Ernst Goetze v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (Family Responsibility Office), 2015 HRTO 796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ernst Goetze

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (Family Responsibility Office)

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 16, 2015

Citation: 2015 HRTO 796

Indexed as: Goetze v. Ontario (Community and Social Services)

APPEARANCES

Ernst Goetze, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (Family Responsibility Office), Respondent

Sharlene Ziniuk, Counsel

Introduction

1The purpose of this Decision is to decide whether (1) the Application should be dismissed on a preliminary basis because it is an abuse of process, and/or has no reasonable prospect of success, and (2) the applicant should be declared a vexatious litigant with respect to the respondent.

BACKGROUND

2In 2006, a support order was made in the State of Michigan requiring the applicant’s former spouse to pay child support to the applicant. In 2008, the Ontario Superior Court of Justice made an order requiring the applicant to pay child support to his former spouse. In 2009, the Family Responsibility Office (the “FRO”) began taking enforcement measures against both the applicant and his spouse. The FRO stopped enforcing the order against the applicant’s spouse in 2010, but continued to enforce the order against the applicant.

3On October 15, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of his sex. Specifically, he alleged that the FRO enforced the order against him in a discriminatory manner because of he is a man.

4On June 11, 2014, the Tribunal issued a Decision, which dismissed the Application because the events he complained about occurred in 2009 and 2010, which were clearly outside of the one-year time limit under s. 34(1) of the Code, and he failed to establish a good faith explanation for his delay in filing the Application. The Tribunal also found that even if the applicant was complaining about a more recent Old Age Security garnishment in May 2013, he did not point to evidence that he had or that was available to him that linked the garnishment to his sex. See Goetze v. Ontario (Community and Social Services), 2014 HRTO 836.

5On June 12, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. Specifically, he stated that the discriminatory practice and policy of the respondent was ongoing, and as such, the Application was not out of time. The Tribunal dismissed the Request because the fact that the applicant continued to experience the continuing effects from the enforcement decisions made by the respondent in 2009 and 2010, namely the current child support arrears, did not make the Application timely. See Goetz v. Ontario (Community and Social Services), 2014 HRTO 1176.

6On November 15, 2014, the applicant filed this second Application under s. 34 of the Code, which alleged that the respondent discriminated against him with respect to services because of his sex. The specific allegations in this current Application are the same as the allegations in his first Application, but also refer to a more recent incident of garnishment.

7On December 16, 2014, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to address whether the Application against the respondent should be dismissed because it is an abuse of process, and/or has no reasonable prospect of success.

8The respondent filed written submissions in advance of the hearing, which, in addition to arguing that the Application should be dismissed, requested that the applicant be declared a vexatious litigant with respect to the respondent, and be required to obtain permission from an adjudicator of the Tribunal to file further applications against the respondent.

9The summary hearing took place on March 16, 2015. I heard the parties’ oral submissions and reserved my Decision.

ANALYSIS

Should the Application be dismissed on a preliminary basis because it is an abuse of process?

10Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. Rule A8.1 of the Social Justice Tribunals Ontario (“SJTO”) Common Rules also provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

11The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process are not finite, and may 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 and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Johnston v. P & H Foods Division of Parrish & Heimbecker, 2013 HRTO 589 at para. 8, and Campbell v. Toronto District School Board, 2008 HRTO 62 at paras. 35-37.

12Where an applicant files an Application which is dismissed by the Tribunal, and then files a second Application which is the same in substance as the first Application, the Tribunal will normally dismiss the second Application as an abuse of process. For example, in Matthews v. Chrysler Canada Inc., 2013 HRTO 225, the Tribunal stated at para. 48:

I find that allowing the litigation to proceed on that same matter would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. In these circumstances, to permit him to put those self-same allegations before the Tribunal for consideration in a second Application, in order to re-litigate them, would be to permit an abuse of process.

13Similarly, in Shi v. Holcim (Canada) Inc., 2013 HRTO 306, the Tribunal stated at paras. 13-14:

It is also clear that the applicant disagrees with the conclusions in the Decision and the Reconsideration Decision. However, the applicant cannot challenge a previous decision of this Tribunal simply by filing another application. The appropriate route, if a request for reconsideration is not successful, is to file a further Request for Reconsideration or seek judicial review of the Decision. See Hunter v. Farlake Dairy, 2011 HRTO 1906 at para. 13. (...)

In these circumstances, to permit the applicant to put forward the same allegations before the Tribunal in a second Application, in order to re-litigate them, would be to permit an abuse of process. I am not prepared, because of the principles of abuse of process, to permit the 2012 Application to continue and it is dismissed.

14In his submissions, the applicant stated that his new Application is not an abuse of process because there are allegations relating to a recent incident of garnishment. I disagree. The substance of the second Application is the same as the substance of the first Application, which was dismissed by the Tribunal, and his argument about recent alleged incidents was considered and rejected in the Tribunal’s Reconsideration Decision.

15In the circumstances, I find that the applicant is attempting to re-litigate the first Application, and it would therefore be an abuse of process to allow the Application at hand to proceed.

16In view of my finding on this issue, it is not necessary to decide second issue (whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success).

Should the applicant be declared a vexatious litigant with respect to the respondent?

17Rule A8.2 of the SJTO Common Rules provides:

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.

18As such, to prevent abuse of its processes, the Tribunal has the authority to find 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; and Dai v. Presbyterian Church in Canada, 2012 HRTO 1975, recently upheld in Dai v. Presbyterian Church in Canada, 2013 ONSC 6650.

19In Hiamey, above, the Tribunal set out at paras. 27-28 a number of factors that have been considered by the courts in determining whether a person is a vexatious litigant, and concluded:

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.

20In Drenic, above, the Tribunal also 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 respondents, are not abused by a series of vexatious applications….

21In its submissions, the respondent stated that the Tribunal should declare the applicant a vexatious litigant with respect to the respondent, and be required to obtain permission from an adjudicator of the Tribunal to file further applications against the respondent, because this is the second Application which he has brought following the dismissal of his first Application and the dismissal of his Request for Reconsideration.

22I disagree. I am not satisfied on an objective standard that the applicant has persistently and without reasonable grounds instituted vexatious proceedings. The applicant is a layperson who does not have legal training, and I do not accept that his conduct in filing one further Application, which is the same in substance as the first Application, amounts to a persistent instituting of vexatious proceedings. That said, the Tribunal may re-visit this issue if the applicant files a third Application which is the same in substance as the first two Applications.

ORDER

23The Tribunal makes the following orders:

1. The Application is dismissed.

2. The respondent’s request that the applicant be declared a vexatious litigant with respect to the respondent is denied.