Visic v. HRTO and Law Society of Upper Canada, 2015 ONSC 7161

CITATION: Visic v. HRTO and Law Society of Upper Canada, 2015 ONSC 7161

DIVISIONAL COURT FILE NO.: 98/13

DATE: 20151210

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, KRUZICK and LOCOCO JJ.

BETWEEN:

ANICA VISIC

Applicant

– and –

HUMAN RIGHTS TRIBUNAL OF ONTARIO and LAW SOCIETY OF UPPER CANADA

Respondents

David Cousins, for the applicant

James Schneider, for the Ontario Human Rights Tribunal

Michael Wills, for University of Windsor

HEARD: October 1, 2015 in Toronto

MOLLOY J.:

REASONS FOR JUDGMENT

A. INTRODUCTION

1This is an application for judicial review in which Anica Visic seeks to set aside the decision of Vice-Chair Ena Chadha of the Human Rights Tribunal of Ontario (“HRTO”) dated August 28, 2012.¹ In the underlying complaint of discrimination, Ms. Visic had alleged that the Law Society of Upper Canada (“the Law Society”) discriminated against her on the basis of disability when it required her to complete an additional period of articling and when it commenced a “good character” review prior to processing her application for admission to the Bar of Ontario.

2In the decision under review, the Vice-Chair made three rulings:

(1) The Vice-Chair dismissed Ms. Visic’s request to add the University of Windsor as a party respondent to her complaint against the Law Society, finding that the allegations against the University were too remote in subject and time to form a basis for adding the University to the complaint against the Law Society.

(2) The Vice-Chair dismissed Ms. Visic’s complaint against the Law Society on the basis that there was “no reasonable prospect” that the Application could succeed on its merits.

(3) The Vice-Chair found that Ms. Visic’s repeated attempts to pursue the same allegations against the University had reached the point of abuse of process and therefore declared her to be a vexatious litigant, preventing her from “initiating further human rights applications or making requests against the University and its agents with respect to the matter of her official transcript.

3Prior to the argument of this judicial review application, Ms. Visic settled her dispute with the Law Society. Therefore, the only remaining issue involves the University of Windsor, and in particular, the vexatious litigant finding against Ms. Visic. Because the Law Society took no position on that issue before the Tribunal, and did not seek to take a position in the judicial review proceeding, its counsel did not participate in any of the matters before this Court.

4This judicial review application was argued together with two other applications by Ms. Visic for judicial review of other decisions of the HRTO. In one of those cases, Ms. Visic sought to set aside a decision of the HRTO dated November 4, 2010 dismissing her complaint against the University of Windsor (Div. Ct. File No. 234/12). In the other, Ms. Visic sought to set aside the HRTO Order dismissing her complaint against her former employers (Div. Ct. File No. 212/13). Ms. Visic represented herself in the application involving her former employers. In the application now before the court (the vexatious litigant finding) and in the application involving the University of Windsor, she was represented by David Cousins.

5All three applications are dismissed. This Court’s reasons for dismissing the within application are set out below. The reasons for dismissing the other two applications are released separately as follows: Visic v. HRTO and University of Windsor, 2015 ONSC 7162 (dealing with Ms. Visic’s complaint of discrimination against the University of Windsor for refusing to amend her official transcript); and Visic v. HRTO and Elia Associates Professional Corporation, 2015 ONSC 7163 (dealing with Ms. Visic’s complaint of discrimination against the law firm that dismissed her from employment during her articling year).

B. FACTUAL BACKGROUND

(i) The Genesis of the Underlying Issue

6Anica Visic entered first year law school in September 1999. She did not identify herself at that time as having a disability. However, throughout the academic year she suffered from myofascial pain in her right shoulder, upper back, neck and arm making it difficult for her to write for long periods of time. She did not have a successful year academically. In June 2000, the Associate Dean of the University of Windsor advised her that she was required to discontinue the study of law at the University because she had failed two courses and had not achieved a passing cumulative average.

