Court File and Parties
CITATION: Leitch v. Human Rights Tribunal of Ontario, 2024 ONSC 7128
DIVISIONAL COURT FILE NO.: 081/23
DATE: 20241220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McSweeney, Davies, Shore JJ.
BETWEEN:
Valerie Leitch
Applicant
– and –
His Majesty the King in Right of Ontario, as represented by the Ministry of Social Services
Respondent
– and –
Bethesda Community Services Inc., Paul McGowan, Shelley Mercer, Carrie Adewumi, Joyce Fretz, Janine Williams, Brent Landry, Erin Judd, Dinesh Siva and Michele Martin
Respondents
– and –
Niagara North Condominium Corporation No. 69, The Board of Directors Niagara North Condominium Corporation No. 69, Shabri Properties Ltd., Kathleen Elliott, Susan Andersen, Marion Wright, Rachel Alexander, Carolyn Toth, Maureen Denney, Donna Kittel, Laurie Sadowski, Thomas Bell
Respondents
– and –
Human Rights Tribunal of Ontario
Respondent
Wade Poziomka and Ashley Wilson, for the Applicant
Mimi Singh, for His Majesty the King
Jiku Elamathail, for Bethesda Community Service Inc. et al.
Navjot Dhaliwal, Counsel for Niagara North Condominium Corporation No. 69 et al.
Maija-lisa Robinson, for the Human Rights Tribunal of Ontario
HEARD at Toronto: November 20, 2024
Reasons for Decision
By the Court
1. Overview
[1] Between January 2019 and June 2022, Ms. Leitch filed more than 160 applications with the Human Rights Tribunal of Ontario on her own behalf or on behalf of others. The Tribunal reviewed approximately half her applications and found many were incomplete or lacked any particulars of the discrimination she was alleging.
[2] On June 7, 2022, Vice-Chair Dawson issued a Case Assessment Direction ordering a preliminary hearing on two issues: (i) whether Ms. Leitch’s applications should be dismissed as abuses of process, and (ii) whether Ms. Leitch should be declared a vexatious litigant. Vice-Chair Dawson also prohibited Ms. Leitch from filing any new applications until a decision was made on these two issues.
[3] Vice-Chair Dawson held a hearing on the two preliminary issues on October 19, 2022.
[4] On January 9, 2023, Vice-Chair Dawson found that Ms. Leitch was a vexatious litigant but did not dismiss any of her claims as an abuse of process. Ms. Leitch was given 45 days to seek leave to continue any of her 155 open applications. If Ms. Leitch wanted to continue an application, she was required to file (i) any information required to complete the application, and (ii) written submissions explaining why the application is a legitimate assertion of her rights and not an abuse of process.
[5] Ms. Leitch sought a reconsideration of Vice-Chair Dawson’s decision, which was dismissed on May 23, 2023.
[6] Ms. Leitch now seeks judicial review of the Tribunal’s decision declaring her a vexatious litigant. Ms. Leitch argues that the hearing before the Tribunal was procedurally unfair. Ms. Leitch also argues the Tribunal’s decision is unreasonable.
[7] For the following reasons, the application for judicial review is dismissed.
1. Admissibility of new evidence
[8] Ms. Leitch brought a motion to adduce two affidavits in support of her argument that the hearing below was unfair: an affidavit from Ms. Leitch which contained a recording she made of the October 19, 2022 hearing and an affidavit from the lawyer who acted for her at the hearing (not the lawyer who appeared on the judicial review application).
[9] All the Respondents oppose the admission of Ms. Leitch’s affidavit because she recorded the hearing surreptitiously contrary to the Tribunal’s practice direction. The Respondents also oppose the admission of counsel’s affidavit.
[10] A party can supplement the record on a judicial review if the new evidence is necessary to show an absence of evidence on an essential point, or to establish a breach of natural justice that is not evident from the record of the proceedings below: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.). Ms. Leitch argues the affidavits and recording are admissible because they show she was denied procedural fairness at the hearing before Vice-Chair Dawson.
