HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allen Rosario
Applicant
-and-
Thunder Bay Police Services Board
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Rosario v. Thunder Bay Police Services Board
WRITTEN SUBMISSIONS
Allen Rosario, Applicant
Self-represented
Thunder Bay Police Services Board, Respondent
Holly Walbourne, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability and creed.
2For the following reasons, the Application is dismissed as an abuse of process.
Background
3The full procedural background is set out in the ten Interim Decisions the Tribunal issued in this matter. All the Interim Decisions are indexed as Rosario v. Thunder Bay (Police Services Board) and are reported at: 2012 HRTO 2217; 2013 HRTO 392; 2013 HRTO 1353; 2013 HRTO 2094; 2014 HRTO 237; 2014 HRTO 1799; 2015 HRTO 36; 2015 HRTO 60; 2015 HRTO 97 and 2015 HRTO 145. The following is a summary of the history of this proceeding related to the issue of abuse of process.
4The issue of abuse of process arose early in this proceeding. In Interim Decision 2013 HRTO 392, dated March 3, 2013, the Tribunal found that the applicant used inappropriate language and accusations in his submissions regarding a Request for an Order During Proceedings. The Tribunal warned the applicant that all his communications regarding the Application must be courteous and respectful of all participants and that personal insults and inflammatory language is unacceptable. The Tribunal further warned the applicant that continued resort to personal insults and inflammatory language could result in the dismissal of the Application as an abuse of process.
5Following a summary hearing, the Tribunal dismissed all but two of the applicant’s allegations, as follows:
a. the allegation that the respondent discriminated against the applicant because of disability when its officers refused to permit him to take his medication while in police custody on March 26, 2012 and April 14, 2012; and
b. the allegation that the respondent discriminated against the applicant during the incident when an officer called him a “sand nigger” on July 15, 2012.
See Interim Decision 2013 HRTO 2094. In Interim Decision 2014 HRTO 237, the Tribunal deferred the Application pending the applicant’s release from custody. In a Case Assessment Direction dated April 17, 2014, the Tribunal granted the applicant’s request to reactivate the Application. The Tribunal later scheduled the Application for a merits hearing on February 26 and 27, 2015, in Thunder Bay.
6In Interim Decision 2015 HRTO 36, dated January 12, 2015, the Tribunal found the applicant to be in breach of Rule 3.3 of the Tribunal’s Rules of Procedure (“the Rules”) by disclosing to third parties documents the respondent disclosed in the course of this Application. Rule 3.3 is a codification of the implied undertaking rule in civil matters and states as follows:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
The Tribunal also found the applicant’s conduct to be an abuse of process and warned the applicant that any further abuse of process may result in sanctions, which may include dismissal of the Application. The Tribunal ordered the applicant to comply with Rule 3.3 and to not disclose any document that the respondent disclosed to him in the course of this proceeding to any third party.
7In Interim Decision 2015 HRTO 60, dated January 15, 2015, the Tribunal found that the applicant had continued to disclose documents the respondents provided to him to third parties, despite having been put on notice by the respondent that this amounted to a breach of Rule 3.3. In this case, the applicant posted a cell block video that the respondent had disclosed onto the Internet and disseminated by e-mail containing links to the video. The Tribunal again found the applicant in breach of Rule 3.3 and made the following order:
The applicant shall comply with Rule 3.3 and shall not disclose any document that the respondent disclosed to him in the course of this proceeding to any third party;
The applicant shall immediately remove from the Internet any material he received in the course of this proceeding; and,
If the applicant fails to comply with the orders set out in paragraph 12(1) and 12(2) or commits any other abuse of the Tribunal’s processes, then the Tribunal shall seek submissions from the parties regarding whether the Application should be dismissed as an abuse of process.