7Ms. Visic successfully appealed this decision to the Academic Status Committee. The Committee held that Ms. Visic would be re-admitted to year one of Law School, based on medical grounds. Ms. Visic deferred that acceptance, but re-entered first year law school in September 2002. She completed her three years and graduated in 2005 with an LL.B. For the three years of law school leading up to graduation, Ms. Visic’s unofficial grade report shows a sprinkling of A’s, quite a number of B’s, and a few C’s, but nothing lower than a C-. However, her official transcript from the University Registrar includes the academic year 1999/2000 in which her marks included two F’s, one D-, a few C’s and one B-.

8Ms. Visic first learned that the 1999/2000 would be included in her official transcript in September 2003, while still in law school. She made several attempts through various channels to persuade University officials to remove the 1999/2000 year from her official transcript, or at the very least to have the grades shown as Voluntary Withdrawals. The University refused.

9Ms. Visic believes that the University’s insistence on including her failed year on her official transcript is discriminatory. The University’s position on this issue has led to considerable litigation and numerous human rights proceedings brought by Ms. Visic, including all three judicial review applications now before this Court. Her proceedings against the University have included: a human rights complaint filed in 2005; a civil action in the Superior Court also commenced in 2005; an interlocutory injunction motion within that action; a second human rights complaint filed in 2008; an attempt in 2011 to add the University as a respondent at the Reconsideration stage after her complaint of employment discrimination against her articling law firm had been dismissed; and an attempt in 2012 to add the University to her human rights complaint against the Law Society. All of these proceedings have centered on the University’s decision to include the 1999/2000 year on Ms. Visic’s official transcript. All have been unsuccessful.

10Ultimately, in the decision now under review, the HRTO determined Ms. Visic to be a vexatious litigant in relation to the University and its agents with respect to the matter of her official transcript.

(ii) The First Human Rights Complaint

11On April 5, 2005, Ms. Visic filed a human rights complaint against the University of Windsor, alleging that the University discriminated against her in the provision of services based on her physical disability. In particular, she alleged that the University’s policy of including her failed year’s grade was discriminatory because it adversely affected her right to equal employment opportunities on the basis of physical disability.

12For brief reasons dated March 15, 2006, the Chief Commissioner of the Ontario Human Rights Commission advised Ms. Visic that her complaint was dismissed for delay under what was then s. 34(1)(d) of the Human Rights Code (“the Code”).² The Commission held that: the events giving rise to the complaint had occurred in September 2003; the complainant first contacted the Commission on June 9, 2004 (nine months after the fact); and the complainant did not file her complaint until April, 2005 (eighteen months after the events giving rise to the complaint). The only reason given by the complainant for the delay was that she was busy with school. The Commission held that this did not adequately explain why the complaint could not have been filed within the six month time frame contemplated by s. 34(1)(d) of the Code and therefore concluded that the delay was not incurred in good faith. Ms. Visic requested Reconsideration of this decision, which was refused by the Commission on December 13, 2006.

13Ms. Visic applied to the Divisional Court for judicial review of the Commission’s decision dismissing her complaint against the University of Windsor. That Application was dismissed for Reasons dated January 30, 2008.³ The Divisional Court found that the Commission’s decision was not only reasonable, but correct. In particular, the Court held that the ongoing effect of the University’s policy did not constitute a continuing contravention, in the sense of a succession or repetition of acts of discrimination. Rather, there was a single decision by the University with continuing effects. The six month time frame for bringing the complaint had expired without Ms. Visic demonstrating a good faith basis for not having proceeded in a timely way. Ms. Visic’s motion to the Ontario Court of Appeal for leave to appeal the Divisional Court decision was denied

14From the various written submissions filed by Ms. Visic, and from her oral submissions before this Court on the judicial review involving her former employer Elia Associates, it is apparent that she is very frustrated by the failure of the HRTO or the courts to deal with her complaint against the University of Windsor on its merits. She is adamant in her view that each and every time the official transcript is released or is seen by anyone it constitutes a further act of discrimination by the University, which she believes has adversely affected her employment and her career. However, the Divisional Court clearly held to the contrary and ruled that this was not a continuous act of discrimination, but rather a single event. Ms. Visic exercised all of her rights of appeal from that decision, but was unsuccessful. That should have been the end of the matter. However, she has refused to let it go.

