Court File and Parties

CITATION: Grenville v. Employment and Social Services, 2021 ONSC 1678

DIVISIONAL COURT FILE NO.: 554/20

DATE: 20210305

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SHARON GRENVILLE, Applicant

AND: EMPLOYMENT AND SOCIAL SERVICE and HUMAN RIGHTS TRIBUNAL OF ONTARIO, Respondents

BEFORE: D.L. Corbett J.

COUNSEL: Ms Grenville, self-represented

IN CHAMBERS, IN WRITING

Endorsement

D.L. Corbett J.:

[1] Ms Grenville seeks judicial review of decisions of the Human Rights Tribunal of Ontario (“HRTO”) (a) dismissing her claims against “Employment and Social Service” on the basis that they fail to disclose a claim within the jurisdiction of the HRTO (2018 HRTO 1405); and (b) refusing her request for reconsideration of the first decision (2020 HRTO 662).

[2] This court directed the Registrar to give notice to Ms Grenville that the court was considering dismissing her complaint pursuant to R.2.1.01 as frivolous, vexatious and/or an abuse of process on the following basis:

The applicant raises two general grounds in her application that are properly before this court:

1. The delay by the HRTO in deciding her request for reconsideration; and

2. Alleged error by the HRTO in dismissing her complaint.

Since the HRTO has decided the reconsideration request there is no claim available in this court respecting the delay in providing that decision.

On the merits, the HRTO's original decision was to dismiss the claim because the applicant did not allege a nexus between the facts she described (being unemployed for thirteen years) and the discrimination she alleged: an essential aspect of any claim of discrimination was absent from her claim - an allegation describing the conduct of the respondent that she says was discriminatory that led to her damages. In her notice of application, the applicant fails to address this defect in her complaint before the HRTO, and thus she fails to raise any infirmity with the HRTO's decision.

The applicant also makes claims in her notice of application that cannot be adjudicated at first instance by this court - the same claims that she apparently made before the HRTO. Her claims, as set out in the notice of application, appear to suffer from the same defect identified by the HRTO in its decision: the applicant does not describe conduct by the respondent that (a) is said to be discriminatory; and (b) caused her damages. In so stating, I understand that the applicant says that the respondent is responsible for her long-term unemployment, and that responsibility is a product of discrimination. Those are not allegations of fact. Those are conclusions. The applicant must explain, in concrete and particular detail, what the respondent did, or did not do, that was discriminatory, that gives rise to her claim. Her long-term unemployment, by itself, does not provide a basis for a human rights complaint against the respondent.

[3] Notice was given to Ms Grenville by the Registrar in accordance with my direction by email on November 25, 2020.

[4] Ms Grenville provided a detailed handwritten response to the R.2.1.01 Notice, summarized as follows:

(a) The applicant alleges “systemic racism” by the respondent by “unreasonably marginalizing my status as a professional black woman by denying my academic credentials (Executive Graduate degree) in exchange for minimum wage opportunities.”

(b) The applicant alleges “procedural unfairness, bias interpretation of policies and Provincial procedural laws to my individual service plan.” These laws were “applied with minimal effort and lack of concern in meeting my personal individual needs for employment.”

(c) The applicant alleges “breach… of fiduciary responsibility” by the respondent because “they did not address or refer [her] application to Affirmative Action programs which would offer an advantage in seeking employment.”

(d) The applicant alleges that the respondent “persistently forc[ed] me to accept marginalized under employable careers….”

(e) The respondent “neglected Human Rights codes when they neglect(ed) their obligation to respect the applicant’s choice of work and instead force[d] displacement and minimum wage opportunities.”

(f) The respondent “did not show obligation to fulfill services as outlined in the provincial Human Rights Codes. This is why the Applicant is still unemployed, kept in internment.”

(g) “being unemployed for a total of 16 years, 12 of the years under the care of [the respondent] is unreasonable, punitive shock to my consciousness because I am vulnerable, at risk, with zero retirement and only 16 to 18 years of quality employability, if given a job.”

