Tomasz Raba v. Frank Vaccarelli, Vito Vaccarelli and Paul McMahon, 2015 HRTO 1279

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tomasz Raba

Applicant

-and-

Frank Vaccarelli, Vito Vaccarelli and Paul McMahon

Respondents

DECISION

Adjudicator: Alison Renton

Date: September 24, 2015

Citation: 2015 HRTO 1279

Indexed as: Raba v. Vaccarelli

APPEARANCES

Tomasz Raba, Applicant

Self-represented

Frank Vaccarelli, Vito Vaccarelli and Paul McMahon, Respondents

Lia Preyde, Counsel

1The applicant filed this Application on June 24, 2014 pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He alleges discrimination on the grounds of race and reprisal. He handwrote a box “hate messages (CHRC) section 13(1)” on the social grounds of housing, goods, services or facilities and contracts. He initially identified housing as the social area on his Application, but scratched that out and handwrote “telephonically communicating”. He identified the date of the alleged last incident of discrimination as being July 23, 2013 and “on or about February, 2014”.

2The respondents filed a joint Response requesting that the Tribunal dismiss the Application because the Application is based upon the same facts as those in a civil court proceeding and a complaint filed with the Ontario Human Rights Commission (“OHRC”) based on the same, or substantially the same, facts as this Application. The respondents submit that substantially similar allegations have been decided twice by the Tribunal in previous applications filed by the applicant since 2012 and he has filed two civil claims against the respondents based upon the same allegations of receiving the hate messages. The respondents also submit that the civil actions are being litigated in the Ontario Superior Court of Justice. The respondents submit that the applicant is a vexatious litigant and that the Application is a flagrant abuse of process.

3The applicant filed a Reply in which he submits that the allegations in his Application have never been determined by the Tribunal or the courts. He repeated, in a summary fashion, some of the allegations from his Application.

4An earlier Request to Expedite, filed by the applicant, had been denied by the Tribunal.

5A Case Assessment Direction, dated February 13, 2015 (“the CAD”), was issued by the Tribunal advising the parties that the Tribunal would hold a preliminary hearing, by telephone conference call (“the conference call hearing”) to determine whether:

a. The Application should be dismissed or deferred because the applicant has commenced a proceeding in a civil court which includes the same allegations; and/or,

b. It would be an abuse of process to allow the Application to continue because it amounts to re-litigation of the applicant’s first two Applications; and

c. Whether the applicant should be declared a vexatious litigant.

6The CAD directed the parties to deliver any documents or case law upon which they intend to rely with each other and the Tribunal no later than 14 days after the CAD was issued. The respondents filed case law upon which they intended to rely and copied the applicant. They also advised that they did not wish to advance the argument that the applicant had filed a complaint with the OHRC. The applicant did not file any materials subsequent to the issuance of the CAD.

7A Notice of Confirmation of Hearing, dated March 11, 2015, was issued to the parties scheduling a conference call hearing (“the hearing”) for May 11, 2015.

8On March 5, 2015, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to amend his Application. There was no indication on the RFOP about what or how the applicant wanted to amend his Application. The Tribunal sent an email to the parties the same day advising that the RFOP would not be processed as it was incomplete. The respondents were not required to file a Response to the RFOP.

9On March 7, 2015, the Tribunal issued another Case Assessment Direction (“the second CAD”). In it, the Tribunal noted that the Application may be untimely and that the parties could make submissions addressing this issue at the hearing. It also stated that the applicant should be prepared to address how his Application falls within the ambit of the Code given his allegations that the hate messages violate section 13(1) of the “CHRC”. The Tribunal observed that the Canadian Human Rights Act (“CHRA”), if the applicant meant that, was different from the provincial Code. It also noted that section 13(1) of the CHRA was repealed in 2013 and is not legally operative.

10Prior to the conference call hearing, and after the second CAD was issued, the applicant sent three emails to the Tribunal, copying the respondents’ counsel, stating that he was “dropping” his Application because the Tribunal had not responded to his RFOP.

11His emails, with the dates and times sent, are reproduced below, with errors in the originals:

I’m dropping the application as ohrt has not replied to my request to amend the claim, so I can’t fully argue what I want.

I will simply file a new one on my amendment so u under stand its not hate messages … Its retaliation intimidation threats and discrimination (the hate messages) for filing a compliant .. to give any evidence or assist in any way in relation to the original prosecution of the complaint made against resondence .. numerous complaints. (Sent May 7 7:25 p.m.)

To ohrt

Please cancel my application against the respondence .. (sent May 8 9:28 a.m.)

To: OHRT and the despondence

I’m dropping the application to be heard on May 11, 2015 (hate messages) against the respondents as OHRT (after all is that what the OHRT wants?) because it has not replied to my request to amend the claim. So, I am unable to fully argue what I want OHRT has also, misconstrued what the applicant is for and twisted to their own likening then cant seem to be able to read the application properly.. And OHRT is perpetrating a fraud once again further, now stating a delay and other deceptions.

