Court File and Parties

CITATION: Papouchine v. Touram LP d.b.a. Air Canada Vacations, 2022 ONSC 7010

DIVISIONAL COURT FILE NO.: 279/15

DATE: 20221214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Stewart and A.D. Kurke JJ.

BETWEEN:

ALEXANDRE PAPOUCHINE

Glenroy K. Bastien, for Mr Papouchine

Applicant

– and –

TOURAM LP d.b.a. AIR CANADA VACATIONS, VOLKSWAGEN CANADA, AUDI MISSISSAUGA, TRAVEL INDUSTRY COUNCIL OF ONTARIO, WILL DAVIDSON LLP, THE DOMINION OF CANADA GENERAL INSURANCE COMPANY, ARTHUR BODE and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Jonah Waxman, for Audi Mississauga

Joel Cormier, for Will Davidson LLP and Dominion of Canada General Ins. Co.

John Park, for Travel Industry Council

Mark Mills, for Volkswagen Canada and Arthur Bode

Jiwan Swan, for Air Canada Vacations

Brian Blumenthal, for the Tribunal

Respondents

HEARD at Toronto (by videoconference): February 8, 2022

REASONS FOR DECISION

D.L. Corbett J.

[1] The Applicant seeks judicial review of a decision of Vice Chair Leslie Reaume of the Human Rights Tribunal of Ontario (the “Tribunal”) dated April 28, 2014, dismissing eight complaints alleging discrimination on the basis of ancestry, place of origin, disability and ethnic origin, all in connection with the provision of goods or services (2014 HRTO 588).[^1] The Vice Chair also: declared that the Applicant is a vexatious litigant, required the Applicant to obtain prior leave before commencing further Tribunal proceedings, provided directions respecting ongoing Tribunal proceedings, and made ancillary orders respecting the Applicant’s dealings with the Tribunal.

[2] The Applicant asks this court to quash the Vice Chair’s decision and to remit his complaints back to the Tribunal.

[3] This court dismissed this application at the conclusion of the hearing with these reasons and costs decision to follow.

Summary and Overview

[4] Tribunals, like courts, are custodians of a scarce public resource: time before the tribunal. Meritorious complaints cannot proceed promptly if frivolous complaints clog the system and waste resources. Some tribunals, including the Tribunal, do not charge fees to initiate and pursue a complaint, and some do not order legal costs in favour of unsuccessful parties. These practices facilitate access to justice, but they may also create a false impression that justice is “free” and that there are no constraints on matters that may be brought forward for adjudication.

[5] Justice is not free. Quite the contrary. Justice is expensive. To the extent that the cost of justice is not borne by the parties, it is borne by the public purse. Tribunals, like courts, are responsible for overseeing their own processes so that public resources are applied effectively to matters worthy of adjudication. To achieve this, tribunals, like courts, must control their own processes, including restraining vexatious conduct and abuse of process.

[6] Two sets of issues arise on this application. The first concerns the Tribunal’s dismissal of the Applicant’s eight complaints before the Tribunal at the time of the summary hearing. Although the Applicant has not raised the reasonableness of the Tribunal’s substantive dismissal decision, he is implicitly doing so on the basis of his arguments that his complaints ought to have proceeded further through the Tribunal’s process. Second, the Applicant argues that the process followed by the Tribunal was procedurally unfair to him.

[7] The Tribunal’s second disposition is its finding that the Applicant is a vexatious litigant. This raises two sets of issues before this court:

(a) whether the Tribunal’s finding that the Applicant is a vexatious litigant is reasonable; and

(b) whether the Tribunal’s finding was arrived at following a fair process.

[8] In respect to the substantive disposition, the Tribunal’s findings are reasonable and are firmly grounded in the record. The proximate complaints are “customer service complaints” and there is no objective basis on which to conclude that the respondents’ handling of the complaints was tainted by discrimination on a protected ground. The customer service complaints, themselves, are, or verge on being, trivial and, in one instance, absurd.

[9] The summary process followed by the Tribunal was consistent with the Tribunal’s Rules and past practice, was reasonable in all the circumstances, and afforded the applicant a fair opportunity to address the Tribunal’s concerns about his complaints.

[10] The Tribunal applied an appropriate test to decide that the Applicant is a vexatious litigant. Its findings of fact related to this issue are reasonable. The process followed afforded the Applicant an opportunity to be heard in argument; it was a fair and a reasonable process to follow in respect to this issue. The orders made consequent to the finding of vexatiousness were tailored reasonably to the circumstances.

[11] Therefore, for the reasons that follow, the application is dismissed.

Jurisdiction

[12] As provided in s. 45.8 of the Human Rights Code, there is no appeal to this court from the Tribunal:

Subject to subsection 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal Rules, a decision of the Tribunal is final 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.[^2]

[13] Thus, the jurisdiction of this court to judicially review the Tribunal’s decision arises pursuant to s. 45.8 of the Human Rights Code and ss. 2(1) and 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1.

