Sharma v. Peel District School Board, 2016 HRTO 735

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruchi Sharma

Applicant

-and-

Peel District School Board and

Elementary Teachers Federation of Ontario - Peel Elementary Teachers Local

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: May 30, 2016

Citation: 2016 HRTO 735

Indexed as: Sharma v. Peel District School Board

APPEARANCES

Ruchi Sharma, Applicant

Self-represented

Peel District School Board, Respondent

Roy Filion and Evelyn Dormer, Counsel

Elementary Teachers Federation of Ontario - Peel Elementary Teachers Local, Respondent

Adam Beatty, Counsel

background

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on August 22, 2014.

2After filing the Application, the applicant brought four Requests for Order During Proceedings (“RFOP”) seeking to amend the Application. The RFOPs were filed on October 16, 2014, November 6, 2014, November 24, 2014, and November 28, 2014. On December 15, 2014, the applicant brought a fifth RFOP requesting an investigation into how materials were filed by the respondents, including an investigation into the timestamps on the materials, the untimely filing of materials, and the failure to receive confirmation of forms and emails sent to the Tribunal. On January 22, 2015, the applicant brought a sixth RFOP for certain remedies relating to the conduct of the hearing.

3The Peel District School Board (“PDSB”) brought three RFOPs after filing its Response. On December 5, 2014, it filed two RFOPs requesting a summary hearing and a declaration that the applicant is a vexatious litigant. On December 19, 2014, the PDSB brought a RFOP to strike the applicant’s Reply.

4By Interim Decision dated May 12, 2015 (2015 HRTO 611), I denied the summary hearing request of the PDSB. I also declined to make an order that the applicant was a vexatious litigant, at that time, because both parties had filed numerous RFOPs. In my Interim Decision, I indicated there were a number of issues relating to the scope of the Application. I determined a preliminary hearing would be scheduled to address these issues. I advised the parties that any issues concerning the filing of materials would also be addressed at the preliminary hearing.

5A preliminary hearing was held on July 20, 2015. During the preliminary hearing, I gave the applicant the opportunity to look at the Tribunal’s file so that she could satisfy herself that she received the same materials from the respondents that were filed with the Tribunal. The applicant refused to review the documents sent by the respondents unless there was an inquiry into the timestamp issue by the Tribunal. I refused to undertake such an inquiry at the preliminary hearing.

6I released my decision on the preliminary hearing by Interim Decision dated October 2, 2015 (2015 HRTO 1308). I permitted the applicant to amend the Application to add two allegations of reprisal. I held her January 22, 2015 RFOP related to the conduct of the hearing and it was premature to determine those issues at that time. I confirmed my decision to not undertake an investigation into the timestamps noted on the materials filed by the respondents because there was no indication before me that the applicant had received different materials from those provided to the Tribunal. I held that it was not an effective use of the Tribunal’s time, nor was it required, to undertake an investigation as to why different computers or fax machines showed different timestamps on the materials sent to the applicant and the materials filed with the Tribunal. What mattered was that the applicant had received all of the materials filed by the respondents and there was no indication that she had not.

7I denied the request of the PDSB to strike the Reply because much of the Reply related to the applicant’s evidence or argument in support of her case. I held it was premature to determine what evidence the applicant could call at the hearing.

8On October 5, 2015, the applicant filed a seventh RFOP seeking to add the following parties as respondents: Neal Patel (“Patel”), counsel to the PDSB; Social Justice Tribunals of Ontario (“SJTO”); Peel Regional Police (“PRP”); and Rogers Communication (“Rogers”).

9The allegations against Patel and the SJTO related to the filing of material in this matter. The allegations against the PRP and Rogers involved the applicant’s complaint that her computer has been hacked.

10On October 7, 2015, I issued a Case Assessment Direction (“CAD”) in response to the applicant’s seventh RFOP. I advised the respondents that neither they, nor the respondents the applicant was seeking to add, were required to respond to the seventh RFOP.

11In the October 7, 2015 CAD, I refused to add the proposed respondents. I ruled there was no service relationship between Mr. Patel and the applicant, and as such, the Tribunal had no jurisdiction to hear a complaint about Mr. Patel. I held the remaining proposed respondents had no connection to the allegations of discrimination in this case and could not be added for that reason. I confirmed that the central issue in this case is whether the applicant was denied educational and promotional opportunities because of her race and whether she was reprised against by the PDSB when she complained about this alleged treatment.

