in this building Paul McMahon subjected him to a pattern of harassment and abuse that focused on his ethnic origin.
4On April 24, 2012 the applicant filed an Application naming Frank Vaccarelli and Paul McMahon as respondents. The material facts outlined in the Application are that Paul McMahon perpetrated the harassment and discriminated against him “with the help of the owner’s son Vito Vaccarelli”. The Application alleges that although the applicant complained to Frank Vaccarelli, nothing was done about Mr. McMahon’s actions.
5The Tribunal directed the parties to file submissions on the question of whether the Application should be deferred until the Landlord and Tenant Board ruled on pending proceedings between the parties. Neither party filed submissions. The Tribunal then issued a Case Assessment Direction directing the applicant to confirm in writing whether he wished to continue with his Application. He was put on notice that if he did not respond the Tribunal could dismiss his Application as abandoned. He failed to respond and in its Decision 2012 HRTO 1870 the Tribunal explained why it declared his Application abandoned.
6The applicant sought reconsideration of that decision but provided no reasons why his request should be granted. The Tribunal issued another Case Assessment Direction, this time directing the applicant to make submissions explaining why the Tribunal should reconsider. He was also directed to explain why he had not responded to the earlier communications from the Tribunal which led to his Application being declared abandoned.
7In its Reconsideration Decision 2013 HRTO 1227 the Tribunal rejected his explanation that he had not been in touch with the Tribunal because the respondents had intercepted his mail. It found that he had failed to notify the Tribunal of a change of address. It also determined that the applicant had not provided any reasons that would justify the reconsideration of its decision declaring his Application abandoned.
8Ten days after the Reconsideration Decision was issued the applicant filed the present Application, naming Vito Vaccarelli as the sole respondent. Although there are few details in the Application, the material facts alleged are that Mr. McMahon harassed the applicant and that “the agent [Vito Vaccarelli] allowed McMahon to slur racial comment at me hurt me harass me” [sic].
9On January 16, 2014 the Tribunal held a hearing by teleconference to determine whether the Application should be dismissed as an abuse of process because it amounts to relitigation of the first Application.
10The applicant argued that the present Application has nothing to do with the first Application in that different respondents are named in the two Applications. He emphasised that the present Application focuses on Vito Vaccarelli’s allegedly discriminatory actions in that he is vicariously liable for the actions of Mr. McMahon as an employee of the landlord. He asserts that the naming of different respondents in the two Applications is reason enough to allow the present Application to proceed.
11The respondent argues that the substance of the two Applications is identical. Allowing the present Application to proceed would be an abuse of process where the applicant was already given every opportunity to pursue the first Application and failed to do so.
analysis
12Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that the Tribunal may make such orders as it considers proper to prevent an abuse of its processes. This is further confirmed in Rule A8.1 of the Social Justice Tribunals Ontario’s Common Rules found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure.
13The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which it would be unfair to permit an Application to continue. These include, but are not limited to, circumstances such as delay, relitigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve decision-making resources and to promote consistency and finality in adjudication, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Campbell v. Toronto District School Board, 2008 HRTO 62, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.
14Here the issue is one of relitigation. Within days of the Tribunal deciding that it would not reconsider its decision to dismiss the applicant’s first Application he started the whole process all over again by filing essentially the same Application. The only difference is in the naming of the respondents.
15What is common to both Applications is the allegation that Mr. McMahon discriminated against the applicant in the same place and over the course of the same period of time. What is also common to both is the allegation that Vito Vaccarelli was aware of and tolerated this discrimination. While Vito Vaccarelli is not named as a respondent in the first Application, the material facts in that Application allege that Mr. McMahon acted “with the help of the owner’s son Vito Vaccarelli”.
16Further, what is clearly implied but not explicitly stated in both Applications is that the employer is vicariously liable for Mr. McMahon’s actions. The only point of divergence between the two Applications is that the first suggests that vicarious liability rests with Frank Vaccarelli and the present Application suggests that it rests with Vito Vaccarelli. There are no other allegations that would differentiate the two Applications from one another.
17The question to be decided here is whether it would be an abuse of process to allow exactly the same facts and issues to be relitigated before the same adjudicative body. This is not a case where what is at stake is a second adjudication of the merits of the applicant’s allegations because the merits of the first Application were never decided by the Tribunal. The first Application was dismissed as abandoned. The applicant was afforded an opportunity to make his case as to why that decision should be reconsidered, but he did not convince the Tribunal to do so.
18However, the doctrine of abuse of process is not confined to instances where a repeat adjudication of the merits (by the same or different adjudicative bodies) is at issue. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 38 the Court cited with approval the following excerpt from a legal text:
The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice. [Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000 (at pp. 347-48)].
19Applying this reasoning, I conclude that it would be an abuse of process to allow the present Application to go forward, notwithstanding the fact that the first Application was not decided on its merits. The Tribunal met the requirements of procedural fairness in the way it handled the first Application, and it would be unfair to require the respondent to expend resources in preparing to litigate the same issues a second time. It would also be an inappropriate use of the Tribunal’s resources to allow the present Application to proceed simply because the applicant failed to follow the Tribunal’s instructions in the first Application. It would undermine the finality of the Tribunal’s process to essentially revisit its decisions in 2012 HRTO 1870 and 2013 HRTO 1227 by allowing the present Application to go forward.
20The applicant argues that because the named respondents in the two Applications are different there would be no abuse of process in allowing the present Application to proceed. However, it is not necessary for the parties in both proceedings to be the same in order to find an abuse of process through relitigation. What matters is whether the Tribunal is being called upon to decide essentially the same facts and issues.
21The Tribunal addressed this question in May v. Ontario (Health and Long Term Care), 2011 HRTO 2179 (reconsideration denied in 2012 HRTO 733) when faced with the same argument that the applicant is putting forward. The Tribunal noted at para. 51:
The fact that the complainants were not parties in Hogan does not prevent the application of the abuse of process doctrine. The abuse of process doctrine is a flexible tool that is used to protect the fairness and integrity of the administration of justice by respecting the finality of proceedings. It does not require the parties to be the same in both proceedings. In that way, it is different from the doctrine of issue estoppel. It does, however, require that both proceedings deal with the same legal issue. In this case, the issue before me and before the Tribunal in Hogan is the same.
22The factual and legal issues in the first and present Applications are the same, notwithstanding the fact that the respondents are different.
23For the above reasons I conclude that it would be an abuse of process for this Application to continue.
order
24The Application is dismissed.
Dated at Toronto, this 22nd day of January, 2014.
“Signed by”
Paul Aterman
Vice-chair