Furthermore, there is not reason for me to argue (hate messages) as against the respondents as they have been all charged and noted in default in a Superior court action pursuant to the Rules of civil procedure, Rule 19.02(1)(a) have been deemed all the allegations of the statement of claim to be true. and (b) cant take steps.

since OHRT is keeping me from amending the original claim, I therefore will file a new claim against the respondents on what I was going to amend, because there was another retaliation for filing a complaint on October 2014 by the respondents when I filed a court of appeal complaint against the respondents, so you the ORHT can under stand its not the Hate messages I’m claiming relief for as noted in my original claim… it’s the retaliation, intimidation, threats and discrimination (hate messages in relations) for filing a complaints as against the respondents, numerous legitimate complaints.. to keep me from giving any evidence or assist in any way in relation to the original prosecution of the complaint as against respondents.. (May 8 2:22 p.m.)

12The respondents sent an email to the Tribunal, between the second and third emails, requesting that the hearing continue, at least with respect to their request that the applicant be declared a vexatious litigant.

13After receiving these emails, the Tribunal sent an email to the parties noting receipt of the applicant’s request and the respondents’ objection to it. It advised the parties that the hearing would proceed as scheduled and that this issue, the termination, would be addressed by the adjudicator during the conference call hearing.

14The conference call hearing was held on May 11, 2015, and all the parties participated. Lia Preyde represented the respondents during the conference call hearing. The conference call hearing commenced at 9:30 a.m. and ended at 12:05 p.m. The length of the hearing was because of the applicant’s conduct, which is described below.

15At 11:31 a.m., the applicant suddenly left the call, midway through speaking. He returned to the call at 11:38 a.m. and made further submissions.

the issues

16The background to this Application, the allegations in this Application, and the parties’ submissions during the conference call hearing give rise to the following issues:

1. Did the applicant “terminate” this Application?

2. Does this Application amount to a re-litigation of previous Applications filed by the applicant?

3. Is the Application barred by section 34(11) of the Code?

4. Should the Application be dismissed because of the applicant’s conduct during the conference call hearing? and,

5. Should the Tribunal declare the applicant a vexatious litigant?

background information

This Application – File 2014-18041-I

17As indicated above, this Application was filed on June 24, 2014. In the narrative attached to the Application form, the applicant self identifies as an individual who resided in a rental unit pursuant to a lease agreement from March 1, 2009 to July 23, 2012. He identifies the respondent Frank Vaccarelli as the property owner, Paul McMahon as the superintendent who lived at the location, and Vito Vaccarelli as the building manager of the location.

18The Application contains extensive background information, setting out the relationship that the applicant had with the respondents and some of the prior legal proceedings he has had with them, including prior human rights applications.

19In this Application, the applicant alleges that on June 4, 2013, after his tenancy ended, he received 20 “hate messages” by telephonic communication from the respondents and that his family members received four “hate messages” from the respondents. The applicant reported these hate messages to the police, who did nothing about them. The applicant also filed private criminal charges against the respondents and on June 7, 2013, a magistrate heard the applicant’s complaints against the respondents with resulting, unspecified, charges against Vito Vaccarelli and Frank Vaccarelli. The applicant filed an Application on July 23, 2013 alleging discrimination by the respondent Vito Vaccarelli. This is discussed in more detail below.

20Further, the applicant alleges that Paul McMahon was charged with assault and uttering death threats against the applicant. The applicant alleges that the respondent McMahon breached his bail terms and conditions by communicating with the applicant. The applicant reported this to the police, who did nothing about it. The respondent McMahon’s criminal charges were, without reason, dropped by the police, but he was placed on a peace bond. However, the applicant alleges, the respondent McMahon breached the peace bond by communicating hate messages to the applicant and his family.

21Subsequent to filing his July 2013 Application, the applicant received another hate message. He went to the police about the new hate message, but again the police did nothing about it. Instead, the police accused the applicant of having mental health issues.

22The applicant reproduced details of some of the hate messages that he alleges he and his family received from the respondents. The date he alleges the hate messages were sent was “04/06/2013”, presumably June 4, 2013. The hate messages contain allegations that one of the applicant’s family members sells drugs, allegations of tax evasion, allegations of physical violence towards the applicant and members of his family, and a peace bond pertaining to one of the respondents. The messages contain a number of expletives. He received another “hate message” in February 2014, which he also reproduced in his narrative.

Previous Applications filed with the Tribunal

23The applicant has filed 10 other Applications with the Tribunal, in addition to this Application. Seven of those applications have been dismissed pursuant to an issued Decision. See Raba v. Vaccarelli, 2012 HRTO 1870 (File 2012-11403-I); Raba v. Toronto Police 11 Division, 2014 HRTO 1228 (File 2014-16455-I); Raba v. Vaccarelli, 2014 HRTO 97 (File 2013-15055-I); Raba v. University Health Network, 2014 HRTO 1695 (File 2014-16702-I); Raba v. Cook, 2014 HRTO 84 (File 2014-19124-I); Raba v. Law Help Ontario, 2015 HRTO 137 (File 2014-18944-I); and Raba v. Griffith, 2015 HRTO 981 (File 2014-19368-I).