8The respondent filed a Request for an Order During Proceedings, dated January 16, 2015. The respondent requested dismissal of the Application for violation of the Rules and/or as an abuse of process. The respondent submitted that the applicant continued to breach Rule 3.3 by misusing the witness list and witness statements the respondent produced pursuant to the Tribunal’s Rules. The respondent also submitted that the applicant’s conduct towards the respondent, statements posted on YouTube in particular, violated Rule A7, Courtesy and Respect.
9On January 19, 2015, the applicant filed a Response to a Request for an Order denying the allegations and opposing the Request. The Applicant submitted that he had complied with the Tribunal’s Ruling of January 12, 2015.
10By letter dated January 29, 2015, counsel for the respondent advised the Tribunal regarding what it considered to be a continuing violation of Rule 3.3. Specifically, the respondent stated that the links to the cell block video that the applicant disseminated to several people, including the Mayor of Thunder Bay and several City Councillors, remained active. Counsel submitted that his office reviewed the links on January 20, 2015 and found that the cell block video could still be viewed and forwarded by e-mail. Counsel advised that the Internet links to the video were not functional when they were next checked on January 29, 2015.
11In Interim Decision 2015 HRTO 145, dated January 30, 2015, the Tribunal dealt with several preliminary matters, including the applicant’s allegations of bias, and directed the applicant to state whether he wished an opportunity to make oral submissions regarding the respondent’s request to dismiss, as the disposition of the request may result in the dismissal of the Application. By letter dated February 2, 2015, the applicant requested an opportunity to makes oral submissions.
12On February 3, 2015, the respondent filed a Request for an Order During Proceedings in which the respondent requested that the Tribunal take into account the applicant’s alleged continuing breaches of the Rules, as well as material acquired and produced after January 15, 2015. By Case Assessment Direction dated February 10, 2015, the Tribunal directed that it would hold a half-day preliminary hearing by teleconference regarding the request to dismiss and would consider all of the applicant’s impugned actions. The Tribunal cancelled the hearing dates scheduled on February 26 and 27, 2015.
13The Tribunal held the hearing by teleconference on February 26, 2015.
The Respondent’s Submissions
14Counsel for the respondent provided a detailed account of the procedural history of this Application. The respondent then proceeded with detailed submissions setting out the applicant’s actions that it considered to amount to breaches of the Rules and/or abuses of process.
15The respondent began with a discussion of the documents on which its request to dismiss was based. The respondent noted that in an e-mail message of January 13, 2015 to the Mayor of Thunder Bay the applicant stated that he would abide by the Tribunal’s order, but only until the hearing process is over. The respondent also pointed to two e-mail messages dated January 15, 2015 from the applicant to the Mayor of Thunder Bay and a City Councillor. The messages are identical and state that the respondent intends to call a “street prostitute” who had assaulted the applicant to testify in the hearing of this matter. Amongst other things, the message states that the respondent’s decision in this regard shows that it has no self-respect and integrity.
16These e-mails included a link to a YouTube video created by the applicant. The respondent filed a recording of the video, as well as a transcription of it. The video is entitled “Shame and Disgrace to Thunder Bay Police Ontario Canada”. In the video, the applicant explains that he had received the witness list and witness statements the respondent was obliged to deliver to the applicant pursuant to the Tribunal’s Rules. The applicant then states that the respondent intends to call a “street prostitute” as a witness at the hearing of his Application. The applicant proceeds to denigrate the respondent and its lawyers for its decision to call this witness in highly insulting and profane terms. The applicant refers to the respondent as “fucking cunts” and “daft fuckers” and states that the “fucking lawyers of the Thunder Bay Police are idiots”. The applicant goes on to state that he would “use the documents to lay criminal charges against the respondent”.
17The respondent submitted that on January 13, 2015 at 11:50 a.m. a civilian staff member of the respondent police service was providing relief for the Executive Assistant to the Chief of Police. The staff member took a telephone call from a man who identified himself as Allen Rosario. The caller advised the staff member to inform the Chief that he has posted a YouTube video on the Internet and that the police should review it. The video was later viewed on YouTube by the respondent’s personnel. The respondent provided a copy of the video link and a screen shot of the YouTube posting. The screen shot shows two photographs of the applicant, one at the top and another at the bottom of the screen, and the name “Allen R” at the top. The caption for the video is “Reverse Police Brutality Viewers Discretion Advised”. The content of the screen shot or video shows a large horse with an erect penis sodomizing a police officer.
