CITATION: Khaiter v. Labour Relations Board (Ontario), 2013 ONSC 791
DIVISIONAL COURT FILE NO.: 431/08
DATE: 20130220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN: Court File No.: 431/08
DR. PETER A. KHAITER
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD (“OLRB”, “BOARD”), and KEVIN WHITAKER, CHAIR and KELLY WADDINGHAM, VICE-CHAIR and YORK UNIVERSITY FACULTY ASSOCIATION
Respondents
- and -
B E T W E E N: Court File No.: 456/09
DR. PETER A. KHAITER
Applicant
- and -
HUMAN RIGHTS TRIBUNAL OF ONTARIO (“HRTO”, “TRIBUNAL”) and KAYE JOACHIM, HRTO ALTERNATIVE CHAIR and BRIAN SHEEHAN, HRTO MEMBER and YORK UNIVERSITY FACULTY ASSOCIATION (“YUFA”) and ARTHUR HILLIKER, BRENDA HART AND CATHERINE LACE
Respondents
- and -
B E T W E E N: Court File No.: 383/10
DR. PETER A. KHAITER
Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD (“OLRB”, “BOARD”) and KEVIN WHITAKER, OLRB CHAIR and KELLY WADDINGHAM, OLRB VICE-CHAIR and YORK UNIVERSITY FACULTY ASSOCIATION (“YUFA”)
Respondents
- and -
B E T W E E N: Court File No.: 213/11
DR. PETER A. KHAITER
Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD (“OLRB”, “BOARD”) and CHRISTOPHER J. ALBERTYN and DIANE L. GEE and YORK UNIVERSITY FACULTY ASSOCIATION (“YUFA”)
Respondents
The Applicant appeared in person
James K. McDonald, for the Respondent, York University Faculty Association (Moving Party)
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
The Applicant appeared in person
James K. McDonald, for the Respondent, York University Faculty Association (Moving Party)
Margaret Leighton, for the Respondent, Human Rights Tribunal of Ontario
The Applicant appeared in person
James K. McDonald, for the Respondent, York University Faculty Association (“YUFA”) (Moving Party)
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
The Applicant in person
James K. McDonald, for the Respondent, York University Faculty Association (“YUFA”) (Moving Party)
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
HEARD: January 25, 2013
LEDERER J.:
Introduction
[1] Those who come to court are free to act on their own behalf. The right to appear brings with it the responsibility to respect the process of the court and to act within its rules. Coming to court includes the attendant obligation to be familiar with and make some effort to understand that process and those rules. A proceeding in court is not a game where the tactics of the individuals taking part can be used to overrun the business at hand.
[2] This is a motion brought by the respondent, the York University Faculty Association (“YUFA”), to dismiss four judicial reviews brought by the applicant, Peter A. Khaiter. Peter A. Khaiter has failed to set any of the four judicial reviews to be heard. He appears to have thought that this delay would be to his advantage. A cross-motion, the substance of which confirms the applicant’s opposition to the dismissal, was also before the court.
Background
[3] Peter A. Khaiter is a member of the faculty of York University. He has, for many years, been battling with YUFA, of which he is a member. In short, he believes that YUFA has failed in its responsibilities to him in respect of certain disputes he had and continues to have with the University. As Peter A. Khaiter sees it, YUFA has failed to represent him and is engaged in a conspiracy with the University against him. This ongoing dispute has taken Peter A. Khaiter to hearings before the Ontario Labour Relations Board and the Ontario Human Rights Tribunal of Ontario. While there are four applications for judicial review before the court, they concern seven decisions of the Ontario Labour Relations Board, in respect of ten complaints, made against YUFA by Peter A. Khaiter for failure to fairly represent him, and two decisions of the Human Rights Tribunal of Ontario in respect of a complaint of discrimination. The claim was of discrimination based on ancestry and place of origin. In each case, the decision of the tribunal has dismissed the complaint.
[4] In response, Peter A. Khaiter has commenced the four applications for judicial review. In each case, the application has been ongoing for some time:
• Court File No.: 431/08: The three decisions which are the subject of this application were made by the Ontario Labour Relations Board in July 2007, December 2007 and March 2008. The first of these was a procedural decision; the second, a decision summarily dismissing the complaints; and the third, a dismissal of a request for re-consideration. The application for judicial review was commenced on August 26, 2008, six months after the decision not to re-consider. It was perfected a year later, on or about August 28, 2009.
• Court File No.: 456/09: This application considers the two decisions of the Human Rights Tribunal of Ontario. They were made on November 7, 2008 and April 3, 2009. The first was the decision dismissing the complaint; and the second, the decision dismissing the request for re-consideration. The application for judicial review was commenced on October 1, 2009, six months after the decision not to re-consider. It was perfected six months later on April 7, 2010.
• Court File No.: 383/10: These two decisions of the Ontario Labour Relations Board were made on January 6, 2010 and June 18, 2010. The first was a procedural ruling; and the second, a decision dismissing the two complaints. The application for judicial review was commenced on July 27, 2010, five weeks after the dismissal of the complaint. It was perfected a year later on August 18, 2011.