24The applicant filed two Requests for Reconsideration for files 2012-11403-I and 2014-16455-I, both of which have been denied. See Raba v. Vaccarelli, 2013 HRTO 1227, and Raba v. Toronto Police 11 Division, 2014 HRTO 1648.

25With the exception of the application against Law Help Ontario in file 2014-18944-I, which contained very brief allegations, each of these applications pertain to the issues that the applicant had against the respondents in 2012 and onwards, although not all the applications are against the respondents in this Application. The other applications include allegations about refusal of medical services for injuries he alleged incurred as a result of the respondents, actions and inactions taken by the Toronto Police and its officers in relation to issues the applicant raised with them about the respondents, and a Tribunal Vice-chair who dismissed one of his applications against the Toronto Police, whom, the applicant alleged, failed to address the respondents’ conduct.

26In the first application, Raba v. Vaccarelli, 2012 HRTO 1870 (File 2012-11403-I), the application was dismissed as abandoned when the applicant failed to respond to the Tribunal’s direction to provide submissions on whether it would be appropriate to defer the application pending conclusion of proceedings before the Landlord and Tenant Board in 2012 (“the 2012 LTB proceeding”). The applicant’s request for reconsideration was also dismissed. See Raba v. Vaccarelli, 2013 HRTO 1227.

27In Raba v. Cook, 2014 HRTO 84 (File 2014-19124-I), the applicant filed an application against a Tribunal Vice-chair who dismissed the applicant’s application against the Toronto Police 11 Division and a police constable because it was untimely.

28Three more applications were filed in 2015. In each of these, the Tribunal advised the applicant that his applications were incomplete, directed that he file further information, and administratively closed the file when the applicant failed to respond to the Tribunal’s correspondence. The respondents in those applications included the LTB pertaining to the 2012 LTB proceeding, a lawyer who represented the applicant at the 2012 LTB proceeding, and a paralegal who represented him at the 2012 LTB proceeding. In the applications against the lawyer and the paralegal, the applicant stated that he had filed complaints against them with the Law Society of Upper Canada.

Other Legal Proceedings

29In addition to the above-noted Tribunal decisions and reconsideration decisions, the applicant has commenced three civil actions in Ontario’s Superior Court of Justice pertaining to issues arising from his 2012 LTB proceeding with the respondents. He has sued the LTB itself, as well as two LTB members who issued decisions about his LTB proceeding with the respondents. See: Raba v. Landlord and Tenant Board, 2014 ONSC 2599, aff’d 2014 ONCA 864, in which the statement of claim was dismissed as a collateral attack on the LTB decision and an abuse of process; and Raba v. Wronecki, 2015 ONSC 20, which held, at para. 10, that there was no legal basis upon which to assert the applicant’s claim, and, at para. 14, that the doctrines of stare decisis, res judicata, issue estoppel and abuse of process apply. In Raba v. Wronecki, 2015 ONSC 561, the applicant was ordered to pay costs to the defendants.

30In Raba v. Toronto (Police Services Board), 2015 ONCA 12, in which these respondents were named as defendants along with other defendants in the statement of claim, the Ontario Court of Appeal endorsed the appeal book stating, “This is an interlocutory order. The court has no jurisdiction to hear this appeal. Accordingly, the appeal is quashed”. Costs were fixed to the defendants in the amount of $2,000.00. From the respondents’ submissions, there is a second civil action commenced by the applicant against the respondents.

the parties’ submissions

The Respondents’ Submissions

31The respondents submit that this Application should be dismissed because of the two civil actions the applicant has filed against them, the second action containing additional respondents, including Toronto Police Service and a police constable. The respondents submit that the applicant seeks the same or similar remedies in the civil actions and that the second statement of claim references his previous human rights application and indicates that the applicant had to file the second statement of claim because he was not getting anywhere with his applications before the Tribunal as they were dismissed.

32While the Code grounds are not specifically pleaded in the civil actions, the respondents submit that the substance of the civil claims is the same as this Application as they both pertain to the “hate messages” that were allegedly made. Further, both civil claims seek remedies, essentially for a Code breach, with the same facts being relied upon in both. They submit that section 34(11) may bar an application regardless of whether the civil action is filed before or after the application. They relied upon a decision from another of the applicant’s applications in Raba v. University Health Network, 2014 HRTO 1695.

33The respondents submit that the Application is an abuse of process. They submit that the allegations are similar to an application the applicant filed in 2013 which was dismissed in 2014 as being an abuse of process. Instead of filing a Request for Reconsideration or judicially review the decision, the respondents submit that the applicant filed this Application, which contains the same set of facts and allegations. The applicant cannot, the respondents submit, challenge a previous decision of the Tribunal by filing a new application.

34The respondents submit that the allegation from February 2014, which is referenced above, does not raise a Code ground and the allegations from 2013 and before have been raised in his other applications and civil proceedings. The Tribunal does not have the jurisdiction, the respondents submit, to hear submissions about a violation of the CHRA.