18Next, the respondent submitted that the video links to the cell block video remained active until at least January 20, 2015, as described in its letter of January 29, 2015 (see above), notwithstanding the applicant’s representation that he complied with the Tribunal’s order of January 12, 2015 and the Tribunal’s order to the applicant to remove from the Internet all material he had received from the respondent in this proceeding.
19The respondent pointed to an e-mail message, dated January 18, 2015 from the applicant to KP, an employee of Lakehead University. The message is entitled “Thunder Bay Police increasable witness” and the text of the message is as follows: “Check out the links to Thunder Bay increasable witness and my complaint to the Tribunal about the misconduct of adjudicator Douglas Sanderson a native graduate of Lakehead University Thunder Bay”. The message includes two links. One of the links led to a copy of a letter the applicant filed with the Tribunal in which he objected to the respondent’s proposed witness, JM, who the applicant stated was the prostitute he alleges mugged him on April 14, 2012.
20The respondent pointed to an e-mail message, dated January 28, 2015, to a Thunder Bay City Councillor in which the applicant states that he has booking room videos and documents to prove the respondent tortured him and tried to kill him and that the respondent’s counsel committed perjury to cover up the respondent’s crimes. The applicant stated that he would share these documents on the Internet when he returned to his home country.
21Next, the respondent pointed to four videos the applicant posted onto YouTube. The respondent recorded the videos onto a DVD disc and transcribed the applicant’s narrative in each video. The respondent filed the disc and the transcription with the Tribunal. Review of the videos indicates that they were recorded on January 19, 2015.
22One of the videos is entitled “Reverse Police Brutality Thunder Bay, Canada”. In that video, the applicant provides his version of the incident that led to his arrest in April 2012, i.e., that he had been mugged by a prostitute. I digress to note that the applicant’s version is entirely at odds with the Courts’ finding at the criminal trial (the transcript of which the respondent filed), where the applicant pleaded guilty to assaulting a prostitute when their transaction went wrong and also accepted the victim’s evidence of the assault. The applicant explained that his human rights Application is at the stage where the parties must exchange their lists of expected witnesses. The applicant reveals that the respondent’s witness list indicates that one of the respondent’s expected witnesses was the prostitute who he claimed assaulted him. The applicant surmised that the respondent intended to present this witness because she is of First Nations ancestry to influence me as the applicant was under the mistaken belief that I am also of First Nations ancestry. The applicant also referred to the fact that he had requested that I be removed as the presiding adjudicator, a request that was first made on January 16, 2015. See Interim Decision 2015 HRTO 145.
23Another of the videos is named “Reverse Police Brutality Thunder Bay, Ontario, Canada”. In the video, the applicant discusses his reasons for pursuing this Application and referred to his request for leave to pursue his human rights claim in a civil proceeding. The applicant made that request in a letter dated January 15, 2015 and was filed with the Tribunal by e-mail on January 16, 2015. See Interim Decision 2015 HRTO 145. Later in the video, the applicant states that he is considering returning to his home country and, once there, using the documents obtained from the respondent during the discovery process and sharing them with the “global community”. The applicant stated that he had videos of the respondents booking room and other documents that would show the respondent tortured him and refused him access to his medication.
24In a third video entitled “Corrupt Vice-Chair Douglas Sanderson Human Rights Tribunal of Ontario,” the applicant discusses his displeasure with the Tribunal’s ruling of January 15, 2015, finding him in breach of Rule 3.3 and with Rule 3.3 itself. The applicant also explains that his purpose in proceeding with the Application was to bring the respondent to account and not whatever award the Tribunal might grant. The applicant made a statement that, rather than turning to the Tribunal, he would “just use the Internet, because that’s one thing Canadians hate, that their crime and corruption be exposed to the world.”
