Court File and Parties
CITATION: Danso v. The Human Rights Tribunal of Ontario et al., 2024 ONSC 1219
DIVISIONAL COURT FILE NO.: DC-23-0003-00
DATE: 20240228
CORRECTED: February 29, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justices E. Stewart, G.W. King and J. Krawchenko JJ
BETWEEN:
Ransford Danso Applicant
– and –
The Human Rights Tribunal of Ontario Respondent
The Regional Municipality of Peel Police Services Board Respondent
Counsel:
Self-Represented
Brian A. Blumenthal, for The Human Rights Tribunal of Ontario
Lauri A. Reesor and Kayley Leon, for The Regional Municipality of Peel Police Services Board
HEARD at Brampton: October 18, 2023 via videoconference
Correction: The name of co-counsel, Kayley Leon, has been added to this corrected version of the Divisional Court Decision. No other edits have been made. This copy replaces any and all other copies.
Reasons for Decision
KING J.
[1] This is an Application for Judicial Review.
[2] The applicant is Ransford Danso (the “Applicant”). He seeks to judicially review two decisions of the Human Rights Tribunal of Ontario (the “HRTO”).
[3] Specifically, he seeks to review the Tribunal Decision dated November 7, 2022 (Danso v. The Regional Municipality of Peel Police Services Board, 2022 HRTO 1331) and a Reconsideration Decision dated December 15, 2022 (Danso v. The Regional Municipality of Peel Police Services Board, 2022 HRTO 1451).
[4] These two decisions were made subsequent to a decision of the Tribunal dated March 1, 2019, whereby the Applicant was declared a vexatious litigant. This decision was made as a result of the filing by the Applicant of three separate Applications between the years 2015 and 2017. All three of those Applications (and Reconsiderations) were dismissed by the HRTO.
[5] There are three main assertions made by the Applicant, as follows:
i. Adjudicator Tamburro’s decision dated November 7, 2022 was unreasonable because of the following:
a) He erred in concluding the Application did not contain the leave Application required because he had been declared a vexatious litigant; and
b) He erred in concluding the Application was a re-statement of previous Applications he had made and that had been dismissed.
ii. He was denied procedural fairness; and
iii. There was bias on the part of both Adjudicator Tamburro on the Application and Adjudicator Borer who decided the Reconsideration Application.
Background
[6] The litigation history in this matter is extensive. I will provide an overview of the litigation history as it is fundamental to an understanding of this current Application.
[7] On March 6, 2015, the Applicant filed an Application with the HRTO (Application #1) pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), as against the Regional Municipality of Peel Police Board (Peel) and another Police Services Board.
[8] The Applicant alleged he was discriminated against by the respondents on the basis of the following prohibited grounds: race, colour, ancestry, place or origin, ethnic origin and sex, as well as reprisal. He alleged unlawful monitoring and aggravated harassment by the respondent, Peel, and another police service. He alleged he was being spied upon through the use of helicopters or other aircraft. He considered this activity to be racial profiling.
[9] By decision dated July 15, 2016, that Application was dismissed by Adjudicator B. Eyolfson, on the basis that there was no reasonable prospect of success. The Adjudicator concluded that the Applicant could not point “to evidence he has, or is reasonably available to him, that would be sufficient to establish that he was subjected to discrimination”: Danso v. Toronto Police Services Board, 2016 HRTO 936, at para. 28.
[10] The Applicant filed a Reconsideration Application with the Tribunal on or about August 10, 2016. He asserted there were new facts that could prove the case, that the original Decision was in conflict with established jurisprudence and procedures, and that the case was of general or public importance.
[11] The Applicant provided documents, including photographic images and details of events. However, Adjudicator L. Letheren determined that this evidence covered events that allegedly occurred after the time period alleged in the initial complaint. In a decision dated August 25, 2016, the Adjudicator determined that the Applicant had not satisfied the provisions of Rule 26.5 of the HRTO Rules of Procedure with respect to seeking Reconsideration. As the test for Reconsideration had not been met, the Request for Reconsideration was denied (Danso v. Toronto Police Services Board, 2016 HRTO 1140).
[12] On April 14, 2016, the Applicant filed a second Application pursuant to s. 34 of the Code alleging the same grounds of discrimination (Application #2).