12In the October 7, 2015 CAD, I warned the applicant about her conduct in this matter. More specifically, I warned the applicant about her failure to accept my ruling regarding the filing of materials and her attempt to add parties that have nothing to do with the discrimination alleged in the Application. I advised the applicant that her refusal to accept my rulings may interfere with my ability to deal with her case and that if she continued to engage in this conduct, she was at risk of having the Application dismissed as an abuse of process. The warning that I issued is set out below:

It is important that the applicant accept my rulings in this case. I addressed the issue of how materials were filed during the preliminary hearing on July 20, 2015 and in the Interim Decision that followed. The applicant has not accepted this ruling and instead, has brought a RFOP to add parties in relation to this issue and parties that have nothing to do with the allegations in this case. She has gone so far as to attempt to name counsel for the PDSB about an issue that has been decided. The applicant’s refusal to accept my rulings may interfere with my ability to deal with this case. If the applicant continues in this matter, she is at risk of having the Application dismissed as an abuse of process.

13By Notice of Hearing dated December 16, 2015, a hearing on the merits was scheduled for April 25 and 26, 2016. On December 23, 2015, new counsel for the PDSB requested that the hearing date of April 26 be re-scheduled.

14On January 5, 2016, the Tribunal emailed the parties and confirmed the hearing would be rescheduled to May 3 and 6, 2016.

15On January 5, 2016, the Tribunal was advised by the applicant that she would not confirm hearing dates until she received an explanation from the Tribunal as to why she was receiving emails from individuals using the Registrar’s email address. Her email is set out below:

Please note that I am not confirming any dates for any hearing until I receive clarification from the HRTO as to why I am receiving emails from various individuals using the HRTO registrar's email address and not their own. Some of these individuals using the HRTO email address for corresponding are not listed as employees with the HRTO under info-go, therefore I am concerned. I will confirm hearing dates when I receive a response from the HRTO Registrar to ensure that I am not being tried for anything using the HRTO as an excuse based on the continued filing issues in this case. Please note that due to the delay in Mr. Beatty's response, I am no longer available on those May dates that I provided in December 2015. Please advise. (emphasis added)

16On January 5, 2016, the Registrar sent the applicant an email, copied to the parties, which stating the following:

With all due respect, I am getting to the point where the HRTO will no longer accept email correspondence from you. These emails are not necessary and take up time we simply do not have to respond. Should you continue to question every email sent and by whom it is sent, I will no longer respond to such emails from you.

As you are aware, all email correspondence to the HRTO is to be sent the Registrar, with most email correspondence from the HRTO being sent on behalf of the Registrar but generally not directly from the Registrar. Therefore, parties to applications before the HRTO will receive email correspondence from a number of different staff, depending on the stage an application is at, and sent on behalf of the Registrar. This is our normal practice that has been in place since the beginning of the Tribunal in 2008.

I can assure you that any emails sent by on behalf of the Registrar are from staff on the HRTO and you should be responding accordingly to these emails. (emphasis added)

17After January 5, 2016, the applicant began requesting that the Attorney General review the Tribunal’s processes. In an email to the Attorney General dated January 20, 2016, the applicant stated, in part:

However, as mentioned in my 3 previous emails since January 5^th, I am requesting a review by the attorney general of the reason why I have received emails from a number of individuals using the HRTO registrars email address instead of their own as some are not listed as part of HRTO in infogo. I am concerned as I do not want to attend the HRTO hearing (which seems to be scheduled on days I cannot attend based on the Registrar’s emails) which in itself is prejudicial to my case. Please note that none of the parties are following HRTO rules of procedure in this case and that has been allowed which also concerns me. Based on the preliminary hearing and constant filing issues, it seems that the Ontario justice tribunals are setup for the privileged and since I don’t fall in the privileged group, I am unable to get any answers. Although I am not a lawyer, I do understand how to follow HRTO procedures, therefore something is not right here. Please investigate so I can be assured that I have not/am not being tried to anything else in the name of the HRTO as that would be a violation of my human rights. (emphasis added)

18By Notice of Hearing dated January 11, 2016, the hearing was rescheduled for May 3 and 6, 2016. Under the Notice of Hearing, the parties were to disclose their arguably relevant documents to each other by February 1, 2016, and disclose and file their hearing documents with the Tribunal by March 21, 2016. Their hearing documents consisted of a list of the documents they intended to rely upon at the hearing, copies of these documents, and witness statements for the witnesses they intended to call.