35The respondents request that the applicant be declared a vexatious litigant by the Tribunal and seek an order that the applicant would be prevented from filing further applications without leave of the Tribunal. They submit that the applicant has filed three applications against the respondents, repeating many of the same allegations, which have been dismissed by the Tribunal in other decisions.

36The applicant’s 2012 application was dismissed, the respondents submit, because the applicant failed to respond to a Case Assessment Direction which directed him to file submissions (Raba v. Vaccarelli, 2012 HRTO 1870 (File 2012-11403-I). The applicant filed a Request for Reconsideration of that decision, which was denied (Raba v. Vaccarelli, 2013 HRTO 1227), so he filed another application, this time against one of the other respondents, which was dismissed as an abuse of process (Raba v. Vaccarelli, 2014 HRTO 137 (File 2013-15055-I). Six months after that application was dismissed, he filed this Application which was the subject of the conference call hearing.

37The respondents submit that the applicant continues to file applications and ignores the Tribunal’s directions to provide further information. Furthermore, he has commenced two civil claims and commenced criminal proceedings. He has threatened to file more applications with the Tribunal and threatened to file a complaint to the Law Society of Upper Canada about their counsel. The respondents submit that the Tribunal has a public duty to the parties and that they cannot recover their legal fees in the event that the Application is dismissed.

38The applicant’s conduct during the conference call hearing, the respondents submit, is a further example of why he should be declared a vexatious litigant.

The Applicant’s Submissions

39The applicant acknowledged that he has filed two other applications pertaining to these respondents. He stated, “so what”, and submitted that there is no law which prevents him from filing another application. He insisted that the Tribunal show him where there was an overlap in the facts between the applications. He noted that the respondents were different between his applications, as well as the facts, such that section 45.1 of the Code did not apply. Later during his submissions, he stated that if he filed a new application, it would not be based upon the same facts, but different facts. He did not identify what the different facts would be.

40With respect to the civil actions, the applicant says that the first civil action had nothing to do with “hate messages” and nothing in the Application relates to the second civil action. He has a right to “joinder”, he submitted, and a right under the Rules of Civil Procedure to sue in different capacities. He submitted that the defendants in the civil action had been noted in default, and thereby all the allegations in the second statement of claim were deemed to be true.

41As for the allegations about the CHRA being violated, the applicant submitted that because this is Canada, the Tribunal has the jurisdiction to deal with all that happens in Canada.

42The applicant made a number of allegations about the respondent McMahon, alleged that the other respondents were protecting him and claimed, “I will pursue justice to the end and I will never give up”. At another point he alleged that he was not seeking any money, but justice. He stated that he was terminating his Application, that the Tribunal could not force him to argue the issues and that if it did, it would be violating his human rights and he would name the Tribunal as a co-conspirator. He was terminating the Application, he stated, because it was not written properly about the hate messages which are reprisals under the Code. Later in his submissions, some two hours after the hearing started, he stated that he wanted to terminate his Application, not because he is a bad person, but because he is sick.

43He is not a vexatious litigant, he submitted. He acknowledged that he had read a Tribunal decision in which an applicant, a University of Toronto student, had been declared vexatious because she amended her application again and again. He is not doing that and he is not suing for the same thing as in his previous applications as they are all unrelated.

44He alleges that the Tribunal wants to thwart all of his applications, is trying to pervert justice, and trying to hurt him. The first Application was filed when he was tenant in 2012 and he is no longer a tenant of the respondents. The hate messages which are the subject of his Application have not been included in earlier applications.

45At approximately 11:32 a.m., mid-sentence, the applicant abruptly left the call. The Tribunal and Ms. Preyde remained on the telephone line waiting for the applicant to return to the call. He returned to the call at 11:38 a.m. and completed his submissions.

Analysis

1. Did the Applicant “terminate” his Application?

46I do not accept that the Application was “terminated” or “dropped” as the applicant stated in his emails prior to the conference call hearing. The applicant did not file a Form 9, Request to Withdraw prior to the conference call hearing.

47The applicant says that the basis for the termination is because the Tribunal would not let him amend his Application pursuant to his RFOP seeking to amend it. As set out above, the Tribunal wrote to the applicant advising that his RFOP was incomplete and advised that the respondents did not have to file a Response to the RFOP. The RFOP that was filed is merely the completed Form 10. There is no indication on the form itself about how the applicant sought to amend his Application.

48Prior to the conference call hearing, the Tribunal wrote to the applicant acknowledging receipt of the emails that he sent advising that his Application was “terminated” and advised him that this issue would also be discussed during the conference call hearing. During the conference call hearing, the applicant was argumentative and fixated on the word “issue” referred to in the Tribunal’s email. He demanded to know what was meant by the word “issue” and refused to accept any explanation provided to him by the Tribunal about his alleged termination being an issue for discussion during the conference call hearing and insisted that his Application was “terminated”.

49Furthermore, the applicant made it clear that he intended to file a new application based upon the same set of facts as the “terminated” Application.

