DIVISIONAL COURT FILE NO.: 212/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, KRUZICK and LOCOCO JJ.
BETWEEN:
ANICA VISIC
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, ELIA ASSOCIATES PROFESSIONAL CORPORATION, PATRICIA ELIA and RICHARD ELIA
Respondents
Anica Visic, in person
James Schneider, for the Ontario Human Rights Tribunal
Antoni Casalinuovo, for Elia Associates Professional Corporation, Patricia Elia, and Richard Elia
HEARD: October 1, 2015 in Toronto
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 June 28, 2011.1
2In the decision under review, the Vice-Chair dismissed Ms. Visic’s complaint that she had been discriminated against, harassed and reprised against with respect to employment and membership in a vocational association (the Law Society of Upper Canada) on the basis of disability.
3This matter 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. 243/12). In the other, (Div. Ct. File No. 98/13) Ms. Visic sought to set aside the HRTO Order, dated August 28, 2012, declaring her to be a vexatious litigant. Ms. Visic represented herself in the within application involving her former employers. In the other two applications, she was represented by David Cousins.
4All 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); Visic v. HRTO and Law Society of Upper Canada, 2015 ONSC 7161 (dealing with the vexatious litigant issue).
B. FACTUAL BACKGROUND
5Anica 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 do well academically. In June 2000, the Associate Dean of the University of Windsor advised her that she had failed two subjects and had not achieved a passing cumulative average and that she was therefore required to discontinue the study of law at the University.
6Ms. Visic successfully appealed this decision to the Academic Status Committee. The Committee held that, based on medical grounds, Ms. Visic would be re-admitted to year 1 of Law School. 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. Ms. Visic’s unofficial grade report for her the three years of law school leading up to graduation shows a sprinkling of A’s, quite a number of B’s, and a few C’s, but nothing lower than a C-. However, when she obtained her official transcript from the University Registrar, she was dismayed to see that it included the academic year 1999/2000 in which her marks included two F’s, one D-, a few C’s and one B-. Ms. Visic sought to have the 1999/2000 year removed from her official transcript, or at the very least to have the grades shown as Voluntary Withdrawals. The University refused. Ms. Visic believes that the University’s insistence in including her failed year on her official transcript is discriminatory and fails to accommodate her disability. 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.
7In 2005, Ms. Visic commenced a civil action against the University based on the University’s insistence that any official transcript it issued would include the grades from the failed year. Within that action, Ms. Visic brought a motion for an interim injunction, which application was dismissed by Herman J. in May 2006. Ms. Visic also filed a human rights complaint against the University which was dismissed by the Tribunal on the grounds that it was out of time and because she also had commenced a civil action based on the same subject matter.
8In Ontario, prospective lawyers are required to complete the Bar Admission course and 10 months of Articles with a law firm before being admitted to the Bar. Ms. Visic completed the Bar Admission course in 2005, but delayed seeking an articling job until after her injunction motion was heard. Having been unsuccessful on that motion (and subsequent appeal), she started to apply for articling jobs. She accepted an articling position with the Payne Law firm in November 2006, but was dismissed in April 2007, after completing only five months. One of the reasons given by the Payne Law firm for dismissing Ms. Visic was that she had not been honest with them by failing to disclose her failed year at the University of Windsor. Ms. Visic sued Payne Law for wrongful dismissal and filed a complaint against them with the Law Society. Both those matters have since been settled.
9In the early summer of 2007, Elia Associates (a firm of five lawyers and four staff members) was seeking an articling student. They obtained Ms. Visic’s profile from the Law Society and invited her to apply to their firm. Ms. Visic submitted an application that included official transcripts for her Bachelor of Arts and Master in Environmental Studies degrees, but only the unofficial grade reports for her last three years of law school. She did not refer to the 1999/2000 academic year, which she had failed. She made no reference to any disability in her application and has maintained that she did not require any accommodation for disability during the course of her articles.