• Court File No.: 213/11: These two decisions of the Ontario Labour Relations Board were made in July 2010 and on October 27, 2010. The first concerned two procedural decisions; and the second, a decision dismissing the complaints and finding that Peter A. Khaiter was a vexatious litigant. The application for judicial review was commenced on April 26, 2011, six months after the dismissal of the complaints. It was perfected over a year later, on or about May 16, 2012.
[5] In each case, upon perfection, the Court delivered a Notice of Listing for Hearing accompanied by a Hearing Request Form to the parties. The former advised that the application had been perfected and provided an “approximate date for hearing”. The latter required the parties to advise the court of dates on which they would be available and the estimated time the hearing would take. The approximate dates for hearing were as follows:
• Court File No. 431/08: October 2009/November 2009
• Court File No. 456/09: June/September 2010
• Court File No. 383/10: November 2011/December 2011
• Court File No. 213/11: June/September 2012
[6] As of the day this matter has come to court (January 25, 2013), no Hearing Request Form has been received by the court, no date for hearing has been set and none of these judicial reviews has been heard. It will be readily apparent that these matters have been substantially delayed. If they were heard today, it would be:
- for Court File No. 431/08: over five years since the decision of the Ontario Labour Relations Board dismissing the Applicant’s complaints and four years and ten months since the dismissal of his request for re-consideration;
- for Court File No. 456/09: over four years since the decision of the Human Rights Tribunal of Ontario dismissing the Applicant’s complaint and three years and nine months since it dismissed his request for re-consideration;
- for Court File No. 383/10: two years and seven months since the Ontario Labour Relations Board dismissed the Applicant’s complaints; and,
- For Court File No. 213/11: two years and three months since the Ontario Labour Relations Board dismissed the Applicant’s complaints.
Analysis
Delay
[7] The moving party, YUFA, brings these motions requesting that the Court exercise its discretion and dismiss each of the four applications for judicial review. It relies on the delay in these matters being set down to be heard. In 15202437 Inc. (c.o.b. Pro Pipe Construction) v. Ontario Pipe Trades Council, [2010] O.J. No. 5615 (Div. Ct.), the judge referred to the statement of law concerning delay in judicial review applications found in Ransom v. Her Majesty the Queen, 2010 ONSC 3156, 2010 ONCS 3156, including:
Judicial review is a discretionary remedy and can be denied if there has been excessive delay: International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (2000), 132 O.A.C. 87 at para. 18 (Div. Ct.); Jeremiah v. Ontario Human Rights Commission, [2008] O.J. No. 3013 (Div. Ct.).
In determining whether to dismiss an application for delay, the court will consider the length of the delay, whether there is a reasonable explanation for the delay and whether the moving parties have suffered prejudice as a result of the delay: Gigliotti v. Conseil d'Administration du Colleges des Grands Lacs, [2005] O.J. No. 2762. Some cases suggest that the merits of the application may also be taken into account.
This Court has held on many occasions that a delay of more than six months in commencing a judicial review application is reason for concern: Gigliotti at para. 29; Jeremiah at para. 45.
(15202437 Inc. (c.o.b. Pro Pipe Construction) v. Ontario Pipe Trades Council, supra, at para. 3)
[8] Counsel for YUFA submitted that Peter A. Khaiter was aware that delay was an issue that would be relied on as these matters moved forward and, yet, he has taken no steps to schedule any of the four applications for a hearing.
[9] Three of the four applications were perfected only as, or after, Peter A. Khaiter was notified by the Court that each of those applications would be dismissed if it was not perfected by a date fixed in each of the three notices (Court File No. 431/08, Court File No. 383/10 and Court File No. 213/11). In each of the four facta that have been filed in response, YUFA put Peter A. Khaiter on notice that his delay in proceeding with the application was an issue.
[10] On October 8, 2009, after only the earliest of the four applications had been perfected, counsel for YUFA wrote to Peter A. Khaiter and indicated that it considered the second of the four applications to be untimely (Court File No. 456/09). The letter advised that, once the application had been perfected, a motion would be brought to have it dismissed for delay.