50Based upon this, I do not find that the applicant’s Application was “terminated”, particularly given his representation that he intends to file another one on the same facts. Accordingly, I will consider the other issues raised during the conference call hearing, as well as the applicant’s conduct, to determine whether this Application can continue in the Tribunal’s process.

2. Does this Application amount to a re-litigation of previous Applications that the Applicant has filed with the Tribunal?

51Section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, as amended (“SPPA”), provides that the Tribunal may make such orders as it considers proper to prevent an abuse of its processes.

52This is further confirmed in Rule A8.1 of the Social Justice Tribunal Ontario’s Common Rules, found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure (“The Tribunal’s Rules”). It states:

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

53The applicant filed an Application with the Tribunal (File 2012-11403-I), on April 24, 2012, against Frank Vaccarelli and Paul McMahon for discriminatory comments that the respondent McMahon allegedly made towards the applicant, discriminatory comments and conduct by these respondents to the applicant, and the respondent Vaccarelli’s not responding to these allegations after the applicant told him about them. In File 2012-11403-I, the applicant also filed with the Tribunal materials from the LTB including a copy of this LTB application and the LTB notice of hearing confirming that a hearing was scheduled for May 2, 2012. The narrative to his LTB application sets out his allegations against the respondents, including the alleged misconduct, harassment and discrimination to which he had been subjected by the respondents.

54The Tribunal dismissed File 2012-11403-I as abandoned when the applicant failed to respond to directions issued by the Tribunal. See Raba v. Vaccarelli, 2012 HRTO 1870. A Request for Reconsideration was dismissed by the Tribunal as it did not find that the applicant het met the burden of establishing any of the threshold criteria justifying reconsideration. See Raba v. Vaccarelli, 2013 HRTO 1227 (“the reconsideration decision”).

55Approximately ten days after the reconsideration decision was issued, the applicant filed a new Application against the respondent Vito Vaccarelli (“File 2013-15055-I”), for alleged vicarious liability for Mr. McMahon’s harassing and discriminatory treatment towards the applicant, seeking $1,000,000.00 as a remedy. The applicant also filed 118 pages of materials in File 2013-15055-I, dated July 23, 2013, including more than 50 pages of narrative about the alleged misconduct and legal analysis.

56File 2013-15055-I was dismissed by the Tribunal for abuse of process in a decision dated January 22, 2014. See Raba v. Vaccarelli, 2014 HRTO 97. At para. 22, the Tribunal found that the factual and legal issues in file 2012-11403-I and 2013-15055-I are the same, notwithstanding the fact that the respondents were different.

57In coming to this conclusion, the Tribunal considered the doctrine of abuse of process and stated, at paras. 13, 14 and 17:

The 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, re-litigation, 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 on 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.

Here the issue of one of re-litigation. Within days of the Tribunal decision 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 the naming of the respondents.

The question to be decided here is whether it would be an abuse of process to allow exactly the same facts and issues to be re-litigated before the same adjudicative body. This is not a case where what is at stake is a second application 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.

58Comparing this Application (File 2014-18041-I) with the one filed in File 2013-15055-I, except for the February 2014 allegation in this Application, the applicant’s allegations about the “hate messages” that he allegedly received from the respondents on “04/06/2013”, July 23, 2013, and November and December 2012 were all specifically referenced in File 2013-15055-I, in the July 23, 2014 materials that the applicant filed with the Tribunal. Specifically, in the July 23, 2014 materials in File 2013-15055-I, paragraphs 99, 100, 105, and 110-127 contain the same allegations as the allegations in this Application. This material from July 23, 2013 was before the Tribunal in File 2013-15055-I, which was dismissed as an abuse of process in Raba v. Vaccarelli, 2014 HRTO 97

59Accordingly, adopting the reasons in Raba v. Vaccarelli, 2014 HRTO 97, as set out above, it would be an abuse of process to permit this Application to continue, and all of the allegations, with the exception of the allegation pertaining to February 2014, are dismissed. The allegation pertaining to February 2014 is not dismissed, but will be further considered below.

3. Is this Application Barred by [section 34(11)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec34subsec11_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

60Section 34(11) of the Code states:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

61The purpose of section 34(11) is to prevent the duplication of litigation in which two proceedings involve the same factual situation where both proceedings could give rise to a remedy for discrimination. Whether or not a breach of the Code is specifically pleaded in the civil action is irrelevant. See Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, and Xynnis v. 1196197 Ontario Limited (cob Fran’s Restaurant), 2015 HRTO 163 (“Xynnis”) at para. 12. It is immaterial whether the civil action is filed before or after the application. See Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319 (Div. Ct.) at para. 39.

62The Tribunal’s approach has been to look at the substance of an application also being litigated in a civil suit, and not to follow an unduly technical approach. See Xynnis at para. 13.