10After two employment interviews, Elia Associates offered Ms. Visic an articling position for 10 months, which she accepted. She started her employment on July 9, 2007. During the interview process, Ms. Visic did not disclose anything about the 1999/2000 academic year, and Elia Associates did not request an official transcript from the University of Windsor.
11Patricia Elia, one of the lawyers in the firm, was the designated person in the firm responsible for articling students and she served as Ms. Visic’s articling principal and mentor. In October 2007, another lawyer in the firm came across the decision of Herman J. on the injunction motion against the University of Windsor and drew it to the attention of Ms. Elia. Without explaining why, Ms. Elia emailed Ms. Visic on October 9 and asked for an official transcript from the University of Windsor. Ms. Visic responded by providing the official transcript, along with the letter from the Academic Status Committee granting her re-admission to the law school “based on medical grounds.”
12On November 28, 2007, Elia Associates gave Ms. Visic written notice of dismissal, effective December 14, 2007.
13Ms. Elia was required to file a Principal’s Certificate with the Law Society attesting to Ms. Visic being “a fit and proper person to be called to the Bar.” Ms. Elia filed the Certificate on December 24, 2007, stating that Ms. Visic should be required to complete an additional six months of articles.
14In January, 2008, Ms. Visic filed a complaint with the Law Society against Elia Associates. At this time, the Law Society was already involved in the investigation and mediation of Ms. Visic’s complaint against her previous employer, Payne Law. The Law Society also initiated an inquiry into whether Ms. Visic was a person of sufficiently “good character” to be admitted to the Bar.
15In July 2008, the Law Society advised Ms. Visic that she would be required to complete a further six months of articles before being eligible to apply for admission to the Bar.
16On November 28, 2008, Ms. Visic filed an Application under the Human Rights Code2 (“the Code”), alleging that Elia Associates had discriminated against her, harassed her, and reprised against her with respect to her employment and her membership in a vocational association on the basis of her disability. This human rights complaint proceeded to a full hearing, over the course of eight days, before Vice-Chair Chadha. The Vice-Chair issued a written decision dated June 28, 2011, dismissing all aspects of Ms. Visic’s claim. That decision is the subject of this judicial review proceeding.
C. THE DECISION OF THE TRIBUNAL
(i) The request for an official transcript did not breach the Code.
17When she applied to article with Elia Associates, Ms. Visic was first interviewed by the firm’s law clerk, Mr. Bhalla. Ms. Visic testified that she told Mr. Bhalla in that interview that she was unable to complete a year of law school because of a problem with her arm. Ms. Visic acknowledges that she did not otherwise mention her disability to anybody in the firm, that she did not request any accommodation for a disability, and that she did not require any accommodation while employed with the firm. Mr. Bhalla denied that Ms. Visic told him about any problem with her first year of law school. The Vice-Chair made a finding of fact accepting Mr. Bhalla’s version of this interview. The Vice-Chair concluded that up until October 2007, nobody at the law firm had any knowledge of Ms. Visic having failed her first year of law school, nor did they have any knowledge that Ms. Visic had a disability, either past or current.
18Ms. Visic argued before the Tribunal that the law firm’s request for an official transcript constituted discrimination in employment under s. 23(7) of the Code on the basis that it was “a form of application for employment” or “oral inquiry” that “directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.” The Vice-Chair held that this section of the Code had no application because it deals with pre-employment practices and the job application process. Ms. Visic had already been employed for three months when the official transcript was requested. Therefore, there could be no breach of s. 23(7) of the Code.
19The Vice-Chair also rejected Ms. Visic’s argument that the employer’s request for her official transcript constituted either direct or indirect discrimination on the basis of disability. On the issue of direct discrimination, the Vice-Chair held that there was no evidence that the employer asked Ms. Visic to disclose a disability either before or after hiring her. She accepted the testimony of the respondents that their objective was not to get information about Ms. Visic’s health status, but rather to assess whether the grade reports submitted by Ms. Visic were complete and accurate. She held that there is nothing improper about an employer requiring verification of employment-related documents, which was all the employer was doing.