[11] Two years later, on September 12, 2011, approximately three weeks after Peter A. Khaiter had perfected the third application, counsel for YUFA sent a letter to Peter A. Khaiter containing the information he would need to complete the Hearing Request Form, including available dates and the time estimated for oral argument. Rather than take notice of the concern expressed by counsel for YUFA or fill out and send in any of the Hearing Request Forms, Peter A. Khaiter refused to do so claiming that the hearing could not be scheduled until he had received the responding factum of YUFA. This is not correct. The Rules of Civil Procedure make clear that, when the certificate of perfection has been filed, the registrar shall place the application on a list for hearing and give notice of the listing for hearing, by mail, to the parties (see: Rule 68.05 (2)). The filing of a Hearing Request Form is a peculiarity of Divisional Court practice in Toronto. The purpose is to ensure that counsel will be available on the date selected. It responds to the volume of work the Court confronts in Toronto. This requirement does not change the reality that applications for judicial review, upon being perfected, are accepted as being ready to be set down for a hearing. As observed at the outset of these reasons, the fact that Peter A. Khaiter is not a lawyer does not excuse him from making some effort to understand the rules and process of the court. In this case, counsel for YUFA wrote to Peter A. Khaiter and advised that there was “...nothing that should delay you in scheduling the hearing” as it was “...presumed that an Applicant will schedule the hearing before receipt of the respondents factums.” Rather than adhering to the advice of counsel or making any effort to confirm its accuracy, Peter A. Khaiter wrote back repeating that counsel had not indicated the date by which a factum would be served. I return again to what was said at the outset. Tactics that ignore the rules cannot offset the proper process of the court. In this case, even after October 7, 2011, the day the factum, on behalf of YUFA, was provided in the third proceeding, Peter A. Khaiter made no effort to prepare the Hearing Request Form or have the matter set down to be heard.
[12] Peter A. Khaiter took a similar approach with respect to the fourth of the applications for judicial review (Court File No. 213/11). On June 21, 2012, little more than a month after he had perfected this application, Peter A. Khaiter sent an e-mail to counsel for YUFA asking why a responding factum had not been filed within thirty days of the service of his material. Counsel responded by asking what steps had been taken to complete the Hearing Request Form and indicating a willingness to cooperate in scheduling the date for the hearing. In the same e-mail, counsel asked Peter A. Khaiter to schedule hearings for each of the other three applications:
We also note that you have filed a number of other applications for judicial review that have been listed for hearing but for which you have not made any attempt whatsoever to complete the Hearing Request Form and schedule for a hearing date. We have given you a reasonable time for doing so, notwithstanding that delay is significantly beyond that expected for any applicant. We will be relying upon your delay in setting those applications down for hearing when they’re eventually heard, and we may bring a motion to have the applications dismissed for delay if they are not scheduled for hearing shortly.
[13] In the face of all of this, Peter A. Khaiter has done nothing to move any one of these applications to a hearing. The question is whether the delay this has caused is sufficient for me to exercise the discretion of the court and dismiss the four applications for judicial review. Peter A. Khaiter failed to respond to the advice of YUFA that its concern for the delay would be raised in court. He relied on positions that had no merit as the reason for not doing so. The delay ranges from four years and ten months (Court File No. 431/08) to two years and three months (Court File No. 213/11). In the context of applications for judicial review, this is well beyond what would typically be thought of as appropriate or proper:
Indeed, the Divisional Court has held on numerous occasions that delay on the part of an applicant of six or more months in the commencement of an application and/or twelve or more months in the perfection of an application could be serious enough alone to warrant the dismissal of the application.
(Gigliotti v. Conseil d'Administration du Colleges des Grands Lacs, supra, at para. 30, quoting Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No. 5413 (Div. Ct.), at para. 7)
[14] Only one of the four applications for judicial review being considered was commenced within six months and none was perfected in less than a year from the date of the decision sought to be reviewed. The delay occasioned by the failure to set any of the applications down for hearing exacerbates the issue and makes clear that the delay is unacceptable.
Prejudice
[15] With unacceptable delay established, the question remains whether the delay has prejudiced YUFA, the respondent in the four applications for judicial review. There is no requirement for a demonstration of actual prejudice, it can be presumed. In a case involving a delay in a hearing or trial, prejudice is often expressed in terms of the impact the delay will have on the evidence. Do all the witnesses remain available? What would be the impact on their memories? This is not a factor on judicial review. In the matter before this court, the issue reflects on the impact the case could have if it is allowed to proceed. Given the passage of time, what is the point in hearing these applications now:
Finally, in the exercise of the Court's discretion it is proper to consider whether any useful purpose whatsoever would be accomplished by setting aside the recommendation and all proceedings hereto before the board.
(Gigliotti v. Conseil d’Administration du College des Grands Lacs, 76 O.R. 561, [2005] O.J. No. 2762, at para. 33, quoting R. v. Board of Broadcast Governors, [1962] O.R. 657, 33 D.L.R. (2d) 449 (C.A.))
[16] These matters concern the relationship of an employee to his employer and to the union that represents him:
In an employment context, delay is particularly troubling given the need to resolve work place issues promptly and avoid lingering disharmony: Amodeo v. Ontario (Ministry of Labour), [2010] O.J. No. 1200 (Div. Ct.); Ontario Public Service Employees Union v. Ontario (Ministry of Labour), [2001] O.J. No. 1037 (Div. Ct.); Patel v. Ontario (Labour Relations Board), [1998] O.J. No. 571 (Div. Ct.).