[13] A preliminary hearing took place to determine if that Application should be dismissed as an abuse of process, or that the matter had been appropriately dealt with in the earlier matter. In a decision dated July 6, 2017, Adjudicator K. Brennenstuhl dismissed the Application on the basis that the Applicant was attempting to re-litigate the first Application and that it would be an abuse of process to allow the Application to proceed (Danso v. The Regional Municipality of Peel Police Services Board, 2017 HRTO 807).
[14] Another Application was filed by the applicant on September 26, 2017 (Application # 3).
[15] This Application differed in that the Applicant added the following grounds of discrimination: provision of goods, services and facilities and disability, along with the same prohibited headings of discrimination as set out in the previous Applications.
[16] A preliminary hearing was held with respect to this Application. At that time, the Applicant asserted the previous Tribunal decisions were unfair and did not deal with the core issue of the “2014 surveillance”. Respondent Peel submitted that, as he was trying to re-litigate matters previously addressed and dismissed, theApplicant should be declared a vexatious litigant. .
[17] In a decision dated March 1, 2019 (Danso v. Regional Municipality of Peel Police Services Board, 2019 HRTO 365) Adjudicator E. Bayefsky found as follows:
[17] In my view, therefore, the factual basis, allegations and legal issues of the present Application have all been appropriately addressed in the Tribunal’s previous proceedings. It would be an abuse of the Tribunal’s process to allow the current Application to proceed.
[18] As well, the Adjudicator determined that the Applicant should be declared a vexatious litigant. Specifically, the Adjudicator concluded as follows:
[23] The applicant persists in bringing Applications on facts and issues already determined by the Tribunal. He has effectively “rolled forward” grounds and issues raised in previous Applications. His prior Applications were found to have no reasonable prospect of success or to be an abuse of process. In his request for reconsideration, the Tribunal found no basis for questioning the Tribunal’s earlier decision dismissing his first Application. The applicant has not instituted the same, or essentially the same, Application.
[24] Significantly, at the preliminary hearing, the applicant maintained that the previous Applications formed an integral part of his current Application. The applicant attempted to challenge the Tribunal’s previous proceedings, as well as the respondent’s conduct, in multiple and voluminous requests and submissions made both before and after the preliminary hearing. I find that these materials are yet further improper attempts by the applicant to pursue the issues of discrimination raised and addressed in the Tribunal’s previous proceedings.
[25] In all of the circumstances, and having regard to the whole history of this matter, I find that the applicant should be declared a vexatious litigant. I further find that the applicant should be required to obtain the permission of the Tribunal to file further Applications against the respondents or their employees.
[19] The Applicant sought to have that decision reconsidered. In doing so, the Applicant filed 50 further single-spaced pages of submissions. By decision dated December 9, 2019, Adjudicator E. Bayefsky noted that the Applicant attempted to challenge the Tribunal’s previous proceedings on this request for re-consideration (Danso v. Regional Municipality of Peel Police Services Board, 2019 HRTO 1581).
[20] The Adjudicator reviewed these submissions and concluded that they were a restatement of the submissions the Applicant had been making throughout. As well, it was stated that “a request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered”: 2019 HRTO 1581, at para. 12. As well, the Applicant did not identify any new facts or evidence that could potentially be determinative of the case and that could not have reasonably been obtained earlier.
[21] The litigation did not end there.
[22] On August 15, 2019, the Applicant made another Application to the Tribunal (Application #4). He specifically alleged discrimination contrary to the Code with respect to goods, services and facilities (police services) and because of race, colour, ancestry, place or origin, citizenship, ethnic origin, disability, sex and association with a person identified by a prohibited ground of discrimination, as well as reprisal.
[23] In a decision dated November 7, 2022 (2022 HRTO 1331), Adjudicator A. Tamburro dismissed the Application. The Adjudicator noted the lengthy history of the Applicant’s filings with the Tribunal. As well, reference was made to the decision of the Tribunal dated March 1, 2019, whereby the Applicant had been declared a vexatious litigant.
[24] As a result of the declaration of the Applicant to be a vexatious litigant, the Adjudicator noted that if the Applicant was seeking leave to file a complaint he was required to do the following:
i. Include with his proposed submissions an explanation why the Application is intended as a legitimate assertion of his Code rights, is not intended to vex or harass the named respondent(s), is not an attempt to re-litigate issues that have been determined and will not result in an abuse of process; and,
ii. Be aware that any proposed Application not meeting the requirements of paragraph (i) will be considered incomplete and will not be processed by the Tribunal.
