James LeClair v. Deplaedt Enterprises Ltd./Canadian Tire-Brockville, 2015 HRTO 459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James LeClair

Applicant

-and-

Deplaedt Enterprises Ltd./Canadian Tire-Brockville

Respondents

DECISION

Adjudicator: Brian Cook

Date: April 9, 2015

Citation: 2015 HRTO 459

Indexed as: LeClair v. Deplaedt Enterprises Ltd.

APPEARANCES

James LeClair, Applicant

Self-represented

Deplaedt Enterprises Ltd./Canadian Tire-Brockville, Respondent

William Deplaedt, Representative

1This is a Contravention of Settlement Application. The parties signed Minutes of Settlement in respect of an Application filed with the Tribunal. The applicant in this Contravention of Settlement Application was the applicant in respect of the original Application.

2The Contravention of Settlement Application was heard by telephone conference call hearing on March 26, 2015. The applicant participated. The respondent was represented by the owner of the respondent’s company. He is referred to as the respondent in this Decision.

3In its Response to the Contravention of Settlement Application, the respondent asked that the Tribunal take action to direct the applicant to stop using the Tribunal’s process to harass the respondent.

The Contravention of Settlement Allegations

4The Minutes of Settlement provided that the respondent would ensure that its management team (consisting of ten people who were identified in the Minutes of Settlement) would complete the Ontario Human Rights Commission’s online training program Human Rights 101 by July 31, 2013 and provide confirmation by email of having done so to the applicant by that date.

5The Minutes of Settlement provided that there was no admission of liability by the respondent and the applicant did not withdraw his allegations. The parties also agreed to maintain strict confidentiality of the Minutes with the exception that the applicant could disclose them to his immediate family, legal or financial advisors, and as required by law. The respondent could disclose them as necessary to implement the terms.

6The Contravention of Settlement Application alleges that the undertakings about the online course were breached. The applicant alleges first that a person who was not identified also did the course and that there were irregularities with the reported test results.

7The respondent stated that an additional person was asked to take the course because by the time the course was done she had joined the staff in a human resources capacity and it made sense for her to take the course along with the others.

8The applicant was unable to explain how the fact that an additional person took the course was a breach of the settlement, and I find that it was not a breach. An employer can ask any member of his or her staff to take additional training if the employer wishes and the fact that this happened here is in no way a breach of the Minutes of Settlement.

9The respondent confirmed that the other individuals identified in the Minutes of Settlement did take the course. After successfully completing the course, the online system produces a certificate that can be printed off. The certificates were printed and were sent to the applicant to provide the confirmation required by the Minutes of Settlement. The respondent agreed that there were some irregularities in the score results on the certificates including the fact that one person got a result of over 100%. He said that they experienced difficulties in taking the test and had to experiment with different browsers before they were all able to complete the tests and print off the certificates.

10I find that the fact there may have been irregularities in the scoring from the Commission’s online course does not show any breach of the Minutes of Settlement. There is certainly no evidence to support the applicant’s allegation that the irregularities show that the test was not taken or that test results were falsified.

11The applicant alleges that the respondent owns another store and that the Minutes of Settlement required him to have the management team at the other store also complete the online course.

12The respondent said that it is true that he owns another store but it was acquired after the Minutes of Settlement were signed.

13Even if the respondent owned more than one store, the Minutes of Settlement were quite specific about who was going to take the online course and they were all employees at one store and so ownership of another store would not constitute a contravention of the Minutes.

14At the Contravention of Settlement hearing, the applicant alleged that the respondent did not disclose at the time of the settlement that he is a co-owner of the respondent’s company and instead suggested that he was only the store manager. The applicant said that if the respondent had not misled him in this way, he would have settled the Application differently and might have retained a lawyer.

15The respondent said that he has never tried to hide the fact that he is the owner of the business and said that his name is on the front door of the business identifying him as the owner.

16Even if it was true that the applicant understood that the respondent was the manager and not the owner of the respondent’s business, I do not see that this has anything to do with whether there was a contravention of the Minutes of Settlement.

17The applicant alleged that he has had other difficulties with the respondent. However, he agreed that he has raised his concerns with other authorities and that they are not related to any allegation of a contravention of settlement.

18For these reasons, I find that the respondent did not contravene the Minutes of Settlement.

Respondent’s request

19The respondent notes that the applicant and his spouse have filed a number of Applications against the respondent. The respondent has asked that the Tribunal do what it can to limit future Applications because they are time consuming and feel like harassment.

20As discussed during the telephone conference call hearing, the applicant's spouse is not a party to this Contravention of Settlement Application and so it is not appropriate to consider any Applications that she may have filed in regard to the applicant’s conduct.

21The Tribunal does have the power under section 23(1) of Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, to make orders or give such directions in a proceeding before it to prevent abuses of its process. The Tribunal may use this power to declare a person to be a “vexatious litigant”. The consequence of this is that the person may not file an Application without first obtaining leave from the Tribunal.

22The factors that Courts have considered in determining whether an individual is a vexatious litigant were summarized in the decision of Lang Michener Lash Johnston v. Fabian, 1987 CanLII 172 (ON HCJ), [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.

23It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. At the same time, the declaration that a person is a vexatious litigant is a serious matter that requires objective evidence the person has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings.

24There are certainly many aspects of the applicant's conduct which are no doubt experienced as vexatious and harassing by the respondent. Some of the indicia of a vexatious litigant set out above are apparent in this case. However, at this time, I am satisfied that it is not appropriate to declare the applicant to be a vexatious litigant.

25For the reasons above, the Application is dismissed.