20With respect to indirect discrimination, the Vice-Chair held that the request for an official transcript was a neutral job requirement, but that it did not “create substantive discrimination in the form of disadvantage, prejudice or stereotyping,” there being no evidence that “demonstrates, on a balance of probabilities, that production of an official transcript serves as a predictor of disability or source of disability information.” The Vice-Chair held, at paras. 77-78 of her Reasons:
I note that all job seekers, and especially those who live with Code-related characteristics, can face a variety of innocuous questions in the hiring process that may potentially elicit sensitive or personal information. While the Code protects against discriminatory inquiries, this protection does not mean that an applicant with an “invisible” disability can mislead an employer about her job-related background or credentials in order to avoid such inquiries in the hopes of securing or maintaining a job. The task, and the important lesson, is to confidently handle such challenging situations by responding to uncomfortable questions about one’s job-related credentials with professionalism, diplomacy and integrity.
In addition, I have difficulty reconciling Ms. Visic’s allegations of direct and indirect discrimination with her testimony that she would not have considered it to be discriminatory if the respondents had insisted that she provide her official transcript in the initial interview process. Notwithstanding being given the opportunity to clarify this apparent contradiction, Ms. Visic was unable to adequately explain why she considered a request for her official transcript at the time of hiring to be acceptable and non-discriminatory, but adamantly believed the same request gave rise to discrimination when made subsequent to hiring.
21In the result, the Vice-Chair concluded that the employer’s request for the official transcript did not run afoul of any human rights principles and did not constitute direct or indirect discrimination.
(ii) Disability was not a factor in the dismissal.
22Next, the Vice-Chair considered whether Ms. Visic’s disability was in any way a factor in her dismissal from employment. This analysis was largely fact-driven, covering 22 paragraphs of the decision. The Vice-Chair accepted the evidence of the respondents that the employer’s concern was that Ms. Visic misrepresented her law school history, regardless of the reason for that deception. The Vice-Chair also accepted the respondents’ testimony as to problems with Ms. Visic’s job performance and her interpersonal conflicts with co-workers. Those problems had emerged as early as September, and were confirmed by documents, including inquiries with the Law Society with respect to terminating the employment of an articling student. This was prior to the law firm receiving any information about the possible problem with the law school transcripts. The Vice-Chair found Ms. Visic’s testimony in relation to these issues to be “evasive and argumentative.” She preferred the testimony of the respondents’ witnesses, which she also found to be more consistent with the documentary record. The Vice-Chair concluded that Ms. Visic had failed to demonstrate, on a balance of probabilities, any link between the termination of her employment and her past disability or any perceived disability.
(iii) There was no harassment.
23Ms. Visic’s allegations of harassment relate to the nature of her termination and a number of comments allegedly made by Ms. Elia to Ms. Visic during a heated discussion on December 5, 2007 about the reasons for the termination.
24The notice of termination provided Ms. Elia with two options: she could depart immediately and be paid two weeks’ severance, or she could continue to work for the two-week notice period, which would give her the opportunity to complete the Law Society’s 10-month articling requirement. Ms. Visic cited this as an example of the “hostile work environment” she experienced at the firm and maintained that it constituted an abandonment of the firm’s responsibilities under the articling agreement. Her position was that the period of notice could only properly commence after the completion of her articles, which would have occurred on December 13, 2007.
25The Vice-Chair held that there was nothing discriminatory or harassing in giving Ms. Visic two options in the notice of termination. She found that these were standard employment severance options, and did not conflict with the firm’s articling responsibilities. On the contrary, the option to work out the period of notice was to Ms. Visic’s advantage because it would enable her to complete her articles, notwithstanding her dismissal.
26Ms. Visic alleged three comments made by Ms. Elia during the December 5^th^ meeting, which she said constituted harassment.
(1) Ms. Elia described the official transcript as being “worth less” or being of “less worth” because it showed a failed year;
(2) Ms. Elia told Ms. Visic that her past disability was “irrelevant”;
(3) Ms. Elia said she was concerned that Ms. Visic’s failure to provide this information earlier was a material misrepresentation of her law school grades and was “dishonest.”