[25] Adjudicator Tamburro found that the Applicant had made no Application for leave to make the Applications as required.
[26] The Adjudicator also found that although the Tribunal should not have accepted this Application because no request for leave had been made, the Tribunal had inadvertently processed the Application (2019-38409-1).
[27] The Notice of Application was rescinded by the Tribunal on March 31, 2022. The Applicant was given until April 22, 2022, to file leave submissions pursuant to the vexatious litigant order dated March 1, 2019.
[28] By letter dated April 1, 2022, the Applicant responded to the Tribunal with a copy to the respondent, Peel, and stated (in part) as follows:
“… the super and uniquely biased, corrupt, duplicitous, dishonest, hypocritical, dysfunctional, power-abusing, collusion-prone, promise-breaking, evidence-ignoring, justice denying Human Rights Tribunal of Ontario (HRTO) sent me a preposterous, outrageous and heart-stopping letter regarding the Application.”
[29] He alleged the Tribunal and the respondent were acting in collusion. He challenged the decision requiring him to seek leave on the basis of bias, corruption, dishonesty and many other such allegation.
[30] On April 14, 2022, he submitted a further 42 pages of documents.
[31] The Adjudicator dismissed this Application on the basis that the Applicant had not made leave submissions and concluded as follows: 2022 HRTO 1331, at para. 16.
Nowhere in his submissions, however, does the applicant provide a satisfactory explanation as to why the Application is intended as a legitimate assertion of his Code rights, is not intended to vex or harass the respondent, is not an attempt to re-litigate issues that have been determined, and will not result in an abuse of process. Accordingly, the request for leave to file the Application will be denied and the Application will be dismissed.
[32] The decision is one of the two HRTO decisions under review in this Application for Judicial Review. The other decision being judicially reviewed is the Reconsideration decision (2022 HRTO 1451) made on December 15, 2022 by Adjudicator M. Borer.
[33] That request for Reconsideration was filed by the Applicant and was accompanied by a request to amend the initial Reconsideration request. The Adjudicator referenced the principles applicable to Reconsideration requests noting that a Reconsideration is not an appeal or a hearing de novo: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 (Div. Ct.), at para. 17.
[34] Adjudicator Borer rejected the assertion that the Adjudicator was biased and that the decision was wrongly decided.
[35] As well, the Adjudicator concluded as follows:
[T]he applicant has not shown that any compelling and extraordinary circumstances exist which warrant granting reconsideration. I also find that there are no circumstances in this case that outweigh the public interest in the finality of the Decision.
[36] In conclusion, the Adjudicator indicated that the only recourse remining to the Applicant if he believed the decision was wrongly decided was to make an Application to the Divisional Court for judicial review.
[37] The Applicant filed this Application for Judicial Review on July 16, 2023.
Issues
[38] It is not disputed that the appropriate standard of review with respect to the two decisions under review is reasonableness.
[39] The issues can then be summarized as follows:
A. Were the decisions of the HRTO dated November 7, 2022 (2022 HRTO 1331) and December 15, 2022 (2022 HRTO 1451) reasonable?
B. Was the applicant afforded procedural fairness?
C. Is there a reasonable apprehension of bias on the part of Vice- Chair Tamburro?
ANALYSIS
[40] For the reasons that follow, this Application for judicial review is dismissed.
i. Reasonableness
[41] Did the decisions of Adjudicator Tamburro and/or Borer fall within the range of reasonableness?
[42] In order for the court to overturn the decision, the applicant must establish that the decision of the Adjudicator was unreasonable.
[43] The nature of a reasonableness inquiry requires the reviewing court to respect the institutional expertise and experience of the decision-maker. As stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 15, the reviewing court must do the following:
In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.
[44] In Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, the task of this court is delineated, at para. 132:
The only issue on judicial review was whether the vice-chair’s decision fell within the range of reasonable outcomes. On judicial review, it is not enough that the reviewing court be persuaded that one could arrive at a different decision based on the same evidentiary record. To succeed on judicial review in this case, it was necessary to show the tribunal could not reasonably arrive at the decision it did.
[45] On a review of the decision, I am not satisfied the Applicant has established that on the record there was no possible way Adjudicator Tamburro could have arrived at the decision reached. The decision is thorough. The Adjudicator addresses each of the issues raised by the Applicant in a considered manner.