(h) “Survival jobs (minimum wage careers) are not an option or quick fix for me to pay rent or eat. This will simply displace any aspirations of obtaining university level careers. Furthermore, this will induce a lifestyle below university level lifestyle, reduce my quality of health….”

[5] Ms Grenville asks this court to do the following things:

(a) “[i]ntervene, measure and assess my employment service plan with the organization to further recognize and determine accountability for the financial burden, impoverished standard of living, they involuntarily placed upon my life.”

[6] Ms Grenville concludes her description of her claim as follows:

In summation, [the respondent’s] denial of adequate services, and employment, creates risk/pain that is indirectly aggravating or provoking attacks on my children, personal property, and my fundamental right to enjoy life without harassment, moreover, court intervention is necessary in resolving to vagueness of employment laws as it pertains to the allegations of systemic racism in the right to work and maintain equitable… standards of living.

[7] In a separate section of her response, entitled “Sharon Grenville v. Government of Canada”, Ms Grenville makes allegations against Canada as follows:

(a) Ms Grenville asks the Divisional Court “to intervene to make [the] Canadian Government recognize their obligation to the applicant under Canadian human rights and international laws.” She asks the court to “establish common grounds in defining a recovery plan [for] the applicant which is humane, equitable and inclusive….” She says that the “issues before the court show clear violations [of] the applicant’s human rights….”

(b) Ms Grenville alleges that Canada “refuses to investigate allegations of abuse, harassment and unemployment.” She alleges “inaction” by government that “causes risk which can implicate security of the person”.

(c) Ms Grenville alleges that Canada “intentionally internee her human rights; refusing recognition of her qualifications, or the right to have or earn money.”

(d) Ms Grenville asks the court “to intervene and make the government accountable in determining which individual or organization upheld such a punitive, hateful intent to unemploy the applicant for 16 years….”

[8] Ms Grenville attaches to her submission a copy of a Masters of Business Administration degree (“MBA”) awarded to her by Texas Woman’s University on August 13, 2005, a Management Studies Certificate in Human Resources Management from the University of Winnipeg dated June 22, 2001, and a B.A. degree awarded to her by the University of Manitoba on June 1, 1994.

[9] On December 2, 2020, Ms Grenville provided the court with a “Notice of Constitutional Question” stated to have been served on the Attorneys General of Ontario and Canada. In this Notice, the applicant states that she is “denied equitable rights to employment and standard of living because she is a educated disliked black female.” She alleges that “this behavior is and was manifested through learned behavior taught through ancestral hate/racism which immigrated out of Guyana (South America) between 1979-1980 to Canada and taught to Canadians and other ethnic groups.” She alleges that “[a]s a Canadian citizen, my status is nowhere equal to the same level of respectability or high earnings found in Caribbean or other Guyanese women with graduate degrees.” She states that the respondent and Canada “must explain the extenuating circumstances in denying equity and employment….”

[10] The Notice continues, with the applicant stating that she requests from Canada and the respondent “an explanation as to why she is being pressured to consider under-employed, under-paid career opportunities…. Opportunities they know will maintain institutionalized poverty.”

[11] The applicant alleges that her “only rights are to receive protection, fiscal support and all subsequent care or treatment under the welfare system.”

[12] The applicant alleges that she was a case worker with the Texas Youth Commission in Gainesville, Texas, but that her career has not advanced upon her return to Canada because Canada has treated the applicant “as an enemy of the state for seeking advancement and mobility outside the country and the Province of Manitoba.

[13] The applicant asks rhetorically: “How will I earn a living when no one in the country is showing respectability or taking accountable corrective measures to ensure my rights are not infringed?”

Rule 2.1.01

[14] Rule 2.1.01(1) provides:

The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of this court.

[15] Rule 2.1.01(1) allows the court to determine in a summary manner whether, on its face, a proceeding should be dismissed as frivolous or vexatious or otherwise an abuse of process. The court must read the pleading generously and identify the core complaint pleaded: Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497; Covenoho v. Ceridian Canada, 2015 ONSC 2468.

[16] The Rule should be “interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, para. 8. That said, the Rule should only be applied in the clearest of cases:

[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. …. [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1.