63This Application contains many of the same allegations as those in the applicant’s statement of claim that he filed with the courts on May 5, 2014. While the “hate messages” in the statement of claim are not set out in detail like they are in this Application (and the previous Application in File 2013-15055-I), they are referenced at para. 87, with various actions that the applicant took or attempted to take to have the hate messages addressed by the police. The “hate message” contained at para. 99 of the statement of claim,is essentially the same as the February 2014 “hate message” contained at para. 62 of this Application.

64The statement of claim appears to be drafted to carefully avoid any reference to the Code as it is not specifically mentioned, although other legislation, such as the Charter of Rights and Freedoms, is mentioned. However, there are continuous references to the alleged actions of the respondent McMahon as being “discriminatory”, “bigoted”, “derogatory” and “harassing”, with specific comments pleaded in relation to the applicant’s ethnic origin and/or ancestry. A number of those comments had been included in this Application and the applicant’s previous Applications, including File 2012-11403-I and 2013-15055-I. There are references to a “duty of care” that the applicant alleges the respondents Frank and Vito Vaccarelli owed to him as a tenant on their premises, which parallels a landlord’s obligation to a tenant to ensure that he or she occupies accommodation with a right to freedom from harassment by the landlord or an agent of the landlord. See section 2(2) of the Code.

65There are no specific Code remedies sought in the statement of claim. However, there is an overlap in some of the remedies being sought between the Application and the statement of claim. In both, the applicant seeks “punitive damages” against the respondents (although the amounts differ), “general damages” and “damages” for emotional pain, financial and economic loss, loss of companionship, and outrageous behaviour.

66Based upon the parallels between this Application, including the February 2014 allegation, and the statement of claim, I find that section 34(11) of the Code has the effect of barring the Application. To find otherwise would be to allow a duplication of the litigation commenced by the applicant in the Superior Court of Justice. For these reasons, the Application is dismissed in its entirety.

4. Should the Application be dismissed because of the Applicant’s Conduct during the Conference Call Hearing?

67In the alternative, I would dismiss the Application as an abuse of process given the applicant’s conduct during the conference call hearing.

68The applicant’s conduct during the conference call hearing was nothing short of abusive towards the Tribunal and the respondents’ counsel. Immediately after I introduced myself at the beginning of the conference call hearing, the applicant was consistently and persistently disrespectful and argumentative. He constantly interrupted the conference call hearing. He yelled and made a number of accusations about me, as a representative of the Tribunal. He also displayed disrespectful conduct towards the respondents’ counsel.

69I advised the applicant that the Tribunal’s Rules of Procedure require that the parties treat the Tribunal and each other with respect, and directed the applicant, a number of times, to stop interrupting me. I explained that he would have the opportunity to speak during the conference call hearing. However, his conduct persisted and he was ungovernable during the conference call hearing.

70Shortly after the conference call hearing commenced, the applicant stated that he was recording the hearing. The applicant was advised that the Tribunal’s Practice Direction on Recording Hearings (“the Practice Direction”) required the Tribunal’s consent to record before a party started recording. The applicant retorted, “I’ll record whenever I want to”. He requested a copy of the Practice Direction, then stated sarcastically, “of course you can’t give me a copy because we’re over the telephone and that’s why we should have had a hearing in person”. I read him the contents of the Practice Direction and asked, after reading this paragraph twice, whether he would agree to give a copy of the recording to the Tribunal and the other parties. The applicant stated that he would be “glad” to give a copy, if his cellular telephone was recording the conference call hearing. He stated that he had nothing to hide, and asked “does the HRTO have something to hide?” I ruled orally that the applicant could record the proceeding given his agreement to provide a copy to the Tribunal and the respondents.

71Several times during the conference call, the applicant apologized for his behaviour and said that he had not had any coffee that morning. He also stated that he was not feeling very well, that he had been poisoned and physically disabled by one of the respondents, and was not usually “up” at this time of the morning. It was explained to the applicant that the Tribunal would take all the time necessary for the call. He had made no previous request to be accommodated during the call. He made no such request during the conference call hearing.

72While counsel for the respondents was making her submissions, the applicant said that it was too much for him to respond to all of her submissions at one time. As such, respondents’ counsel was directed to make her submissions separately on each issue, then the Tribunal gave the applicant the opportunity to respond to each issue individually before hearing from the respondents’ counsel about the next issue.

73Notwithstanding my instructions, the applicant continued to interrupt, yell, and otherwise behave inappropriately during the conference call hearing. I advised the applicant that if he failed to comply with the directions of the Tribunal, the call would be terminated and a decision would be issued based upon what had been heard until that time.

