HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zenon Macyshyn
Applicant
-and-
Cheese Boutique Ltd.
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Macyshyn v. Cheese Boutique Ltd.
WRITTEN SUBMISSIONS
Zenon Macyshyn, Applicant
Self-represented
Cheese Boutique Ltd., Respondent
Robert Tarantino, Counsel
INTRODUCTION
1This is an Application filed on September 3, 2015, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of sex, gender identity, gender expression, sexual orientation, family status and marital status.
BACKGROUND
2On November 6, 2015, the respondent filed its Response in which it argues, among other things, that the applicant is a vexatious litigant.
3On December 8, 2015, the applicant filed a Reply to the Response addressing, among other things, the respondent’s submissions that he is a vexatious litigant.
4On February 9, 2016, the respondent filed a Request for an Order During Proceedings (“RFOP”) requesting that the Tribunal declare the applicant a vexatious litigant and dismiss the Application on that basis (“vexatious litigant request ”), pursuant to Rule A8.2 of the Rules of Procedure. The respondent also requests an order that the Application be dismissed in whole pursuant to section 45.1 of the Code because the matter has appropriately been dealt with in another proceeding (“request to dismiss”).
5The respondent filed a Statement of Delivery confirming that the RFOP was sent to the applicant. The applicant has not filed a Response to a Request for an Order During Proceedings and the time for doing so has passed.
6This Interim Decision addresses both the vexatious litigant request and the request to dismiss under s. 45.1.
ANALYSIS AND DECISION
Request to Declare the Applicant a Vexatious Litigant
7In its written submissions, the respondent argues that the applicant should be declared a vexatious litigant as he has filed 27 human rights applications, including this Application, within the last five years. The respondent argues that several of the other human rights applications have alleged discrimination in employment bearing similarities to the allegations contained in the Application. It argues that none of the applications have been successful and that most have either been abandoned or dismissed at a summary hearing for having no reasonable prospect of success. It maintains that the applicant falsely and frivolously alleges discrimination against employers and service providers and argues that the applicants vexatious nature and failure to succeed on any of the past human rights applications casts insurmountable doubt on the applicants credibility and the veracity of the allegations.
8The applicant addresses the respondent’s submissions by admitting that he has filed unsuccessful cases before this Tribunal. The applicant notes that over the years he has faced many issues related to his employment and receipt of services, and has filed applications when he sincerely felt he was wronged by no fault of his own and believed that his applications had merits to be successful. The applicant feels this case has reasonable grounds for success and he indicates that he has consulted with the Human Rights Legal Support Centre in reaching that conclusion.
9The declaration that a person is a vexatious litigant is a serious matter. The Tribunal does not declare an applicant to be a vexatious litigant in the absence of objective evidence that the person has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings. See Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 (“Hiamey”), upheld 2015 ONSC 5113 (Div. Ct.).
10In Hiamey, the Vice-chair reviewed some of the factors to be applied when determining whether a person is a vexatious litigant:
The seminal decision on the factors that Courts have considered in determining whether an individual is a vexatious litigant were described by the Ontario Court of Appeal in Foy v. Foy (No.2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220. These factors are summarized in the decision of Lang Michener Lash Johnston v. Fabian, [1987] O.J. No . 355 (H.C.):
(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
11This Tribunal has stated that 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, the Tribunal 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.
12But for this Application, the applicant’s cases before this Tribunal cover a wide array of alleged incidents that occurred mostly between 2007 and 2011. The applicant alleges that he was discriminated against by former and prospective employers, the police, educational organizations, the government and his landlord, in the context of employment, the provision of services, contracts and housing. The applications are based on various grounds, including race, ancestry, place of origin, colour, ethnic origin, citizenship, sex, sexual solicitation, age, marital status, family status, disability and receipt of public assistance. The outcomes of the applications include closing the file as incomplete, dismissing as abandoned, dismissing for failing to have a reasonable prospect of success, dismissing for delay and settling.
13Other than this Application, the applicant has not filed an application before this Tribunal since 2011. The facts and allegations in the present Application are distinct from the previous applications filed by the applicant, as they relate to a different respondent and allege distinct facts and incidents of discrimination. I am not satisfied that the circumstances before me support a finding that the applicant, at this time, is a vexatious litigant.
14I deny the respondent’s request to declare the applicant a vexatious litigant.
