Bissonnette v. Windsor Police Services Board, 2016 HRTO 1621

Human Rights Tribunal of Ontario

Between: Christine Bissonnette, Applicant -and- Windsor Police Services Board, Albert Frederick, Rick Derus, Vince Power, and Rick Facciolo, Respondents

Interim Decision

Adjudicator: Bruce Best Date: December 16, 2016 Citation: 2016 HRTO 1621 Indexed as: Bissonnette v. Windsor Police Services Board

Appearances

Christine Bissonnette, Applicant Self-represented

Windsor Police Services Board, Albert Frederick, Rick Derus, Vince Power, and Rick Facciolo, Respondents Suzanne M. Porter, Counsel

Introduction

1The applicant has filed two Applications with the Tribunal against the Windsor Police Services Board (the “Board”) and several senior officers in the Windsor Police Service (the “Service”), the first on February 2, 2015, file 2015-20030-I (the “first Application”), and a second on October 23, 2015, 2015-22386-I (the “second Application”). Both allege reprisal and gender discrimination with respect to the promotional process to the rank of Inspector in the Service, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant has also filed a number of Requests to amend both Applications.

2There is considerable overlap between the materials filed; in particular, the allegations in the Requests to amend the first Application are for the most part repeated in the second Application. The respondents seek to have the second Application dismissed as an abuse of process, or, in the alternative, that it be deferred pending the resolution of the first Application. The respondents are also seeking to have certain allegations dismissed on the basis of delay or because the allegations have no reasonable prospect of success. They also oppose the applicant’s Requests, filed subsequent to the second Application, to amend the Applications. The respondents are also asking for a declaration that the applicant is a vexatious litigant.

3The Tribunal additionally sought submissions from the parties on whether the Applications should be consolidated. The applicant supports consolidation, and the respondents opposed it.

4The Tribunal directed that a preliminary hearing be held to hear oral submissions on the above issues, which was held by conference call on August 8, 2016.

Allegations

5In the interests of clarifying the issues in these proceedings, at the conclusion of the preliminary hearing I directed the applicant to provide the Tribunal and the respondents with a summary of all allegations of discrimination and reprisal from January 2015 to the date of the hearing, whether raised in the Applications, the Replies, or the Requests to Amend. I also gave the respondents an opportunity to provide submissions in response.

6The applicant filed a 39-page “summary” of her allegations which also included excerpts of various documents, as well as legal submissions and argument. The respondents have provided a response to the allegations in their submissions of September 6, 2016.

Pre-2014 Allegations

7The first Application raises a number of allegations from 2000 to 2015. The only alleged incident of discrimination that occurred within one year prior to filing is the change to the 2015 promotional process.

8In the second Application, the applicant also indicated that the allegations from 2013 and earlier were included as “historical reference”. The respondent sought to have the remaining allegations dismissed for delay. At the preliminary hearing, the applicant confirmed that she was not seeking a finding of liability or a remedy for any of these allegations, but that these earlier events were included to put the timely allegations in context.

9The Tribunal has held that, though they may not result in a finding of liability or a remedy under the Code, untimely allegations may nonetheless be raised for the purpose of putting timely allegations in context. See Killeen v. Soncin Construction, 2013 HRTO 350, at para 38, Franceschina v. Essar Steel Algoma Inc., 2012 HRTO 1634, at paras 6-7, and Sandhu v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1394, at para 8.

10I agree with those cases, and the applicant may seek to raise older allegations for the limited purpose of providing contextual evidence in support of the timely allegations. I make no decision at this time on the admissibility, relevance or weight of any evidence related to these earlier allegations that may be put forward by the parties. These are issues which are best decided in the context of the hearing on the merits.

First Application

11As noted, the first Application included the timely allegation that changes were made to the promotional process to permit additional individuals to compete for promotion to the rank of Inspector. The applicant alleges that the impact of these changes was to reduce the chance of a woman being promoted. She further alleges that the changes were specifically implemented to ensure she personally did not get the promotion. The respondents dispute these claims, though acknowledge that the allegations are timely. They will, as such, proceed to a hearing on the merits.