19On January 25, 2016, the Case Processing Officer (the “CPO”) contacted the applicant regarding voice-mail messages left in the Registrar’s voice mail box concerning date and time stamps with emails. The applicant was advised of the following:

Regarding your voice mail to the CPO of January 25, 2016, we are in receipt of your voice mails of last week left in the Registrar’s voice mail box concerning date and time stamps with e-mails. We are also in receipt of your e-mail of January 21, 2016, regarding why you are receiving acknowledgement e-mails from the HRTO when you did not send an e-mail to the HRTO. My understanding is the Registrar has been in contact with you in the past and has responded to this issue. The Registrar was quite clear in his response to you that the HRTO again, would no longer be responding to the issue related to the time/date stamping, and acknowledgement e-mails from the HRTO.

20On February 2, 2016, the Assistant Registrar sent an email to the applicant in response to voice-mail messages from her. The Assistant Registrar confirmed that the Tribunal would no longer comment on issues regarding the applicant’s concerns about the confirmations that she was receiving. With respect to the applicant’s concerns about material sent to her from the Tribunal, the Assistant Registrar advised the applicant that should she wish to review what has been filed, she could review the Tribunal’s file.

21The applicant responded to this email on February 3, 2016. The applicant continued to raise concerns about “erroneous confirmations”. She also sought confirmation that the Tribunal had not received any legal forms from the applicant since October 7, 2015. In this email, the applicant advised the Tribunal that she would not be attending the May 3 and 6 hearing dates because she did “not want to be duped into something else in the name of the HRTO”. The applicant advised further that she was requesting an investigation into her case by the Attorney General.

22On February 4, 2016, the Assistant Registrar advised the applicant that the Tribunal would no longer respond to her inquiries by telephone and that any response, should it be necessary, would be issued in writing to ensure there was a proper record detailing the Tribunal’s responses.

23On March 16, 2016, the applicant was advised by the Assistant Registrar that any documents that she intended to rely upon and witness lists were due on March 21, 2016. The applicant was advised to comply with this deadline as outlined in the Notice of Hearing dated January 11, 2016.

24The respondents delivered their hearing documents to the applicant and the Tribunal on March 21, 2016. The applicant provided a power point presentation where she listed nine documents that she intended to rely upon. The applicant also referred to email correspondence on the RFOPs. The applicant said she would not be using anyone as witnesses, but referred to requests for summonses that she had made.

25The applicant contacted the Tribunal by email on March 22, 2016. The applicant complained about not receiving return calls from the Tribunal in response to her voice mail messages. The applicant scanned the documents that she received from ETFO for transparency. She advised the Tribunal that she would be videotaping her opening the documents from the respondents, with her voice listing the documents as she opened the package.

26On March 23, 2016, the Assistant Registrar responded to the applicant and requested that she refrain from videotaping the opening of documents and attaching it to emails together with a list and attachment of documents that she received from the parties. The applicant was advised that the Tribunal does not accept documents via Google Drive or any other cloud service.

27On March 30, 2016, the applicant contacted the Registrar, the Assistant Registrar and the CPO by email and included an attached video file of her opening the disclosure from the PDSB. The applicant asked the Registrar to call her back to confirm the documents sent by the PDSB and the ETFO. The applicant stated that she wanted to make sure that she had not received any spoofed emails with regards to documents and dates as she had received several spoofed calls throughout the Tribunal process.

28The Registrar responded to the applicant on March 31, 2016, where he stated:

Concerning your recent emails of March 29 and 30, the HRTO has advised you in the past that your calls would not be responded to directly. Despite your persistence that we have not responded to your inquiries, I respectfully disagreed. Attached are four email responses sent in March alone, again attempting to respond to both your emails and telephone messages.

In one of the attached emails you were instructed NOT to send video-recordings to the HRTO by email. Yet you continue to do. The video-recording attached to you email below would not open and crashed my computer. As a result I have deleted the video-recording attachment. Once again, please do NOT send recordings on any kind, video or audio, by email.

As previously offered, if you have any concerns about documents or submissions related to his file, you can make the necessary arrangements to view the file at the HRTO Hearing Centre.

29On April 7, 2016, the applicant contacted the Registrar to inquire whether the Tribunal had received fraudulent form 10s or 11s from her email address since October 7, 2015. The applicant stated:

… I have not sent anything in yet I continue to receive confirmations from the HRTO. I cannot file a form 10 as you continue to suggest because I do not want my case dismissed by Ms. Jennifer Scott.