Standard of Review

[14] The standard of review of Tribunal decisions is reasonableness.[^3] Without citing any authority other than general principles from Dunsmuir,[^4] the Applicant argued that the standard of review ought to be correctness rather than reasonableness. There is no merit to this submission. Pre-Vavilov, it was well-established that the standard of review was reasonableness.[^5] Vavilov provides a presumption of a reasonableness standard of review, which this court has found, repeatedly, applies to judicial review of Tribunal decisions.[^6]

[15] The Tribunal argued in its factum that the standard of review, as expressed by the Legislature, is “patent unreasonableness”. This standard, it argues, affords a higher standard of deference than the “reasonableness” standard that generally applies to judicial review. Such an interpretation accords with the express language used by the Legislature and giving effect to this express language is a paramount principle in Vavilov.

[16] This point has already been decided by this court post-Vavilov, and the Court of Appeal has upheld this court’s approach.[^7] This court understands that the Tribunal believes that it needs to raise this point in any application before this court to preserve its ability to raise this issue at the Court of Appeal and thence before the Supreme Court of Canada (which has not ruled on this point post-Vavilov). This court sees no need to say anything further on this point other than to cite the Court of Appeal decisions in Midwives, Briggs and Shaw v. Phipps, which are authoritative statements on this point and are binding on this court.

[17] In terms of the substance of a reasonableness review, as reflected in the Court of Appeal’s decision in Briggs,

In applying the reasonableness standard, as held in Vavilov, at para. 83, the focus is “on the decision actually made by the decision maker, including both the decision maker’s reasoning and the outcome.” The court is to look for reasoning that is “rational and logical”, having regard to the relevant factual and legal constraints: at para. 102. In addition, the court is not to hold the reasons up to a standard of perfection or conduct a “line-by-line treasure hunt for error”: at para. 102.[^8]

[18] Issues of procedural fairness are not subject to a standard of review. The process below is reviewed on a standard of “fairness” while giving due regard for the authority of the Tribunal to devise and implement its own processes.[^9] As stated by the Court of Appeal in Ontario Provincial Police v. MacDonald:

[Procedural fairness] requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation.[^10]

[19] Raising issues of procedural fairness does not transform the standard of review for all aspects of the decision below to correctness or fairness. Substantive and factual issues are reviewed on a standard of reasonableness:

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.[^11]

Thus, the Tribunal’s decisions disposing of the Applicant’s complaints, and declaring him to be vexatious, are reviewed on a standard of reasonableness. The process followed to come to these decisions is reviewed on the basis of procedural fairness.

The Issues Framed by the Applicant

[20] The Applicant’s Notice of Application raises three grounds of review:

(i) “… the Tribunal should have based its decision on evidence, and if there is no such evidence, the court may set aside the decision on an Application for judicial review” (Ground 3);

(ii) “[t]he Tribunal erred in law by misapplying and misdirecting itself with respect to which party bore the burden of proof in a summary hearing” (Ground 4); and

(iii) “[t]he Tribunal erred in law and violated the applicant’s right to procedural fairness in requiring that the summary hearing take place via teleconference (Ground 5).[^12]

[21] The Applicant’s factum states the issues as follows (Factum, para. 12):

(iii) was the applicant denied his right to procedural fairness and natural justice?

a. Did the Tribunal fetter its discretion and lose jurisdiction by too narrowly interpreting rule 19A?

b. was there a reasonable apprehension of bias?

(iv) Did the Tribunal err in law in placing the burden of proof on the applicant?

(v) Did the Tribunal err in law by providing inadequate reasons?[^13]

[22] Given the contents of the Notice of Application and the arguments presented by the Applicant, I distill and restate these issues as follows:

(a) Was the process procedurally unfair because the Tribunal refused to order production from respondents[^14] and disposed of the Applicant’s complaints without evidence?

(b) Was the process unfair, or were the impugned decisions unreasonable, because they arise from placing a burden of proof on the Applicant?

(c) Was the process unfair because the summary hearing was conducted by teleconference?

(d) Were the Tribunal’s interpretation and application of Rule 19A unreasonable?

(e) Did the conduct of the Tribunal give rise to a reasonable apprehension of bias?

(f) Is the Tribunal’s decision unreasonable because its reasons are insufficient?

[23] The Applicant did not pursue issue (c) in oral argument, a well-advised tactical decision. Summary hearings before the Tribunal are routinely conducted by teleconference. The issues at the hearing, in this case, turned on the documents filed by the applicant with the Tribunal, and not on oral evidence. Nothing about the circumstances of the hearing provides a basis for finding that the Tribunal’s mode of hearing by teleconference worked any unfairness to the applicant.