Reply to First Application, Requests of July 20, 2015 and September 4, 2015, and Second Application

12The applicant raised additional allegations in the Reply to the first Application, and brought two Requests to amend, on July 20, 2015, and September 4, 2015. The allegations were primarily that she had been subject to reprisal for having filed the first Application, and that the Service had failed to properly investigate her complaints respecting the sharing of information within the service respecting the first Application. These allegations were also included in the second Application, along with further allegations relating to the promotional process in the summer and fall of 2015, including her internal appeal of the scoring used and the involvement of the Deputy Chief on the interview panel, and the fact that she was not ultimately promoted to the rank of Inspector. In the second Application, she also raised broader issues of discrimination against “minorities” which I understand to be a reference to racialized members of the Service, and discrimination on the basis of age against individuals who were close to being eligible for retirement.

Requests of March 3, 2016, March 15, 2016, and July 21, 2016

13The applicant has filed three Requests to amend since filing the second Application, raising further allegations of reprisal. In particular, she alleges that she has been excluded from discussions or decisions involving various issues involving officers under her command, that she was passed over for promotion two more times, that she was sidelined from being further involved in earlier work she had conducted within the Service, and that she was transferred to a unit which would further limit her chance of advancement. She also indicates that she was selected to go to a desirable but difficult training course, and though she makes it clear that she is not complaining about having been selected, she alleges that one of the reasons she was chosen was the hope that she would fail. She specifically alleges that after the training course she learned that an Inspector had made disparaging comments about her likelihood of success to other members of the Service.

14The respondents argue that these allegations are frivolous and vexatious, do not disclose a prima facie case, and have no reasonable prospect of success. With respect to the training course, the respondents acknowledge that rumours were circulating in the service that she was either selected for the course to silence or appease her because of her human rights claim, or that she was selected in the hope that she would fail, but it denies that there is any truth to these rumours, and rather takes the position that she was in fact selected based on seniority. They further note that her being selected for and success in completing the course in fact improved her chances of promotion within the Service.

Consolidation / Deferral / Abuse of process

Abuse of Process

15Section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended (“SPPA”) gives the Tribunal the power to control its own process, and s. 23(1) of the SPPA 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 of the Tribunal’s Rules of Procedure also states:

A8 Abuse of Process

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.

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.

16The respondents argue that the second Application should be dismissed as an abuse of process, as it raises many of the same allegations as were raised in the first Application and the earlier Requests to amend.

17The applicant does acknowledge the repetition and overlap in the extensive materials she filed in 2015. She notes that she is a self-represented litigant, and further indicates that she received conflicting advice on whether new allegations should have been raised by a request to amend her existing Application, or by filing a new Application. As a result, she did both.

18An application may be dismissed as an abuse of process by relitigation where the issues in question had been addressed in a prior decision. See Matthews v. Chrysler Canada Inc., 2013 HRTO 225, at paras. 47-48, and Goetze v. Ontario (Community and Social Services), 2015 HRTO 796 (“Goetze”), at paras. 10-16. The Tribunal has also held that a second application may be dismissed as an abuse of process where there was a prior decision dismissing an application for procedural reasons, provided that the applicant had been given an opportunity to be heard. See Raba v. Vaccarelli, 2014 HRTO 97, at paras. 18-19.

19In the present case, however, there has been no decision at all, nor has the applicant had an opportunity to be heard. The respondents argue that it is nonetheless still appropriate to dismiss the second Application given the overlap with the first. Though I recognize the respondents’ concern that responding to the materials filed by the applicant has required them to expend additional resources, that is not a basis to dismiss the second Application as an abuse of process. The most fair, just and expeditious way to proceed in a case such as the present is through either deferral or consolidation of the two Applications, as addressed below.

Consolidation or Deferral

20The respondents further argue that if it is not dismissed, the second Application should be deferred pending the resolution of the first. As noted in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at para. 18 “[d]eferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.”

21The respondents argue that the two Applications are at different stages, and that the issues in the first Application are straightforward, whereas the second Application raises additional procedural and preliminary issues that still need to be addressed, and that it should be deferred pending the outcome of the first. They further argue that the individually named respondents in the second Application are being “dragged in” to allegations for which they have no connection.