[11] Ms. Leitch recorded the October 19, 2022 hearing before Vice-Chair Dawson herself. Ms. Leitch’s lawyer did not know she was recording the hearing at the time. She did not tell him she made the recording until after the reconsideration decision was released and after she filed her application for judicial review.
[12] In 2022, the Tribunal did not record all its hearings. The Tribunal’s practice direction said that the Tribunal would, in appropriate cases, record its proceedings as a form of accommodation. A party who wanted the Tribunal to record the proceedings as a form of accommodation was required to make that request in writing. A party could also ask the Tribunal for permission to make their own recording of the proceedings. The practice direction stated that if a party was given permission to make a recording, the recording would not form part of the record of proceedings and could not be used for any purpose other than in the proceedings before the Tribunal.
[13] Ms. Leitch did not ask for permission to record the hearing. In her affidavit, Ms. Leitch explained she recorded the proceedings as a form of “self-accommodation.” She also stated that she did not know she needed to ask permission to record the proceedings.
[14] While not determinative, the fact that Ms. Leitch recorded the hearing without permission is a relevant factor on her motion to adduce new evidence. Parties are expected to know and follow the Tribunal’s rules and practice directions. Ms. Leitch clearly knew she could seek accommodations from the Tribunal. Her lawyer filed a pre-hearing motion asking for accommodations for Ms. Leitch during the hearing. Ms. Leitch should have discussed her desire to record the hearing with her lawyer so he could have sought permission on her behalf.
[15] Having said that, we are of the view that Ms. Leitch’s affidavit and the recording of the hearing is admissible. Many of the issues Ms. Leitch raises in relation to the fairness of the hearing are not evident from the written record of the hearing or from Vice-Chair Dawson’s reasons.
[16] Counsel’s affidavit is not, however, admissible. Once the recording is admitted, his affidavit is unnecessary. All the issues Ms. Leitch raises in relation to the fairness of the hearnig are evident in the recording and the Court does not need counsel’s commentary on what transpired in the hearing to assess Ms. Leitch’s arguments.
C. Fairness of the Hearing
[17] Ms. Leitch was entitled to a fair hearing before the Tribunal. What is required for a fair hearing is flexible, variable and context specific: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817. When deciding whether the proceedings below were procedurally fair, we must consider the nature of the decision being made and the process followed in making it, the nature of the statutory scheme, the importance of the decision to Ms. Leitch, and the choice of procedure selected by the administrative tribunal.
[18] The decision under review is Vice-Chair Dawson’s decision to declare Ms. Leitch a vexatious litigant. As Vice-Chair Dawson recognized, being declared a vexatious litigant is a very serious matter. It has the effect of limiting Ms. Leitch’s access to the adjudicative process before the Tribunal. The Supreme Court of Canada has recognized that human rights legislation, “is often the final refuge of the disadvantaged and the disenfranchised” and “the last protection of the most vulnerable members of society”: Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 67 (SCC), [1992] 2 S.C.R. 321 at 339.
[19] Having said that, the Tribunal did not on rule on whether any of Ms. Leitch’s applications should be dismissed as an abuse of process. Ms. Leitch has been given an opportunity to make further written submissions on that issue in relation to each of her outstanding applications.
[20] We are satisfied the process adopted by the Tribunal was fair for the following reasons.
[21] First, Ms. Leitch was given notice that the Tribunal was considering declaring her a vexatious litigant and dismissing her claims as an abuse of process. The June 8, 2022 Case Assessment Direction (“CAD”) included the Tribunal’s rule on finding someone to be a vexatious litigant. The CAD also set out the factors the Tribunal would be considering when deciding whether to declare Ms. Leitch a vexatious litigant. Finally, the CAD contained a list of relevant cases.
[22] Second, Ms. Leitch was given ample time to prepare. The hearing was scheduled four months after the CAD was issued.