74The following are examples of the applicant’s conduct towards the Tribunal during the conference call:

• Immediately upon entering the conference call hearing and after I introduced myself as a Vice-chair with the Tribunal, the applicant interrupted me and stated that he did not recognize my authority as a Vice-chair because I had not issued the CAD setting up the case management hearing. He questioned why the hearing was not being conducted by the male Vice-chair who issued the CAD;

• The applicant repeatedly questioned why the issues were being dealt with by conference call hearing rather than in-person and refused to address the issues identified in the CADs and other Tribunal communications;

• The applicant accused me of preparing the order or decision prior to the conference call hearing;

• The applicant accused me of making up my mind during the call and alleged, “Are you happy to squeeze me?”;

• The applicant constantly interrupted the conference call hearing when others were speaking;

• The applicant attempted to direct a number of questions to respondents’ counsel despite the Tribunal’s instructions to address his comments, submissions and questions to me as the conference call adjudicator;

• The applicant accused me of “blabbering”, “lying”, conspiring and colluding with the respondents’ counsel, intimidating him, threatening him, perpetuating a fraud, “making things up”, being “discriminatory”, being unfair, screaming at him, and preventing him from giving evidence;

• The applicant alleged that all Tribunal adjudicators were unfair towards him and asked how I could “sleep with a good conscience” because of what I was doing;

• The applicant told me that he had to do my job and implied that I was either not doing a good job or was not competent. He said, “You seemingly cannot read the Application” and “You don’t know anything” and asked, sarcastically, “What part of it do you not understand?”; he said that he should have brought a dictionary to the conference call hearing so he could read out the definition of “termination” so I could understand what it means;

• The applicant accused the Tribunal of violating his human rights, by forcing him to make arguments “against his will” about his Application which he had terminated, and alleged that this was “illegal” and contrary to the Charter of Rights and Freedoms;

• The applicant refused to make submissions, at times, beyond stating that his Application was “terminated”; at other times, he refused to make submissions, and instead repeated a number of the allegations in the Application or allegations from other legal proceedings with the respondents;

• The applicant said that he could not respond to the issues raised in the second CAD because he did not have sufficient notice of those issues;

• The applicant accused the Tribunal of assisting the respondents with their “criminal activities” when it dismisses applications, and alleged that it was involved in conspiracy and “civil conspiracy”;

• The applicant said that he would use his tape recordings against the Tribunal in a court of law and threatened to name me or the Tribunal as a party in his future legal proceedings, including a civil action that he had with LTB; and

• The applicant asked sarcastically, “are you guys the human rights or the human wrong?”

75With respect to the respondents’ counsel, the applicant demanded to know whether she was a lawyer or paralegal, demanded to know her background, and alleged that she was not a lawyer. I refused to allow him to question the respondents’ counsel about her background as it was not relevant to the issues for which the conference call hearing had been scheduled. Furthermore, this was the first time the applicant had raised concerns with the respondents’ counsel, despite her Law Society of Upper Canada number appearing on the joint Response that was filed by the respondents.

76Furthermore, the applicant alleges that the respondents’ counsel was “lying”, alleged she also was “making things up” and stated “all lawyers are liars”. He asserted that she was not intelligent and had misconstrued her facts. He threatened to file a complaint about her with the Law Society of Upper Canada. He alleged that he had not received materials that the respondents had filed with the Tribunal, despite being copied by email on the respondents’ counsel’s email communications to the Tribunal on February 25, 2015. The respondents’ counsel had filed case law with the Tribunal, but not submissions. The CAD had not directed the respondents to file submissions.

77My observation of the respondents’ counsel during the call was that she behaved professionally, despite the abuses that the applicant shouted to and about her. She attempted to make submissions as concisely and smoothly as possible, and observed that the applicant’s behaviour during the conference call hearing illustrated the respondent’s position that he should be declared a vexatious litigant.

78The applicant’s conduct during the conference call hearing brings into question whether the Tribunal should proceed with the Application. The applicant initiated a legal proceeding before the Tribunal, alleging violations of the Code. In bringing this Application, the applicant has initiated a process that engages the Tribunal’s resources and efforts, as well as the respondents’ resources and efforts. The applicant’s conduct raises an issue about the extent of the Tribunal’s obligations to hear and determine an Application where an applicant engages in conduct that is abusive or disrespectful to the Tribunal and the other parties. Besides the personal insults directed towards the Tribunal and the respondents’ counsel, the applicant also demonstrated disrespect for the Tribunal and its processes. He continued to do this, despite being repeatedly directed to cease from this behaviour, and he was ungovernable.

79The Tribunal will not condone behaviour at a hearing, or directed towards an adjudicator or any other participant in its proceedings, that is offensive, abusive or profane. The applicant’s behaviour, as outlined above in this section, is offensive, abusive and profane. Accordingly, on this basis, the Tribunal dismisses the Application in its entirety, including the allegation from February 2014.

5. Should the Tribunal declare the Applicant a Vexatious Litigant?

80Section 34(1) of the SPPA sets out the Tribunal’s jurisdiction to make such orders as it considered proper to prevent an abuse of its processes.

81Rule A8.2 of the Tribunal’s Rules provides:

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.

82As such, to prevent abuse of its processes, the Tribunal has the authority to determine that a person is a vexatious litigant, and to require him or her to obtain permission from the Tribunal to file further applications. 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, judicial review dismissed in 2015 ONSC 5113 (Div. Ct.); and Dai v. Presbyterian Church in Canada, 2012 HRTO 1975, judicial review dismissed 2013 ONSC 6650 (Div. Ct.).

83In Hiamey, above, at para. 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.

