Tran v. Ontario (Community Safety and Correctional Services), 2017 HRTO 1641

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jenny Tran

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Brian Cook

Date: December 11, 2017

Citation: 2017 HRTO 1641

Indexed as: Tran v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Jenny Tran, Applicant

No one appearing

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services, Respondent

Indira Sawh, Counsel

1These Applications allege reprisal and discrimination with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2After reviewing the Application in Tribunal file number 2016-23262-I, the Tribunal determined that it was appropriate to schedule a summary hearing by telephone conference call to hear submissions from the parties about whether the Application should be dismissed as having no reasonable prospect of success. The applicant filed a second Application, Tribunal file number 2016-24239-I. That Application was reviewed and the Tribunal determined that a summary hearing was also appropriate in that Application. In a Case Assessment Direction dated December 16, 2016, the Tribunal directed that both Applications would be heard together.

3The summary hearing was scheduled for July 4, 2017.

4In March 2017, after the summary hearing was scheduled but before it occurred, the applicant wrote to the Tribunal asking that the direction that a summary hearing be held should be “stayed”. She indicated that she was ill and anticipated that she would be unable to participate.

5The applicant sent several more requests about the summary hearing and her concerns that she was not medically fit to participate.

6On June 29, 2017, the Tribunal issued a Case Assessment Direction. It noted that the applicant had provided information from a psychiatrist indicating that the applicant was “not capable of representing herself in a legal matter”. The Case Assessment Direction directed that the hearing scheduled for July 4, 2017 would continue but that it was converted from a summary hearing to a preliminary hearing to hear from the parties about how the Tribunal should deal with the Applications. The Case Assessment Direction set out the information about how to call into the hearing on July 4, 2017. The Case Assessment Direction indicated that if the applicant did not call in, the Application might be dismissed as abandoned.

7On July 4, 2017, the respondent called into the hearing but the applicant did not. I was assigned as the Tribunal hearing adjudicator. After the hearing was concluded, I learned that the applicant had sent an email to the Tribunal on June 30, 2017, asking about the preliminary hearing and claiming that she had sent earlier emails that were not responded to. I was not aware of this email at the time of the preliminary hearing.

8On July 7, 2017, the Tribunal issued another Case Assessment Direction. It read in part as follows:

In the circumstances, the Tribunal will schedule another preliminary hearing to be held by telephone conference call. The purpose of this hearing is to determine what to do with this Application. The applicant has said that she is not capable of representing herself and she has provided medical support for this. She has asked that the Application be “stayed”. The Tribunal can defer further consideration of an Application but this is not done on an indefinite basis. If the applicant anticipates that her condition will improve so that she can represent herself, this needs to be identified. If a person cannot represent herself she may require the assistance of a litigation guardian. The purpose of the preliminary hearing is to clarify the applicant’s status and what should happen with this Application.

If the applicant again fails to participate in the scheduled conference call hearing, the Application will be dismissed as abandoned or as an abuse of process.

9The applicant sent several communications continuing to object to the Tribunal’s intention to hold a preliminary hearing to hear from the parties about how the Application should be dealt with. She was advised by the Tribunal Registrar that she should raise any concerns at the preliminary hearing.

10A Case Assessment Direction was issued on September 5, 2017. It read in part as follows:

The applicant has resisted the Tribunal’s attempts to re-schedule the preliminary hearing. She continues to say that she thinks she cannot represent herself in a legal proceeding.

The purpose of the preliminary hearing is not to decide the applicant’s legal case. It is to determine how this Application will proceed.

The Tribunal will schedule a preliminary hearing by telephone conference call without further consultation with the applicant. If the applicant does not call into the conference call, the Application may be dismissed as abandoned or as an abuse of process.

11The applicant sent a number of further communications to the Tribunal. These were about her continuing request that the matter be “stayed”.

12Another Case Assessment Direction was issued on October 11, 2017. It reads as follows:

This Application is scheduled for a preliminary hearing on November 20, 2017, at 9:30 in the morning. The hearing will be held by telephone conference call. Another copy of the Notice of Hearing is provided with this Case Assessment Direction. The purpose of the hearing is to determine how the Application will be processed.

The applicant has sent a large number of communications objecting to his hearing and complaining about the counsel for the respondents and the Tribunal. The communications are repetitive and the Tribunal has already confirmed that the scheduled hearing will proceed and that if the applicant does not participate the Application may be dismissed.

The applicant is directed to stop sending communications to the Tribunal or the respondents. Any issues that she would like to raise can be raised at the hearing on November 20, 2017. The respondent is not required to respond to any further communications from the applicant unless directed to do so by the Tribunal.

Rule A8 of the Social Justice Tribunals of Ontario Common Rules, which apply to the Human Rights Tribunal of Ontario, 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.

If the applicant does not change her behaviour, at the November 20, 2017 hearing, it may be necessary to consider whether the applicant should be declared a vexatious litigant. This would mean that she would not be able to file Applications in the future without the consent of the Tribunal.

13On November 2, 2017, the applicant sent a lengthy submission to the Tribunal. These included detailed submissions about vexatious litigants and the appropriate test to be applied to determine if a person is fit to participate in legal proceedings. She reiterated her opinion that the hearing should be stayed. She provided a medical report from a psychiatrist in which it was recommended that the applicant's “legal matters should be stayed until her mental status improves.”

14On Sunday November 19, 2017, the applicant sent an email to the Tribunal indicating that she would not be calling into the conference call the next day. The applicant did not call in to the conference call.

Conclusions

15As noted in the series of Case Assessment Directions issued by the Tribunal, the issue for the conference call scheduled for November 20, 2017 was to discuss how the Tribunal should deal with the Applications filed by the applicant. The applicant was not expected to participate in a proceeding that would require her to make legal arguments or present evidence. All she was expected to do was to participate in a discussion about how her Applications should be dealt with in light of her inability to participate in a legal process. In this case, the legal process that the Tribunal had directed was a summary hearing to determine if the Applications should be dismissed as having no reasonable prospect of success.

16The applicant was clearly aware of the conference call scheduled for November 20, 2017, and decided to not call in.

17I appreciate and accept that the applicant may not be able to participate in a legal proceeding that would require her to advance her rights. However, I do not accept that she was also unable to participate in conference call to discuss how her Applications should be dealt with. In my view, the applicant's refusal to attend the conference call represents an abuse of the Tribunal’s process and I find that the Applications should be dismissed on that basis.

18I further conclude that the applicant is not permitted to file any future Application against the respondent to these two Applications without first obtaining consent to do so from the Tribunal.