CITATION: Dai v. Presbyterian Church in Canada, 2013 ONSC 6650
DIVISIONAL COURT FILE NO.: 71/13
DATE: 20131023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HIMEL, SACHS AND WARKENTIN JJ.
BETWEEN:
PEIKANG DAI
Applicant
– and –
PRESBYTERIAN CHURCH IN CANADA
Respondent
In Person
David Stuart Elenbaas and Richard T. McCluskey, for the Respondent
Margaret Leighton, for the Human Rights Tribunal of Ontario
HEARD at Toronto: October 23, 2013
SACHS J. (orally)
Nature of Proceeding
[1] The applicant seeks judicial review of three decisions of the Human Rights Tribunal of Ontario that dismissed his five separate applications alleging discrimination and reprisal against him by the Presbyterian Church in Canada, as well as several Church bodies and individual members of the Church. The last of these decisions also declared the applicant a vexatious litigant in respect of any proceedings against the Presbyterian Church in Canada and barred him from commencing Tribunal proceedings without leave.
[2] The applicant seeks an order setting aside the Tribunal’s order determining him a vexatious litigant. As well, he requests that this Court order the Human Rights Tribunal of Ontario:
(i) To ensure procedural fairness by allowing the victims of systemic racial discrimination and racial profiling targeting the Minister, immigrants, refugees and students from mainland Chinese in Presbyterian Church in Canada to testify before the Human Rights Tribunal of Ontario.
(ii) To ensure the natural justice by citing the racially exclusive activists of systemic racial discrimination and racial profiling targeting the minister, immigrants, refugees and students from mainland Chinese in Presbyterian Church in Canada to be cross-examined by the Human Rights Tribunal of Ontario;
(iii) To address the systemic racial discrimination and racial profiling targeting the minister, immigrants, refugees and students from mainland Chinese in Presbyterian Church in Canada in compliance of Human Rights Code of Ontario and Policy and Guidelines on Racism and Racial Discrimination.
(Applicant’s factum, page 22)
Standard of Review
[3] Section 45.8 of the Human Rights Code, R.S.O. 1990, c. H.19 states that:
A decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
[4] The Ontario Court of Appeal has recently confirmed that the appropriate standard of review on an application for judicial review of the Tribunal’s determination is reasonableness. (Toronto Police Services Board v. Phipps, 2012 ONCA 155). In Phipps, Lang J. explained at paragraph 10 that the reasonableness standard recognizes the Tribunal’s “specialized expertise” and accords it with the “highest degree of deference…deference is maintained unless the decision is not rationally supported. The ultimate question is whether the result falls within the Dunsmuir ‘range of possible acceptable outcomes which are defensible in respect of the facts and the law’.”
Analysis
[5] The applicant has requested that we consider 48 separate, but overlapping issues on this application. However, given the actual jurisdiction that we have, other than the question of delay and the question of procedural fairness, the only questions we need to address are whether the decisions the applicant is seeking to review were reasonable.
The First Dismissal Decision
[6] In an interim decision dated April 23, 2010, the Tribunal dismissed a number of the allegations in the applicant’s first application on the basis that the applicant had not established a prima facie case of discrimination. It did so after reviewing the applicant’s evidence and hearing his testimony. The applicant alleges a denial of natural justice because he was not permitted to call a number of witnesses. We accept, that on procedural fairness issues, no standard of review analysis need be conducted.
[7] In its first interim decision, the Tribunal had this to say about the applicant’s proposed list of witnesses:
With respect to the applicant’s list of 37 proposed witnesses, at the hearing the applicant was given the opportunity to call any of these witnesses who would be testifying about his allegations. He indicated that none of them had any knowledge about the allegations and thus he did not call any witnesses. (para. 7)
[8] Procedural fairness requires that a Tribunal hear relevant evidence. It does not require that the Tribunal hear from witnesses who have no relevant evidence to offer.
[9] After making the interim decision, the Tribunal then heard the testimony of the respondent’s witnesses and on December 7, 2010 it dismissed the remaining allegations on the basis that the evidence did not support the allegations of discrimination, harassment or reprisal.
[10] The applicant has failed to point to a single unreasonable finding of fact or any error of law made by the Tribunal in the interim decision or the final decision on the first application. The first dismissal decision was based on an appropriate application of the relevant facts to the relevant law and the reasons disclose a rational basis for the conclusions that were drawn.
The Second Dismissal Decision
[11] The Second Dismissal Decision dated March 29, 2012, collectively dismissed the applicant’s second, third and fourth applications pursuant to Rule 19A.1 of the Tribunal’s Rules of Procedure on the basis that these applications had no reasonable prospect of success.
[12] Specifically, the Tribunal held that:
(i) the portions of the second, third and fourth applications that alleged discrimination against the applicant’s wife were not properly brought as his wife had not consented to him bringing an application on her behalf;
(ii) the applicant’s arguments, whether taken individually or as a whole, only amounted to speculation and accusations; and
(iii) the applicant had not provided a basis on which to suggest that the treatment alleged in any of the second, third and fourth applications was based on a Code-related ground.