27The Vice-Chair recognized that in some circumstances, a pattern of ongoing harassment is not required in order to constitute a breach of the Code. A single incident may suffice. However, on the facts of the case before her, the Vice-Chair found that none of the comments made constituted harassment.
28The Vice-Chair found that Ms. Visic misconstrued the comment about her disability being irrelevant. The remark was made in the context of Ms. Elia trying to explain to Ms. Visic that it was her conduct in the office and job performance that caused the firm to dismiss her, and that any disability she might have had was irrelevant, in the sense of immaterial, to that decision. The Vice-Chair stated that the comment about the transcript being of “less worth” could perhaps be described as “unpleasant or unduly harsh”, but did not meet the objective standard of the kind of conduct that can be considered to be harassment, given that this was a single occasion.
29With respect to Ms. Elia’s remark about “misrepresentation”, the Vice-Chair held that this occurred during a heated exchange at a meeting in which members of the firm were upset and frustrated by the fact that Ms. Visic, without explanation, simply absented herself from the office upon receiving the termination notice, without returning calls or messages, for a period of five days. The firm honestly believed that Ms. Elia had been dishonest and breached their trust in her by not voluntarily divulging her failed year from the outset. In this context, the Vice-Chair found that the comment made was not harassment within the meaning of the Code.
30The Vice-Chair therefore held that the evidence did not support the claim that Ms. Visic had been harassed, nor that there was a poisoned work environment.
(iv) There was no reprisal.
31Ms. Visic alleged that because of the comments she made at the December 5 meeting, the law firm anticipated that she would be seeking a human rights recourse, and that in retaliation the law firm recommended to the Law Society that she be required to complete a further six months of articles. Ms. Visic also alleges that in their further communications with the Law Society in relation to the investigation of the various complaints before the Law Society, the law firm attacked her integrity and good character, also in reprisal for her having asserted her human rights.
32With respect to the six months of additional articles, the Vice-Chair found on the facts that the law firm had no knowledge of, and did not anticipate, any human rights complaint at the time Ms. Elia completed the Principal’s Certificate in which she recommended the further six months. Rather, this recommendation evolved from a discussion Ms. Elia had with an Associate Registrar at the Law Society prior to the December 5 meeting. The Vice-Chair accepted Ms. Elia’s testimony as to her intention and motivation, and also found this to be confirmed by the documentary record. Therefore, the Vice-Chair held that there had been no reprisal.
33With respect to the respondents’ communications with the Law Society in response to the investigation, the Vice-Chair held that those communications were protected by absolute privilege, relying on: common law principles; the “Wigmore Test” as adopted by the Supreme Court of Canada in Slavutych v. Baker;3 analogy, case law protecting pleadings and evidence in civil proceedings;4 and precedent extending that privilege to administrative law proceedings.5
34The Vice-Chair concluded that “the interests of shielding the respondents’ communications as confidential and privileged outweigh the interests of pursuing the truth underlying the reprisal allegations and, therefore, this component of the Application cannot proceed. The Vice-Chair further held, in the alternative, that if he erred with respect to the confidentiality issue, she would have dismissed this aspect of the claim because Ms. Visic had failed to establish any evidentiary link between the invocation of her rights and the alleged retaliatory communications by the respondents. She found that there was no motive by the respondents to reprise against Ms. Visic and that “the only intention underlying the respondents’ impugned communications was the intention to cooperate with the Law Society investigation(s).”6
D. STANDARD OF REVIEW
35The Vice-Chair was involved in interpreting the HRTO’s home statute within the context of a human rights complaint that required interpretation of applicable human rights principles and findings of fact based on the evidence before the tribunal. The decisions made were squarely within the specialized expertise of the tribunal and are entitled to deference. It is well-settled by binding case authority that in these circumstances the reasonableness standard of review applies.7
36The only possible exception to the application of the reasonableness standard might be the ruling by the Vice-Chair that communications with the Law Society during the course of an investigation are subject to absolute privilege. This might be characterized as a general legal principle of broad application, thus attracting the correctness standard. However, this issue was not fully argued, and does not need to be decided in order to resolve all of the issues in this case. Even applying a correctness standard to that issue, I would uphold the decision.