30On April 22, 2016, the applicant filed an eighth RFOP wherein she requested the following:

a. An order deferring the Application pending a review by the police or the RCMP into the filings that have been made in this matter;

b. An order adding the Attorney General of Ontario and the Premier of Ontario, Kathleen Wynne, as respondents;

c. An order amending the monetary relief sought in the Application to 20 million dollars.

31On April 28, 2016, I issued a Case Assessment Direction refusing the applicant’s deferral request because there was no other legal proceeding to defer the Application to. I ordered a preliminary hearing on the question of whether the applicant’s conduct constituted an abuse of the Tribunal’s process that would result in a dismissal of the Application. The May 3, 2016 hearing date was cancelled. The May 6, 2016 hearing date was converted to a preliminary hearing by teleconference to hear the parties’ submissions on the abuse of process issue.

32Following the release of the April 28, 2016 Case Assessment Direction, the applicant contacted the Registrar on May 3, 2016 by email, copied to the Attorney General, and complained about continued filing issues, fraudulent confirmations from the Tribunal, and the scheduling and cancelling of hearing dates. The applicant stated:

I received Mr. Hennessey’s email on Friday April 29^th, 2016 where he stated that NO hearing took place on April 25^th and 26^th as it was cancelled. Furthermore, he also cancelled today’s (May 3^rd, 2016) hearing and requested a call in on Friday May 6^th, 2016 with vice chair Jennifer Scott. I am wondering if that will be cancelled as well because that has been the pattern so far. I do not understand the reasons behind the continued filing issues, fraudulent confirmations from the HRTO, scheduling and cancellation of hearing dates.

Please note that since I am repeatedly being told that there are no proceedings on April 25^th, 26^th and May 3^rd, 2016, I am expecting that will be the case, otherwise that would be fraud.

I look forward to a call from the Attorney General or the HRTO to explain what is really going on with this case.

33The applicant filed submissions on the abuse of process issue on May 4, 2016. A central theme of the applicant’s submission related to the filings in this matter. The applicant suggested that the issues around filings and blocked information occurred so that the applicant would be declared a vexatious litigant. The applicant stated in her submissions:

…the respondents have themselves vexatiously brought forward this claim of a vexatious litigant, which is absolutely false considering the constant (criminal targeting), misfilings, misrepresentation, financial targeting that the applicant has endured through this process of the HRTO.

34The respondents filed written submissions on the abuse of process issue on May 4, 2016.

35The preliminary hearing took place on May 6, 2016 by teleconference.

analysis

Abuse of Process

36The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. This power includes the right to dismiss an application where it is necessary to prevent an abuse of process.

37The authority to dismiss an Application as an abuse of process is also reflected in the Tribunal’s Rules of Procedure.

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.

Disregard for the Tribunal’s Decisions and Directions

38The applicant has repeatedly disregarded the Tribunal’s decisions and directions during these proceedings. As stated by the PDSB, “she has sought to secure the Tribunal’s authority in support of her rights, but effectively denies the Tribunal’s responsibility to control its processes and give direction when it is appropriate to do so”.

39The issue of the timestamps has been raised by the applicant on numerous occasions. I addressed it directly during the preliminary hearing on July 20, 2015. I advised the applicant that the relevant issue was whether she had received all of the materials and offered her the opportunity to review the Tribunal file. She refused to review the materials filed by the respondents unless I agreed to investigate the time stamp issue. I declined to do so. This ruling was confirmed in my Interim Decision dated October 2, 2015.

40The applicant did not abide by this ruling. She continued to raise issues around the filing of material with the Tribunal and its staff despite being told that the Tribunal would not look into these issues. The applicant raised these issues repeatedly with the Registrar and Tribunal staff. Again, the applicant was offered the opportunity to review the Tribunal file. She never took that opportunity.

41The applicant’s preoccupation with how materials were filed and the timestamps on the materials has resulted in RFOPs being filed by the applicant seeking to add parties that have absolutely nothing to do with the allegations of discrimination. These parties include the former legal counsel for the PDSB, the SJTO, PRP and Rogers. Her unsubstantiated belief that something untoward has been going on led to her most recent RFOP to add the Attorney General and the Premier of Ontario as parties. It has also led to her request to defer the Application so that an investigation could be conducted by the police or the RCMP.

42The applicant was warned that her failure to abide by the Tribunal’s directions put her at risk of having the Application dismissed as an abuse of process. She was also warned about attempting to add parties that have nothing to do with the allegations of discrimination in this case. Despite these warnings, her conduct continued.

