HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Darren John
Applicant
-and-
1608271 Ontario Inc. o/a Service Ontario 077
Respondent
DECISION
Adjudicator: David Muir
Indexed as: John v. 1608271 Ontario Inc.
APPEARANCES
Darren John, Applicant
No one appearing
1608271 Ontario Inc. o/a Service Ontario 077, Respondent
Letitia Loretta Webley, Representative
1A hearing in respect of this Application was scheduled to begin on November 3, 2017, in Toronto.
2At the time and place set for the hearing the applicant was not in attendance. In accordance with Tribunal practice we waited for 30 minutes. At 10:00 a.m., the applicant was not in attendance and the hearing proceeding in his absence.
3I was advised by the respondent that the applicant had sent one or two emails to the Tribunal early on the morning of the hearing. Due to administrative error these communications were not provided to me prior to the hearing. I subsequently reviewed the email communication received by the Tribunal and it did not indicate that the applicant was not intending to attend the hearing or offer any explanation for his failure to do so.
4The respondent was in attendance at the hearing. It had brought several witnesses to give evidence and was ready to proceed. In the circumstances described more fully below, I determined that it was appropriate to hear the respondent’s evidence. Four respondent witnesses were affirmed and three adopted their previously filed witness statements. I asked questions of several of them.
5I find that the respondent did not discriminate against the applicant and in fact, based on the material and evidence before me, including the Application, I find that the applicant’s claims are false and the Application should be dismissed for that reason.
6I also find that the applicant has engaged in an egregious abuse of process and in the circumstances of this case I would dismiss this Application for that reason as well.
7Finally the applicant’s request that I recuse myself is denied.
The Procedural History of the Case
8In a Case Assessment Direction (“CAD”) issued on October 2, 2017, the applicant was alerted to the fact that he had failed to comply with Rules 16 and 17 of the HRTO’s Rules of Procedure regarding pre-hearing disclosure of documents, list of witnesses and witness statements by September 19, 2017, as indicated in the June 21, 2017 Notice of Hearing.
9It was also noted that in its Response the respondent made assertions which, if substantiated, appeared to largely respond to the allegations in the Application and to which the applicant had not responded as required by Rule 9.1 of the Tribunal’s Rules of Procedure:
An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.
10The applicant was directed to deliver and file with the Tribunal, by no later than October 5, 2017, a list of his witnesses and a statement describing what his witnesses will say when they testify as well as any documents he intended to rely upon at the hearing.
11The applicant did not comply with these Directions.
12On October 11, 2017, the applicant wrote to the Tribunal, not copied to the respondent as required by the Tribunal’s Rules, asking for direction with respect to the delivery of documents to the respondent. The applicant provided only a partial thread of an email exchange with the respondent, which was not represented at the time. The applicant only provided one email from the respondent as follows:
Do not contact me further. I am going to police to show them your email.
13Subsequent communications from the respondent indicated that perhaps there were inappropriate communications from the applicant to the respondent. However, the correspondence from the respondent was returned to it because it had not been copied to the applicant as required by the Tribunal’s Rules, and consequently the Tribunal could take no further steps at that stage.
14In a CAD issued on October 12, 2017, I made Directions as follows:
a. The respondent must confirm by October 16, 2017 that the applicant may deliver his hearing materials to the respondent by email failing which the applicant obligation to deliver those materials is ended;
b. The applicant must file his hearing materials as noted in the June 21, 2017 Notice of Hearing and the October 2, 2017 CAD, by October 16, 2017, failing which the Application may be dismissed as abandoned.
15The respondent complied with the Direction, the applicant did not.
16On October 12, 2017, the respondent filed a Request for Order During Proceeding (“Request”) seeking an order cancelling the hearing and determining the issues based on the materials filed by the parties, including the witness statements of the respondents’ witnesses which indicate that the applicant’s allegations were untruthful.
17Although afforded an opportunity to do so, the applicant did not respond to the Request.
18I denied the respondent’s Request but in a further CAD issued on October 30, 2017, I made the following comments:
As indicated, the applicant has clearly been put on notice that the respondent intends to prove that his allegations are unfounded and has in its materials provided an answer to his allegations, to which he apparently refuses to respond. I am concerned that the applicant may be engaged in an abuse of process in that he refuses to answer the assertions of the respondent which to be clear, if they are substantiated, would tend to suggest that the applicant’s claims are false.
A reasonable inference might be drawn at this stage that the applicant has refused to respond to the assertions of the respondent because there is no good response to them. And while it imposes a burden on the respondent to require its attendance at the hearing, the Code and the Tribunal’s Rules provide that an Application may not be dismissed without affording the applicant an opportunity to be heard. Accordingly, the respondent’s request that this case be determined on the basis of the written materials cannot be granted at this stage.
