Nikoloas Giannias v. Toronto District School Board, 2015 HRTO 1535

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nikoloas Giannias Applicant

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: November 13, 2015 Citation: 2015 HRTO 1535 Indexed as: Giannias v. Toronto District School Board

APPEARANCES

Nikoloas Giannias, Applicant Self-represented

Toronto District School Board, Respondent Leola Pon, Counsel

Introduction

1The applicant filed an Application alleging that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the "Code"). In particular, he alleged that the Principal and Vice-Principal of his school undertook various actions against him after he reported that one of his colleagues had engaged in improper conduct towards a student.

2By Case Assessment Direction ("CAD"), the Tribunal directed that a summary hearing be held to address three issues:

a. whether the application should be dismissed as an abuse of process and/or because the substance of the application has been appropriately dealt with in another proceeding;

b. whether the application should be dismissed on the basis that it has no reasonable prospect of success; and

c. whether the applicant should be declared a vexatious litigant with respect to the respondents.

3For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. What the applicant is claiming is a general form of retaliation that is not covered by the reprisal protections in the Code.

4As discussed below, I do not find that the applicant's conduct to date justifies a vexatious litigant declaration against him.

Factual Background

5The applicant is employed as a teacher with the respondent. Prior to this Application, he filed an Application alleging that the respondent discriminated against him on the ground of record of offences and also reprised against him contrary to the Code. The Tribunal dismissed his Application before serving it on the respondent on the basis that it was plain and obvious that the Tribunal had no jurisdiction to deal with it: Giannias v. Toronto District School Board, 2014 HRTO 1754. The ground of record of offences has a specific meaning under the Code. The Tribunal found that, from the applicant's submissions, it was clear that he was not a person with a record of offences, as that term is defined in the Code. The Tribunal also found that there was no indication that the applicant had ever made a Code claim for which a reprisal might have been imposed on him. Therefore, it was plain and obvious that the applicant had not experienced a reprisal as that term is specifically defined in s. 8 of the Code.

6In this Application, the applicant alleged that the respondent reprised against him for reporting certain actions that his colleague allegedly took toward a student. The forms of reprisal alleged in the Application overlap partly but not completely with the allegations contained in his previous application. However, the applicant's previous application appears to refer to a separate incident that triggered the alleged reprisals by the respondent.

Findings

reprisal claim

7Even if I accept the facts put forward by the applicant as true and provable, I find that he has provided no information that can reasonably establish a reprisal as that term is specifically defined under the Code.

8There exists a common misconception that the Code protects against all forms of reprisal or retaliation. This is inaccurate. The reprisal protections in the Code protect against reprisals for having claimed and enforced rights under the Code.

9Section 8 sets out the Code's protections against reprisal. It states as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

10The applicant claimed that the respondent reprised against him for reporting his colleague. When I asked him whether he had ever claimed or enforced a right under the Code prior to the events set out in his Application, he confirmed that he had not. There was also no suggestion that the applicant had refused to infringe the Code rights of any other person. Therefore, there is no reasonable prospect that the applicant will be able to make out a claim of reprisal as that term is defined under the Code. His claim is one of general retaliation for reporting his colleague's conduct. The Code does not protect against such general forms of retaliation.

11I note that, at the summary hearing, the applicant made various allegations that the respondent had failed to accommodate an alleged disability by providing him with a transfer in the most recent school year. These allegations post-date the Application and the applicant appeared to be raising these allegations as evidence of an ongoing reprisal. Even if I were to consider these allegations, despite the fact that they were not contained in the Application, there is no reasonable prospect that any failure to accommodate the applicant would amount to a reprisal under the Code for the reasons set out above.

12If the applicant believes that the respondent has discriminated against him because of a disability in the current school year, this is a separate claim that would have to form the basis of a separate Application.

vexatious litigant declaration

13I deny the respondent's request that the Tribunal declare the applicant a vexatious litigant based on his conduct to date.

14The declaration that a person is a vexatious litigant is a serious matter. The Tribunal does not declare an applicant to be a vexatious litigant in the absence of objective evidence that the person has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings. See Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331, upheld 2015 ONSC 5113 (Div. Ct.).

15In Hiamey, the Tribunal Vice-chair reviewed some of the factors 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.

16In addition to filing the two above Applications with the Tribunal, the applicant filed an internal complaint with the respondent as well as a grievance under his collective agreement. In addition, the applicant filed a duty of fair representation complaint against his union at the Ontario Labour Relations Board. The respondent submitted that the applicant should be declared a vexatious litigant as a result of having filed these various claims.

17It is not uncommon for individuals to file grievances under their collective agreement in addition to filing an Application before this Tribunal. While such overlapping proceedings may cause inconvenience to respondents, the Tribunal has a process for dealing with such cases. Where an individual has raised the same allegations in an Application and a grievance, the Tribunal will typically defer consideration of the Application pending the conclusion of the grievance process. Such situations are not at all unusual and, absent evidence of vexatious conduct, they do not provide the basis for a vexatious litigant declaration.

18In my view, the fact that the applicant filed an internal complaint with the respondent also does not weigh in favour of a vexatious litigant declaration. Applicants are generally encouraged to raise complaints internally, if appropriate, before proceeding before this Tribunal. There is nothing vexatious about the making of an internal complaint before filing an Application with this Tribunal.

19The same must be said of the fact that the applicant filed a duty of fair representation complaint at the Ontario Relations Board. Such a complaint is made against an employee's union and not his employer. Therefore, it does not provide any support for a vexatious litigant declaration in this case.

20Finally, I find that the fact that the applicant filed a previous Application that overlapped somewhat with this one is insufficient to declare him a vexatious litigant. It seemed to me at the summary hearing that the applicant was generally unclear about the Tribunal's process and that he is simply seeking to challenge the respondent's alleged actions against him. The applicant may be confused as to the scope of the Code's provisions and as to the appropriate framing of his claims. This, without more, does not provide the basis for a vexatious litigant declaration. Overall, I find that the applicant's conduct to date does not support a vexatious litigant declaration against him.

Order

21For the above reasons, the Tribunal orders as follows:

a. The Application is dismissed as having no reasonable prospect of success under the Code. Due to my conclusions on this issue, it is not necessary for me to decide whether the Application should be dismissed on any of the other grounds alleged by the respondent.

b. The respondent's request that the Tribunal declare the applicant a vexatious litigant is denied.