CITATION: Carby-Samuels v. Carby-Samuels II, 2017 ONSC 6834
COURT FILE NO.: 17-71624
DATE: 2017/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Horace R. Carby-Samuels Applicant
– and –
Raymond Carby-Samuels II Respondent
John E. Summers, for the Applicant
Self-represented
HEARD: August 14, 2017
REASONS FOR DECISION
corthorn, j.
Overview
[1] The term “vexatious litigant” is frequently used, yet it is not defined in the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). The CJA refers to “vexatious proceedings” and provides for relief from such proceedings, the latter where the requisite criteria are met (section 140 (1)).
[2] By definition, the word, “vexatious” means “causing or tending to cause annoyance, frustration, or worry”.[^1] A proceeding is said to be vexatious “when the party bringing it is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result”.[^2]
[3] The parties to this application are father (the applicant, “Horace”) and son (the respondent, “Raymond”). Dezrin Carby-Samuels (“Dezrin”) is Horace’s wife and Raymond’s mother. At the heart of this application is the disagreement between Horace and Raymond with respect to Dezrin’s care as her condition declines with age.
[4] Raymond is vehement in his concerns for his mother’s well-being. The unfortunate result of that vehemence is that:
• In 2015, Raymond, who was in his 40’s at the time, was removed by the police from his rent-free accommodation in his parents’ home;
• Raymond is no longer permitted to see or visit with his mother. The most recent visits deteriorated in quality and became disruptive and upsetting for one or both of Dezrin and Horace;
• In an effort to be permitted to visit with his mother, Raymond has pursued a multitude of proceedings in this court, Small Claims Court, and the Federal Court of Canada; and
• Raymond is pursuing three Small Claims Court actions against a number of members of the Ottawa Police Service (“OPS”) and the OPS itself, arising from their respective involvement with the Carby-Samuels family.
[5] It is difficult to conclude that Raymond brought any one or more of the proceedings while lacking bona fides, because he wishes to annoy or embarrass his father, or without the hope of any practical result. Raymond has appeared before me a number of times—including for the purpose of this application and on a motion for summary judgment in a related action. I have no doubt that Raymond is well-intentioned in his concern for and the efforts made to see his mother.
[6] The dispute between Raymond and his father is of a very personal nature. It stems from the human desire of a son to visit with and assist in the care of his ageing mother. At its basic level, Raymond’s motivation is genuine. The outcome of this application, however, turns on more than Raymond’s motivation. The outcome turns on the principles established by the case law. Those principles are broader in scope than a dictionary definition of “vexatious proceeding”.
Background
[7] Horace and Dezrin have been married for approximately 60 years. They are 84 and 85 years old, respectively. They have two adult children: their son Raymond (who is in his late 40’s or early 50’s) and their daughter Marcella (whose age is unknown, but who is an adult).
[8] The majority of the events upon which Horace relies in support of this application occurred in 2015, 2016, or 2017. A chronology of the events is set out below:
Apr. 18/15 - Raymond is removed by the police from his parents’ home. Up to that date, Raymond had resided in his parents’ home on a rent-free basis.
Apr. 25/15 - The police are called to the parents’ home. It is the fifth call to the home arising from disputes between Raymond and Horace. Dezrin is observed by the police and no concerns for her well-being are identified.
Jun. 26/15 - Raymond commences a Small Claims Court action (15-SC-136128) against Robert Griffin, Isabelle Coady, and the OPS. Griffin is identified as an officer, and Coady as a detective, with the OPS. Raymond seeks damages in the amount of $20,000.
The allegations against Griffin include that he is a “rogue cop” or a “dirty cop”, he is acting as a “mercenary” for Raymond’s sister (Marcella, who lives in Sweden), and his conduct is in breach of Raymond’s rights under the Charter of Rights and Freedoms. The allegations against Detective Coady are that she has lied to Raymond about a number of matters. The allegations against the OPS include that they are “generally frustrating [Raymond’s] access” to his personal belongings.
The substantive allegations conclude with the following sentence: “I have not been able to take care of my own Mom for weeks and have not had dinner with my own Mom thanks to the apparent illegal / psychotic activities of Mr. Griffin.”
Jun. 30/15 - Raymond commences a Small Claims Court action (15-SC-136187) against Scott Fenton, a member of the OPS. Raymond claims $25,000 in damages for conspiracy, misuse of public office, and intimidation—all arising from the officer’s involvement in the dispute between Raymond and his father. The allegations focus on Raymond’s inability to see and provide care for his mother.
Jul. 8/15 - Raymond commences an action in the Federal Court (T-1143-15). The defendants are five police officers, including Robert Griffin Jr. and Isabelle Coady, and the “Ottawa Police”. Dezrin is named as a plaintiff in the action. The pleading is signed by Raymond, but not by Dezrin.
