CITATION: Nagy v. University of Ottawa, 2022 ONSC 3399
DIVISIONAL COURT FILE NO.: 2638/21
DATE: 20220608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ELLIES R.S.J., SWINTON AND J.A RAMSAY JJ.
BETWEEN:
AMRO NAGY
Applicant
– and –
THE UNIVERSITY OF OTTAWA
AND ALAN CHAPUT
Respondents
Yavar Hameed and Nicholas Pope for the Applicant
Jamie A. Macdonald for the Respondents
Jason Tam for the Human Rights Tribunal of Ontario
HEARD: June 2, 2022 at Ottawa by videoconference
J.A. RAMSAY J.
[1] The Applicant applies for judicial review of the decision of the Human Rights Tribunal of Ontario to dismiss his application to the Tribunal as an abuse of process. The decision is reported at 2021 HRTO 116.
[2] The Applicant was suspended with pay from the post-graduate medical training program at the University of Ottawa on the basis of alleged unprofessional conduct. The Applicant challenged his suspension by appealing to the Faculty of Medicine’s Professionalism Committee. The Committee upheld the suspension and ruled that the Applicant could not return until he had undertaken the Physician Health Program. The Applicant appealed further to the Faculty Appeals Committee and the Senate Appeals Committee. Both appeals were unsuccessful. The Applicant then made an application to the Human Rights Tribunal alleging that his suspension and the requirement to attend the Physician Health Program constituted discrimination on prohibited grounds under the Human Rights Code, including race and disability.
[3] The University moved to dismiss the application under s. 45.1 of the Code on the ground that another proceeding had appropriately dealt with the substance of it. The Tribunal dismissed that motion. After a separate hearing the Tribunal granted the University’s motion to dismiss the application as an abuse of process. The Tribunal held that the Applicant had unfairly split his case by proceeding under a separate administrative process without raising the discrimination issues, and then, when unsuccessful, bringing the application to the Tribunal.
[4] The Applicant challenges the Tribunal’s decision on the following grounds:
a. It applied the wrong test for abuse of process. The “Connelly” test adopted by the Ontario Court of Appeal in R. v. B. (1986), 1986 4711 (ON CA), 29 C.C.C. (3d) 365 only applies to criminal cases.
b. In applying the test, it proceeded unreasonably by departing from the precedent established in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 without giving reasons for the departure.
c. It acted unreasonably in applying the doctrine of abuse of process to a situation in which the legal issues in the two proceedings were not identical.
The standard of review
[5] The Tribunal submits that the standard of review is patent unreasonableness. The Applicant and the University submit that the definition of abuse of process is a legal question that is reviewed for correctness, while application of the test to the facts in question should be reviewed for reasonableness.
Is correctness the standard of review?
[6] In Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, the Supreme Court held that reasonableness is the presumptive standard of review of an administrative tribunal. The presumption is rebutted in two circumstances. The first circumstance is where the legislature has indicated its intention that the decision be reviewed on the standard of correctness, such as when it provides for a statutory appeal.
[7] The second circumstance is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.
[8] Regarding the second circumstance, the Court said:
[60] This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole. For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Toronto (City), at para. 15); the scope of the state’s duty of religious neutrality (Saguenay, at para. 49); the appropriateness of limits on solicitor-client privilege (University of Calgary, at para. 20); and the scope of parliamentary privilege (Chagnon, at para. 17). We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC, at para. 43.
[61] We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 66; McLean, at para. 28; Barreau du Québec v. Québec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. …
[62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows.
[9] As the court said in Vavilov, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the court held that correctness was the standard of review of an arbitrator's decision regarding whether the union was entitled to relitigate an issue that had been decided against the griever in a criminal proceeding. It said that the body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is complex and lies at the heart of the administration of justice; and that the application of the governing principles of res judicata and abuse of process is clearly outside the sphere of expertise of a labour arbitrator.[^1]
[10] I do not think that what the court said about the standard of review in Toronto (City) v. C.U.P.E survives Vavilov. In Vavilov, the Supreme Court made it clear that it was revising the framework of judicial review of administrative bodies. It also made clear that the starting point was the legislature’s intent, not the expertise of the tribunal.
[11] Section 45.8 of the Human Rights Code provides that apart from review of a decision by the Tribunal itself by statute or under its rules, a decision of the Tribunal is final unless it is shown to be patently unreasonable. The legislature has clearly signaled its intention to restrict judicial review.
[12] The Tribunal has a statutory right to stay an application that it considers to be an abuse of process: Statutory Powers Procedure Act, s. 23(1). The definition of abuse of process is set out by the Supreme Court in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63; [2003] 3 S.C.R. 77. In that case, Arbour J. said (at p. 101):
35 Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007:
... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of [page102] oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.
36 The doctrine of abuse of process is used in a variety of legal contexts. The unfair or oppressive treatment of an accused may disentitle the Crown to carry on with the prosecution of a charge: Conway, supra, at p. 1667. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44 (S.C.C.), this Court held that unreasonable delay causing serious prejudice could amount to an abuse of process. When the Canadian Charter of Rights and Freedoms applies, the common law doctrine of abuse of process is subsumed into the principles of the Charter such that there is often overlap between abuse of process and constitutional remedies (R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.)). The doctrine nonetheless continues to have application as a non-Charter remedy: United States v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21 (S.C.C.), at para. 33.