[46] As well, there is no basis for the assertion that Adjudicator Tamburro misapprehended the evidence and reached a conclusion that was not available on the evidentiary record before him. In reaching the conclusion that he did, it was not necessary for the Adjudicator to deal with every aspect of the evidence. The Applicant’s submissions on judicial review amounted to no more than an attempt to go through his version of the evidentiary record and make submissions that his version supported a different conclusion.
[47] While the Applicant clearly has a different view of the evidence, and conclusion that he submits flows from that evidence, it is clear that a different conclusion could reasonably be made on a review of the record by the Adjudicator. That conclusion is entitled to deference.
[48] With respect to other allegations and evidence, the Adjudicator reached a decision that is rationally supported and conducted in accordance with the analytical framework set out in Shaw v. Phipps, 2012 ONCA 155, 289 O.A.C. 163. The Court of Appeal for Ontario described the this analysis at para. 12, as follows
The onus rests on a complainant to establish the prohibited discrimination in accordance with the “prima facie” test. This description of the approach to establish discrimination comes from the decision of the Supreme Court of Canada in Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], which was decided in the context of employment-related discrimination. In that case, the Supreme Court of Canada explained that “[a] prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer” from the person alleged to have discriminated (at 558 [C.H.R.R. § 24782]). This means that the onus lies on the complainant to establish discrimination on the balance of probabilities and that, if the complainant does so, the evidentiary burden shifts to the respondent. See also Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 269 O.A.C. 137 [71 C.H.R.R. D/1].
[49] While it is abundantly clear that the Applicant does not agree with the conclusion reached by Adjudicator Tamburro, that is notthe applicable the test before this court. In my opinion, the record before Adjudicator Tamburro amply supports the decision.
[50] For all these reasons, I have concluded that the Applicant has failed to demonstrate that either the decision dated November 7, 2022 or the Reconsideration decision dated December 15, 2022 were unreasonable.
[51] With respect to the Reconsideration Application, Adjudicator Borer correctly sets out the appropriate test for reconsideration as prescribed in Londau. Reference is also made to the decision of the Divisional Court in James v. York University and Ontario Human Rights Tribunal, 2015 ONSC 2234 (Div. Dt.), 339 O.A.C. 68, at para. 58, where the court states it is reasonable to decline to reconsider the original decision where there are “no compelling and extraordinary circumstances for doing so and there were no circumstances which outweighed the public interest in the finality of order and decisions of the Tribunal.”
[52] Accordingly, this basis for seeking to overturn either of these decisions on the basis of unreasonableness fails.
ii. Was the Applicant afforded procedural fairness?
[53] The Applicant submits that the Adjudicator committed breaches of natural justice that affected the overall procedural fairness in a number of respects.
[54] I reject this submission. There is nothing on the face of the record that demonstrates or infers that the Adjudicator had any pre-conceived view or was biased. As the trier of fact, the Adjudicator reviewed the totality of the evidence.
[55] It is clear that the Applicant was treated fairly in all respects.
[56] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, the Supreme Court stated the following, at para. 22:
Although the duty of [procedural] fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, … the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.
[57] Several factors have been recognized, and enumerated in Baker, that determine what is required to fulfill the duty of procedural fairness. The list of factors in Baker are non-exhaustive, but the five main factors to be considered are: paras. 23-28.
- The nature of the decision being made and the process followed in making it.
- The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
- The importance of the decision to the individual or individuals affected.
- The legitimate expectations of the person challenging the decision.
- The choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
[58] Based on the factors set out in Baker, I am of the opinion that the process of the entire proceeding was fair.
[59] The Vice-Chair addressed the issues in the context of the scheme of the Code.
[60] Having reviewed the voluminous documentation filed on file 2019-38409-1 with respect to both the Application and Reconsideration, I am fully satisfied that the Adjudicator fully and fairly addressed all of the issues raised by the Applicant.
[61] There is not a trace of evidence to support a finding that there was any procedural unfairness.
[62] It is additionally noted that the only reason the matter proceeded to be considered and ultimately dismissed by Adjudicator Tamburro was because of an administrative error by the Tribunal.