E. ANALYSIS
(i) Request for official transcript
37I see no basis for interfering with the Vice-Chair’s finding that the law firm’s request for Ms. Visic’s official transcript did not breach the Code either directly or indirectly. The Vice-Chair considered the applicable legal principles against the facts as she found them. Her analysis was thorough and supported by reasons. Her decision easily meets the standard of reasonableness.
38In her argument and factum, Ms. Visic cited numerous cases dealing with indirect discrimination and the duty to accommodate. There is no dispute as to the content of those principles. However, I do not agree with Ms. Visic that the Vice-Chair erred in any way in the application of those principles. The Vice-Chair’s decision reflects a thorough understanding of the applicable law and shows that she applied that law to the facts before her. Those findings of mixed law and fact are reasonable and entitled to deference.
(ii) Dismissal from employment
39The Vice-Chair found on the evidence that the law firm had valid reasons for terminating Ms. Visic’s employment and that her disability was not a factor in that decision. There was ample evidence before the Tribunal to support that conclusion, and the Vice-Chair’s Reasons reflect why she came to the conclusion she did.
40Before this Court, Ms. Visic argued that the Vice-Chair failed to properly apply human rights principles, and in particular did not give effect to the overriding principle that if a prohibited ground is one factor in a dismissal, even when there are other factors involved, that is sufficient to constitute discriminatory conduct under the Code.
41There is no issue that this is a correct statement of the law, as has been the case for decades. Again, however, it is clear from the Reasons of the Vice-Chair that she was cognizant of the applicable test, and that she applied it to the facts. Her conclusion that disability was not in any way a factor in the law firm’s decision to dismiss Ms. Visic is unassailable.
(iii) Harassment
42Likewise, I see no basis to interfere with the Vice-Chair’s conclusion that Ms. Visic was not the victim of harassment, a conclusion that was driven by factual findings fully supported by the evidence.
43I agree with the Vice-Chair’s observations with respect to the nature of the notice of termination. The option given to Ms. Visic to either take pay in in lieu of notice, or to work out her notice period and complete her articling term, was standard practice and to her benefit. It did not constitute harassment.
44The Vice-Chair’s conclusions with respect to the remarks allegedly made at the December 5 meeting are also reasonable in fact and in law.
45Ms. Visic, in argument before this Court, took great exception to the respondents’ remarks challenging her honesty and suggesting that she had misrepresented her grades. She pointed out that the decision of Herman J. on the injunction application did not prohibit her from providing employers only with her unofficial grade records, rather than her official transcript. She also relied extensively on the decision of the Law Society Hearing Panel on the “good character” hearing initiated by the Law Society.8 Essentially the Hearing Panel determined that Ms. Visic was not being deliberately dishonest in failing to disclose her official transcripts and found that she was a person of good character entitled to be admitted to the Bar.
46Ms. Visic seems to miss the point that the Law Society’s conclusion as to her character does not, and could not, say anything about the conduct of Elia Associates and the basis for their comments about her lack of honesty. The findings by the Law Society are irrelevant to any issue before the Human Rights Tribunal or this Court. The Law Society Hearing Panel ruled as follows, at paras. 146 and 185 of its Reasons:
The panel had the opportunity to observe Ms. Visic as she gave evidence in this hearing. We accepted her evidence concerning her belief – both past and present – in her human rights legal position. Her evidence on the issue of the failed first year and her disability clearly demonstrated that she is adamant and firmly convinced of the legal correctness of her position. And we are reminded that it is a legal proposition that has not yet been determined by the court in her civil action. We find that she has an honest belief in the correctness of her legal position concerning her claim against the University and that her position is not a ploy to avoid disclosing her failed first year marks.
We had the opportunity to hear extensively from the Applicant, both in examination in chief and in cross-examination. We accept, as credible, that she honestly believes in her case and has diligently (some might say naively, obsessively and lacking in good judgment) pursued it through the court and the HRTO. [Emphasis added.]