84The Tribunal concluded, at para. 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.

85In Drenic, above, the Tribunal stated, at para. 19:

… The Tribunal should not lightly subject a particular individual to an additional step in bringing a human rights application…. At the same time, the Tribunal has a duty to ensure that public resources, and those of the respondents, are not abused by a series of vexatious applications….

86As set out earlier in this Decision, the applicant’s conduct during this hearing was outrageous, disrespectful and ungovernable. Apart from his conduct specifically towards the Tribunal, with respect to this Application, he insisted prior to the conference call hearing that he had “terminated” his Application, and during the call he repeated this assertion and exclaimed that accordingly he did not have to make submissions about the issues identified in the CADs. He repeatedly stated, during the conference call hearing, that he would file a new application against these same respondents, based upon the same allegations, although worded differently.

87The Tribunal’s case management system indicates that the applicant has filed 11 applications since 2012. Each of the respondents has been named as a respondent in two applications.

88Seven of the applicant’s applications have been dismissed pursuant to an issued Decision. See para. 23 for the listing of the reported decisions.

89With the exception of the application against Law Help Ontario, each of these applications pertain to the issues that the applicant had against the respondents in 2012, and onwards, including medical treatment for the alleged injuries he incurred as a tenant of the respondents, and actions and inactions taken by the Toronto Police and its constables in relation to issues the applicant raised with them about the respondents.

90The first application, Raba v. Vaccarelli, 2012 HRTO 1870, was dismissed as abandoned when the applicant failed to respond to the Tribunal’s direction to provide submissions on whether it would be appropriate to defer the application pending conclusion of the 2012 LTB proceedings. The applicant’s request for reconsideration was also dismissed. See Raba v. Vaccarelli, 2013 HRTO 1227.

91In Raba v. Cook, 2014 HRTO 84, the applicant filed an application against a Tribunal Vice-chair who dismissed the applicant’s application against the Toronto Police 11 Division and a police constable because it was untimely. The applicant’s request for reconsideration was also dismissed.

92Three more applications, which were filed in 2015, have been closed administratively as being incomplete. See para. 28, above, for details about those applications.

93In addition to the Tribunal decisions and reconsiderations, the applicant has commenced three civil actions in Ontario Superior Court of Justice pertaining to issues arising from tenancy with the respondents. See paras. 30 to 31 of the Decision for details about those.

94In the second CAD to this Application, the Tribunal made it clear that it only has the jurisdiction under the provincial Code to hear and determine allegations of harassment and discrimination. It does not have the jurisdiction to hear allegations under the CHRA. Furthermore, as set out in the second CAD, section 13(1) of the Canadian Human Rights Act, the “hate messages” section, was repealed in 2013 and is not legally operative.

95While I understand that this Application alleges reprisal under the Code because of earlier applications he filed against the respondents, it is clear that the applicant has initiated a number of legal proceedings, before the Tribunal and the courts, all stemming from his tenancy with the respondents which ended in 2012. Unlike the civil process, a respondent is unable to recover any costs resulting from the Tribunal process because this Tribunal has no jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.

96As noted in Shi v. Holcim (Canada) Inc., 2013 HRTO 1865 at para. 24:

The lack of costs awards surely makes the Tribunal more accessible to vulnerable members of the public who believe that they have been discriminated against. However, to be fair to respondents and the broader public, whose tax dollars fund the Tribunal, the Tribunal also has to be vigilant to ensure that the lack of costs awards does not facilitate vexatious litigation.

97I am satisfied on an objective standard that the applicant has persistently and without reasonable grounds instituted vexatious proceedings. Considering the factors set out in Hiamey, above, I find that in one way or another all of these circumstances are present in this Application and I declare the applicant to be a vexatious litigant. I also find that the applicant should be prevented from filing an application against any respondent against whom he makes allegations pertaining to his 2012 LTB proceedings, these respondents, his tenancy with these respondents and/or his legal proceedings with these respondents, not just the ones identified in this Application, without leave of the Tribunal. I make this determination noting that in all but the application against Legal Help Ontario (which contains bare allegations) the allegations pertain to situations arising from the applicant’s interactions with the respondents in 2012 LTB proceedings, and subsequent interactions.

98This conclusion does not mean that if the applicant believes that he has experienced discrimination under the Code, he may not file an application. It means, instead, that he must first obtain the Tribunal’s consent before it will be processed.

order

99I make the following orders:

1. The Application is dismissed;

2. The applicant is declared a vexatious litigant. I order that Tomasz Raba or Tom Raba (as he files applications under both names) may not file further applications at this Tribunal pertaining to his tenancy with these respondents, these respondents, his 2012 LTB proceeding, or his other legal proceedings pertaining to these respondents without leave of the Tribunal; and,

3. If the applicant seeks leave of the Tribunal to file any such future applications, he must include with his complete application submissions that outline why the application is intended as a legitimate assertion of his Code rights, is not intended to vex the respondents and will not result in an abuse of process. The Tribunal will consider any future applications which fail to include these submissions as incomplete and will treat them as such.