(iii) The Civil Action and Injunction Motion

15While her initial human rights complaint was still outstanding, Ms. Visic commenced a civil action in the Ontario Superior Court against the University of Windsor and a number of its personnel. The subject matter of the civil action was the University of Windsor’s insistence that Ms. Visic’s official transcript would include her failed 1999/2000 academic year. Within the action, Ms. Visic brought a motion for an interlocutory injunction restraining the University of Windsor from “misrepresenting the academic year 1999/2000 on her academic transcript” and for an order requiring the University to provide her with a transcript without reference to that academic year. Madam Justice Herman dismissed that motion for Reasons dated May 31, 2006. In her Reasons, Herman J. noted that Ms. Visic had delayed applying for articling jobs because of this problem she perceived with the official transcript. Justice Herman held that it was necessary to look closely at the merits of Ms. Visic’s cause of action because the relief claimed on the motion would essentially grant the final relief she sought. The motion judge concluded that Ms. Visic had failed to demonstrate a strong case on the merits and that the balance of convenience favoured not granting the injunction. She stated, at para. 26:

To order the University to alter the transcript, contrary to its policies and the policies of other Canadian postsecondary institutions, would undermine the integrity of the University’s transcripts and thereby cause significant harm.

16Ms. Visic’s motion to the Divisional Court for leave to appeal the decision of Herman J. was dismissed on October 27, 2006. It does not appear that Ms. Visic did anything further to move forward with her civil action. Ultimately, by Order of Master Pope dated April 10, 2013,⁴ the action was dismissed for delay and for Ms. Visic’s failure to pay costs awards against her.

(iv) The Second Human Rights Complaint

17Again, Ms. Visic did not obtain a final ruling on the merits of her claim of discrimination against the University of Windsor. However, Herman J. was of the view on the injunction motion that Ms. Visic did not have a strong case against the University and further held that the balance of convenience favoured the University because removing the results of one full academic year would undermine the integrity of the University’s transcripts. Undaunted by this negative view of the merits of her case, and undeterred by the Divisional Court ruling that this was not an ongoing sequence of events, Ms. Visic filed another complaint of discrimination against the University in 2008.

18The 2008 human rights complaint was filed after Ms. Visic was dismissed from employment during her articling year. When initially hired by the Elia Associates law firm, Ms. Visic was not asked for an official transcript and therefore provided only her Grades Record, showing her marks for the years 2002 to 2005. In the course of her articles, someone in her law firm learned of the injunction motion brought by Ms. Visic against the University of Windsor. The law firm asked for the official transcript, and Ms. Visic provided it, along with the explanation that she was re-admitted to the law school because the failed year was due to a disability she had at that time. Ms. Visic’s employer took the position that she had been dishonest with them. About seven weeks later, the law firm terminated Ms. Visic’s employment, citing various reasons not related to disability, and recommended to the Law Society that she should article for another six months before being considered for admission to the Bar.

19Ms. Visic formed the view that the law firm had discriminated against her because of her past disability and that the University of Windsor was responsible for this because of the inclusion of the 1999/2000 academic year marks on her official transcript. She filed a complaint of discrimination against the University of Windsor in June 2008, and in November 2008, filed a separate complaint of discrimination against her former employers.⁵