[23] Third, Ms. Leitch was given an opportunity to file relevant materials. The CAD set a timetable for the delivery of witness statements and any other documents the parties wanted to rely on at the hearing. The CAD also set a deadline for the parties to provide a list cases they intend to refer to during the hearing at least 14 days before the hearing. Counsel for Ms. Leitch requested an eight-week extension of time to file relevant documents and witness summaries, which was granted. Her lawyer filed an extensive evidentiary record on the motion and filed a list of cases on which he intended to rely.
[24] Ms. Leitch argues the hearing was unfair because Vice-Chair Dawson did not allow her lawyer to file additional written submissions after the hearing. We do not agree. The respondents served and filed written submissions before the hearing. Ms. Leitch argues that the CAD did not include a reference to written submissions so her lawyer did not think they were permitted. Counsel for Ms. Leitch did not seek directions from the Tribunal about whether written submissions would be accepted. Nor did he object to Vice-Chair Dawson considering the respondents’ written submissions. It was not unfair for Vice-Chair Dawson not to allow written submissions after the hearing when counsel for Ms. Leitch chose not to file written submissions in advance.
[25] Fourth, Vice-Chair Dawson granted Ms. Leitch’s request for accommodation during the hearing. She was given extra breaks during the hearing as requested.
[26] Fifth, Ms. Leitch was given a fair opportunity to be heard and to present her case. The parties knew in advance the hearing was scheduled for three hours. Vice-Chair Dawson noted at the start of the hearing that time would be tight so she would be directing the parties in their submissions. Vice-Chair Dawson was entitled to control the process by limiting the time afforded to each party to ensure the hearing was completed within the time allotted. Vice-Chair Dawson had authority to direct the order in which the evidence was presented and to ask counsel to focus the evidence and submissions on certain issues: Human Rights Tribunal, Rules of Procedure, R. 1.7(j) and R. 1.7(n). By doing so, Vice-Chair Dawson did not breach Ms. Leitch’s right to procedural fairness.
[27] Ms. Leitch testified for close to 45 minutes of the three hours set aside for the hearing. She testified about her disabilities and how her disabilities impacted her daily life and her ability to complete her applications before the Tribunal.
[28] We do not agree with Ms. Leitch’s submission that her lawyer was not given an opportunity to make full submissions on her behalf. Ms. Leitch asked for a 10 minute break each hour as a form of accommodation. Her request was granted and Vice-Chair took two 10-minute breaks during the hearing. As a result, the total hearing time was two hours and 40 minutes. After Ms. Leitch’s testimony, less than two hours were left for submissions and administrative matters. Vice-Chair Dawson spent the first 15 minutes of the hearing dealing with administrative matters, including confirming that she had all the materials the parties had submitted. Of the remaining time – which was approximately an hour and 40 minutes – counsel for Ms. Leitch was given close to 40 minutes to make submissions. Vice-Chair Dawson interjected with comments and questions and attempted to focus Ms. Leitch’s counsel on the legal test to be applied on a vexatious litigant motion. None of the Vice-Chair’s interjections were unfair.
[29] The fact that Ms. Leitch’s counsel did not get to say everything he wanted to say in the 40 minutes he was given does not render the hearing unfair. There were three sets of respondents at the hearing who were also entitled to an opportunity to be heard. Counsel are expected to prepare their submissions to fit within the time they are allotted during the hearing and cannot expect the Tribunal to schedule additional time. We are satisfied that Ms. Leitch, through her counsel, was given a reasonable opportunity to adduce evidence and make submissions.
[30] Ms. Leitch argues the hearing was unfair because Vice-Chair Dawson “shouted down” her lawyer. Vice-Chair Dawson did raise her voice with Ms. Leitch’s lawyer once during the hearing when counsel continued to speak after his time had expired and after Vice-Chair Dawson asked him to stop. That did not, however, render the hearing unfair. Vice-Chair Dawson raised her voice to stop counsel from speaking over her and to get counsel to follow her direction.