The 13 bases upon which Raymond (and Dezrin) seeks declaratory and other relief include that the defendants (a) placed Dezrin in harm’s way, (b) failed to ensure Dezrin’s clinical and mental health, and (c) “used the Ottawa Police as a front for a de facto quasi-terrorist organization, ‘society’, fraternal lodge, or clique based upon an apparent fascist or neo-Nazi ideology and/or terrorist activity”. The damages claimed are in excess of $49,000.
Jul. 10/15 - Acting on information provided by Raymond, members of the OPS attend at the Carby-Samuels’ residence, in execution of a Form 2 under the Mental Health Act, R.S.O. 1990, c. M.7. The officers transport Horace to a hospital for an assessment. The assessors conclude there are no grounds to admit Horace. The police officers return Horace to his home.
Jul. 13/15 - Raymond commences a Small Claims Court action (15-SC-136436) against OPS officer Robert Griffen [sic]. Raymond refers to the officer as “rogue”. Raymond seeks damages ($15,000) based on allegations that on July 11, 2015 he was stalked by the officer in follow up to the Mental Health Act assessment conducted of Horace.
Nov. 16/15 - Raymond commences a Small Claims Court action (15-SC-138297). The defendants are Horace and Marcella. Raymond seeks $25,000 in damages and the ability to see his mother. The allegations include conspiracy to prevent Raymond from seeing Dezrin. The substantive allegations conclude with the following paragraph:
The Plaintiff has not seen his own Mom since 12 June 2015, thanks to the unlawful activities of the Defendants and their operatives. The Plaintiff could not even wish his own Mom a happy birthday on 21 August 2015 because of the malicious and self-serving ego driven torts of the defendants.
Nov. 26/15 - Pursuant to a motion made in writing, and with Raymond’s request for an oral hearing denied, the Federal Court action is dismissed because the claims made are not within the jurisdiction of the court. No order is made as to costs.
Dec. 4/15 - Raymond commences an action in the Superior Court of Justice (15-66772 and “the Action”). Horace is the sole defendant. Raymond seeks relief in the form of an order granting him access to his mother.
Dec. 18/15 - Raymond’s motion in the Superior Court of Justice is heard by Justice Roger. The motion is effectively for an order granting Raymond interim access to his mother. Justice Roger notes that (a) there is no evidence that Dezrin is incapable, and (b) she is not a party to the Action. Justice Roger questions the jurisdiction of the court to grant the relief sought. As per the handwritten endorsement, “No order [is] made” and Raymond is directed to seek legal assistance.
Feb. 5/16 - The Small Claims Court action (15-SC-138297) in which Horace and Marcella are named as defendants is stayed pending further order of the court. Raymond is ordered to pay $300 in costs to Horace within 30 days.
Feb. 11/16 - Raymond is granted default judgment in the Action. He is awarded damages of $25,000. Horace is ordered to facilitate Raymond having access to his mother on a daily basis.
Jun. 7/16 - Horace’s motion for an order setting aside the default judgment is heard by Regional Senior Justice McNamara. Heard at the same time are two motions by Raymond. The motions are for an order (a) finding Horace in contempt for failing to comply with the default judgment, and (b) appointing Raymond as guardian of personal care for Dezrin.
Jun. 8/16 - Regional Senior Justice McNamara releases his decision on the motions heard the previous day. The default judgment is set aside. Horace therefore cannot be found in contempt of the default judgment. The request for a guardianship order is dismissed. Raymond is reminded that there is no evidence that his mother is incapable of personal care. It is again recommended that Raymond seek legal advice.
Jun.-Jul./16 - Raymond delivers materials for a motion for leave to appeal the order of Regional Senior Justice McNamara. The grounds identified in support of the motion have nothing to do with the substantive decision. The grounds highlight Horace’s alleged contempt of the default judgment. The motion for leave to appeal is addressed in writing and dismissed by Justice Roger.
Aug. 10/16 - At a Small Claims Court settlement conference, the three actions involving the OPS or its members are (a) consolidated, and (b) stayed pending a final determination of the Action.
Sept. 21/16 - Raymond seeks leave to appeal the decision of Justice Roger (i.e. denying leave to appeal the decision of Regional Senior Justice McNamara). In support of the motion, Raymond includes as an exhibit to his affidavit a copy of his letter of complaint to the Ontario Judicial Council regarding Justice Roger and Regional Senior Justice McNamara. He alleges, amongst other things, that they colluded when dealing with the Action.
May 8/17 - Justice Beaudoin dismisses Raymond’s request, pursuant to rule 2.1 of the Rules of Civil Procedure, to have Horace’s motion for summary judgment in the Action dismissed.
