HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wayne Ferron
Applicant
-and-
The Regional Municipality of Peel and
The Governing Council of Salvation Army in Canada
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Ferron v. The Regional Municipality of Peel
APPEARANCES
Wayne Ferron, Applicant
Self-represented
The Regional Municipality of Peel, Respondent
Gurjit Brar, Counsel
The Governing Council of the Salvation Army in Canada, Respondent
Blair McCreadie, Counsel
Introduction
1This is an Applicatoin filed pursuant to section 34 of of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Tthe Tribunal directed that a preliminary hearing be held to hear submissions on the issues raised by the respondents in opposing the applicant’s Request to Proceed with this Application following the resolution of a civil proceeding.
3The issues addressed at the preliminary hearing included the following:
a. Should the Tribunal waive the condition contained in Rule 14.4 that a request to reactivate a deferred Application be filed no later than 60 days after the other proceeding has concluded; and
b. Whether the Application should be dismissed pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in another legal proceeding, in this case, the civil suit(s) commenced by the applicant.
Background
4This Application was filed on September 20, 2012 and relates to events in August and September 2012.
5Before filing this Application the applicant commenced a civil action (“civil action”) in the Ontario Superior Court of Justice (Court File no. CV-12-1716-00) against a number of named Defendants, including the respondents in this case.
6In Interim Decision, 2013 HRTO 1544, dated September 13, 2013, the Tribunal deferred this Application pending the conclusion of the civil action finding that the two proceedings were inter-related such that deferral was appropriate.
7One of the parties to the civil action and other related civil proceedings filed a Notice of Application with the Court for an Order that the applicant be prohibited from instituting any further proceedings in any Court without leave of the Court and an Order that any proceeding previously commenced by the applicant be discontinued.
8On July 17, 2013, the Court issued an Order declaring the applicant to be a vexatious litigant and prohibiting him from instituting or continuing any proceeding in any court in Ontario unless leave of the Court was first granted. The various proceedings commenced by the applicant were discontinued including the civil action to which this Application was deferred.
9The applicant appealed the Order declaring him to be a vexatious litigant to the Court of Appeal. The Court denied his motion to extend the time to file the appeal in an Endorsement issued on March 5, 2014.
10The applicant sought leave to appeal this Order to the Supreme Court of Canada. Leave to appeal was denied on July 3, 2014.
11On July 17 and on October 14, 2014 the Tribunal wrote to the applicant asking him to confirm the status of the civil action. The applicant did not respond to this correspondence. On October 21, 2014 the Tribunal wrote to the parties to confirm that the applicant had attended at the Tribunal’s offices and advised that the civil action was ongoing and accordingly the Tribunal would continue to defer the Application.
12The applicant filed his request to re-activate the Application on March 21, 2015.
13The Salvation Army argues that this Application should not be reactivated because the applicant’s Request was untimely. The Salvation Army also argues that it should be dismissed pursuant to section 45.1 of the Code and further that it would be an abuse of process for the Tribunal to further process this Application.
Decision
14For the reasons that follow the Request to reactivate the Application is denied and the Application dismissed. Having dismissed the Application on that basis there is no need to deal with the alternative grounds for dismissal argued by the respondents.
15Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure provide:
14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.
14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.
16Though provided with an opportunity to do so, the applicant gave no reason for the delay in filing his Request. He suggested that he understood that the civil action was still active and that he has not received a certified copy of the Order of the Superior Court of Justice declaring him to be a vexatious litigant or the Endorsement of the Court of Appeal dismissing his motion to extend time to file an appeal with respect to initial Order.
17In my view it would be inappropriate to re-activate this Application given the lengthy delay in filing it and the absence of any real explanation for the delay. As indicated above the Supreme Court of Canada denied leave to appeal on July 3, 2014. The applicant was asked by the Tribunal for a status update on July 17, 2014 and did not respond. The Tribunal wrote to him again on October 14, 2014. The applicant advised the Tribunal and the parties that the civil proceedings were ongoing. This was not accurate. To be in compliance with the Tribunal’s Rules this Request should have been made by early September 2014. It was made approximately 6.5 months later on March 21, 2015. This is a lengthy delay and one that is well beyond the time period contemplated by the Tribunal’s Rules of Procedure.