[24] The Applicant only identified one basis on which he says there was a reasonable apprehension of bias on the part of the Tribunal: the process and decision made denying his request for production of documents from the respondents prior to decision on the summary hearing. As I explain below, the Tribunal’s decision not to order production prior to adjudicating the issues at the summary hearing was reasonable in the circumstances of this case. A reasonable procedural ruling cannot establish an allegation of reasonable apprehension of bias. Further, an adverse ruling, by itself, is not a basis for a finding of reasonable apprehension of bias.[^15]

[25] Although not stated expressly as grounds for review, implicit in the Applicant’s submissions is an argument that his complaints, on their face, disclose matters worthy of further adjudicative process, and the Tribunal’s decision to dismiss them without further process was unfair. This implicit argument needs to be addressed in this court: my rejection of it, based on the Applicant’s complaints, as he made them, is the context within which I find that the process before the Tribunal was fair.

The Decision Below

(a) Procedural History

[26] The Tribunal’s decision was made in eight files commenced by the Applicant.[^16] Pursuant to a Case Management Direction dated June 3, 2013, a summary hearing was directed in seven of these files “to determine whether part or all of these Applications should be dismissed for having no reasonable prospect of success and whether the applicant should be declared a vexatious litigant.” The eighth file was added to the summary hearing by Case Management Direction dated July 16, 2013. (Decision, para. 1)

[27] The summary hearing took place by teleconference on September 12, 2013. The Board made three procedural rulings against the Applicant at the start of the hearing, none of which are raised as grounds of review in this court. (Decision, paras. 2-4)[^17]

[28] In post-hearing written submissions provided by the Applicant (not at the direction of the Tribunal), the Applicant argued that he had not received proper notice of the issues to be addressed at the summary hearing. The Board reviewed the history of the case and concluded that the Applicant had received notice of the issues to be decided and the process to be followed in respect to the summary hearing. This ruling is not raised as a ground of review in this court. (Decision, paras. 5-7)

(b) The Applicant’s History as a Litigant Before the Tribunal

[29] The Tribunal noted that the Applicant had a history of complaints before the Tribunal:

(a) Papouchine v. Audi Canada (dismissed as having no reasonable prospect of success) (2012 HRTO 1860 [reconsideration denied: 2013 HRTO 88]);

(b) Papouchine v. Staples Canada (dismissed on the basis that the complaint did not raise allegations of discrimination under the Ontario Human Rights Code) (2013 HRTO 821 [reconsideration denied: 2013 HRTO 646]); and

(c) Papouchine v. Smith (dismissed on the basis that it did not raise allegations of discrimination under the Human Rights Code) (2013 HRTO 646).

[30] The Tribunal noted that of the eight complaints before the Tribunal, made against seven different respondents, seven were brought over the first half of 2013, and one was brought in 2012. The Tribunal noted that between the summary hearing before the Board (September 12, 2013) and the Board’s decision (April 28, 2014) (about 7.5 months), the Applicant filed a further nine proceedings with the Tribunal. (Decision, paras. 17, 28 and 29(4.)) That amounts to seventeen separate proceedings brought by the Applicant to the Tribunal over a period of about two years, in addition to the three dismissed proceedings.

Issue 1(a): Dismissal of the Complaints

[31] The Applicant’s eight complaints before the Tribunal were:

(a) Complaint against Touram LP (Air Canada Vacations) (File 2012-13045-I): the Applicant alleges that he purchased a vacation in Cuba from Air Canada Vacations. While in Cuba, he observed food handling by hotel employees that caused him concern. He complained about this issue to Air Canada Vacations. He was not satisfied with the response he received from Air Canada Vacations. He alleges that this unsatisfactory response was discrimination against him on the basis of his Russian or Eastern European ancestry: “I cannot find any reasonable explanation except Air Canada Vacation discriminating Alexandre Papouchine by ancestry, place of origin or ethnic origin.” There was nothing on the face of the complaint to indicate that the Applicant’s ancestry, place of origin and ethnic origin were involved in the disposition of the complaint or in the events giving rise to the complaint in Cuba.

(b) Complaint against Travel Industry Council of Ontario (File 2013-14025-I): the Applicant alleges that he complained to the Travel Industry Council about the manner in which Air Canada Vacations responded to his complaint described above. He was not satisfied with the response his complaint received from the Travel Industry Council. He claims “At the best of my knowledge it [the conduct of the respondent] has discriminatory component.” He states that he asked “the President and CEO to look into my complaint same way as if it would be sent by member of Royal Family. My request was practically ignored.” When asked to explain why he alleges he was discriminated against, the Applicant states “This is clear case and [the respondent] had duty to look into that” and that he is “russian, not noble, from Russia.”