(Ransom v. Her Majesty the Queen, supra, at para. 16, as referred to in 15202437 Inc. (c.o.b. Pro Pipe Construction) v. Ontario Pipe Trades Council, supra, at para. 3; and see also: Dayco (Canada) Ltd. v C.A.W.- Canada (1993), 102 D.L.R. (4th) 609 at 660-661 (S.C.C.) per Cory J.)
[17] In Ransom v. Her Majesty the Queen, supra, the judge concluded that while there was no evidence of actual prejudice, taking into account the length of the delay and the remedy being sought, “… a certain degree of prejudice [was] obvious” (see: para. 18). Mr. Ransom was an instructor at a police college. He sought re-instatement. The judge observed that a lot had changed in policing in the eight years since Mr. Ransom had been removed from his job. Further, there would be disruption to staff members who had been in place for the years since his departure. Finally, the judge noted that, with the acrimony which had built up between the parties in the intervening period, a smooth transition back to the workplace could not be expected. On this basis, the judge held that there had been prejudice to the respondents as a result of the delay (see: paras. 19, 20 and 21).
[18] In this case: what would be the outcome of overturning decisions saying that YUFA did not breach its responsibility to properly represent Peter A. Khaiter? As in Ransom, taking into account the time that has passed, it is too late to set those decisions aside on judicial review and send them back to the Ontario Labour Relations Board and the Human Rights Tribunal of Ontario. If Peter A. Khaiter is successful, he can be expected to ask that the parties go back and re-examine the outcome of the underlying disputes he had with his employer, York University. If this was the intended outcome, it should have been done more quickly. Too much time has gone by. It should be remembered that the events which gave rise to the proceedings which are the foundation of the complaints of Peter A. Khaiter go back years before the complaints were made. By way of example, it was on November 17, 2003 that Peter A. Khaiter notified York University that he was filing the grievance that led to the second of the four applications for judicial review (Court File No. 456/09). The actual cause of, or catalyst for, the complaint would have taken place even earlier. There is prejudice. The issues relate to employment. To try and undertake these proceedings now would be disruptive and the validity of the results uncertain. The time that has passed and the practical difficulties that would ensue make the presence of prejudice “obvious” (see: para. [17], above).
[19] Even with all of this, I would feel a measure of unease in dismissing these applications based on the evidence of delay. The Hearing Request Forms were, and typically are, sent to all parties. The forms are neutral. They are not directed to one side or the other. The obligation to file the form is shared between the parties. In this case, YUFA concentrated on advising Peter A. Khaiter that he had a responsibility to arrange for a hearing date to be set and informing him that delay would be an issue before the court. It did little on its own to get these applications set down. It told Peter A. Khaiter to do it and then waited to raise the issue of delay. The longer the delay the stronger its position became. It could have done what it did when Peter A. Khaiter failed to respond to its request to set dates for the hearing of this motion. Counsel for YUFA could have written to the Court advising of the difficulty and of dates it was available. It does not seem unreasonable to propose that the Court would have done for the applications for judicial review what it did for this motion. Pursuant to the direction of the administrative judge of the Divisional Court, Peter A. Khaiter was told to select one of three dates. He did not. The hearing took place on the default date appointed by the judge in the event that Peter A. Khaiter did not select a date. In short, the failure of YUFA to attempt to set the matter down for hearing contributed to the delay. For this reason, I would be uneasy dismissing the applications for judicial review based only on the delay.
Other Considerations
[20] As it is, there is more to this than just the delay. There are other considerations that should be borne in mind. In the circumstances, one has to wonder why Peter A. Khaiter would not have prepared the Hearing Request Forms and set down the four applications to be heard. There is an answer that sheds light on his purpose. Peter A. Khaiter made another separate human rights complaint against York University. YUFA intervened. The Human Rights Tribunal of Ontario made a decision, dated September 21, 2010. In the decision, the Adjudicator observed that Peter A. Khaiter believed that York University planned to fire him and that he was, therefore, attempting to tie up the University in legal proceedings so that it would not be able to do so:
At the hearing the applicant explained to me that he had engaged in a strategy of taking every possible legal avenue available to him because he believed that, so long as he keeps the University tied up in litigation, it will be unable to fire him. That he believes he is at risk of having his employment terminated is a central theme in the applicant’s analysis of the ongoing workplace dispute. In his view the University has, from almost the moment it hired him, been conspiring to fire him because of his ethnic origin and place of origin.
(Peter Khaiter v. York University, Barry Miller and Rhonda Lenton 2010 HRTO 1901, at para. 42)
[21] This is not an approach the Court or the two tribunals could condone. It is a misuse of their processes. That this approach is being undertaken by Peter A. Khaiter is confirmed by the decisions of the Ontario Labour Relations Board and the Human Rights Tribunal of Ontario. They suggest that Peter A. Khaiter has acted to complicate and draw-out the process.
[22] In the decisions leading to the third of the applications for judicial review (Court File No.: 383/10), the Ontario Labour Relations Board, at the end of its reasons, included a paragraph entitled, “Abuse of Process”, in which it said, in part:
The Board can understand the frustration of dealing with the applications in these matters. The Applicant in these two present applications made 15 separate sets of submissions totalling 811 pages.
