Katherine Lin v. Springboard, 2016 HRTO 702

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine Lin Applicant

-and-

Springboard Respondent

DECISION

Adjudicator: Bruce Best Date: May 24, 2016 Citation: 2016 HRTO 702 Indexed as: Lin v. Springboard

APPEARANCES

Katherine Lin, Applicant No one appearing

Springboard, Respondent Mary Kokosis, Counsel

Introduction

1This Application alleges discrimination with respect to services and facilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated November 18, 2015, the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The CAD also indicated that the Tribunal would consider whether it was appropriate to declare the applicant a vexatious litigant under Rule A8 of the Social Justice Tribunals of Ontario Common Rules.

3A Notice of Summary Hearing was sent to the parties on January 5, 2016. The Notice advised the parties that the hearing was scheduled to take place by teleconference on March 4, 2016, commencing at 1:30 p.m. The notice provided detailed instructions on how to call in to the teleconference. The respondent called in at the scheduled time, but the applicant did not. As is the Tribunal’s normal practice, the matter was stood down for 30 minutes. By 2:00 p.m., the applicant had still not called in.

4I was satisfied that the applicant had received timely and proper notice of the hearing, and I was not then, and am not now, aware of the applicant having contacted the Tribunal to advise that she would not be able to participate in the March 4, 2016 hearing.

5As the applicant did not call in, and in the absence of any explanation for her failure to attend the hearing, I dismissed the Application as abandoned at the hearing.

Vexatious Litigant

6The November 18, 2015 CAD further noted that the applicant had, as of November 2015, filed six other applications that had all been dismissed on a preliminary basis. The CAD also included the following detailed directions:

In the circumstances, the Tribunal will also hear submissions from the parties on whether it is appropriate to declare the applicant a vexatious litigant. Rule A8 of the Social Justice Tribunals of Ontario Common Rules provides:

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.

As 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, upheld in Dai v. Presbyterian Church in Canada, 2013 ONSC 6650.

In 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.

In 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….

7As noted above, Ms Lin did not attend the hearing though she was given proper notice, so she did not make any submissions on the issue of whether she should be declared a vexatious litigant.

8The respondent made submissions supporting that Ms Lin be declared a vexatious litigant. It noted that Ms Lin demonstrated a pattern of filing meritless applications against anyone who she believes had treated her unfairly, whether a government office or agency, police, church, or non-profit organization. It submitted that these meritless applications cost considerable time and expense to the named respondents.

Analysis and Decision

9The Ontario Court of Appeal decision in Foy v. Foy (No.2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 (“Foy”), set out the factors that the Courts have generally considered in determining whether an individual is a vexatious litigant. These factors, as quoted in Hainey (referred to in the CAD, noted above) were succinctly summarized in Re Lang Michener and Fabian, 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353 as follows:

(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.

10As indicated in the CAD, the Tribunal in Hiamey also noted that not all of the factors need to be present, provided 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.

11From 2013 up to the hearing day on March 4, 2016, Ms Lin had filed seven applications naming 30 different individual and organizational respondents. The applications have been based on almost every Code ground, and on the social areas of employment, housing, and goods, services and facilities. They have included applications against churches, a charitable organization, former landlords or roommates, lawyers, various government agencies, this Tribunal and its staff, the registrar of the Superior Court of Justice, a police service, administrative staff, and an MPP. Some of the applications were related, others were not.

12As noted above, the Tribunal has dismissed the seven applications on a preliminary basis, as follows.

13Lin v. William Rock Medicine Professional Corporation, 2014 HRTO 1682, reconsideration denied, 2015 HRTO 38, was dismissed for jurisdictional reasons, on the basis that she had also filed a parallel civil action. The filing of parallel proceedings, in and of itself, is not unusual and would not generally lead to a person being declared a vexatious litigant. See Giannias v. Toronto District School Board, 2015 HRTO 1535 at para. 17. However, Ms Lin’s conduct in 2014 HRTO 1682 does support such a finding. Ms Lin had made a request to amend her application, for a change of venue, and for a particular adjudicator to be assigned to hear the case, all of which were refused; 2014 HRTO 989. She filed a subsequent request for the same relief, along with an allegation of bias against the adjudicator who refused the first motion. The second motion was refused, by a different adjudicator; 2014 HRTO 1277. She filed a further request for the same relief, this time alleging bias against both adjudicators. The Tribunal, in 2014 HRTO 1380, again dismissed her request, making the following comments at paras 7, 9-10 and 12:

… the applicant needs to be made aware of certain basic principles and adhere to them in all of her future dealings with the Tribunal and the respondents. The first is that she has an obligation to conduct herself with courtesy and respect for others, including the Tribunal.

… the applicant needs to be aware that if she fails to comply with the Tribunal’s directions, the Tribunal may take steps to prevent an abuse of its process.

The applicant has now been told twice by the Tribunal that her request to revisit her original requests has been denied. This issue will not be revisited a third time.