In the circumstances the applicant’s allegations will be confined to those set out in the Application. The applicant has provided no documents as required and directed and therefore will not be entitled to tender any documentary evidence without leave of the Tribunal.
19As indicated, at the time and place set for the hearing the applicant was not in attendance and the hearing proceeded in his absence.
The Dispute
20In his Application the applicant alleged that he experienced differential treatment in services because of his race and colour contrary to section 1 of the Code. He asserted that he was seeking to replace a license plate sticker which had been lost or stolen. He asserted that the white clients in front of him were not required to produce the documentation he was required to submit. In particular the applicant alleged that:
I arrived at the service ontario office around 6:42pm when while i was in line I noticed and overheard 2 of the 3 people ahead of me there for the same reason. There were 2 white men and 1 black man at the counter the 2 white males were both there for license plate stickers one needed a replacement sticker while the other needed a renewal sticker both men did not have their ownerships with them and one did not have his driver’s license this was the male there for a replacement sticker. The 2 white males were given their stickers without any hassle mean while when I went to the same attendant i was treated differently.
21The applicant alleges that unlike the white clients he was required to produce his vehicle registration and insurance documentation. The applicant alleges that when he asked why he had to provide this additional documentation the woman he was dealing with said that they dealt with these issues on a case-by-case basis and if he was unhappy he should make a complaint to the human rights tribunal. The applicant alleges that when he asked the woman why she would suggest that she responded, “I know that is what you guys like to do.”
22The applicant alleges that he asked to speak to a supervisor but was told that no one was available. The applicant also asserts that he demanded that the operator call “head office” but nothing came of this request.
23The respondent denied the allegation. The respondent denied that there were any other similar transactions in the hours before the applicant was served. The respondent asserted that the documentation required of the applicant was required of everyone seeking to replace a lost or stolen sticker. The respondent denies that any of its staff directed that the applicant go to the Tribunal or suggested to him that that that is what guys like him do. The respondent asserted that the matter was escalated to a supervisor and to the Service Ontario Hotline, which confirmed that the documentation and information required of the applicant was required.
24The evidence of the respondent’s witnesses vindicated their position. Each witness was affirmed and, with the exception of A.O., adopted their witness statement as their evidence. I questioned several of them. In particular, I questioned J.R.H., S.E. T.B. and A.O..
25I heard the evidence of J.R.H, the customer service representative who attended to the applicant. I accept her evidence that the applicant was advised that he needed to provide ownership documentation and insurance information in order to obtain a replacement sticker. When he asked why the prior clients had not been required to produce similar information and documentation, the operator told him that they had not been seeking the same thing, and in fact she had not been asked for a replacement sticker at any point during her shift that evening.
26I also accept the evidence of S.E. from the Ministry of Government Services, who confirmed that J.R.H. had acted appropriately in requiring the documentation that she did. I accept S.E.’s evidence which confirmed J.R.H.’s evidence that there were no such transactions processed between 3:00 p.m. and 7:00 p.m. on December 1, 2016. The applicant asserts and the respondent agrees that the applicant was there about 6:45 p.m.
27I also accept the evidence of T.B., who overheard the discussion and intervened. T.B was the acting Supervisor that evening. She testified that she confirmed with the applicant that J.R.H.’s instructions were correct. J.R.H. and T.B. both testified that the applicant continued to refuse to accept this answer, so T.B. contacted the Service Ontario Hotline, which confirmed the previous advice to the applicant. J.R.H. denies that she suggested that the applicant go the Tribunal or said “that is what guys like you do.” I accept her evidence.
28Finally I accept the evidence of S.E. that Ministry records indicated that the applicant attended another Service Ontario office on December 15, 2016 to replace a validation sticker for the same licence place and provided the documentation that was required.
29Based on the uncontradicted evidence of the respondent’s witnesses I find the allegations of the applicant are completely unfounded. J.R.H. agreed that it was possible that he had overheard prior clients. However, there is no reason not to accept the evidence of the respondent’s witnesses, who gave their evidence in a forthright manner. I would also observe that they were testifying about a routine transaction which they undertake regularly. Particularly compelling is the supporting evidence of the Ministry official who testified that there was no similar transaction undertaken that day and that the applicant provided the appropriate documentation at another Service Ontario location two weeks later.
30I also draw an adverse inference from the applicant’s failure to respond to the respondent’s assertions although afforded an opportunity to do so. His failure to attend the hearing in the circumstances also suggests that in fact the respondent’s actions were appropriate and that the applicant’s claims are false.
31In short I accept the evidence of the respondent that its employees acted appropriately and in accordance with Ministry requirements for the transaction the applicant was seeking to perform and that he did not experience discrimination.
Abuse of Process
32As noted above, on October 11, 2017, the applicant wrote to the Tribunal, not copied to the respondent, asking for direction with respect to the delivery of documents to the respondent. The applicant provided only a partial thread of an email exchange with the respondent, which was not represented at the time.. The applicant only provided one email from the respondent as follows:
Do not contact me further. I am going to police to show them your email.