22Though the issue of deferral usually arises in the context of the same issues being addressed in a proceeding before a different adjudicative body, such as grievance arbitration under a collective agreement, there may be circumstances where it is appropriate to defer pending the determination of another application before the Tribunal involving similar issues. However, where the parties and issues are closely related, it may be more appropriate to consolidate the Applications. In my view, the question of whether to defer or to consolidate should be based on the extent of overlap between the issues in the Applications, which is best addressed in the context of the Tribunal’s case law on the issue of consolidation.

23The factors to consider when deciding whether to consolidate two matters are set out in Persaud v. Toronto District School Board, 2008 HRTO 25, at para. 15, as follows:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

24As noted above, there is only one allegation from the first Application remaining, namely that the change to the 2015 promotional process was discriminatory in that it reduced the chances of a woman, particularly the applicant, being promoted. Many of the proposed amendments to the first Application and the allegations in the second Application also relate to the 2015 promotional process, including the eventual outcome of that competition. Other allegations of reprisal, though not necessarily directly related to the promotional process itself, do have some overlap, particularly in terms of the individuals involved. There are clearly common issues of fact and law, and if the issues were to proceed separately, much of the evidence may need to be heard twice.

25I see no basis on which to treat the Applications separately; this is, in effect, a single Application, involving the applicant’s unsuccessful attempts to be promoted to the rank of Inspector, and the alleged reprisal she has faced as a result of claiming that the process was discriminatory. It would make little sense to proceed with the allegations in the first Application alone. Though there are a number of distinct issues and incidents, they are sufficiently related that they will likely depend on much of the same evidence, and should all be addressed in the same proceeding. The Applications are consolidated. Going forward, the allegations will all be addressed under the first Application, Tribunal File Number 2015-20030-I.

Request to Dismiss

26The respondents have filed various submissions in response to the proposed amendments, and also filed a Request for a Summary Hearing. They have generally taken the position that the allegations have no reasonable prospect of success.

27In general, with respect to the allegations of reprisal, the respondents take the position that the applicant will not be able to establish an intention to reprise, which it correctly notes is a necessary element to establish a violation of s.8 of the Code. The respondents also argue the applicant does not have standing to raise the allegations of discrimination against “minorities” and against officers approaching retirement age, as she is not alleging she has personally been the subject of discrimination on the basis of either race (or a related ground) or age. They further argue certain individuals alleged to have reprised against her were not named as respondents to the Application at the time of the incidents in question, and therefore there is no basis to find that they had reprised against her. I will address each of these in turn.

Intent to Reprise

28I am not prepared to find that the applicant’s allegations of reprisal have no reasonable prospect of success, and the incidents of reprisal raised will proceed to a hearing on the merits. Under Rules 19.5A and 19.6A of the Tribunal’s Rules of Procedure, I need not provide reasons for this decision, and, given that this will be a central issue at the hearing on the merits, in my view it is not appropriate to do so.

Standing to Raise Allegations of Racial and Age Discrimination

29The applicant herself does not identify as racialized or as a visible minority. At the preliminary hearing, the applicant confirmed that she was not personally claiming anything other than discrimination on the basis of gender and reprisal, and that she made reference to these other allegations of discriminatory behaviour only for “context.” In her post-hearing submissions, however, she specifically noted that she is herself approaching retirement age, and claimed that this is another reason that she is being held back from promotion.

30As noted by the respondent, an applicant is not entitled to raise issues or allegations which do not affect her personally. See Carasco v. University of Windsor, 2012 HRTO 195 at para. 17, where the Tribunal held that an individual was not entitled to bring what was essentially a public interest application based on a tangential connection to issues that had affected them personally, and that permitting this would be to circumvent the intention of the legislature which, under s.35 of the Code, provided a distinct mechanism for public interest applications to be heard through an application brought by the Ontario Human Rights Commission; see para. 14.

31The allegations respecting racial discrimination raised by the applicant will not be considered in these proceedings, as the applicant has acknowledged the allegations did not affect her personally, and as such she has no standing to raise them.