(Khaiter v. Association, at para. 83)
[23] This followed an observation made by the Ontario Labour Relations Board in a decision leading to the first of the four applications for judicial review (Court File No. 431/08) commenting on the volume of material and the general failure of Peter A. Khaiter to plead facts that supported his assertion that YUFA has failed to properly represent him:
The six applications are voluminous but with the limited exception of Board File No. 0467–07–U, the applicant has failed to particularize his allegations or plead any facts to support his assertion that YUFA has contravened section 74 of the Act. The applicant has appended numerous electronic messages which record his interactions with YUFA and notes from the meeting which he had with YUFA on January 29, 2007.
(Khaiter v. Association (YUFA), at 27)
[24] It should be said that this complaint reflects on the decision of YUFA not to file twelve new grievances on behalf of Peter A. Khaiter.
[25] The misuse of the process of the Ontario Labour Relations Board came to a head in a decision leading to the fourth of the applications for judicial review:
I have reviewed the substantive decisions issued by the Board in the eight previous duty of fair representation complaints [Peter A. Khaiter] has filed against the Union before the Board. Those decisions are: Khaiter v. Association; Khaiter v. Association; Khaiter v. Association (YUFA) Khaiter v. Association (YUFA) and Khaiter v. Association (YUFA). In each of the applications in which those decisions were issued, the Board decided that the application had not established a prima facie case for the Board to inquire into.
On the basis of the material filed by the [Peter A. Khaiter] and [YUFA], in light of the history of [Peter A. Khaiter’s] litigation before the Board, the Board has concluded the following regarding [Peter A. Khaiter]. He has brought multiple applications making substantially the same allegation that [YUFA] has violated section 74 of the Act in its representation of him because it acted in a manner that was discriminating, harassing and humiliating. He has consistently sought relief that the Board would not conceivably grant. The issues raised in the earlier applications have been rolled into later applications, including these two applications. [Peter A. Khaiter] has made unreasonable and unjustifiable aspersions against the lawyers representing [YUFA], and against its officials and representative, and against the adjudicators and the officers of the Board. [Peter A. Khaiter’s] repeated use of the Board’s procedures has severely harassed [YUFA] and its officials, putting it to considerable unnecessary cost. Chiefly, though, the Board and its resources have been expended, through time, work and effort on what amount to a series of exaggerated and unsupported allegations against [YUFA] and [York University]. For the Board to so waste its time and resources is an abuse of the public resources of this province, and plainly an abuse of process.
(Khaiter v. Association, at paras. 11 and 12)
[26] The Ontario Labour Relations Board concluded:
The Union and the employer should face bona fide, though perhaps mistaken applications before the Board. What they should not have to face is a course of conduct that is unremitting, intemperate, lacking in merit, and vexatious.
(Khaiter v. Association, at para. 14)
[27] This is the decision in which the Ontario Labour Relations Board declared Peter A. Khaiter a vexatious litigant.
[28] In a decision leading to the second of the four applications for judicial review (Court File No. 456/09), the Human Rights Tribunal of Ontario expressed the concern that, in response to having been granted an indulgence that allowed him to provide written submissions responding to the case law that had been provided, Peter A. Khaiter had failed to comply with its instructions:
The applicant disregarded my express instructions and instead filed written submissions comprising 96 paragraphs reiterating his oral submissions at the hearing, only one of which made any reference to any case law submitted by the respondents. In addition, in paragraphs 44 to 63 the applicant raised events post-dating the original complaint, and which were not addressed by any party at the case resolution conference….
(Human Rights Tribunal of Ontario Case Resolution Conference Decision 2008 HRTO 241, at para. 23)
[29] In a decision dealing with the separate human rights complaint to which I have already referred (see: para. [20], above), the Human Rights Tribunal of Ontario went beyond a description of the strategy revealed by Peter A. Khaiter. Under the heading, “Ulterior Motive”, it continued:
I would also include in this element of the analysis the tendency to name un-necessary respondents including other tribunal decision makers. The applicant has engaged in a pattern, in this and other proceedings, of seeking to add parties with no substantial connection to the issues in dispute, including other tribunal decision makers and agency heads.
The applicant has also exhibited a pattern of making bald and general allegations without particulars that would connect those allegations to a violation of the statute or rule in question.
Both in the Applications at the Tribunal and in the related OLRB proceedings, decision-makers have concluded that the matters before them ought to be dismissed for failure of the applicant to plead a prima facie case. In each case the applicant is found to have provided only vague and general allegations. The Complaint underlying this Application is also largely bereft of particulars; instead it consists of general, vague and essentially bald allegations devoid of any facts that would connect those allegations to the Code.
