Anne Marsden v. Halton Condominium Corporation No. 41 and The Active Group, 2016 HRTO 2

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marsden

Applicant

-and-

Halton Condominium Corporation No. 41 and The Active Group

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: January 4, 2016

Citation: 2016 HRTO 2

Indexed as: Marsden v. Halton Condominium Corporation No. 41

WRITTEN SUBMISSIONS

Anne Marsden, Applicant

Self-represented

Halton Condominium Corporation No. 41, Respondent

K.C. Wysynski, Counsel

The Active Group, Respondent

Robert Dowhan, Counsel

1This Decision addresses the applicant’s requests that the Tribunal dismiss the Application as against both respondents.

2For the reasons set out below, her requests are granted. The hearing scheduled for January 29, 2016 is cancelled.

3The respondents requested that the Tribunal declare the applicant a vexatious litigant. They requested that the Tribunal maintain the scheduled hearing to permit them to make submissions on this issue. I find that it is appropriate to dismiss the Application on the terms provided below which I believe address the respondents’ concerns without wasting more of the respondents’ and Tribunal’s resources on this Application.

4As set out more fully below, the Application is dismissed in its entirety as against both respondents. To be clear, this dismissal means that the applicant has failed to make out a violation of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”) in any way arising out of, or in relation to, any of the allegations raised in the Application by either respondent, their current and/or former directors, officers, officials, employees and/or agents.

5Thus, this Decision effectively prohibits the applicant from re-litigating the substance of this Application in the future against either respondent and/or their current and/or former directors, officers, officials, employees and/or agents. If she does seek to re-litigate the substance of the Application in the future, either or both respondents, their current and/or former directors, officers, officials, employees and/or agents may rely upon this Decision to seek a summary dismissal (i.e. without filing a Response) of any future Application under s. 45.1 of the Code, as an abuse of process, and/or on the basis of the doctrine of res judicata. They may also immediately renew their request that the Tribunal declare the applicant a vexatious litigant.

Background to Application

6This Application has a very long history that has been recorded in numerous Interim Decisions and Case Assessment Directions. I will not repeat that history here, as no useful purpose would be served by doing so in light of my finding that this Application should be dismissed in its entirety. Instead, I outline only the portions of this history that are necessary to support the reasoning below.

7In her Application, the applicant alleged that she was discriminated against due to the respondent condominium corporation’s failure to provide reasonable accommodations for her disabilities. She also alleged that the respondent property management company was responsible for violations of the Code when, for example, one of its employees failed to accommodate her disabilities by directing people to her unit door contrary to her requested accommodations.

8In her Application, the applicant named the “Board of Directors of Halton Condominium Corporation No. 41” as the condominium respondent. In Interim Decision, 2014 HRTO 1332, I held that the “Board of Directors of Halton Condominium Corporation No. 41” was not a legal entity and the proper identification of the respondent was “Halton Condominium Corporation No. 41” (“HCC No. 41”).

9At several points in her submissions to the Tribunal leading up to that Interim Decision, the applicant stated that she believed that she did not have a case against HCC No. 41. She also stated that she would be forced to withdraw her Application against the condominium respondent if the Tribunal found that its proper identification was the corporate entity “Halton Condominium Corporation No. 41”.

10In my Interim Decision, I stated as follows at para. 42:

If the applicant believes, as she has adamantly stated, that she does not have evidence to make out a case against Halton Condominium Corporation No. 41, she may withdraw her Application against this respondent.

11I specifically directed the applicant to advise the Tribunal whether she wished to continue her Application against HCC No. 41.

12By e-mail dated September 19, 2014, the applicant notified the Tribunal that she did indeed wish to proceed with her Application against HCC No. 41. She stated as follows:

Having returned to the Office from health leave on September 15, 2014 and reviewed the HRTO decision of September 10, 2014 and having consulted with Counsel, I, Anne Marsden, applicant in HRTO-2011-1005-I do notify:

Halton Condominium Corporation No. 41

Active Management (TAG) and

The Human Rights Tribunal of Ontario

through their respective lawyers and the Registrar of the Tribunal that I will be proceeding with the complaint against respondents, now identified by the Tribunal in its decision of September 10, 2014 as, Halton Condominium Corporation No. 41 and Active Management (TAG).

I look forward to the Tribunal sending out an Amended Notice of Application and receiving a response from Halton Condominium Corporation No. 41 to the complaints.

13The applicant proceeded to vigorously litigate her Application as against HCC No. 41 and The Active Group (“TAG”). Her intention to proceed with litigation against both respondents was clear throughout the two hearing days held in this case. It was also clear from her conduct on September 24, 2015, the date on which I conducted a view of the condominium’s premises at the request of all three parties. There was no doubt from the applicant’s conduct on the morning of the view that she intended to fully litigate her case against both respondents.

Applicant’s Requests for Dismissal

14On September 25, 2015, the day after the view, the applicant filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal dismiss her Application as against HCC No. 41. I granted her request with reasons to follow: 2015 HRTO 1543. By RFOP dated December 22, 2015, the applicant requested that the Tribunal dismiss the Application as against TAG.

Request to dismiss Application as against HCC No. 41

15In her September 25, 2015 RFOP, the applicant claimed that she had adamantly stated that she did not have evidence to make out a case against HCC No. 41. She went on to say that she expected that HCC No. 41 would ask for a dismissal of the case against it and that, if it had, she would have consented to such a dismissal. She went further to say that her last attempt to have the matter dismissed with her consent was to have taken place at the HCC No. 41 annual meeting on September 24, 2015 but that she could not do so due to an unforeseen sickness.