32The allegation of age discrimination, however, may continue, as the applicant has clarified that she believes her age is one factor in her failure to be promoted.

Liability for Allegations of Reprisal

33The respondents further argue that certain of the allegations of reprisal should be dismissed on the basis that the individuals who are alleged to have reprised against the applicant were not themselves named as respondents in the Application at the time of the incidents, and that therefore she will not be able to establish a prima facie case that the respondents engaged in any actions intended as reprisal. In addition, though the respondents deny the allegations that an Inspector made disparaging comments about the applicant, the respondents take the position that even if he had, the Inspector does not speak on behalf of Senior Administration.

34These arguments raise several issues about reprisal and deemed liability. Section 8 of the Code reads as follows:

Reprisals

8. 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.

35The respondents did not point to any authority which would suggest that an individual would have had to have been personally named in a previous application in order for their subsequent conduct to give rise to a claim of reprisal under s.8 of the Code. In my view, if she can establish that there was an intention on the part of senior officers within the Service to take certain actions against her because she had earlier claimed gender discrimination generally within the Service, she may be able to establish reprisal under s.8 of the Code.

36Furthermore, the Board is a respondent to both Applications. It is, under s. 46.3(1) of the Code, deemed liable for the actions of its employees, including the senior officers alleged to have engaged in reprisal. See Shaw v. Phipps, 2010 ONSC 3884, upheld, 2012 ONCA 155, at paras. 105-121. Section 46.3(1) reads:

Acts of officers, etc.

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

37Acts of reprisal under s.8 are not included in the exceptions to the above section, and the respondent did not point to any authority which would support the position that the respondent Board would not be deemed liable for actions of individual officers if those actions were ultimately found to be contrary to s.8 of the Code.

38Such an argument could be made if the respondent Board were to take the position that the actions of the individuals were not done “in the course of [their] employment”, or if the respondent were to take the position that the actions of the individuals fell under one of the exemptions in s.46.3(1), rather than reprisal. The Board has not expressly taken either position, though as noted it did indicate that at least one senior officer does not purport to speak on behalf of Senior Administration.

39I further note that the respondents have indicated an intention to request that the individual respondents be removed from the Applications. Removal of individual respondents is generally based on s.46.3(1), and on the factors set out in the Tribunal’s case law such as Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, and in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42. In the latter, the Tribunal noted that “the unnecessary naming of personal respondents is a practice to be discouraged” where there is an organization who appears to be able to accept liability and provide an appropriate remedy should liability be found.

40Given the above argument made by the respondents, however, whether or not the respondents intend to request removal of the individual respondents, it is appropriate for the Board to clarify whether it is prepared to accept liability if the applicant is ultimately able to prove any of the allegations against individual members of the Service, whether named as individual respondents or not.

41Though I am not making any finding on the issue of reprisal at this point in the proceeding, I am not prepared to dismiss the reprisal allegations at this time as having no reasonable prospect of success. The determination of these allegations will require the hearing of evidence, and will be determined at the hearing on the merits.

Vexatious Litigant

42The power to find an individual a vexatious litigant is part of the Tribunal’s power to control its processes and prevent an abuse of process, as set out in Rule A8.2, cited above. The Ontario Court of Appeal decision in Foy v. Foy (No.2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 (“Foy”), addressed the principles to be considered in determining whether an individual should be declared a vexatious litigant.

43The principles in Foy have been adopted by this Tribunal in considering requests under Rule A8.2. See, for example, Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 (“Hiamey”) at para. 27, and Lin v. Springboard, 2016 HRTO 702 at para. 9. In Hiamey at para 28, the Tribunal held that an individual could be declared a vexatious litigant if the Tribunal was satisfied that, on an objective standard, the applicant has persistently and without reasonable grounds instituted vexatious proceedings or conducted herself in a vexatious manner during the proceedings.

44The primary basis for the respondent’s request that the applicant should be declared a vexatious litigant is, as with the issue of abuse of process addressed above, that she filed two separate Applications and a number of Requests to amend which included some repetition or overlap, and raised certain allegations which the respondents believe obviously have no merit. The respondents rely on the decision Banigan v. Sheridan College Institute of Technology, 2013 HRTO 707 (“Banigan”) as authority that the applicant should be declared a vexatious litigant in the circumstances.