[17] Since the applicant provided her materials to the court, she has written to the court twice, by email, to find out when her hearing will be. As stated in the court’s R.2.1.01 notice, these issues are decided on the basis of the applicant’s written submissions; there is no in-person hearing.

[18] The applicant has also inquired about appealing the R.2.1.01 notice. There is no appeal of a notice pursuant to R.2.1.01. It is a procedural step enabling the applicant to make written submissions to explain why she says there is some merit to her application. The applicant does have appeal rights from this decision pursuant to R.2.1.01 – her appeal rights from this decision lie to the Court of Appeal.

HRTO Decisions

[19] The first decision of the HRTO is brief and I quote it in full:

[1] The applicant filed an Application alleging discrimination because of age, race and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that she has been unable to obtain employment that is commensurate with her skills and qualifications for a period of around thirteen years.

[2] On June 22, 2016, the Tribunal sent the applicant a Notice of Intent to Dismiss, advising the applicant that a review of the Application and the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.

[3] The applicant made a number of responses to the Tribunal. The applicant did not address the issue of the absence of a link to the grounds she selected, but instead stated that she would file a new and different application.

ANALYSIS AND DECISION

[4] An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381.

[5] The Tribunal’s jurisdiction is limited to enforcement of the Code. To fall within the Tribunal’s jurisdiction, an application must contain allegations that connect a respondent’s conduct to one or more prohibited grounds of discrimination. The Application and the applicant’s submissions deal with allegations of failure to obtain employment and the consequences. However, the materials provided by the applicant fail to point to any connection between this treatment and any ground in the Code.

[6] In these circumstances, I find that it is plain and obvious that the subject matter of the Application is not conduct prohibited by the Code. Therefore, the Application does not fall within the Tribunal’s jurisdiction.

ORDER

[7] For the above reasons, the Application is dismissed.

[20] The HRTO’s reconsideration decision is similarly brief, and I also quote it in full:

[1] The applicant requests Reconsideration of the Tribunal’s Decision 2018 HRTO 1405 dated October 4, 2018 (the “Decision”), dismissing the Application. The Tribunal found that it was plain and obvious that the subject matter of the Application was outside the Tribunal’s jurisdiction.

[2] The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking Reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the Reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed Reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

[3] The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

[4] The applicant filed a Request for Reconsideration on November 21, 2018 and relies on Rules 26.5(d). The applicant filed further submissions on August 26, 2019. Regrettably, this Request for Reconsideration has remained outstanding for a protracted period.

[5] The applicant did not identify any factor that would outweigh the public interest in the finality of Tribunal decisions, as is required under Rule 26.6(d). Rather, the applicant presented arguments that her Application has merit and to the effect that the Decision was wrongly decided. The Tribunal has stated repeatedly that Reconsideration is not an appeal or an opportunity to re-argue a case. See Latronico v. York Region District School Board, 2012 HRTO 637 and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008. Accordingly, the applicant has not established the criteria for Reconsideration under Rules 26.5(d).

[6] The Request for Reconsideration is dismissed.

Analysis

[21] The decision under review in this court are the two decisions of the HRTO. This court does not have a record of the proceedings before the HRTO. In some cases, it is necessary to obtain a Record of Proceedings or a Record of Decision from the tribunal before this court can undertake an analysis under R.2.1.01: Watt v. HPARB, 2020 ONSC 7386 (Div. Ct.). In other cases, such as this one, it is clear on the face of the application that there is no basis for a claim before the tribunal below, and the matter should not engage the adjudicative process of this court beyond a R.2.1.01 process. With a self-represented litigant, where it is clear on the face of the application that the application, as drafted, is without legal merit, the R.2.1.01 process is designed to also investigate whether the applicant may have an arguable issue that needs to be pleaded properly.

[22] In this case I am satisfied that there is no arguable basis for the applicant’s application. In these circumstances the application should be dismissed pursuant to R.2.1.01.