(c) Complaints against Volkswagen Canada (Files 2013-13807-I and 2013-13808-I): the Applicant claims that he visited the head office of Volkswagen Canada and was badly treated, improperly asked to leave, and that police were called. He alleges that he was at the head office (a) to obtain further information about Volkswagen vehicles pursuant to an “invitation” made to him by a “manager” at a vehicle trade show; and (b) as a shareholder of the company, to see a list of other shareholders, as he alleges he was entitled to do. He takes the position that “Volkswagen Canada should be enforced to follow procedures and minimal courtesy.” He alleges that his unsatisfactory treatment and being asked to leave was discrimination against him on the basis of his Russian or eastern European ancestry: “There is no other reasonable explanation except discrimination by ancestry, place of origin and ethnic origin. I reserve right to put additional explanation here. I’m white, east-european, man, not noble, Russian, from Russia.”

(d) Complaint against Audi Mississauga (File 2013-14024-I): the Applicant, owner of an Audi, attended at the business premises of Audi Mississauga with a service issue respecting his car. He had an altercation with the Manager of the dealership and was asked to leave the premises. He refused to leave, as requested, and police were called by the business. The Applicant alleges that he was not invited to take a seat while he was waiting for police to arrive, and that this discriminated against him on the basis of disability (he claims to have a lower back injury) and sex (he believes a woman would have been invited or permitted to take a seat), in addition to being discrimination on the basis of his Russian or eastern European ancestry. The Applicant alleged “Situation was beyond general courtesy.” He described himself as “I’m Russian, man, not noble.” When asked to explain his complaint of discrimination on the basis of sex and disability, the Applicant stated that “I have injury due to accident and to stand sometimes painful. My attempts to sit were declined.”

(e) Complaint against Arthur Bode (an Audi employee) (2013-14733-I): the Applicant alleges that Mr Bode’s conduct “is attempt to damage my reputation” and “it resulted injury to my dignity, feelings and self-respect.” The Applicant alleges that Mr Bode made a “defamatory statement” about him during the course of a Tribunal hearing on September 14, 2012. The applicant indicates that he intends to present evidence of newspaper articles about “‘special relations’ between Audi (company) and members of Royal Family.” The Applicant then goes on to state: “Arthur Bode works in company that has direct and close relations with members of the Royal Family. So Arthur Bode can be contacted directly by members of the Royal Family (potentially). It is impossible to imagine that Arthur Bode was acting same way if he would make same or similar defamatory statement to member of Royal Family. Specifically that he made such statement without verification, did not make attempt to investigate when he was informed that it’s not true, and did not apologize. So this is clear case of discrimination.” The allegedly defamatory statement was said to have been made during the course of Tribunal proceedings, and thus on its face would be subject to a claim of testimonial or related privilege and is what is known as “follow-on” litigation.

(f) Complaints against Will Davidson LLP (File 2013-14392-I): the Applicant requested a bill of costs from the respondent law firm, which was representing a party adverse in interests to him. The law firm did not comply with this request and the Applicant alleges that this refusal was discrimination against him on the basis of his Russian or eastern European ancestry. In his complaint, the Applicant states “Subject litigation was about object identical to object in property of Royal Family. And issue inside THIS application – regular procedure as per Rules of Civil Procedure. So it’s a BIG question WHY it was done the way it as done.” Again, the applicant describes himself as “I’m white, east-european, man, not noble, from Russia.”

(g) Complaints against Dominion of Canada General Insurance Company (File 2013-14394-I): the Applicant explained his complaint as follows: “There was a Trial on May 2, 2012. Representative of [the respondent], while acting as expert, and as representative of company declined that situation under trial is exception from Commercial General Liability policy (sic). The point is – if situation is exception, [the respondent] would have to pay storage of object of litigation for all period of litigation, as per Ontario Garage Automobile Policy, as per estoppel. As per policy, it was clear that statement of Paul Reed is NOT true. As due to situation, subject of litigation was about object, that is identical to object in property of Royal Family, there is discrimination component on subject activity of representative of [the respondent]. The allegedly discriminatory act is stated by the Applicant to be that “[the respondent] declined to pay compensation applicable to situation.” In explaining why he believes he was discriminated against, the Applicant stated: “Subject of litigation was about object identical to object in property of members of the Royal Family. Reasonable to assume that if Applicant would be member of Royal Family, compensation for storage would be paid…. I’m white, east-european, man, not noble, Russian, from Russia.”

[32] The Tribunal addressed the allegations underlying the Applicant’s complaints in para. 15 of the Decision:

It is hard to quarrel with the applicant’s belief that customer service befitting a Prince is elusive to all but an actual Prince. However, what lies at the root of the many applications filed by this applicant is a fundamental misunderstanding of what constitutes discrimination under the Code. The applicant’s allegations are bereft of any connection between the prohibited grounds he relies on and the conduct allegedly engaged in by the respondents – a critical element in proving discrimination. The applicant assumes this connection exists because he cannot think of any other reason for the alleged conduct on the part of the respondents. However, in order to proceed to a hearing, the applicant must point to evidence which is reasonably available to support these assumptions. See for example Dabic v. Windsor Police Service, 2010 HRTO 1994.