45However, the basis for the finding in Banigan was the serial filing of new applications after previous virtually identical applications had already been disposed of by the Tribunal. Again, one of the central issues behind the decision in Banigan was the fact that the applicant in that case refused to accept that the issues raised had already been determined; see para. 49. In contrast, as noted above, there has not yet been any determination of the applicant’s allegations, either by the Tribunal or any other independent adjudicative body.

46Even if there had been, however, it should be noted that the test for finding a person to be a vexatious litigant is different than the test for abuse of process. In Goetze, though a second application was dismissed as an abuse of process, the Tribunal declined to declare the applicant a vexatious litigant, noting at para 22:

. . . 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.

47In my view, the various filings of the applicant are, similarly, consistent with her uncertainty respecting the appropriate procedure. This is not unusual for a self-represented litigant, and I do not see her actions as vexatious in this regard.

48Further, the fact that the respondents believe that it is obvious that some or all of the allegations have little or no merit is not in and of itself a basis to find a person to be a vexatious litigant. Respondents, in fact, take such a position frequently in applications before the Tribunal.

49Based on the above, I decline to find that the applicant’s conduct would justify her being declared a vexatious litigant.

Additional Issues and Next Steps

Format and Content of Submissions

50The respondents noted that the summary of the allegations provided by the applicant on August 22, 2016 includes argument, legal submissions with references to case law, and extensive extracts of documents that would presumably be entered as evidence at a hearing on the merits. Much of the applicant’s earlier submissions are similar in content.

51The respondents have not provided detailed legal submissions in response to the arguments put forward by the applicant, but have rather asked that if the Tribunal intends to accept these submissions that it be given an opportunity to respond.

52Typically, legal submissions on the merits of the Application are made following the Tribunal hearing the testimony of witnesses, and based on documents entered in evidence. There is no need at this time for the respondent to address the applicant’s legal submissions, and both parties will have the opportunity to put submissions forward related to the actual evidence that is ultimately put before the Tribunal.

53Though it may be of assistance to briefly refer to case law or evidence in a pleading before the Tribunal, in the interests of clarity it is generally preferable to separate factual allegations, documentary evidence, and legal submissions. It is also helpful to the parties and the Tribunal to used numbered paragraphs for submissions. The materials the applicant has filed to date have tended to be very lengthy and difficult to follow. In the interests of expediency, the applicant shall ensure going forward that any materials she files with the Tribunal are succinct, use numbered paragraphs, and address factual allegations and legal submissions separately.

Production request

54As part of the second Application, the applicant included a request for production of some 72 items, with the qualification that the list was “not all encompassing and further documents may be required.” Many of the requests are with respect to the allegations included for “historical reference”, and the extent to which such documents are necessary or relevant, if at all, is a matter to be determined following production of documents in advance of the hearing. However, even the requests with respect to documents related to the timely allegations are extremely broad, and include not only documents related to the allegations, but requests for details respecting complaints brought by other officers on various different grounds.

55The issue of documentary disclosure will not be addressed at this juncture, as it is in any case premature. However, it should be noted that the central issue in this Application is whether the applicant was herself subject to discrimination or reprisal during the period from February 2014 forward. It is not a general inquiry into the Service’s handling of complaints of discriminatory conduct.

Directions

56Further to para 40, above, the respondents shall advise, within 35 days of the date of this interim decision, whether, should the Tribunal find that the applicant allegations of reprisal are established, if it is prepared to accept liability for the actions of its employees under s.46.3(1).

Orders

57The Applications are consolidated, and will continue under file number 2015-20030-I with respect to the allegations of discrimination from February 2014 to July 2016.

58The applicant has no standing to raise allegations related to racial discrimination in promotion within the service, and any such allegations will not be addressed.

59The respondents’ request to dismiss the remaining allegations as having no reasonable prospect of success or as an abuse of process is refused.

60The respondents’ request to declare the applicant a vexatious litigant is refused.