43The doctrine of abuse of process is a preventative tool which allows the Tribunal to dismiss an application in circumstances where to carry on with the proceeding would bring the administration of justice into disrepute. An abuse of process can happen in a number of ways, including where an applicant repeatedly refuses to comply with the Tribunal’s directions. Where the failure to comply with the Tribunal’s directions prevents the Tribunal from exercising its statutory mandate to deal with an application in a fair manner, the application may be dismissed as an abuse of process because to continue in those circumstances would bring the administration of justice into disrepute. See Currie v. Halton Regional Police Services Board, [2003] O.J. No. 4516, 2003 CanLII 7815 (Ont. C.A.); Sangineto v. BridgCo. Foods Inc., 2015 HRTO 556 at para. 34; and Conway v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1232 at para. 27.

44The applicant has persistently and repeatedly disregarded the Tribunal’s rulings because of her preoccupation with the filings in this matter and her belief the respondents, and perhaps the Tribunal, have engaged in wrongdoing in this regard. This preoccupation has caused her to make spurious claims against opposing counsel and Tribunal staff, to request a police investigation, and an investigation by the Attorney General. It has resulted in requests to add parties that have nothing to do with the allegations of discrimination in order to ferret out this unsubstantiated wrongdoing. Her preoccupation has derailed the proceeding to the extent that it has become manifestly unfair to the respondents and has prevented me from exercising my statutory mandate to deal with the Application in a fair, just and expeditious manner. To continue in these circumstances would bring the administration of justice into disrepute. For these reasons, the Application is dismissed as an abuse of process.

Vexatious Litigant

45The respondents have also requested that the applicant be declared a vexatious litigant.

46The Tribunal has found that in exceptional circumstances, it has the power to declare a person to be a vexatious litigant and to prevent that person from filing further applications without first obtaining leave of the Tribunal. Such orders can prevent the filing of applications against anyone or may be confined to one or more respondents.

47In Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 at paragraph 27, the Tribunal reviewed the test 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 (“Foy”). 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.

48The PDSB argues the applicant’s conduct reflects factors (a), (b), (d) and (e) above. In support of its request that the applicant be declared a vexatious litigant, the PDSB relies predominately on the applicant’s vexatious conduct. It also relies on the fact that the applicant has filed eight RFOPs.

49There is a difference between vexatious conduct that leads to an abuse of process and a declaration of vexatious litigant. A finding that the applicant’s conduct is vexatious does not mean that she is a vexatious litigant. To hold otherwise would mean that in every case where a party has been found to have engaged in vexatious conduct, a finding of vexatious litigant would result. In my view, these two concepts should not be conflated in this way.

50In addition to the applicant’s vexatious conduct, which has resulted in my abuse of process finding, the PDSB relies on the fact that she has filed eight RFOPs. The question arises as to whether the filing of multiple interim requests can provide the foundation for a vexatious litigant declaration.

51In Foy, the Court of Appeal held vexatious proceedings under section 1(1) of the Vexatious Proceedings Act, R.S.O. 1970, c. 481, do not apply to interlocutory proceedings. The Court held vexatious interlocutory proceedings can be dealt with under the Court’s inherent jurisdiction to prevent an abuse of its processes. While the Tribunal does not have inherent jurisdiction to prevent an abuse of its processes, it has the statutory jurisdiction to do so under the SPPA.

52I find that the principle articulated in Foy applies to proceedings at the Tribunal. It is not, in my view, appropriate to make such a declaration of vexatious litigant because an applicant has brought multiple RFOPs within a single application. If that were the case, many parties would be declared vexatious litigants by the Tribunal.

53None of the factors set out in Foy have been met in this case. The issues raised in the Application have not been determined by a court of competent jurisdiction. It is not obvious that the allegations of discrimination cannot succeed, would lead to no possible good or no reasonable person could expect to obtain relief. Finally, the issues raised in the Application have not been rolled into a subsequent application. For these reasons, I decline to declare the applicant a vexatious litigant.

54That said, the Application is dismissed because of the applicant’s vexatious conduct. To proceed with the Application in these circumstances would bring the administration of justice into disrepute.

order

55The Application is dismissed as an abuse of process.

56I would warn the applicant that should she file further applications at the Tribunal and continue to disregard rulings and directions from the Tribunal regarding the conduct of those proceedings, such actions would also raise the issue of abuse of process and may lead to a declaration that she is vexatious litigant.