[33] The Tribunal’s analysis and conclusions on this point are reasonable and, indeed, restrained. The applicant imagines a standard of customer service that would be provided to members of the “Royal Family” or a person who is “noble” and then alleges that he has been discriminated against because he has not received service at this imagined standard. These claims trivialize the important protections afforded by the Code and are premised on a supposition that it is the task the Tribunal to enforce the highest standards of customer service to everyone. The factual circumstances of the complaints disclose an Applicant whose sense of entitlement is so expansive that he believes that Audi Canada was required to offer him a seat to wait until police arrived to escort him from the premises as a trespasser after he refused to leave the premises when asked to do so by the lawful occupant. Not one of the situations described by the Applicant is, on its face, linked to his origins in Russia or the fact that he is not a member of the nobility. The only basis for the allegation of discrimination is the Applicant’s subjective belief that his treatment could not be the result of anything other than discrimination. The Tribunal’s jurisprudence is clear that this is not a sufficient basis upon which to proceed with a complaint, and this principle had been brought home to the Applicant in three prior decisions of the Tribunal.

[34] In addition, two of the complaints are “follow on” claims – based on the conduct of an adverse party in litigation in respect to conduct within that litigation. A third – against a law firm – is not in respect to provision of services to the Applicant, and thus is not, in any event, covered by the Human Rights Code – a point that had been the basis of summarily dismissing a prior complaint brought by the Applicant.

[35] The Tribunal’s reasons, on their face, are brief respecting the substance of the Applicant’s complaints. That is because, on their face, the complaints are vexatious. It is not sufficient to allege a failure in customer service or courtesy and then allege nothing more than, subjectively, the complainant cannot imagine any reason why he was treated thus other than discrimination. Protection from discrimination on the basis of ancestry does not ground a right to expect customer service to the standard imagined for “members of the Royal Family” or accorded to “nobles”.

[36] Given the substance of the complaints and the Applicant’s history of prior frivolous complaints: (a) the Tribunal’s decision to dismiss the eight complaints pursuant to Rule 19A.1 (quoted in full below) was reasonable; and (b) the Tribunal’s brief and dismissive reasons were sufficient, and in the context of these cases, appropriate. The disposition was straightforward and obvious, and the Tribunal was entitled to dismiss the complaints summarily, as it did.

Procedural Fairness

[37] The Applicant argues that the process followed was procedurally unfair because it denied him “the right to hear the other side” and the Tribunal conducted itself in a manner giving rise to a reasonable apprehension of bias (Factum, para. 22).

(a) The So-Called “Right to Hear the Other Side”

[38] The substance of the Applicant’s argument on this issue is that he was entitled to disclosure from respondents respecting his complaints prior to the summary hearing before the Tribunal. This is not a “right to hear the other side” but rather a question of disclosure. The extent to which procedural fairness requires disclosure varies, depending on the context of the administrative process. However, this court need not enter into a detailed inquiry of that issue in this case. The Tribunal invoked its process to review the Applicant’s complaints prior to disclosure, a process well established before the Tribunal and analogous to procedures in civil courts pursuant to which claims may be considered for dismissal early in the process [see, for example, Rules of Civil Procedure, R.2.1 (frivolous and vexatious proceedings), R.21 (questions of law) and R.25.11 (improper pleadings)]. One of the goals of these Rules is to dispose of claims that are, on their face, doomed to fail, without first requiring the parties to engage in documentary or oral discovery.

[39] The Tribunal’s Rule 19A provides that the Tribunal may dismiss a complaint at a preliminary stage where the complaint, as pleaded, does not provide a basis for a finding of discrimination under the Human Rights Code. Pursuant to that process, the Applicant was not entitled to production of documents from respondents prior to adjudication of the issues at the summary hearing, unless the Tribunal directed otherwise.

[40] The Applicant argues that the process followed is inconsistent with the Tribunal’s reasoning in Dabic v. Windsor Police Service. I quote at length from Adjudicator Wright’s reasons in Dabic, because they provide such an excellent summary of the Tribunal’s general approach to these issues:

Summary Hearings

Rule 19A deals with Summary Hearings. It came into effect on July 1, 2010, and reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

19A.3 When a party requests that an Application be dismissed pursuant to this Rule, it shall deliver to the other parties and file with the Tribunal a Request for Summary Hearing (Form 26), which includes full argument in support of the Request that the Application be dismissed. The party making the Request shall also deliver to the other parties a copy of the Practice Direction: Summary Hearing Requests.

19A.4 A party may respond to the Request for Summary Hearing by completing Form 11, delivering a copy to all parties and filing it with the Tribunal not later than 14 days after the Request for Summary Hearing was delivered.

19A.5 Upon review of the Request and any Response to the Request, the Tribunal will determine whether to hold a summary hearing on the question of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request.

19A.6 Where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.