16These statements by the applicant are bewildering to say the least, if not also intentionally dishonest. The applicant was at all times free to withdraw her Application against HCC No. 41 if she believed she did not have the evidence to make out a case against it. She was well aware of this process, as she has used it in the past to withdraw applications that she has filed with this Tribunal. Not only did the applicant not withdraw her Application against HCC No. 41, she specifically declared her intention to continue her Application against both respondents in her September 19, 2014 e-mail reproduced above. Moreover, if the applicant wished to have the matter dismissed against HCC No. 41 on September 24, 2015, the applicant easily could have advised me of such an intention when the parties and I held a view of the condominium’s premises that very day.

17Contrary to the applicant’s claims in her RFOP, at all times up to the date of her RFOP, she was clearly determined to pursue her case against HCC No. 41. Based on her own statements, it is clear that the applicant continued to litigate this Application against HCC No. 41 when she knew she did not have the evidence to make out a case against that respondent. She never sought to withdraw her Application. Instead, she steadfastly declared her intention to pursue her Application against HCC No. 41 and only sought dismissal of the Application at a much later date after requiring both respondents to incur significant legal costs in defending this Application.

Request to dismiss Application as against TAG

18The applicant requested that the Tribunal dismiss the Application against TAG due to a serious relapse of her medical condition. Due to this relapse, she claimed she no longer has the emotional capacity to pursue this Application. She claimed to be medically unable to continue with the Application or to attend the January 2016 hearing date.

19I note that the applicant sought to blame the respondents and the Tribunal for this relapse. Specifically, she claimed that the fact that the respondents replied to her RFOP by e-mail exacerbated her condition. I fail to see how this can be the case. The applicant herself filed her RFOP by e-mail and the respondents simply replied using the same method of communication she herself had chosen.

20In addition, the applicant claimed that the litigation of this Application led to the relapse of her medical condition. I note that the applicant requested, and was granted, very extensive accommodations in this case. Having witnessed the applicant’s conduct in this case, I question whether she is capable of fulfilling the essential requirements associated with the litigation of any Application before this Tribunal even with accommodation. In light of my dismissal of the Application, I need not make a determination on this issue.

Respondents’ Responses to RFOPs

21In its Response to the applicant’s September 2015 RFOP, HCC No. 41 requested that the Tribunal declare the applicant to be a vexatious litigant. In its Response to the applicant’s December 2015 RFOP, TAG agreed with the dismissal of the Application against it but requested “a dismissal with the full legal and binding effect of a dismissal”. TAG requested that the January 2016 hearing proceed due to its concern that the applicant will attempt to raise the same allegations as contained in the Application in the future in a different form against one or both respondents. TAG argued that HCC No. 41 should be allowed to present its case for the Tribunal to declare the applicant a vexatious litigant so that any claims she might advance against it in the future are vetted by the Tribunal to ensure no cross-over or re-litigation of any of the issues raised in this Application. HCC No. 41 made similar submissions in favour of permitting the January 29, 2016 hearing date to proceed.

Analysis and Findings

22Both respondents in this case noted the costs they have incurred defending this Application. Indeed, it is regrettable that the applicant’s conduct in this case has caused the respondents to needlessly expend resources defending an Application that the applicant in effect sought to withdraw after two hearing days, countless RFOPs and voluminous correspondence. Likewise, it is regrettable that the Tribunal’s scarce resources have been spent on this case when these resources could have been much more usefully deployed elsewhere.

23It is well-established that this Tribunal does not have the power to award legal costs: Dunn v. United Transportation Union, Local 104, 2008 HRTO 405. If I had the power to award costs, I would have awarded the respondents their costs in this case. In my view, the applicant’s conduct in this case is worthy of sanction. If the applicant had sought to withdraw her Application, I would have ordered the Application withdrawn on a “with prejudice” basis. I would have issued an order effectively preventing the applicant from re-litigating the substance of the Application against the respondents.

24Instead of requesting permission to withdraw her Application, the applicant has requested that the Tribunal dismiss it. Therefore, the same result is achieved by granting her request to dismiss her Application. I wish to be clear about what this dismissal entails. By dismissing this Application, I find that the applicant has failed to make out a violation of the Code in any way arising out of, or in relation to, the allegations raised in the Application by either respondent, their current and former directors, officers, officials, employees and/or agents. For the sake of clarity, this means that the applicant is effectively prevented from re-litigating the substance of this Application in the future against either respondent and/or their current and/or former directors, officers, officials, employees and/or agents. If she does seek to re-litigate the substance of the Application in the future, either or both respondents, their current and/or former directors, officers, officials, employees and/or agents may rely upon this Decision to seek the summary dismissal (that is, without filing a Response) of any such future Application under s. 45.1 of the Code, as an abuse of process, and/or on the basis of the doctrine of res judicata. They may also immediately renew their request that the Tribunal declare the applicant a vexatious litigant.

25In my view, it is not necessary to proceed with the hearing scheduled for January 2016 since the respondents’ main preoccupation appears to be ensuring that the applicant does not raise what are in essence the same allegations against them again in a different guise in the future. In my view, this Decision with the comments made in the previous paragraph address the respondents’ concerns without the need for the respondents or the Tribunal to expend further resources on this case.

orders

26The Tribunal orders as follows:

a. The Application is dismissed in its entirety against both respondents as well as their current and former directors, officers, officials, employees and/or agents.

b. The January 29, 2016 hearing is cancelled.