33In a CAD issued to both parties on October 12, 2017, I noted that the applicant had not provided any context for this email and it was not clear why the respondent would have responded to the applicant in this way.
34Communications received from the respondent subsequent to the October 12, 2017 CAD indicated that there may have been inappropriate communications from the applicant to the respondent. However, the correspondence from the respondent was returned to it without review by me because it had not been copied to the applicant. Although not apparent at the time, as will be seen below, the failure to deliver to the applicant was through no fault of the respondent. Despite the respondent not filing information with respect to the basis for its concern, in the October 30, 2017 CAD I reminded the parties of the Tribunal’s Rules A7.1 and A8 and the Tribunal’s authority to prevent abuse of its process. I advised the parties that this issue could be spoken to at the hearing if necessary.
35On October 20, 2017, the respondent provided the missing email string which provided some context for the applicant’s partial disclosure and request of October 11, 2017 above. The respondent also provided context and an explanation for why it had been unsuccessful in attempting to deliver its materials to the applicant by the email address he provided to the Tribunal in his Application, and to which he had consented to receive materials. The email dated September 26, 2017, is reproduced here:
fuck you do not contact Darren John on this email you were told already and persist to message him. You will and must send all communication to him through regular mail.
36The message, although sent from the applicant’s email, purports to be from a Lindon John.
37This email was in apparent response to the September 26, 2017 email from the respondent referred to above.
38At the hearing the respondent confirmed that its September 26, 2017 email was sent in response to the following communication received from the applicant on September 26, 2017:
Do not fucking message me after hours, a money grabbing whore like you most likely are billing service Ontario per word! but from the emails you have sent your sesame seed size brain cant come up with enough words to get 10 cents! I did not ask you for an explanation it was a yes or no question! the fact you go on to a rant about your "innocence" suggests you want an argument you fucking cunt whore. Unfortunately they have given a down trodden ditch pig like you refugee status now you take your uppity monkey ass and talk out of turn and out of your pay grade! I am pretty sure that service Ontario location is privately owned so either way they will be paying either by settlement or by their time its all fine with me! you racist mother fuckers will pay either way! its principal for me unlike a slut like you who probably take after your mother scraping every and any penny lol now crawl back into which ever whole you came from or back to eating monkey brains from which ever jungle you were rescued from. Do not message me back whore you messages have me harassed and I may seek further action in civil superior court against you.
39In light of this further information from the respondent, a CAD was issued on November 1, 2017, advising the parties that the Tribunal would hear submissions from the parties about whether or not the conduct of the applicant in this proceeding has been vexatious and consequently whether or not the Application should be dismissed as an abuse of process and the applicant declared a vexatious litigant.
40In my view the applicant has engaged in an egregious abuse of process and although afforded an opportunity to do so has provided no credible explanation for his conduct. As indicated, and although put on notice that this was an issue to which the applicant must respond, he did not attend the hearing to address it.
41I do note that in his email communication the morning of the hearing the applicant requested that I recuse myself and suggests that the emails were not sent by him but by his brother. This seems unlikely in all of the circumstances. Indeed I find that the first email in the chain, the last one above, is clearly written by the applicant based on its content which includes first person references and references to Service Ontario which is the subject matter of the applicant’s human rights claim. The claim that this was written by his brother is implausible on its face. The other shorter email is written in a way that could be consistent with the applicant’s suggestion that it was written by a third person. However I do not accept the applicant’s unsupported assertion. First of course is the fact that he chose not to attend at the hearing to give evidence on the issue. Second, the applicant provides no explanation for why someone other than himself has access to his email and would be purporting to respond to the respondent. Third, the tone and stylistic content, which includes gratuitous profanity, is strikingly similar to the longer email which I have found was written by the applicant. I note again that the applicant provided the email address and consented to its use for the delivery of materials in this case. More is required of the applicant in the circumstances than the bald assertion that the emails come from someone other than him.
42I also note that the applicant made a similar claim in another case where he asserted in response to a criminal charge of practicing law without a license that an unidentified person had taken over his email address to deal with a party with whom the applicant was in a dispute. The communication in that case was from someone purporting to be a lawyer with intimate knowledge of the dispute between the applicant and the third party. The claim seemed implausible on its face to the police officer who interviewed the applicant and after reviewing the lengthy video of the police interview of the applicant that claim seemed implausible to me as well.
43Does the applicant’s abuse of the respondent provide a separate justification for the dismissal of the Application? Although an extreme remedy I believe that it does in the entire context of this proceeding. The applicant is not unfamiliar with legal processes. He has filed more than 30 Applications with this tribunal alone. He has apparently participated in many criminal proceedings and civil proceedings as plaintiff and defendant. He has claimed in the past to have worked as a paralegal and was at one time employed in a law firm. He cannot credibly claim to not understand how to conduct himself in these proceedings.