I also note that the unparticularized allegations pre-date the filing of the Complaint by as many as six or seven years with the bulk of them occurring three to six years prior to the Complaint being filed. At this stage the respondents have not sought the dismissal of any part of the Application on the basis that it is untimely but that argument would certainly be available to them.
In my view, the applicant has also engaged in a pattern of abusive conduct by his use of routine unfounded allegations of bias and impropriety against tribunal decision makers and external counsel.
The applicant has crossed the line between vigorously defending his position and failure to take the Tribunal’s direction. He has commenced trivial and vexatious interlocutory matters for no apparent purpose other than to vex and harass the respondents.
As well when afforded an extraordinary opportunity to particularize the bare bones paragraphs of the human rights complaint the applicant did not comply with my direction made at the hearing but instead submitted a 178 page document. It is not in compliance with my Direction at the hearing in that it is not an exposition of particulars related to each of the allegations made in the complaint and set out above – although scattered through it are alleged facts that appear to relate to some of the allegations made. Rather it is a detailed reply to the respondents’ Response to this Application including lengthy passages of argument. It also includes entirely new allegations that were never part of the complaint.
The applicant’s manifest failure to comply with the Direction at the hearing and his attempt again to expand the scope of the allegations in the complaint by the addition of entirely new and unrelated matters, despite the earlier Decisions and Directions, is a serious concern and I find was intended largely to vex and harass the respondents.
The applicant also repeatedly makes technical submissions that he knows or ought to know will be dismissed, having unsuccessfully advanced the same submission in prior proceedings. For example, the applicant made lengthy submissions respecting the authority of counsel for YUFA to sign the Request to Intervene form. This challenge was strikingly similar to an early challenge he made in the other Application before the Tribunal as well as in his OLRB proceedings.
It is also clear from a review of the file that as time goes by the applicant has articulated his human rights claims in increasingly extravagant terms.
In the human rights complaint form the applicant makes brief claims of what he believed were incidents of discrimination and harassment. At their highest the respondents’ alleged mis-conduct is described as ‘discrimination, harassment and humiliation’. As time has passed the characterizations of the respondents’ behavior have become significantly more extreme.
In submissions filed by the applicant on March 8, 2010, the applicant described his experience at the hands of the respondents as ‘continuous and malicious workplace hostility, harassment, torture, humiliation virtually on an every day basis’. On March 18, 2010 in a further submission provided by the applicant, he used the following language to describe the alleged behavior of the respondents:
hostility, harassment, humiliation, torture, sadism, psychological terror;
persistent continuation with the practices of discrimination and harassment and malicious aggravation of employment hostility to the level of sadism and psychological terror;
by the respondents’ malicious practices of workplace hostility, sadism, psychological terror, harassment, discrimination, humiliation and torture
The applicant’s characterizations of his experience are inflammatory and disproportionate – the language stretches the meaning of the words used beyond any reasonable person’s understanding of them. I find that the applicant has begun employing this inflammatory language solely for the purpose of vexing the respondents.
In this regard the respondents point out that the applicant has recently claimed new and extravagant remedies, in particular punitive damages in the amount of $50 million from the respondent university and $50,000.00 from each of the individual respondents. The applicant regularly cites Tribunal case law in his submissions. He knows that the remedies he is seeking are so far beyond what is possible as to be incredible. The applicant is a sophisticated and intelligent litigant and I infer that these extraordinary remedial requests are advanced solely for the purpose of vexing the respondents, particularly the individuals involved in this Application.
In the conduct of this proceeding the applicant brought interlocutory motions solely for the purpose of delay and putting the respondents to the expense of responding to them. For example, the applicant sought an adjournment of the hearing primarily on the basis of alleged concern about the Tribunal’s authority to deal with this Request and alleged confusion about the precise issue to be determined. It cannot have been more clear what the issue for determination was, having been described in the Tribunal’s communications with the parties, including a Case Assessment Direction, dated September 16, 2009, a Tribunal letter, dated October 15, 2009 and a further Case Assessment Direction, dated January 14, 2010. I find that the reasonable inference to be drawn from these facts is that the applicant’s request was made for no other purpose than vexing the respondents by avoiding the hearing of the respondents’ Request.
Similarly, the Request for Order seeking the dismissal of the respondents’ Request on specious grounds and after the matter had been argued constituted in my view a vexatious act on the applicant’s part, serving only to vex the respondents and put them to the further expense of responding to it.
(Peter Khaiter v. York University, Barry Miller and Rhonda Lenton, supra, at paras. 43 to 50 and 52 to 58 referred to in Khaiter v. Association, supra, [2010] 62247 (ON LRB)], at para. 10)
[30] After all of this, the Human Rights Tribunal of Ontario concluded:
In my view, it is a reasonable inference that this Application, whatever its initial merits, is now being maintained for a purpose unrelated to the merits of the Application.
Based on his voluminous submissions and from what can be gleaned from the public record in the other proceedings, it is clear that the applicant is a sophisticated, educated and intelligent man. He communicates clearly and is able to cite Tribunal and other jurisprudence with facility. He knows what he is doing.