20When Ms. Visic filed her 2008 Application with the HRTO alleging discrimination by the University of Windsor on the grounds of disability, her civil action against the University of Windsor alleging discrimination on the grounds of disability was still outstanding. For Reasons issued on November 4, 2010, the HRTO held that s. 34(11) of the Code constituted an absolute bar to bringing a human rights proceeding under the Code when there is an outstanding civil action. Further, the Tribunal held that the 2008 complaint was also barred by s. 34(1) of the Code requiring a complaint to be brought within one year of the alleged violation. Ms. Visic was aware of the University’s decision to include her 1999/2000 grades on her official transcript for several years prior to her 2008 complaint. The Tribunal dismissed Ms. Visic’s argument that this was a matter of ongoing discrimination and that the one-year period started to run again from the point that her employer received the official transcript in October 2007. The Tribunal held that the Divisional Court had already determined this point in the judicial review of the earlier complaint, a decision with which the Tribunal agreed.⁶

(v) Attempts to Add the University as a Respondent to Other Ongoing Complaints

21Ms. Visic’s complaint of discrimination against her employer proceeded to a hearing that lasted eight days and culminated in a finding that the evidence was insufficient to establish any discriminatory factor involved in the law firm’s request for the official transcript or the decision to terminate Ms. Visic’s employment. The Tribunal also found that Ms. Visic had not been harassed nor reprised against by the law firm. Accordingly, her complaint was dismissed for Reasons dated June 28, 2011.

22Ms. Visic sought reconsideration of that decision. In her submissions on the reconsideration, she sought an order consolidating her three outstanding complaints or, alternatively, adding the University of Windsor as a party to the complaint against her employer. The Vice-Chair refused that request because it was inappropriate at the reconsideration stage and because Ms. Visic had not given notice to the University that she was seeking this relief.⁷

23Similarly, in the Application against the Law Society (which is the subject of this judicial review application) Ms. Visic again sought to add the University of Windsor as a party. The complaint against the Law Society was based on Ms. Visic’s allegation that the Law Society subjected her to discrimination and reprisal when it required that she complete an additional period of articling and instituted a “good character” review prior to processing her call to the Bar. Ms. Visic had argued that the Law Society’s actions were undertaken in reliance on discriminatory information and recommendations provided by her former employers and that the Law Society was perpetuating the discrimination of the former employer. It is worth noting at this point that, when this matter was argued before the Tribunal in August 2012, the complaints of discrimination and reprisal by the former employer had already been dismissed.

24With respect to the request to add the University of Windsor as a respondent, the Vice-Chair considered and applied the three applicable factors:⁸

(1) Are there allegations made that could support a finding that a proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

25The University had no involvement in the Law Society’s handling of her articling period or her application to the Bar. The Vice-Chair held that the claims against the University with respect to the 1999/2000 transcript were too remote in subject and time to be relevant to the proceeding against the Law Society. The Vice-Chair further held that adding the University would not assist in any way with the case against the Law Society and would be unfair to the University in light of the time that had passed and previous proceedings brought by Ms. Visic against the University. In particular, the Vice-Chair noted that the claims now being pursued were duplicative of the claims made in the two prior complaints against the University, which had already been conclusively determined to be out of time by both the HRTO and the Divisional Court. The Vice-Chair also referred to the civil action, which was at that time still ongoing, and stated that it was unfair to the University to be defending itself in a multiplicity of proceedings. In the result, Ms. Visic’s request to add the University as a party was refused.

C. STANDARD OF REVIEW

26The Applicant’s Factum in this matter was filed by Ms. Visic personally before Mr. Price was on record as her counsel. In that factum, Ms. Visic took the position that the standard of review to be applied in this case is one of correctness. Although this issue was not pressed by Mr. Cousins in his oral submissions, for the sake of completeness I will deal with the issue.

27The factum cites no authority for the proposition that decisions of this nature by the HRTO are reviewable on a correctness standard. The overwhelming weight of the case authority is to the contrary. The HRTO was involved in interpreting its home statute and in controlling its own process. This was done within the context of a human rights complaint and required interpretation of applicable human rights principles. The decisions made were squarely within the specialized expertise of the Tribunal.

28It is well-settled by binding case authority that in these circumstances the reasonableness standard of review applies.⁹ There is nothing about this decision that would attract a correctness standard of review.