44These emails, although there are only two of them, are execrable. The contact person for the respondent is a woman, A.O., who attended the hearing and gave evidence about these emails. She was evidently shaken by them and believed them to be completely unprovoked.
45In my view there is no reasonable explanation for such violent misogynist language. The recipient was understandably upset by their receipt and was reluctant to attend the hearing as a result, although she did attend and gave evidence. Parties and their representatives in these proceedings are entitled to be treated with dignity and respect. The applicant's communications with A.O. is the opposite of that. The harm in this violent discourse is only compounded by the manifest wrongheadedness of the communication, given that the applicant had provided the email address in question and had consented to its use in these proceedings.
46I have also considered the fact that the respondent participated in good faith in this proceeding and provided a detailed Response to the Application which largely addressed the applicant’s concerns. The applicant declined to attend because, in my view, there was no good answer to the respondent’s positions.
47I also draw the inference from the applicant’s failure to attend the hearing to speak to these emails that there is no good explanation for the behaviour.
48I appreciate that the email exchange was short-lived given that the respondent ceased using email and there appears to have been no further communication from the applicant of a similar character after the issue of the respondent’s filing of materials was first raised by the applicant on October 12, 2017. However, no party should be required to endure such disgraceful conduct and no reasonable person could believe that such conduct is acceptable and would not be subject to a significant sanction. Such behaviour simply cannot be countenanced and is of such an extreme, violent and discriminatory nature that the only appropriate sanction ought to be the dismissal of the Application. Although not necessary given the result above, if I had not dismissed the Application on the merits I would have dismissed it as abuse of process because of the vexatious conduct of the applicant.
Request to Recuse
49As indicated, on the morning of the hearing the applicant sent correspondence to the respondent and Tribunal requesting that I recuse myself from the hearing because of bias. Due to administrative error this request was not provided to me prior to the hearing.
50The applicant’s request that I recuse myself is without merit and is dismissed.
51The applicant alleges that I am biased because I raised the issue of his vexatious conduct, not the respondent. The applicant goes on to allege that the emails were not sent by him but by his brother and that he is not responsible for them. The applicant also alleges that I “weighed in on the merits of the respondent’s defence” and that this indicates bias.
52The Supreme Court of Canada enunciated the principles to be applied in considering apprehension of bias in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, as follows:
… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
53The applicant complains that I raised the issue of his vexatious conduct. The Tribunal has the authority, indeed the obligation, to make orders to prevent the abuse of its process. The conduct of the applicant was extreme in this case. As indicated above the applicant’s conduct was concerning enough that the respondent contacted the police. Despite that information, the Tribunal took no immediate steps other than providing a general warning about the parties’ obligations to each other. However, on receipt of the emails above I exercised my authority to determine whether the applicant’s conduct amounted to an abuse of the Tribunal’s process and, on finding that it did, issue an appropriate order. It is entirely appropriate for a tribunal to take steps on its own initiative to prevent an abuse of its own processes. There is no basis to this aspect of the applicant’s claim.
54The applicant also complains that I weighed in on the respondent’s defence to his claim. Under the provisions of the Code, the Tribunal has the power to define and narrow the issues required to dispose of an application and to ensure the fair, just and expeditious adjudication of the dispute. The Tribunal’s authority to engage in what has become known as active adjudication is set out in section 43 of the Code and the Tribunal’s Rules of Procedure, and this particular power is provided at s. 43(b)(i) of the Code and by Rule 1.7(h).
55The Tribunal routinely makes preliminary rulings and directions. The Tribunal has ruled on several occasions that making preliminary rulings or engaging in case management does not create a reasonable apprehension of bias. See Group of Employees v. Presteve Foods, 2012 HRTO 1365, Rosenberg v. Ombudsman Ontario, 2012 HRTO 676, Mayta v. Canada Lands, 2009 HRTO 1613, and Noronha v. 1174364 Ontario, 2009 HRTO 1292. Accordingly, the fact that I raised the issue of the Response appearing to be a more or less complete answer to the applicant’s claim is authorized by the Code and the Tribunal’s Rules and is a routine part of the Tribunal process. It is important to note that the applicant was afforded an opportunity to answer the Response and chose not to do so. I would also observe that unlike with his failure to file his hearing materials, the applicant’s failure to address the Response was not accompanied by a warning that the Application might be dismissed if he did not respond.
56For these reasons I find that “an informed person, viewing the matter realistically and practically – and having thought the matter through” would not conclude that there was any reasonable basis for the applicant’s claim of bias and it is dismissed.
Dated at Toronto, this 30th day of November, 2017.
“Signed by”
David Muir
Vice-chair