[63] This Application should not have been processed by the Tribunal given the failure of the Applicant to properly comply with the order dated March 1, 2019, declaring him to be a vexatious litigant. The Tribunal went out of its way to provide the Applicant with a full right to be heard even though it could have simply refused outright from the filing of the Application to consider same.
[64] In reviewing the factors in Baker, the nature of the decision was taken into account. It was noted that the Applicant required leave because he had been declared a vexatious litigant. The administrative error was corrected by providing the Applicant with a full opportunity to make submissions on the issue of leave.
[65] The decision comparts with the statutory scheme prescribed for Reconsideration applications.
[66] It is a given that the issue was of importance to the Applicant. For that reason, he was provided an opportunity to make proper leave submissions.
[67] That the Applicant chose to ignore that invitation and yet again attempt to re-state his case does not give rise to an issue of procedural unfairness.
[68] This accounts for the expectations of the Tribunal that the Applicant would follow the procedure to have a matter considered for leave in essence, the refusal of the Applicant to accept that his first three Applications had failed and he had been declared a vexatious litigant does not support a suggestion of procedural unfairness in circumstances where the Tribunal has clear authority to determine its own procedure.
[69] As set out in Baker at para. 27, it is noted that:
Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedures made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, in the circumstances: Brown and Evans, supra, at pp. 7-60 to 7-70. While this of course is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: I.W.A. v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282 per Gonthier J.
[70] For these reasons, I have concluded that the Applicant has not established that there was any procedural unfairness in this matter. I would not give effect to that ground of review.
iii. Is there a reasonable apprehension of bias on the part of Adjudicator Tamburro?
[71] The Applicant submits Adjudicator Tamburro was biased against him.
[72] I disagree.
[73] In his factum, he makes numerous statements that claim Adjudicator Tamburro was biased, however, beyond his numerous assertions of bias, he provides no cogent or provable claim or basis for those statements.
[74] Counsel for the HRTO properly submits that in order to find grounds for concluding bias, or a reasonable apprehension of bias, the Applicant must rebut a strong presumption of impartiality. Such an inquiry must be highly fact-specific and the inquiry contextual (See Hazelton Lanes at paras. 58-65).
[75] In Beard Winter LLP v. Shekhdar, 2016 ONCA 493, at para. 10, the court stated:
In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.
[76] In reading the decision, it was up to the Adjudicator to control the process before the Tribunal and interpret the evidence. A decision contrary to the claim of a party is not, in and of itself, sufficient to rebut the strong presumption of impartiality and neutrality: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 (Div. Ct.).
[77] As stated in Moore v. The Estate of Lou Ferro et al., 2022 ONSC 1343 (Div. Ct.), at para. 76, cogent evidence is required to rebut this presumption.
[78] The grounds for finding bias or a reasonable apprehension of bias must be substantial and require cogent evidence to rebut the strong presumption of impartiality: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, at paras. 58–65.
[79] No such cogent evidence is apparent in this matter. The Adjudicator conducted a thorough and balanced assessment. He made the necessary factual conclusions on the totality of the evidence. Additionally, the Applicant submits that his Reconsideration Application was decided by another Adjudicator (M. Borer) because the Tribunal knew Adjudicator Tamburro was biased.
[80] There is no requirement in Rule 26 of the Code that mandates or directs that any Reconsideration Application must be heard by the same Adjudicator.
[81] The Rule only speaks to the “The Tribunal” considering a Reconsideration Application.
[82] For all of these reasons, I have concluded that the Applicant’s submission that the decisions should be overturned on the basis of bias must fail.
CONCLUSION
[83] For all of the foregoing reasons, the Application for Judicial Review of HRTO decisions 2022 HRTO 1331 and 2022 HRTO 1451 are dismissed.
COSTS
[84] The Respondents do not seek costs. Accordingly, there will be no order as to costs.
George W. King Justice
I agree, E. Stewart Justice
I agree, J. Krawchevko Justice
Date: February 28, 2024 CORRECTED: February 29, 2024
CITATION: Danso v. The Human Rights Tribunal of Ontario et al., 2024 ONSC 1219
DIVISIONAL COURT FILE NO.: DC-23-0003-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justices E. Stewart, G.W. King and J. Krawchevko
BETWEEN:
Ransford Danso
– and –
The Human Rights Tribunal of Ontario, The Regional Municipality of Peel Police Services Board
Released: February 28, 2024
Corrected: February 29, 2024