[31] Ms. Leitch also complains that the hearing was unfair because she was precluded from adducing evidence or making submissions on the merits of each of her applications. Some of the respondents did comment on the merits of some of Ms. Leitch’s applications during the hearing. It was not feasible for Ms. Leitch’s counsel to address the merits of all 155 applications during a three-hour hearing. However, there was no unfairness because Ms. Leitch was given an opportunity to make further submissions on the merits of her applications before any of them were stayed or dismissed. Vice-Chair Dawson gave Ms. Leitch 45 days to make submissions on the merits of any application she wanted to continue before a decision would be made about whether they would be dismissed as an abuse of process.
[32] Ms. Leitch also argues the 45-day deadline imposed by Vice-Chair Dawson for her to complete the applications she wants to pursue and to make written submissions on their merits was unreasonable given her disabilities. We do not agree. Ms. Leitch had counsel on the motion. Given the arguments made on this application, Ms. Leitch’s counsel was prepared to and wanted to address the merits of each application at the hearing. After Vice-Chair Dawson’s ruling was released, counsel could have helped Ms. Leitch identify which applications she wanted to pursue. Counsel could have also proposed a method for consolidating complaints that dealt with similar issues so they could be address by the Tribunal together. It was not unreasonable for the Tribunal to impose a strict deadline for Ms. Leitch to complete any application she wished to pursue given the volume of outstanding applications and Ms. Leitch’s history of not complying with the Tribunal’s directions to file required materials. The Tribunal has finite resources and it is entitled to make orders that will ensure its resources are allocated fairly, effectively and efficiently.
[33] We find the hearing was procedurally fair.
1. Reasonableness of the Ruling
[34] Ms. Leitch argues the Tribunal’s decision to declare her a vexatious litigant was unreasonable for three reasons. First, she argues Vice-Chair Dawson relied on evidence that was not adduced during the hearing. Second, she argues Vice-Chair Dawson relied on inadmissible evidence from her doctor. Third, she argues Vice-Chair Dawson adopted an unreasonably rigid and technical approach to determining whether she is a vexatious litigant.
[35] We would not give effect to any of these arguments.
[36] Ms. Leitch argues that Vice-Chair Dawson erred in considering the fact that she filed a new application in violation of the terms of the CAD. The CAD said that Ms. Leitch was not permitted to file any other applications until the vexatious litigant issue was resolved. Ms. Leitch filed another application after the CAD was issued but before the vexatious litigant motion was heard. Vice-Chair Dawson considered the fact that Ms. Leitch failed to comply with the CAD. She wrote:
Even in the context of this preliminary hearing, the applicant failed to abide by the Tribunal’s direction not to file new applications until this decision was issued. The applicant’s inability to resist filing more applications, even in the face of the Tribunal’s direction not to, is a hallmark of vexatious litigants and a clear abuse of process. Her behaviour suggests that she is ungovernable and causes me to question whether she is willing to change her behaviour in the future.
[37] Ms. Leitch argues that it was unfair for Vice-Chair Dawson to rely on the fact she filed an application in contravention of the CAD without giving her an opportunity to make submissions on that issue. Ms. Leitch argues that had she been given an opportunity to make submissions, she would have noted that the application had to be filed before the vexatious litigant hearing because of an impending limitation period. She would have also noted that the new application was filed on her behalf by counsel and included a cover letter explaining why it was being filed despite the direction in the CAD.
[38] We are of the view that Vice-Chair Dawson was entitled to consider the fact that Ms. Leitch filed another application in violation of the CAD. The new application was part of the Tribunal’s own records. If there was a limitation period looming, Ms. Leitch (or her counsel) should have brought a motion before Vice-Chair Dawson asking her to vary the CAD to allow her to file a new application because of a pending limitation period. Vice-Chair Dawson was entitled to consider whether Ms. Leitch had complied with other directions and orders from the Tribunal, including the CAD, when deciding whether to declare her a vexatious litigant.