The issue before me in determining this Summary Hearing is whether the Application has “a reasonable prospect of success” within the meaning of Rule 19A.1. The Tribunal’s jurisprudence on this question will develop as the standard is applied to different factual situations, and I believe it is not appropriate, at least at this early stage in the application of Rule 19A, to set out a definitive test or standard about the meaning of this phrase. I do make some initial observations about the type of inquiry that may be involved in a summary hearing.

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.[^18]

[41] As reflected in the decision in Dabic, the timing and process followed in respect to a summary hearing may be tailored to the circumstances of the case. Rule 19A.2 is permissive: “The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.” In Dabic, the Tribunal required the respondent to respond to the complaint and to provide initial disclosure. In the case at bar, the Board tailored its directions to the history of each complaint then outstanding. It declined to order production from respondents prior to the summary hearing, without prejudice to the Board presiding at the summary hearing from making such disclosure directions as she considered appropriate.

[42] Notwithstanding this clear pre-hearing direction from the Tribunal, the Applicant was unreasonably persistent in demanding disclosure prior to the summary hearing. His argument was that the motives of the respondents could not be determined without full disclosure of those motives and included in his disclosure requests were escalating claims about the relationship between the “Royal Family” and Audi, and his premise that he would have been treated better if he was a “noble”.

[43] At the hearing the Tribunal decided to inquire into the merits of the Applicant’s complaints prior to deciding whether to order disclosure – which, in effect, denied the Applicant’s request for disclosure prior to a decision on the merits. This was reasonable. This case was not like Dabic and the Tribunal reasonably concluded that respondents should not be put to the time, trouble and expense to respond to the claims or to provide disclosure until the summary hearing had been decided: the purpose of the summary hearing was to decide whether the complaint had sufficient possible merit to justify putting respondents to the time, trouble and expense of litigating the claims beyond the summary hearing.

[44] In Dabic, police arrested the complainant and delivered him to a hospital for psychiatric evaluation, in the context of complaints arising from domestic disputes. The conduct of the respondents in Dabic had an impact on Mr Dabic’s basic civil rights. The basis of the police conduct was, overtly, based on a protected ground under the Code (physical and/or mental disability). In the case at bar, Mr Papouchine imagines that members of the “Royal Family” would be treated more courteously than he was treated by the respondents. He imagines that one reason he was treated discourteously is his heritage as a person from eastern Europe – and the only basis offered for this allegation is that Mr Papouchine cannot imagine any other explanation. In respect to three of the complaints, they are based upon conduct of persons adverse in interest to him in conflict resolution processes (two in court proceedings and one before the Tribunal). Given the very different factual underpinnings, it was reasonable for the Tribunal to require some disclosure from police in Dabic to assess whether the complaint should be disposed of summarily, while the Tribunal did not require a response or any disclosure in respect to Mr Papouchine’s complaints. Distinguishing between Dabic and Mr Papouchine’s complaints was a reasonable exercise of the Tribunal’s discretion under Rule 19A.2 and affords no basis for this court to find procedural unfairness.

(b) The Allegation of Bias

[45] The sole basis offered for the allegation of bias was the manner in which the disclosure issue was handled at the summary hearing. The Tribunal does not give reasons in its disposition of the complaints for proceeding in the way that it did on the disclosure issue at the summary hearing. This was a reasonable way in which to proceed, given the history of the case and the substance of the complaints. First, during case management leading to the summary hearing, the Tribunal had expressly directed that the respondents were not required to respond to the complaints pending decision on the summary hearing. The Tribunal also expressly directed that the Applicant could raise disclosure issues with the Tribunal at the summary hearing. This was not an invitation to re-litigate the procedural direction that the respondents were not required to respond prior to the summary hearing. However, it left two possible issues for the Tribunal at the summary hearing. Of course, if the Tribunal had permitted any of the complaints to proceed, it could have made such directions as it thought appropriate to require a response to continuing complaints, and then production of documents by the parties. Alternatively, it would have been open to the Tribunal to conclude that the summary hearing be adjourned in any complaint for the purposes of disclosure, if the Tribunal concluded that, like in Dabic, some disclosure should be required before adjudicating the issues at the summary hearing.

[46] It is this context that the Applicant alleges that the Tribunal had “made its mind up” before hearing from him on the disclosure issue at the summary hearing. The Tribunal directed him to make his submissions about the viability of his claims without first ordering disclosure.

[47] This structure to oral argument was within the Tribunal’s discretion, in the context of this case, and was not unfair to the Applicant. It was open to the Applicant to argue that his complaints, as pleaded, had sufficient substance to require that disclosure be required before summary dismissal of the claims, as in Dabic.

Conclusion

[48] The Applicant’s complaints appeared frivolous on their face. He was given an opportunity to provide more information about the complaints that could establish a basis for them. The process followed to give him this opportunity was fair. The Tribunal is not required to order disclosure in respect of frivolous complaints as part of the process of determining whether the complaints are frivolous.[^19] The dismissal of the Applicant’s eight complaints was reasonable and the process followed was fair to the Applicant.