25The respondent submitted that the Tribunal has the power to regulate parties’ behaviour and prevent abuses of its process, pursuant to Social Justice Tribunal of Ontario’s Common Rules, specifically Rule A7 Courtesy and Respect and Rule A8 Abuse of Process and section 23(1) of the Statutory Power Procedures Act.
26The respondent reviewed several of the Tribunal’s decisions dealing with the issue of abuse of process. The respondent submitted that the case law indicates that parties must respect the Tribunal’s processes and that a party cannot choose which of the Tribunal’s orders it will or will not follow. The respondent submitted that parties are entitled to disagree with one another and with the Tribunal, but must conduct themselves in a courteous and respectful manner. The respondent submitted that the Tribunal has stated that false accusations are not acceptable and that the Canadian Charter of Rights and Freedoms; The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11) (the “Charter”) is not a license to insult the respondent.
27The respondent submitted that the applicant’s conduct has breached all of these principles. The respondent submitted that the applicant continued to breach Rule 3.3 after the Tribunal ordered him to cease such conduct in its Interim Decisions of January 12 and 15, 2015. The respondent submitted that the record shows that the applicant continued to use documents provided to him in this proceeding, the respondent’s witness list and cell block video, well after the Interim Decision of January 15, 2015. The respondent submitted that the links to the cell block video the applicant disseminated by e-mail were active until at least January 20, 2015. The respondent submitted that the applicant repeatedly threatened to use the documents disclosed to him regardless of the Tribunal’s orders.
28The respondent submitted that the applicant will say whatever he wants and has repeatedly engaged in making false and insulting accusations against the respondent and its counsel. The respondent submitted that the applicant has used the Tribunal’s processes to defame the respondent and its counsel, as well as the Tribunal itself. The respondent submitted that the applicant has shown that he will not comply with the Tribunal’s rulings and that in these circumstances the only appropriate action for the Tribunal to take is to dismiss the Application as an abuse of process.
29I note that the respondent made submissions regarding other videos the applicant posted onto the Internet, as well as demonstrations or protests the applicant conducted in front of the building housing the Tribunal’s hearing centre. I have not referred to these matters, as they are not integral to this Decision for reasons described below.
The applicant’s Submissions
30The applicant began by referring to the section 2(b) of the Charter which states as follows:
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
31The applicant submitted that his conduct was an exercise of his right to freedom of expression, as protected by the Charter. The applicant also submitted that the conduct the respondent complains of occurred in the context the applicant’s private life and has no connection to the Tribunal’s processes. In that regard, the applicant submitted that the Tribunal has recognized the limits of its authority to control parties’ conduct and that it does not have authority to control conduct occurring outside its processes. The applicant cited Bhandari v. Ontario (Education), 2009 HRTO 1875 (“Bhandari”), which indicates that there must be a nexus between the Tribunal’s processes and impugned conduct before the Tribunal may exercise control over it. The applicant noted that in its Interim Decision, 2013 HRTO 392 issued on March 8, 2013, the Tribunal was careful to restrict its warning to the applicant to conduct undertaken within the Tribunal’s processes and not conduct outside of the proceeding. The applicant submitted that his conduct within the Tribunal’s processes has been respectful. The applicant submitted that he is not prohibited from talking about his human rights Application.
32The applicant submitted that he complied with the order of January 12, 2015 and brought down the video in question when ordered. The applicant submitted that he was accused of another breach within 45 minutes of receiving the order on January 12, 2015. The applicant submitted that the respondent claims that the Internet links to the cell block video remained active between January 12 and January 20, 2015, but did not use its cyber-crime resources to provide proof of this allegation. The applicant also submitted that there was no evidence that respondent’s counsel actually viewed the videos and that it ought to have been the respondent itself that conducted this investigation. The applicant also submitted that the respondent produced video from the applicant, but none with the actual video of the booking room attached.