Request to Dismiss Because of Other Proceeding
15On August 12, 2015, the applicant filed a claim with the Ministry of Labour under the Employment Standards Act (“ESA”) alleging that the respondent did not pay him public holiday pay, terminated him without providing notice or payment in lieu and committed a reprisal against him because he exercised his right to a personal emergency leave. The claim proceeded before an Employment Standards Officer (“ESO”), who rendered a decision on the matter. There is no indication that the applicant has appealed the decision to the Ontario Labour Relations Board.
16The respondent argues that this Application should be dismissed because the ESA decision finds, among other things, that the respondent did not reprise against the applicant when it terminated his employment. The respondent submits that the ESO made findings of fact that the applicant did not notify the respondent during his employment that he was, allegedly, experiencing discrimination or harassment. The respondent submits that the applicant raised the same issue of discrimination and harassment at both the Tribunal and ESA proceedings. The reasonable expectation is that one or the other adjudicative bodies should adjudicate the matter, but not both. The respondent submits that the applicant has had a full and fair opportunity to present his case with regard to his employment and human rights allegations, which stem from the same circumstances.
17The applicant did not file a response to the respondent’s request to dismiss because of other proceeding.
18The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. Accordingly, for the Application to be dismissed at this stage of the proceedings, the respondent must show that the ESA claim appropriately dealt with the substance of the Application.
19The purpose of s. 45.1 of the Code is to avoid the duplication of proceedings and the re-litigation of issues that have been appropriately dealt with elsewhere. Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
20Section 45.1 is generally considered in two parts: (1) was there another “proceeding” and (2) if so, did it “appropriately deal with” the substance of the application.
21With respect to the first issue, the Tribunal has held on a number of occasions that an ESA complaint process, including a proceeding before an ESO, meets the requirements of a “proceeding” for the purposes of section 45.1 of the Code. See for example, Henderson v. Nutech Fire Protection, 2010 HRTO 2153. For these reasons, I am satisfied that the ESO proceeding in the claim between the applicant and the respondent is a proceeding within the meaning of section 45.1 of the Code.
22With respect to the second issue, the question is whether or not the ESA process appropriately dealt with the substance of the Application.
23I do not find that the ESA proceeding appropriately dealt with the substance of the Application before this Tribunal. The ESA claim was limited to a consideration of whether the respondent complied with the ESA by posting a copy of the ESA Poster, paying all wages earned, paying public holiday and vacation pay and providing notice of termination or termination pay. The ESA proceeding also made a determination that the applicant had not advised the respondent that he was exercising his right to a personal emergency leave. There was insufficient evidence to suggest that the applicant was intimidated, dismissed or penalized because he was exercising a right to a leave. The ESO concluded that there was no connection between the applicant taking a leave and his termination.
24Although the ESO was provided with the applicant’s Human Rights Tribunal Application, the ESO decision does not consider the substantive allegations of discrimination raised before the Tribunal. There is nothing before me to indicate that the ESO proceeding addressed the issues with respect to discrimination during the course of employment. More particularly, the applicant alleges facts that could, if proven, lead to a determination that there was discrimination based on sex or sexual orientation. The applicant does not allege, before this Tribunal, that he was the subject of reprisal by the respondent, but that he was subjected to a series of derogatory comments and images of a sexual nature over a period of time that preceded his leave. As such, it cannot be concluded that the ESO proceeding appropriately dealt with the substance of the various Code-related allegations in the Application.
25My conclusions with respect to this issue do not preclude the possibility that some of the facts found by the ESO are binding on the parties and may impact the scope of the issues to be adjudicated before the Tribunal. That issue will be left to the adjudicator assigned to hear the case to determine.
26Both parties have agreed to mediation and prior to the RFOP, the Tribunal had attempted to schedule mediation. On February 17, 2016, the Tribunal scheduled for March 22, 2016 was cancelled pending a decision on the RFOP. With the consent of the parties, the Tribunal will reschedule the mediation.
ORDER
27For the above reasons, the Tribunal orders as follows:
a. The respondent’s request that the Tribunal declare the applicant a vexatious litigant is denied.
b. The respondent’s request that the Tribunal dismiss the Application because another proceeding has appropriately dealt with the substance of the Application is denied.
c. With the consent of the parties, the Tribunal will schedule mediation.
26I am not seized.
Dated at Toronto, this 17th day of March, 2016.
“Signed by”
Josée Bouchard
Vice-chair