[39] Ms. Leitch argues that Vice-Chair Dawson’s decision was unreasonable because she considered that Ms. Leitch had threatened to file a Human Rights Complaint against her doctor. Ms. Leitch argues that the doctor’s notes were not properly before Vice-Chair Dawson. I disagree. The medical notes were in the documents submitted by Ms. Leitch. Counsel for one of the respondents took Vice-Chair Dawson to the notes during submissions. Vice-Chair Dawson confirmed she had a copy of the notes in the materials Ms. Leitch submitted.
[40] The Human Rights Tribunal is entitled to admit into evidence any oral testimony or document relevant to the subject-matter of the procedings whether or not it is proven under oath or admissible as evidence in court: Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 15. Vice-Chair Dawson was, therefore, entitled to rely on relevant information in the medical records Ms. Leitch filed even though the doctor did not testify.
[41] Canadian courts have identified several factors that are relevant when deciding whether a party is a vexatious litigant, including the number of proceedings initiated, lack of diligence in pursuing claims and whether proceedings are initiated for the purpose of harassing other parties: Re Lang Michener and Fabian, 1987 172 (ON SC), Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720. The evidence about Ms. Leitch threatening to file a human rights complaint against her doctor and the staff at her doctor’s office was relevant. It was open to Vice-Chair Dawson to rely on that evidence as a piece of circumstantial evidence when deciding whether her applications were designed to harrass or vex the respondents.
[42] Finally, Ms. Leitch argues that Vice-Chair Dawson took an unreasonably rigid and technical approach to determining whether she is a vexatious litigant. We do not agree.
[43] Vice-Chair Dawson applied the proper legal test for determining whether Ms. Leitch is a vexatious litigant. Vice-Chair Dawson set out the factors she considered in deciding Ms. Leitch is a vexatious litigant. For example, the Vice-Chair Dawson considered the number of applications Ms. Leitch has filed, and the fact that many of her applications are incomplete or contain no particulars of the alleged discrimination. Vice-Chair Dawson considered Ms. Leitch’s pattern of filing incomplete applications, failing to file necessary materials, withdrawing applications and filing new applications. Vice-Chair Dawson considered the opportunities Ms. Leitch had been given to complete the files and her failure to do so. Vice-Chair Dawson considered Ms. Leitch’s evidence about why she had not completed the applications. Vice-Chair Dawson found that Ms. Leitch’s intent was “not solely to advance valid claims, but at least in part to harass or vex the respondents.” That finding was open to Vice-Chair Dawson on the evidence before her.
[44] The decision to declare Ms. Leitch a vexatious litigant was reasonable.
E. Conclusion and costs
[45] Ms. Leitch’s application for judicial review is dismissed.
[46] No party is seeking costs and no costs order is made.
___________________________ McSweeney J.
Davies J.
Shore J.
Date: December 20, 2024
CITATION: Leitch v. Human Rights Tribunal of Ontario, 2024 ONSC 7128
DIVISIONAL COURT FILE NO.: 081/23
DATE: 20241220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McSweeney, Davies, Shore JJ.
BETWEEN:
Valerie Leitch
Applicant
– and –
His Majesty the King in Right of Ontario, as represented by the Ministry of Social Services, Bethesda Community Services Inc., Paul McGowan, Shelley Mercer, Carrie Adewumi, Joyce Fretz, Janine Williams, Brent Landry, Erin Judd, Dinesh Siva, Michele Martin, Niagara North Condominium Corporation No. 69, The Board of Directors Niagara North Condominium Corporation No. 69, Shabri Properties Ltd., Kathleen Elliott, Susan Andersen, Marion Wright, Rachel Alexander, Carolyn Toth, Maureen Denney, Donna Kittel, Laurie Sadowski, Thomas Bell, and Human Rights Tribunal of Ontario
Respondents
REASONS FOR JUDGMENT
BY THE COURT
Date of Release: December 20, 2024