Issue 2(a) Finding the Applicant to be a Vexatious Litigant

Applicable Principles

[49] The Tribunal found that it has jurisdiction to prevent abuse of its processes and to find that a person is a vexatious litigant pursuant to s.23(1) of the Statutory Powers Procedure Act, RSO 1990, c. S,22, s.23(1), and Rule 8 of the Social Justice Tribunals of Ontario Common Rules. No challenge is made to these findings on this application and I see no basis upon which to interfere with them.

[50] The Tribunal found that a vexatious litigant order should be made in “exceptional circumstances” generally based on “the frequency and number of applications filed without merit or apparent merit, as well as the conduct of the party” (Decision, para. 20). The Tribunal quoted from Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331, following judicial authority respecting the test for vexatiousness:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.[^20]

The Tribunal then further quoted with approval from Hiamey, para. 28, as follows:

It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. In order to declare the applicant to be a vexatious litigant, I must be satisfied on an objective standard that the applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings.

[51] The applicant did not identify any basis on which this court should intervene with the Tribunal’s statement of the test to find a person to be a vexatious litigant. Jurisprudence in the courts has developed since Fabian and Foy, the decisions relied upon in Hiamey.[^21] Those developments serve to reaffirm the general nature, purpose and test for a vexatious litigant order:

At the core of the court’s jurisdiction under s. 140 of the Courts of Justice and pursuant to its inherent jurisdiction is the discretion to control its process and prevent the abuse of its process. Unchecked, abusive and vexatious proceedings consume scarce resources at the expense of all litigants, including other self-represented litigants who deserve ready access to justice. This is particularly true in this post-Jordan world in which all players in the judicial system, including judges, are obligated to ensure and facilitate more timely access to the courts: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 116.[^22]

These principles apply with equal measure to administrative tribunals, including the Tribunal.

Application of the Principles to the Facts

[52] As of the time of the hearing before the Tribunal, the Applicant had commenced eleven different complaints before the Board. Three had already been dismissed summarily. The eight before the Tribunal were, on their face, frivolous. The complaints involved a wide range of situations and a wide range of different respondents. Following the hearing, the Applicant commenced another nine complaints (the merits of which were not reviewed by the Tribunal and are not before this court). On these facts the Tribunal reasonably concluded that the Applicant had persistently brought frivolous proceedings before the Tribunal and would continue to do so unless restrained by a vexatious litigant order. On the record before the Tribunal, this decision was manifestly reasonable.

Procedural Fairness

[53] The Applicant raises the same procedural fairness arguments for the vexatious litigant finding as he does for the dismissal of his complaints.

Documentary Disclosure

[54] An inquiry into whether a litigant is vexatious does not open the door for that litigant to litigate fully all his allegedly vexatious proceedings.[^23] In the context of the proceedings below, the Applicant was permitted to adduce any evidence, argument or allegations he wished to present to try to establish a connection between his complaints and his allegation that respondents discriminated against him on a ground protected by the Human Rights Code. In respect to the vexatious litigant issue, the Applicant was told that the Tribunal would consider his record as a litigant before the Tribunal. The only documents relied upon by the Tribunal that were not provided to the Tribunal by the Applicant himself were prior Tribunal decisions involving the Applicant. These were provided to the Tribunal by respondents at the time of the hearing. The Applicant objected to these decisions being used against him, without prior disclosure, but the Tribunal ruled that this was not unfair, since the Applicant had prior notice of the decisions and had to be taken to know their contents. (Decision, para. 3). I see no unfairness in this ruling, and the Applicant was unable to point to any additional information or arguments he would have provided to the Tribunal if he had received prior notice of respondents’ reliance on his past litigation history before the Tribunal. Finally, on this point, the Tribunal received and considered written submissions from the Applicant after the oral hearing, and so the Applicant had an opportunity to respond to his past litigation history after the hearing, if he felt “caught by surprise” at the hearing itself.

[55] The Applicant was given prior notice that the Tribunal was considering making a vexatious litigant order against him and was given an opportunity to respond to this issue. I see no unfairness in the process followed.

Summary

[56] The Applicant commenced eleven complaints before the Tribunal that were (a) trivial; (b) were easily explicable on non-discriminatory bases; (c) did not implicate a protected ground in the Human Rights Code; and/or (d) were apparently grounded on the Applicant’s stated subjective belief that he would have been treated better but for his ancestry and place of origin (an Eastern European who is “not a member of the nobility”). Three of these complaints were dismissed summarily prior to the decision under review in this application. On the record before the Tribunal, the Applicant had repeatedly commenced frivolous complaints. In the circumstances, finding the Applicant a vexatious litigant was reasonable.

Disposition and Order

[57] The application is dismissed.

[58] Audi seeks costs of $9,000 on a substantial indemnity basis. I would so order. A litigant who behaves vexatiously in Tribunal proceedings can ordinarily expect to face an award of substantial indemnity costs in this court for pursuing those vexatious proceedings further on judicial review.