47The issue before the Vice-Chair was not whether Ms. Visic was acting dishonestly when she gave the law firm her Grade Report rather than her official transcript. The issue was not whether she was legally required to do so, nor what she believed she was required to do. Likewise, Ms. Visic’s motivation in not providing the official transcript is irrelevant. What was relevant for the human rights proceeding was not Ms. Visic’s subjective belief in the righteousness of her cause, but rather the motivation of the law firm. It was open to the law firm to feel “betrayed” by Ms. Visic, or to feel that she had been less than fully honest with them. Clearly, the most honest thing for Ms. Visic to have done would have been to fully disclose her entire history with the law school and to explain her failed first year. That does not mean she was obliged to do that, nor does it mean that the law firm had no basis for feeling that she ought to have done so.
48The point is that the law firm was concerned about other matters involving Ms. Visic’s conduct in the firm, and also about what the law firm believed to be the less than candid manner in which she disclosed to them her law school marks. The Vice-Chair held that in this factual context, the remarks made by members of the firm critical of Ms. Visic’s lack of candour did not constitute harassment. That was a reasonable conclusion in fact and law.
49Further, the Vice-Chair’s conclusions about the other remarks made not constituting harassment are fully reasonable.
(iv) Reprisal
50Ms. Visic may honestly believe that the law firm recommended to the Law Society that she complete a further six months of articles as a reprisal because they believed she was going to assert her human rights in an application against them. However, the Vice-Chair did not find that to be the case. The Vice-Chair made clear findings of fact as to the motivation of the law firm and Ms. Elia. The Vice-Chair found that the law firm did not know about any human rights complaint, nor did they suspect one would be filed. She also found that Ms. Elia’s recommendation to the Law Society was made in good faith and had absolutely nothing to do with any feared human rights claim by Ms. Visic. The Vice-Chair gave clear reasons for that decision, which are supported by the evidence. It was open to the Vice-Chair to reach the conclusion she did, and it cannot be said to be unreasonable.
51Ms. Visic does not appear to have taken issue with the Vice-Chair’s legal conclusion that absolute privilege attaches to a lawyer’s communications with the Law Society in the course of an investigation. While I find the Vice-Chair’s reasoning on this issue to be compelling, I prefer not to make a ruling on this point in the absence of a full argument. For purposes of this proceeding, suffice to say that the Vice-Chair’s alternative basis for dismissing this allegation is factually based, reasonable in fact and law, and entitled to deference.
F. OTHER ISSUES
52Ms. Visic applied to put before this Court extensive additional evidence. Without making a ruling on the issue, we heard her application for judicial review on the basis of the full record, including the additional material. None of the additional material had any impact on the outcome. We should not be taken as having agreed this material was properly admissible. We simply allowed it to be filed as a matter of expediency given the time available to complete all of the matters before us.
53Ms. Visic also sought to have the University of Windsor added as a party, based on the theory that if the University had not insisted on including the failed year in the official transcript, none of this would have happened. She reasoned that the University was therefore indirectly responsible for the fact that she was dismissed from employment. There is no merit whatsoever in this argument. Ms. Visic’s claim against the University was dismissed. She seems unable to accept that result, arguing that there has never been a decision on the merits with respect to whether the University’s policy is discriminatory. While that is perhaps regrettable, the fact remains that it is over. Ms. Visic’s many attempts to resurrect her complaint against the University by bringing it forward in other guises were found by the HRTO to be vexatious. I agree.
G. CONCLUSION
54Ms. Visic has been unsuccessful on every ground raised. Her application for judicial review is dismissed.
55We advised the parties of this determination at the close of oral argument and invited submissions on costs. The OHRT advised that it would not be seeking costs. However, counsel for Elia Associates requested costs on a substantial indemnity basis in the amount of $27,789.42, while recognizing that this was based on a contemplated two-day hearing, which only took one day. Elia Associates also wished to address issues with respect to an offer to settle.