D. ANALYSIS

29The Vice-Chair provided thorough and thoughtful reasons for finding Ms. Visic to be a vexatious litigant in respect of this particular issue. The Vice-Chair recognized that such a declaration constituted “extraordinary relief” that should only be granted in exceptional cases. However, the Vice-Chair also noted that this is not merely an issue of protecting the University from repeated unmeritorious claims. The Tribunal itself is affected by the necessity of dealing with these claims, which necessitates the use of public resources and therefore engages the public interest. The Vice-Chair relied upon the Tribunal’s “broad powers to control its proceedings to ensure fairness, efficiency and accessibility and to prevent abuse of process.”

30There is ample scope within the Rules of the Tribunal to support the Order made. Rule 1.1 provides that the Rules will be “liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.” Further, there is explicit authority under Rule 17 to “make such orders and give such directions as are necessary to prevent abuse of its processes.” Other decisions of the Tribunal have relied upon these powers to make orders restricting vexatious litigants.¹⁰

31The focus of the appellant has been on her inability to obtain a hearing on the merits as to whether the decision of the University to include her failed year in her official transcript constitutes discrimination on the basis of disability. The appellant has repeatedly relied upon her honestly-held belief that the policy in question is discriminatory as a justification for her repeated attempts to re-litigate the issue against the University in various different guises. However, it is not necessary to show malice or lack of a genuine belief in the righteousness of one’s cause for a person to be found to be a vexatious litigant. The question is whether on an objective basis the individual has repeatedly pursued an unmeritorious claim to the point where her conduct has been abusive of the processes of the Tribunal.

32It is clear that the Tribunal has the power to control its own processes and to prevent abuse that can arise from a vexatious litigant repeatedly pursuing the same claim. It is also clear that the Tribunal may exercise this power independently, including raising the issue on its own initiative. In this case, the Vice-Chair carefully considered the nature of that power and whether it was appropriate in the circumstances to exercise it. There was a clear factual foundation supporting the decision. The Vice-Chair exercised her discretion on the basis of those facts and with a clear articulation of the appropriate legal principles to be applied. There is no basis upon which it can be said that the decision was unreasonable, and no basis for this court to interfere.

E. CONCLUSION

33Accordingly, this application is dismissed. The Law Society did not participate and does not seek costs. The Tribunal also does not seek costs. This particular judicial review did not affect the interests of Elia Associates. Although the interests of the University of Windsor were directly affected, the University filed no material in this does not advance a claim for costs in respect of this matter. Therefore, with respect to this application, there shall be no order as to costs.

Footnotes

1. 1Visic v. Law Society of Upper Canada, 2012 HRTO 1642.
2. 2Human Rights Code, R.S.O. 1990, c. H.19, as amended by 2005, c. 5, s. 32.
3. 3Visic v. Ontario Human Rights Commission, 2008 20993 (ON SCDC), [2008] O.J. No. 1768 (Div. Ct.).
4. 4Visic v. University of Windsor, 2013 ONSC 2063, [2013] O.J. No. 1743 (Ont. Master).
5. 5The complaint against the employers was dismissed by the HRTO on June 28. 2011: Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, [2011] O.H.R.T.D. No. 1242. This Court dismissed the judicial review application with respect to that decision: Visic v. HRTO v. Elia Associates, 2015 ONSC 7163.
6. 6Visic v. University of Windsor, 2010 HRTO 2196.
7. 7Visic v. Elia Associates Professional Corporation, 2011 HRTO 1933, at para. 13.
8. 8Visic v. Law Society of Upper Canada, supra note 1, at paras. 37-44; Smyth v. Toronto Police Services Board, 2009 HRTO 1513, 79 C.C.E.L. (3d) 150.
9. 9Shaw v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701 (Div. Ct.), aff’d 2012 ONCA 155, at para.103; Adams v. Ontario (Human Rights Tribunal), 2012 ONSC 6119, 222 A.C.W.S. (3d) 482 (Div. Ct.); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 34 and 39.
10. 10Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331, [2012] O.H.R.T.D. No. 1389; Abdul v. University of Toronto, 2011 HRTO 2299; Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667.