[23] The applicant’s grievance is clearly stated: she has been unemployed for 16 years. For twelve of those years she has been “under the care of” the respondent, by which I take it that the applicant alleges that she has been seeking employment through the assistance of the respondent for twelve years, without success.

[24] The applicant’s secondary grievance is that the respondent has compelled her to take minimum wage or low paying jobs, by which I take it that, in order to qualify for social benefits (Ontario Works), the applicant has been required to seek employment, including employment she considers to be below her education, experience, qualifications and reasonable expectations for remuneration.

[25] The applicant’s tertiary grievance seems to be that the respondent has failed to place appropriate weight on the MBA degree awarded to her by Texas Women’s University in 2005 and has failed to refer her to appropriate affirmative action programs available to her.

[26] Nowhere has the applicant explained how these grievances arise from a breach of the Human Rights Code. She has not particularized anything done by the respondent, or not done by the respondent, that could ground a finding of discrimination on the grounds stated in her complaint: race, age and record of offences.

[27] There are allegations of systemic racism in Canada. For the purposes of this decision the court accepts that this is true. Following from this, the court is prepared to assume that systemic racism has been a factor in the applicant’s inability to find desirable employment commensurate with her education and experience. Those allegations do not provide a basis for a claim against the respondent: the respondent is not responsible in law for systemic racism that exists in Canada.

[28] Simply put, it is not the respondent’s obligation to employ the applicant. It is not the respondent’s obligation to find employment for the applicant. It is not the respondent’s obligation to relieve the applicant from the effects of generalized systemic racism on Canada. The respondent has programs intended to help people in the applicant’s situation. But that does not make the respondent legally responsible to find the applicant a job.

[29] The applicant also makes two more specific allegations about the respondent’s conduct:

(a) The respondent has failed to place appropriate (or any) weight on the MBA degree she obtained from Women’s University of Texas in 2005; and

(b) The respondent failed to refer the applicant to affirmative action programs.

[30] The applicant baldly asserts that the failure to give proper weight to her MBA degree is a result of discrimination on the basis of race, age and record of offences, but there are no particulars provided for such a link to be drawn. Ultimately, it is for potential employers to assess the applicant’s qualifications. The applicant is not limited to seeking employment from employers to which she is referred by the respondent: she can seek employment herself on the strength of her credentials. And no facts are alleged that would provide any basis to draw a link between the value ascribed to the appellant’s American graduate degree and a prohibited ground of discrimination.

[31] The second of these allegations is also unparticularized. There is no allegation as to who had an obligation to refer the applicant to other programs, which referrals should have been made, or how these alleged failures happened because of discrimination on the basis of race, age or record of offences.

[32] The applicant’s other claims are premised on an assertion that the respondent and Canada are somehow responsible for her long-term unemployment. No facts are alleged that could establish such a conclusion.

[33] I do not mean to be harsh here. Chronic unemployment and poverty are terrible, debilitating experiences. But the applicant has alleged no particulars of specific conduct that could ground a claim before the HRTO. The solution to the applicant’s problems – very real as I accept them to be – does not lie in the claims she brought to the HRTO.

Conclusion

[34] The applicant failed to state a case before the HRTO. She did not state a case in her notice of application for judicial review. This court gave the applicant directions about the particulars required from her to establish a claim that could be within the jurisdiction of the HRTO. While the applicant has provided more information, it does not come close to stating a basis for a human rights complaint against the respondent.

[35] Having reviewed the materials provided by the applicant, I am satisfied that the deficiencies in her claim before the HRTO and her notice of application in this court are not mere technical deficiencies. If it appeared that the applicant had an arguable claim, I would give directions for her to amend her notice of application. Here, the claim seems to devolve on a theory that the government has an obligation to find a job for the applicant, and that the respondent cannot require the respondent to take a low paying job to qualify for Ontario Works benefits. The former complaint is simply invalid. The latter claim is one to be addressed within the Ontario Works program, and there is no basis in the applicant’s claim to connect her concern on this point with a prohibited ground of discrimination.

[36] The application is dismissed pursuant to R.2.1.01.

D.L. Corbett J.

Date: March 5, 2021