[Emphasis added]
(Peter Khaiter v. York University, Barry Miller and Rhonda Lenton, supra, at paras. 62 and 65)
[31] It is evident that Peter A. Khaiter has been misusing the processes these Boards offer for a purpose not related to resolving the disputes at hand. The delay in processing the four applications for judicial review is demonstrative of the same attitude and consistent with an effort to keep these disputes alive rather than bringing them to a conclusion.
Explanations for the Delay
[32] In his submissions to this Court, Peter A. Khaiter attempted to explain the delay. He does not accept that any of the delay is attributable to him. He says that York University and YUFA had a conscious strategy to take up his time by aggravating the difficulties he was having with the University in respect of his desire to become tenured. As he sees it, YUFA wanted to remove whatever obstruction there was to his termination. This motion to dismiss the four applications for judicial review was part of the program to deny him representation and “to get rid of me”. There is no evidence to support any of this.
[33] Peter A. Khaiter says that with his responsibilities at York University: his teaching load, student interviews and involvement with examinations, he did not have time to set down the four applications for judicial review to be heard. It should go without saying that those who come to court have an obligation to complete the responsibilities they owe to the process. The other parties and the court cannot be left to wait until every other aspect of an individual’s life has been taken care of.
[34] Peter A. Khaiter blamed some of his difficulties on the tribunals that dealt with his various cases. He does not accept their findings. He says that in response to the decision of the Ontario Labour Relations Board made on October 27, 2010 (see: Khaiter v. Association, supra,[2010 62247] (ON LRB)), he requested a re-consideration which, he submitted the Board ignored. It is true that Peter A. Khaiter wrote a letter to the Ontario Labour Relations Board referring to the section of the Labour Relations Act which allows for the re-consideration of a decision the Board has made and requesting that the Board revoke its decision. It may be that the Board never responded, but the letter does not stand as a request that the decision be re-considered. It was sent to the Interim Chair of the Ontario Labour Relations Board and was marked “Private and Confidential”. It was not copied to the other parties and does not ask for a re-consideration so much as it demands a revocation. Having asked, it goes on:
It would be advisable, just, fair and the most efficient way of resol[v]ing the issue rather than engaging proceedings of judicial review, a tort action under the Civil Law and a process under the Criminal Code of Canada, all of which I will be forced to utilize in order to defend my rights, reputation and honor, that has been maliciously infringed by your Decision and to make the infringer legally liable.
[35] Peter A. Khaiter also referred to personal concerns. He advised the court that his father became ill. He provided care and guided the treatment of his father. His father died December 7, 2011. It is difficult not to be sympathetic to such a situation. It is one that many of us confront. In these circumstances, there is no explanation as to what has happened since December 7, 2011 and why, over the course of the following year, this situation would impact on the ability of Peter A. Khaiter to set down the four applications to be heard.
[36] None of this provides a satisfactory explanation for the delay. To the contrary, these concerns tend to exacerbate the understanding that Peter A. Khaiter has been unprepared to accept the responsibility and obligations that come with bringing a matter to court.
Rule 1.04(1) of the Rules of Civil Procedure
[37] In the course of the submissions made by Peter A. Khaiter, there was reference to Rule 1.04(1) of the Rules of Civil Procedure. The Rule states:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[38] Along with the direction to be expeditious, the Rule includes a general preference that disputes be decided on their merits. In this case, the delay has created a situation where allowing these matters to proceed would be disruptive and prejudicial to others. To put it simply, by carrying these matters as he has, Peter A. Khaiter has delayed too long and lost or, by his actions, given up the right to have the four applications for judicial review heard on the merits.
Should this Motion have been heard by the Full Panel?
[39] A motion in the Divisional Court is to be heard by a single judge, unless otherwise provided by the rules of court (see: Courts of Justice Act, R.S.O. 1990 Chap. C. 43, s. 21(3)). There is no rule that would require this motion to have been heard by a panel. Nonetheless, in 15202437 Inc. (c.o.b. Pro Pipe Construction) v. Ontario Pipe Trades Council, supra, the judge noted that it was preferable that a motion to dismiss an application for judicial review for delay be left to be dealt with by the panel of Divisional Court which would hear the application. In making this observation, the judge specifically did not take issue with the decision made by a single judge in Ransom v. Her Majesty the Queen, supra, dismissing an application for judicial review on account of inordinate delay. The judge, in 1520437 Inc., offered the opinion that a single judge should only deal with such a motion where it was plain and obvious that the application should be dismissed for delay. The difficulty in this case was getting Peter A. Khaiter to agree on a date to come to court. The fundamental concern was his unwillingness to set down the four applications for judicial review to be heard. When confronted with the direction to choose between three dates for the hearing of this motion, he did not respond. The default date was selected. A week before the appointed day he advised that he was not available. When he appeared, he asked that it be adjourned. This request was the subject of separate reasons given orally at the hearing (see: 2013 ONSC 648). In the circumstances, it was fair and appropriate that this motion be dealt with by a single judge. Even if this were not so, considering the delay, in company with the purpose behind the actions taken by Peter A. Khaiter and his misuse of the proceedings that were the subject of the applications for judicial review, if necessary, I would find that it is plain and obvious that the four applications should be dismissed.