33The applicant submitted that the Tribunal’s jurisprudence indicates that the Tribunal will dismiss for abuse of process in only the clearest of cases where impairment to the fairness of the hearing cannot be remedied. The applicant submitted that his statements to the effect that he would continue to use documents disclosed in this proceeding are not in themselves breaches of the Rules. I asked the applicant whether his statements to the effect that he would use the documents as he pleased in the future demonstrated an intention not to obey the Tribunal’s orders and Rules. The applicant replied that these statements were made in “contemplation out of hurt” and that he really wanted to put the matter behind him. The applicant submitted that he began to “act up” again after viewing the booking videos.
Reply
34In Reply, the respondent submitted that its cyber-crime resources are for investigating crimes and not for producing evidence in civil matters. The respondent noted that the cases cited by the applicant dealt with the issue of delay as an abuse of process. In any event, the respondent submitted that this case is exceptional, as it would be “against justice” to allow it to proceed in light of the applicant’s actions. The respondent submitted that the applicant is trying to hide behind a technicality by asserting that his actions, such as his YouTube postings, are outside the Tribunal’s processes. The respondent submitted that all the applicant’s impugned actions are related to the Tribunal’s process because they would not have occurred “but for” this proceeding before the Tribunal.
Analysis and Decision
35The Tribunal’s authority to manage its processes and address abuses of process is derived from the following provisions:
Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended states:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
The Social Justice Tribunals Common Rules of Procedure provide as follows:
A7.1 All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.
A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
Rule 3.3 of the Tribunal’s Rules of Procedure provides as follows:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
36The Tribunal has discussed the responsibilities of parties appearing before it in several decisions. See, for example, Felix v. Shoppers Drug Mart, 2010 HRTO 2179; Ouwroulis v. New Locomotion, 2009 HRTO 335; and Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913.
37In Cochrane, above, at paragraphs 8-9, the Tribunal stated as follows:
Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal’s process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.
It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal’s process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party’s submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.
38The Tribunal has found that making of insulting, abusive or discriminatory comments amounts to an abuse of the Tribunal’s process, which can result in dismissal of an application or request for reconsideration. See, for example, Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; Vizcaya v. University of Toronto, 2010 HRTO 916; and Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085.
39The Tribunal does not have general injunctive powers to regulate parties’ conduct in their general interactions with one another. See Rosario v. Thunder Bay (Police Services Board), 2013 HRTO 392 and Felix, above. Only conduct that has a nexus to the Tribunal’s processes comes within the Tribunal’s authority. See Bhandari, above.
40As a result, some of the applicant’s impugned conduct (as described in para 27 above) may not have a sufficient nexus to the Tribunal’s processes to come within the Tribunal’s authority to control it. To be sure, these Internet postings are laced with profanity; serious misrepresentations and inaccuracies about the proceeding and of the applicant’s criminal court proceeding; baseless accusations against the respondent, its lawyers and this Tribunal; and personal insults. The applicant’s communications in these messages are clearly about his Application to this Tribunal and it is probable that he would not have made them “but for” the fact that he was involved in this proceeding, as the respondent submitted. It is not clear to me, however, that this provides sufficient connection to the Tribunal’s processes to limit the applicant’s rights to freedom of expression guaranteed in the Charter. The Tribunal’s Rules are intended to provide for the fair, just and expeditious disposition of proceedings and are not intended to prevent parties from discussing proceedings in general.
41I am satisfied, however, that much of the applicant’s conduct, as set out above in the summary of the respondent’s submissions, is sufficiently connected to the Tribunal’s processes to come within the Tribunal’s power to regulate.
42The applicant did not deny that he posted the video entitled “Reverse Police Brutality Viewer Discretion Advised” to the Internet or that he called the respondent to draw its attention to the video. Rather, the applicant takes the position that such Internet postings are outside the Tribunal’s processes. In my view, the applicant brought this video within the scope of Rule A7 by communicating directly with the respondent to make sure the respondent saw the video. In my view, this is not materially different than sending the video directly to the respondent. The only relationship the applicant has with the respondent at this point is that of co-litigant in this proceeding. The video is, of course, extremely vulgar, and expresses the applicant’s opinion of the respondent in terms of sexual violence, however fantastical. Such communication is completely unacceptable and is a clear breach of Rule A7 and also amounts to an abuse of process.