18The applicant relies on the fact that there has been no Order dismissing his civil claims and suggests that the respondents should have obtained such an Order. He also argued that the vexatious declaration was as a result of an Application in another proceeding.
19Whether or not an Order dismissing the civil action could be secured by the respondents is beside the point in my view. The effect of Court’s Order made on July 17, 2013 is clear and effectively concluded all of the applicant’s proceedings in the courts subject to his appeals of that Order. Similarly it is not credible for the applicant to state that he believed the civil action was ongoing when he was aware of the Court’s Order and he does not suggest that he was unaware that his appeals were unsuccessful. It is also not a relevant consideration that the vexatious declaration was initially sought in another of the applicant’s civil proceeding. The Order of the Court discontinued all of the applicant’s various actions in the Court and the Court’s decision and reasons included the relevant civil action.
20The applicant’s claim that he was not aware of his appeal of the Court’s Order is not believable. At a minimum it is clear that he must have launched it, despite his suggestion that one or more of the Defendants had. He is also identified in the Court of Appeal’s Endorsement as the appellant. His suggestion that he lost track of his appeal is not a reasonable or good faith explanation for any delay that might have resulted from these alleged facts.
21The applicant argues that he is unrepresented and that this must be a consideration in whether to reactivate the Application despite the delay in making this request. While it is true the applicant is unrepresented, the applicant has nonetheless been a very active litigant over the last 7 or 8 years. It is apparent that he has more understanding of legal process than many parties who are required to deliver and file the materials required of the Tribunal process. The applicant’s conduct in this proceeding has been highly active and he has filed literally thousands of pages of materials at various times. It is not credible that the applicant was unaware of what was required of him or because he was unrepresented he was unable to get any assistance he might have required. In my view the applicant has provided no good faith explanation for the delay and his attempt to represent that the civil proceeding remains active and ongoing suggests something other than good faith.
22In considering this issue I have considered the cases relied on by the respondents in particular the Decision in Marc-Ali v. Graham, 2012 HRTO 502 which sets out the Tribunal’s approach to this issue. I agree with and adopt the reasoning in that case at paras 19 and 20:
The delay in filing the reactivation Request is approximately two and a half months. The Rules require that a reactivation request be filed within 60 days of the conclusion of the other proceeding. The Tribunal has the discretion to vary time limits set out in its Rules “to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matter before it” (Rule 1.1). In Baker v. Kingston Hospital, 2009 HRTO 2079 (“Baker”), at para. 6, the Tribunal stated that there “must be a good reason” to waive the time limits set out in the Rules. In addition, the length of the delay may be a factor in determining the appropriateness of extending the time limit. See, for example, Vonella v. Blake Jarrett and Company, 2010 HRTO 2158 (“Vonella”), where the delay was only two days.
The principles to apply in extending time limits under the Rules should be similar to the principles established under section 34 of the Code: has the delay in meeting the time limits in the Rules been incurred in good faith (in Baker, this requirement was worded slightly differently, but I see no significant difference between “good faith” and “a good reason”); and will any substantial prejudice to the respondents result from extending the time limit. The length of the delay is a factor in assessing the potential prejudice to the respondents. In addition, the Tribunal should be mindful of Rule 1.1 which sets out the need to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of an application.
23I find that the applicant has provided no reasonable excuse for the lengthy delay in seeking to re-activate this Application. In fact he offers no real explanation. He also had no reasonable explanation for his advice to the Tribunal that the civil proceeding was ongoing. Although he knew it had concluded months earlier when leave to appeal to the Supreme Court of Canada was denied he took no concrete steps to re-active this case until several months later. In my view it would be neither fair just or expeditious to reactivate this Application in these circumstances and I would dismiss the Application for this reason.
24Having disposed of the Application on this basis there is no need to consider the alternative arguments made by the respondents.
25The Application is dismissed.
Dated at Toronto, this 7th day of August, 2015.
“Signed by”
David Muir
Vice-chair