Conclusion
[40] For the reasons reviewed herein, the motion is granted. Each of the four applications for judicial review is dismissed.
[41] As was said at the outset, Peter A. Khaiter brought a cross-motion. While what is being sought is, in some ways, inconsistent and difficult to understand, the general thrust was to address issues that, if successful, would have left the four applications for judicial review in place. They range from the proposition that the counsel for YUFA was not properly authorized to bring the motions seeking to dismiss to an order that the rule requiring a respondent to a judicial review to deliver a record and factum within thirty days after being served with the applicant’s material be complied with (see: Rule 68.04(4)). An e-mail was produced confirming that counsel was authorized. Facta have been filed in respect of each of the four applications for judicial review.
[42] The cross-motion does go beyond the immediate question of whether the four judicial reviews should be allowed to proceed. It sought an order setting aside or, in the alternative, staying the order of the Ontario Labour Relations Board declaring Peter A. Khaiter a vexatious litigant. Given the dismissal of the judicial reviews, there can be no basis for the court to act on any of these requests.
[43] Finally, an order was requested staying the applications for judicial review. At face value, this would be consistent with the efforts of Peter A. Khaiter to delay the hearing of these matters. During the course of submissions, it seemed that Peter A. Khaiter misunderstood what is meant by a stay. It seemed to be his view that a “stay” meant the applications would continue to proceed. I understood this to be akin to an application being left to stay in place. How this can be consistent with his request to “stay” the Order of the Ontario Labour Relations Board finding him to be a vexatious litigant, an order he wanted dismissed, was not explained. This confirms the problems that occur when those who come to court, on their own behalf, make no effort to understand the process of the court and seek to contort it to their benefit as they perceive it.
Costs
[44] At the conclusion of the hearing of this motion, the parties made submissions as to costs. Neither counsel for the Ontario Labour Relations Board nor the Human Rights Tribunal of Ontario is asking for the costs of this motion. Counsel for YUFA seeks costs for each of the four applications for judicial review of $3,500 and an additional $3,500 as the costs of this motion.
[45] Peter A. Khaiter does not accept that any costs award should be made against him. He points out that, in Ransom v. Her Majesty the Queen, supra, a costs award of only $1,000 was made. Counsel for YUFA responds by saying that this is all that was asked for.
[46] In the circumstances, I expect there was some duplication in the conduct of each of the judicial reviews. I acknowledge the amount being requested is reasonable but, nonetheless, reduce the award made in recognition of the similarity in these proceedings. I award $3,500 for the first of the applications for judicial review, $2,500 for each of the remaining three applications for judicial review and $3,500 as costs of this motion. Accordingly, in total, I award $14,500 in costs, inclusive of fees, disbursements and HST, payable by Peter A. Khaiter to YUFA.
LEDERER J.
Released: 20130220
CITATION: Khaiter v. Labour Relations Board (Ontario), 2013 ONSC 791
DIVISIONAL COURT FILE NO.: 431/08
DATE: 20130220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN: Court File No.: 431/08
DR. PETER A. KHAITER
Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD (“OLRB”, “BOARD”), and KEVIN WHITAKER,
CHAIR and KELLY WADDINGHAM, VICE-CHAIR and YORK UNIVERSITY FACULTY ASSOCIATION
Respondents
- and -
B E T W E E N: Court File No.: 456/09
DR. PETER A. KHAITER
Applicant
- and -
HUMAN RIGHTS TRIBUNAL OF ONTARIO (“HRTO”, “TRIBUNAL”) and KAYE JOACHIM, HRTO ALTERNATIVE CHAIR and BRIAN SHEEHAN, HRTO MEMBER and YORK UNIVERSITY FACULTY ASSOCIATION (“YUFA”) and ARTHUR HILLIKER, BRENDA HART AND CATHERINE LACE
Respondents
- and -
B E T W E E N: Court File No.: 383/10
DR. PETER A. KHAITER
Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD (“OLRB”, “BOARD”) and KEVIN WHITAKER, OLRB CHAIR and KELLY WADDINGHAM, OLRB VICE-CHAIR and YORK UNIVERSITY FACULTY ASSOCIATION (“YUFA”)
Respondents
- and -
B E T W E E N: Court File No.: 213/11
DR. PETER A. KHAITER
Applicant
- and -
ONTARI O LABOUR RELATIONS BOARD (“OLRB”, “BOARD”) and CHRISTOPHER J. ALBERTYN and DIANE L. GEE and YORK UNIVERSITY FACULTY ASSOCIATION (“YUFA”)
Respondents
REASONS FOR JUDGMENT
LEDERER J.
Released: 20130220