43The applicant’s e-mail messages of January 15, 2015 to the Mayor of Thunder Bay and a Thunder Bay City Councillor contain explicit references to the witnesses the respondent intended to call in the hearing of this matter. The applicant received this information pursuant to the respondent’s obligation to provide a witness list, under Rule 17 of the Rules. Pursuant to Rule 3.3 the applicant was not entitled to use this list for any purpose other than the litigation of this matter. It appears that the applicant sent this message before Interim Decision 2015 HRTO 60 was issued on January 15, 2015, but obviously several days after 2015 HRTO 36 was issued on January 12, 2015, in which the Tribunal ordered the applicant to comply with Rule 3.3. This communication is clearly a further violation of Rule 3.3 and belies the applicant’s representations that he complied with the Tribunal’s ruling of January 12, 2015. The applicant’s intentional and repeated misuse of documents received pursuant to the Rules – in the face of an order to cease such behaviour - is also an abuse of process.
44These messages contained a link to a video the applicant posted on the Internet entitled “Shame and Disgrace to the Thunder Bay Police, Ontario, Canada”. I find that this video amounts to a breach of Rules 3.3 and A7, as well as an abuse of process. In the video, the applicant again makes explicit reference to the witness list he received from the respondent and comments on one of the witnesses the respondent intended to call at the hearing. This disclosure is another clear breach of Rule 3.3. The respondent’s witness list is the basis for the applicant’s offensive commentary about the respondent and its lawyers, which in my view connects the applicant’s behaviour to the Tribunal’s processes. The applicant’s description of the respondent and counsel is entirely inappropriate and is a breach of rule A7. The applicant’s use of this document obtained pursuant to the Tribunal’s Rules to publicly insult the respondent in this manner is, in my view, an abuse of process.
45Similar issues arise regarding the video entitled “Reverse Police Brutality, Thunder Bay, Canada”. Again the applicant explicitly states that he received the respondent’s witness list, pursuant to the Tribunal’s Rules, and discusses one of the respondent’s expected witnesses, who he described as the “street prostitute” who allegedly mugged him. The applicant then goes on to speculate that the respondent hoped to influence me by presenting a witness who is a First Nations person because he was under the mistaken belief that I am also a First Nations person. The use of the respondent’s witness list in this manner is yet another clear breach of Rule 3.3 and also amounts to an abuse of process. The respondent recorded the video on January 19, 2015, several days after Interim Decision 2015 HRTO 60 issued January 15, 2015 warned the applicant for a second time about Rule 3.3. During the video, the applicant also referred to his request to have me removed from the Application, which he filed by electronic mail on January 16, 2015, i.e., after the applicant received Decision 2015 HRTO 60.
46In his e-mail message to KP on January 28, 2015, the applicant included a link to a letter he filed with the Tribunal. In that letter, the applicant identified one of the respondent’s witnesses (although it appears the applicant redacted the witness’s name and used initials in the linked copy) and stated the witness was the prostitute who he alleged mugged him. The letter itself is not problematic, as it set out the applicant’s position regarding this witness to the Tribunal. The e-mail message, however, was about the respondent’s witness and disclosing this letter also disclosed information in the respondent’s witness statement, which is in my view a misuse of that information and a breach of Rule 3.3.
47Similarly, the applicant refers to the booking room video and other documents he received from the respondent in his e-mail message of January 28, 2015 to a Thunder Bay City Councillor and in the video entitled “Reverse Police Brutality Thunder Bay, Ontario, Canada”. In both instances the applicant stated that these materials proved that the respondent had tortured him, and denied him medication. In this way, the applicant used these documents as the basis for his public commentary regarding this proceeding. Using these documents in this manner is in my view a breach of Rule 3.3, which prohibits the use of documents obtained pursuant to the Rules “for any purpose other than in the proceeding before the Tribunal.”