[13] The Tribunal provided the applicant with the benefit of the doubt and assumed that all of the facts alleged by the applicant were true. However, even with the benefit of this assumption, the Tribunal determined that he had no reasonable prospect of success on the second, third and fourth applications. Again, we find that the applicant has not pointed to a single error of law or unreasonable finding of fact that was contained in the Second Dismissal Decision.
The Third Dismissal Decision
[14] Despite the dismissal of his first four applications, the applicant subsequently commenced a fifth application, repeating the same allegations of discrimination and reprisal that had been considered and dismissed by the Tribunal in the previous proceedings.
[15] The Tribunal correctly noted that the Statutory Powers Procedure Act and its own rules allow it to control its own process to prevent an abuse of process. After bringing and hearing its own motion, the Tribunal dismissed the fifth application and concluded that:
(i) the substance of the fifth application had already been dealt with in the previous four applications;
(ii) to permit the fifth application to proceed would result in an abuse of process; and
(iii) the applicant should be declared a vexatious litigant and barred from commencing further applications without the consent of the Tribunal.
[16] In dismissing the fifth application pursuant to s. 45.1 of the Code on the basis that the allegations contained in the application had been addressed in the prior applications, the Tribunal held that “there can be no doubt that the [fifth] application raises the exact same allegations or substantially the same allegations as the previous applications while the [fifth] application raises allegations of systemic discrimination, so too did the previous applications.” (para. 13)
[17] On the application before us, the applicant did not challenge this finding.
[18] In holding that the fifth application amounted to an abuse of process, the Tribunal reviewed relevant case law from the Supreme Court of Canada and concluded that “an abuse of process may be found where the litigation before the Court is found to be, in essence, an attempt to re-litigate a claim which the Court has already determined.” The Tribunal correctly found that this applies equally to proceedings before the Tribunal.
[19] The Tribunal made the determination that the applicant was a vexatious litigant after a review of relevant factors from previous Tribunal decisions. Specifically, the Tribunal found that the following factors weighed in favour of labelling the applicant a vexatious litigant:
(i) the applicant brought five identical or substantially similar applications that had each been dismissed;
(ii) the applicant served the Presbyterian Church with a sixth application, which had not been filed with the Tribunal;
(iii) the applicant increased the number of named personal respondents in each successive human rights application, from one to nine to fifty;
(iv) the applicant filed a complaint with the Law Society of Upper Canada about the Presbyterian Church’s counsel, solely due to his representation of the Presbyterian Church in this matter;
(v) the applicant’s approach was to file a very large volume of largely irrelevant documents with each application;
(vi) the applicant sent weekly emails with attachments of over 400 pages (stated by the applicant in his request for reconsideration to be in fact 4,000 pages) to a large number of individuals associated with the Presbyterian Church, which were all virtually the same and had been sent over 1,400 times;
(vii) there was indication that the applicant may seek to continue filing human rights applications in the future, as he felt he should be able to continue to pursue his human rights issues before the Tribunal for up to nine more years; and
(viii) the impact of the applicant’s behaviour on the Presbyterian Church and the Tribunal’s own resources.
[20] Before us, the applicant did not deny the existence of these factors nor did he point to any error of law in the Tribunal’s determination that these factors are indicative of a vexatious litigant. Essentially, his submission before us was that he should be allowed to bring considerably more applications before being declared a vexatious litigant. We disagree.
[21] Given this background, the Third Dismissal Decision, including the decision to declare the applicant a vexatious litigant, was well within the range of possible and acceptable outcomes that are defensible in respect of the facts and the law.
Delay
[22] Having found that the decisions in question were reasonable, there is no need for us to deal with the issue of delay.
Conclusion
[23] For these reasons, the application for judicial review is dismissed.
HIMEL J.
COSTS
[24] The award of costs is a matter within the discretion of the Court to be determined in accordance with s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure. While the financial position of the applicant, who has represented himself in this proceeding, is a matter that can be taken into account in the exercise of discretion, we are also mindful of the other factors, including the results obtained in the case, the amount of work done, the number of proceedings, the complexity of the matter and the conduct of the parties.
[25] In these circumstances, we deem the amount of $3,000, a fair and reasonable amount to be paid by the applicant to the respondent Presbyterian Church.
[26] I have endorsed the Record as follows: “For oral reasons given, the application for judicial review of the orders of the Human Rights Tribunal and the order declaring the applicant a vexatious litigant is dismissed. Costs are fixed at $3,000 payable by the applicant to the respondent Presbyterian Church, an amount we deem fair and reasonable in the circumstances of the case.”
SACHS J.
HIMEL J.
WARKENTIN J.
Date of Reasons for Judgment: October 23, 2013
Date of Release: October 28, 2013
CITATION: Dai v. Presbyterian Church in Canada, 2013 ONSC 6650
DIVISIONAL COURT FILE NO.: 71/13
DATE: 20131023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HIMEL, SACHS AND WARKENTIN JJ.
BETWEEN:
PEIKANG DAI
Applicant
– and –
PRESBYTERIAN CHURCH IN CANADA
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: October 23, 2013
Date of Release: October 28, 2013