[59] The Tribunal does not seek costs.

[60] I would award costs of $1,000 in favour of other respondents appearing on this application. The solicitors for Audi prepared one factum on behalf of all respondents and took the lead for the purposes of oral submissions, but counsel for other respondents attended the hearing to be available in respect to any points that might arise specific to their clients. This was a reasonable way in which to proceed and reduced overall legal costs, and results in a total adverse costs award against the Applicant of $13,000. The Applicant’s solicitor’s Bill of Costs on a partial indemnity basis is $12,000, and so the Applicant must be taken to have reasonably expected to pay at least that same amount in costs where his application for judicial review was brought against six different respondents.

[61] Accordingly, I would order the Applicant to pay the following costs of this application within thirty days (all amounts inclusive):

(a) $9,000 to Audi; and

(b) $1,000 to each of Dominion of Canada, Travel Industry Council, Touram LP, and Arthur Bode.

D.L. Corbett J.

I agree:_______________________________

Stewart J.

I agree:_______________________________

A.D. Kurke J.

Released: December 14, 2022

[^1]: The extraordinarily long delay bringing this application to a hearing in this court was not an issue before us.

[^2]: Human Rights Code, RSO 1990, c. H.19, s.45.8. Section 45.7 of the Code provides for reconsideration of a decision by the Tribunal. Section 21.1 of the Statutory Powers Procedure Act provides that tribunals may correct typographical or arithmetical or similar errors in their decisions.

[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[^4]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008 1 SCR 190.

[^5]: Shaw v. Phipps, 2012 ONCA 155.

[^6]: Empower Simcoe v. JL, 2022 ONSC 5371, para. 20 (Div. Ct.); Ingram v. Human Rights Tribunal of Ontario, 2022 ONSC 3737, paras. 28-30 (Div. Ct.); Nagy v. University of Ottawa, 2022 ONSC 3399, paras. 5-15 (Div. Ct.).

[^7]: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, paras. 46-83 (post-Vavilov); Shaw v. Phipps, 2012 ONCA 155 (pre-Vavilov). See also Briggs v. Durham (Police Services Board), 2022 ONCA 823, paras. 37-38.

[^8]: Briggs v. Durham (Police Services Board), 2022 ONCA 823, para. 39.

[^9]: Baker v. Canada (Ministry of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817; Ontario Provincial Police v. MacDonald, 2009 ONCA 805.

[^10]: Ontario Provincial Police v. MacDonald, 2009 ONCA 805, para. 36, Moreau-Bérubé v. Nouveau-Brunswick, 2002 SCC 11, [2002] 1 S.C.R. 249 at para. 74, per Arbour J.

[^11]: Nagy v. University of Ottawa, 2022 ONSC 3399, para. 13 (Div. Ct.).

[^12]: The first “ground of appeal” sets out this court’s jurisdiction, and the second sets out this court’s legal authority to set aside the decision below.

[^13]: Issue (i) concerned the standard of review in this court, addressed earlier in this court’s decision, and issue (ii) concerned joinder of claims in this court, which was not contested by respondents.

[^14]: Although not listed as a specific ground in the Notice of Application or the statement of issues in the Applicant’s Factum, the production issue grounded many submissions made on the Applicant’s behalf.

[^15]: Turner v. Northview Apartment REIT, 2019 ONSC 2204, paras. 19-20 (Div. Ct.).

[^16]: Files 2012-13045-I, 2013-13807-I, 2013-13808-I, 2013-14024-I, 2013-14025-I, 2013-14392-I, 2013-14394-I, 2013-14733-I.

[^17]: A request that the Tribunal record the teleconference, denial of an adjournment request from the Applicant, and a ruling denying the applicant’s request that respondents be deemed to have accepted the Applicant’s arguments respecting the vexatious litigant issue.

[^18]: Dabic v. Windsor Police Service, 2010 HRTO 1994, paras. 5-10.

[^19]: Peoples Trust Company v. Atas, 2018 ONSC 58, paras. 285-293, aff’d 2019 ONCA 359, leave to appeal to SCC dismissed 2020 29393.

[^20]: Lang Michener Lash Johnston v. Fabian, 1987 172 (ON SC), [1987] OJ No. 355, para. 20 (HCJ), citing Foy v. Foy (No. 2) (1979), 1979 1631 (ON CA), 26 OR (2d) 220 (CA).

[^21]: See, for example, Peoples Trust Company v. Atas, 2019 ONSC 58, paras. 32-49; aff’d 2019 ONCA 359, leave to appeal to SCC dismissed 2020 29393.

[^22]: Peoples Trust Company v. Atas, 2019 ONCA 359, para. 9, leave to appeal to SCC dismissed 2020 29393.

[^23]: Peoples Trust Company v. Atas, 2018 ONSC 58, paras. 285-293, aff’d 2019 ONCA 359, leave to appeal to SCC dismissed 2020 29393.