56Ms. Visic requested an opportunity to place evidence before the Court on the issue of her ability to pay costs. Accordingly, she was given until October 16, 2015 if she wished to file a brief affidavit (two to three pages) with respect to financial circumstances relevant to costs, with the respondent being given until October 23, 2015 to file any responding material. Material was filed by both parties.
57Ms. Visic takes the position that each party should bear its own costs. She states in her affidavit that she has no assets, no income outside her employment, and that her employment situation is precarious. She also states that she has “significant outstanding student debts” but does not provide any particulars. I agree with the submissions of Elia Associates that the information provided is lacking in particularity and is unsupported by any documentation. It is nothing more than a bare allegation. Although Ms. Visic asserts that she has been found by previous courts to be impecunious, that is not the case. In any event, earlier cases that gave her a break in respect of costs were based on the status of the proceedings at that time, which is quite different from the circumstances now. I do not consider Ms. Visic’s personal financial circumstances to be such that she should be excused from the normal cost consequences of the proceedings she commenced.
58Ms. Visic also seeks to avoid costs on the basis that the issues raised are novel, complex, and involve issues of public policy and importance. I disagree. Ms. Visic was dismissed from her employment for reasons that had nothing to do with any disability she may have had, past or present, real or perceived. She filed a human rights complaint which proceeded to a full hearing. She was unsuccessful on every point, based almost exclusively on findings of fact made against her. This does not raise issue of public policy or importance. The issues were of importance only to the parties.
59On November 19, 2013 Elia Associates offered to settle this matter on the basis that Ms. Visic withdraw her application for judicial review and each party would bear its own costs. That offer was not accepted.
60On August 21, 2015, Elia Associates made a similar offer that Ms. Visic withdraw her application and each party would bear its own costs, including the potential to recover $6000.00 in costs ordered by Justice Lederer in an interlocutory Order dated April 20, 2014. That offer remained open until five minutes after the commencement of the argument of the judicial review applications. It was not accepted.
61In these circumstances, it is neither fair nor reasonable that Ms. Visic should not pay costs to Elia and Associates for this proceeding. The only real issue is whether those costs should be on a substantial indemnity basis. I have not found Ms. Visic to be impecunious. However, her financial liability as a result of these many unsuccessful legal proceedings will be considerable, and I do accept that she is a person of limited financial means.
62Taking all of these factors into account, in my view, the reasonable result is for Ms. Visic to pay to Elia Associates the sum of $10,000.00 on account of costs, payable forthwith.
MOLLOY J.
KRUZICK J.
LOCOCO J.
Released: December 10, 2015
CITATION: Visic v. HRTO and Elia Associates Professional Corporation, 2015 ONSC 7163
DIVISIONAL COURT FILE NO.: 212/12
DATE: 20151210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, KRUZICK and LOCOCO JJ.
BETWEEN:
ANICA VISIC
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, ELIA ASSOCIATES PROFESSIONAL CORPORATION, PATRICIA ELIA and RICHARD ELIA
Respondents
REASONS FOR JUDGMENT
Molloy, J.
Released: December 10, 2015
Footnotes
- Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, [2011] O.H.R.T.D. No. 1242.
- Human Rights Code, R.S.O. 1990, c. H.19.
- Slavutych v. Baker, 1975 (SCC), [1976] 1 S.C.R. 254.
- Ornelas v. Casamici Restaurant, 2010 HRTO 1078; Sussman v. Eales, [1986] O.J. No. 317 (C.A.); Hamalengwa v. Duncan, 2005 (ON CA), [2005] O.J. No. 3993 (C.A.); Byrne v. Maas, 2007 (ON SC), [2007] O.J. No. 4457, Web Offset Publications Ltd. v. Vickery, 1998 (O.N.S.C.)
- Carlos v. 1174364 Ontario Ltd., 2009 HRTO 311; Dixon v. Morrison, 2010 HRTO 2156.
- Visic v. Elia Associates, supra note 1, at Reasons of the Vice-Chair, at para. 146.
- Shaw 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.
- Anica Visic v. Law Society of Upper Canada, 2013 ONLSHP 71.