The applicant is directed to ensure that all of her communications regarding this Application are to be courteous and respectful of the Tribunal and the other participants.

14Lin v. I AM Saint Germain Church, 2014 HRTO 1842, reconsideration denied, 2015 HRTO 265, was dismissed as the allegations were held to all be outside the jurisdiction of the Tribunal. Amongst the many different and unrelated respondents named in that application were the adjudicators who had made the various decisions addressed in paras. 12 and 13, above, lawyers who gave her advice she disagreed with, and police who had refused to take certain actions she requested.

15Lin v. Wong, 2015 HRTO 1249, reconsideration denied, 2015 HRTO 1359, was dismissed because she failed to appear at the scheduled hearing. The present Application is also dismissed for the same reason.

16Lin v. Qing Qing Li, 2015 HRTO 1252, reconsideration denied, 2015 HRTO 1368, and Lin v. Human Rights Tribunal of Ontario, 2015 HRTO 1298, reconsideration denied, 2015 HRTO 1374, and Lin v. Yong, 2015 HRTO 1380, reconsideration denied, 2016 HRTO 241, were dismissed on the basis that it was plain and obvious that the allegations raised against the respondents were not connected to any prohibited ground of discrimination under the Code.

17As noted, in all seven of those applications, she asked that the Tribunal reconsider its decisions under Rule 26 of the Tribunal’s Rules of Procedure. These requests were all dismissed, for the most part, as she did not provide any legal basis that would justify reconsidering the decisions.

18In most of the cases where the Tribunal has declared an individual to be a vexatious litigant, the focus of the litigation was usually related. For example, in Dai v. Presbyterian Church in Canada, cited in the November 18, 2015 CAD quoted above, the Tribunal’s order declaring Mr. Dai a vexatious litigant only applied to proceedings he may bring against the Presbyterian Church or affiliated organizations or individuals, and did not limit his right to bring unrelated applications against other parties. The scope of the order was appropriate, given that all the proceedings he had commenced were dealing with the same underlying issue and were directed at the same related group of individuals and organizations.

19The Applications brought by Ms Lin, however, do not share the same focus. Though some of the above Applications were related, others appear to have little or no connection to each other. One of the Applications was brought against a former employer, three of the Applications were brought against former landlords or roommates, one against the Tribunal and tribunal staff, and the present application was brought against a non-profit organization where Ms Lin was receiving employment supports. I agree with the submissions of the respondent in this case that it appears Ms Lin may file an application against anyone who she believes has treated her unfairly, regardless of whether there is any Code basis for the allegedly unfair treatment.

20A decision to declare a person a vexatious litigant is never taken lightly by the Tribunal, particularly where the decision is to bar an individual from bringing an application against any respondent. Simply having brought numerous applications that were ultimately found to be without merit may not in and of itself be sufficient. See Macyshyn v. Cheese Boutique Ltd., 2016 HRTO 341, at paras. 12-13. However, bringing repeated meritless applications, coupled with ongoing inappropriate behaviour and communications, even after being warned, has been found to justify a declaration. See Vizcaya v. UJA Federation of Greater Toronto, 2013 HRTO 1142.

21Ms Lin meets most of the factors set out in Foy. Several of her applications have been dismissed because it was obvious they could not succeed. Several of her applications, particularly those against lawyers, adjudicators, and the MPP, appear to have been brought not because of any alleged discrimination, but rather because those individuals did not agree with her. She consistently sought reconsiderations of every Tribunal decision, without providing any legal basis. She was cautioned about conducting herself with courtesy and respect in the proceedings, yet continued to make inflammatory and derogatory comments toward other parties and the Tribunal. Even if there were an underlying basis for some of her claims, when looking at the history of the applications she has brought over the past two years, and her conduct, I find it is necessary to declare Katherine Lin a vexatious litigant with respect to any applications she may wish to bring to the Tribunal.

22I note also that Ms Lin had filed a judicial review application with the Divisional Court respecting Lin v. Yong, 2015 HRTO 1380 and 2016 HRTO 241, which was dismissed on April 18, 2016 as frivolous, vexatious, and an abuse of process; Lin v. Zhang, 2016 ONSC 2485 (Div. Ct.). This decision was issued after the scheduled hearing on March 4, 2016. Though the sentiments in that decision are consistent with my findings here, it was not necessary for me to rely on it in order to make the present order.

23Since the summary hearing was held in this Application, the applicant has filed another four applications with the Tribunal, naming another 16 respondents. No determination has yet been made on those applications. However, I echo the warnings given to Ms Lin in the earlier decisions, and direct her to ensure that all of her communications with respect to any applications she may have are to be courteous and respectful of the Tribunal and the other participants.

Order

24The Application is dismissed.

25The Tribunal declares Katherine Lin to be a vexatious litigant. She cannot commence any application at the Human Rights Tribunal of Ontario without first obtaining leave of the Tribunal.