48The respondent states that the applicant did not comply with the Tribunal’s order of January 15, 2015 because links to privileged documents the applicant posted on the Internet remained active until sometime between January 20 and January 29, 2015. The respondent’s position in this regard is based on its counsel’s representations. The applicant takes the position that the he removed all materials posted on the Internet when ordered and submitted that the respondent could have used its cyber-crime resources to prove the allegation. Accordingly, there is a dispute about whether the Internet links in question remained active after January 15, 2015. I have no reason to question respondent counsel’s representations and I am frankly skeptical of the applicant’s position given his repeated violations of the Rules and disregard for the warnings he received from the Tribunal. During the hearing, however, the parties made submissions and did not formally adduce evidence. In these circumstances, it would not be appropriate to make a finding of credibility. Consequently, I do not rely on this allegation as a basis for dismissing the Application. The applicant however, has given ample other reasons for dismissal.
49I find it appropriate to comment on the applicant’s submission that his communications with the respondent and the Tribunal were respectful because it is not altogether accurate. It is true that the applicant’s correspondence to the Tribunal did not contain the highly abusive and insulting language contained in the material the applicant posted to the Internet. However, the applicant repeatedly accused the respondent’s counsel of perjury, a serious but obviously baseless claim, since there has been no testimony in this proceeding. The applicant also accused the respondent of soliciting false evidence against the applicant, but provided no more than his bare assertion as proof. On several occasions, the applicant accused the Tribunal and this writer of corruption, lack of integrity and incompetence, the sole basis for which was his disagreement with Tribunal rulings that were not in his favour. While parties are entitled to disagree with rulings or to raise claims of bias or reasonable apprehension of bias, it is difficult to see how these types of baseless allegations of serious wrongdoing can fairly be characterized as respectful. Both the Tribunal and the Courts have certainly cautioned against the seriousness of making unsupported allegations of this nature (see, for example, Muscillo Transport Ltd. v. Ontario (Licence Suspension Appeal Board), 1997 CanLII 12317 (ONSC) at para 47, leave to appeal refused (Oct. 28, 1997)). The Tribunal has stated that making baseless allegations goes beyond the acceptable bounds of Tribunal submissions. See Felix, above, at paragraph 13.
50The respondent pointed out that on several occasions the applicant made statements to the effect that he will use the material disclosed to him in this proceeding to prove misconduct by the respondent or its counsel and that he will post documents disclosed to him on the Internet, regardless of the Rules or the Tribunal’s orders. There is no question that this is true, as the applicant has made several explicit statements of this nature in his Internet postings, various e-mail messages and correspondence with the Tribunal. The applicant submitted that the Tribunal cannot sanction him for actions he had yet to take. However, the Tribunal must consider whether it is reasonably likely that the applicant will comply with the Tribunal’s orders in the future. In my view, the applicant’s explicit statements that he intends to disregard the Tribunal’s Rules and orders are clearly a relevant and appropriate factor to consider in making my decision. In light of these statements and the fact that I have found the applicant has repeatedly violated Rule 3.3 and breached the Tribunal’s orders requiring him to comply with the Rules even while falsely representing that he would abide by these orders, I can have no confidence that he will act within the Rules or comply with the Tribunal’s orders in the future or that a lesser sanction, such as requiring him to give an undertaking, will cause the applicant to do so.
51The applicant has acted with blatant disregard for the Tribunal’s Rules and orders and has used this proceeding to make egregiously inappropriate public attacks on the respondent. In my view, the applicant’s actions amount to a serious abuse of process and, given that no lesser sanction is likely to be effective in preventing such behaviour in the future, I find that it would be an abuse of process to allow the Application to continue.
52The Application is dismissed.
Dated at Toronto, this 20th day of May, 2015.
“Signed by”
Douglas Sanderson
Vice-chair