37 In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ...bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.) at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63 (S.C.C.)). Goudge J.A. expanded on that concept in the following terms, at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added by Arbour J.]
[13] Applying the doctrine of abuse of process engages the tribunal’s power to control its own process. It is context-based and fact-driven and involves the exercise of discretion. In my view, the legal system as a whole does not require a single determinate answer as to when a proceeding before a tribunal should be stayed as an abuse of process, particularly in the case of the Human Rights Tribunal, whose decisions are intended by the legislature to be final in most circumstances. In my view, the Tribunal is meant to be the judge of the use of its own process. Accordingly, the Tribunal’s decision should be reviewed on a deferential standard.
Reasonableness or patent unreasonableness?
[14] Which deferential standard applies? In Phipps v. Toronto Police Services Board, 2010 ONSC 3884 this court held that the standard of review of decisions of the Human Rights Tribunal was reasonableness. That decision was upheld by the Court of Appeal (2012 ONCA 155 at para. 10). In Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2020 ONSC 1632 and Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 this court held that Vavilov had not changed that. In my view, we are obliged to follow our own jurisprudence until a higher court rules otherwise.
[15] I note only that as the Supreme Court said in Vavilov (paragraph 42), it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough.
Was the Tribunal’s decision unreasonable?
[16] The Tribunal reasoned as follows:
a. The focus of the doctrine of abuse of process is the integrity of the adjudication process.
b. Splitting a case is not an abuse of process per se, but in criminal law it can be an abuse if it forces the accused to answer for the same delict twice.
c. On the Applicant’s claim, he was subject to discrimination when he was suspended and again when the Professionalism Committee required him to participate in the Health Program. At that point the discrimination had occurred, and the Applicant had the choice to appeal or to make an application to the Human Rights Tribunal. He chose the former. He only chose the latter once the former was unsuccessful. As a result, the University has to answer twice for the same conduct. They will have to deal a second time with the same underlying facts.
d. Applying the doctrine of abuse of process will not be unfair to the Applicant because re-litigation is not necessary to enhance the credibility and effectiveness of the adjudicative system as a whole.
e. The Tribunal does not sit in judgment of the procedures of other administrative tribunals. If the Applicant was concerned about the fairness of the University’s procedures, he could have raised that question before the University’s appeal bodies and the Divisional Court, or he could have come to the Tribunal instead of invoking the University’s procedures.
f. Allowing the Application to proceed would be contrary to principles of judicial economy, finality and the integrity of the administration of justice.
[17] The Tribunal did not apply the wrong test. It was appropriate to refer to R. v. B., a criminal case, in support of the notion that requiring someone to answer twice for the same delict is not fair, even when the legal issues in the two proceedings are distinct. The Tribunal did not depart from binding precedent. It expressly followed the principles enunciated by the Supreme Court in Toronto v. C.U.P.E. (2003) and applied them to the present context. The Supreme Court did not limit abuse of process to cases akin to issue estoppel. On the contrary, abuse of process is flexible and can be used in a broader set of circumstances. Repeated litigation of the same case has long been recognized as an element of abuse of process in criminal, civil and administrative law cases.
[18] The Applicant admits splitting his case. He says that he chose the University process because he hoped to be vindicated sooner, and that he chose the Human Rights Tribunal proceeding when he was unsuccessful. The Tribunal was entitled on the evidence to find that duplicative proceedings were unfair to the University because of the expense of litigating the same underlying facts twice.
[19] What was in issue was the discipline imposed on the Applicant. It was not unreasonable to find it unfair for the Applicant to challenge the disciplinary action in one proceeding on the basis of the University’s academic rules and, when unsuccessful, to institute a challenge elsewhere on the basis of human rights law, when all the legal issues could have been raised in the first proceeding.
[20] Even though, unlike the Tribunal, the University’s committees did not have the power to make broad remedial orders or to award damages it was not unreasonable for the Tribunal to expect the Applicant to choose between the more expeditious and the more extensive routes of litigation. Litigants are often faced with such choices.
[21] The Tribunal’s reasons explain how it arrived at its decision. The decision follows a perceivable logical path from the evidence and the law to the conclusion. It is consistent with the Tribunal’s own jurisprudence, which it expressly considered in paragraph 11 of its decision. It falls within a reasonable range of outcomes. In my view the decision was both justifiable and justified and the application for judicial review should be dismissed.
[22] As agreed by the parties, the Applicant will pay costs to the successful Respondents fixed at $6,000. No costs are sought or ordered for or against the Tribunal.
J.A. Ramsay J.
I agree. _______________________________
Ellies R.S.J.
I agree. _______________________________
Swinton J.
Released: June 8, 2022
Citation: Nagy v. University of Ottawa, 2022 ONSC 3399
Divisional Court File No.: 2638/21
Date: June 8, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ELLIES R.S.J., SWINTON AND J.A. RAMSAY JJ.
BETWEEN:
AMRO NAGY
Applicant
– and –
THE UNIVERSITY OF OTTAWA AND ALAN CHAPUT
Respondents
REASONS FOR JUDGMENT
J.A. Ramsay J.
Released: June 8, 2022
[^1]: It has been held, however, that the application of the doctrine of abuse of process by a labour arbitrator is subject to review for reasonableness because the application of the doctrine must be seen in the context of the objectives and purposes of the legislation, the nature of the collective bargaining process and the factual matrix of the case: C.U.P.E., Local 79 v. Toronto (City), 2012 ONSC 1158 (Div. Ct.).