May 25/17 - Justice Beaudoin dismisses Raymond’s request pursuant to rule 2.1 to have this application dismissed.
[9] This application was originally scheduled to be heard in May 2017. It was adjourned to a date in June 2017 so that the motion for summary judgment in the Action could be argued at the same time.
[10] The application and motion for summary judgment were both scheduled to be heard on June 21, 2017 and came before me. Because of time constraints, the two matters could not be heard that day. They were both adjourned to and argued on August 14, 2017.
[11] At the conclusion of argument on this application and the summary judgment motion, Raymond informed the court that he intended to pursue a motion on an urgent basis. The motion (in the Action) was for an order granting him access to his mother. For a number of reasons, I endorsed the summary judgment motion record (in the Action) to the effect that Raymond required leave of the court to bring a motion on an urgent basis. In September, I heard Raymond’s motion for leave to bring an urgent motion. The motion for leave was dismissed; my endorsement on the motion was released to the parties but not published.
[12] Subsequent to the release of my endorsement denying Raymond leave to bring an urgent motion, Raymond corresponded with the court to request that I immediately recuse myself from determining this application and the motion for summary judgment in the Action. Raymond was directed to (a) cease communicating with the court in writing, and (b) proceed with a motion before me for the relief requested. As of the date of these Reasons, I am not aware of the court receiving any materials for a recusal motion.
Issues
[13] The relief sought by Horace pursuant to section 140 (1) of the CJA raises two issues:
Has Raymond persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner?
If the answer to the first question is “yes”, is an order to be made precluding Raymond from instituting a further proceeding in any court or continuing a previously instituted proceeding in any court, without leave of a judge of the Superior Court of Justice?
Issue No. 1 – Vexatious Proceeding or Conduct
a) Statutory Provision
[14] Section 140 (1) of the CJA provides:
Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
(a) instituted vexatious proceedings in any court; or
(b) conducted a proceeding in any court in a vexatious manner,
the judge may order that,
(c) no further proceeding be instituted by the person in any court; or
(d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice.
[15] Over time the case law has established a number of principles to be applied when determining an application pursuant to this section. Principles frequently cited are those set out by Henry J. in Lang Michener Lash Johnston v. Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353, 37 D.L.R. (4th) 685 (H.C.). The principles bear repeating:
(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;
(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
b) Analysis
[16] The proceedings commenced or matters pursued by Raymond include:
• The Action (for which my decision on the defendant’s motion for summary judgment is being released at the same time as these Reasons);
• The motion for interim access, which was dismissed and resulted in two motions for leave to appeal, both of which were also dismissed;
• The Small Claims Court action against Horace and Marcella, which has been stayed pending the outcome of the Action;
• Three Small Claims Court actions, against one or more members of the OPS and the OPS itself, which were consolidated and stayed, the latter pending a final determination of the Action;
• An action in the Federal Court against a number of members of the OPS and the OPS itself, which was dismissed;
• The request for and the execution of a Form 2 assessment of Horace under the Mental Health Act;
• A complaint to the Ontario Judicial Council about Regional Senior Justice McNamara and Justice Roger; and
• A complaint to the Law Society of Upper Canada about counsel for the applicant. Copies of the letter of complaint and other materials that disparage counsel’s reputation have also been posted to the Internet.
[17] The principles identified in Lang Michener are not intended to be exhaustive nor must they be considered in any particular order. I start by looking at the entire history of the matter (principle (e)).
[18] It is clear from all of the pleadings Raymond has prepared that he disagrees with his father’s decisions in relation to Dezrin’s care. It is also clear that Raymond disagrees and takes issue with the conduct of anyone even remotely involved in the dispute and whom Raymond has concluded is either supportive of Horace or acting contradictory to Raymond’s position; that is the general characteristic that Raymond attributes to and/or premise of the claims in the various lawsuits commenced to date.
[19] The same is true of the complaints Raymond made about my colleagues who have ruled against him and about counsel for Horace. Each of them is, from Raymond’s perspective, acting unreasonably (or worse, criminally) in fulfilling their respective roles in the Superior Court proceedings (principles (c) and (d)).
[20] On at least two occasions, the jurisdiction of a court to grant Raymond the relief he seeks or previously sought has been questioned. First, Justice Roger questioned the jurisdiction of this court to grant Raymond interim access to his mother. Second, a judge of the Federal Court concluded that court did not have jurisdiction to deal with the matters raised in Raymond’s pleading in that court (principle (b)).
[21] When the justice system does not give him the relief he wants, Raymond is undaunted. He finds another angle from which to approach the same or a similar issue. In addition, he repeatedly seeks to appeal decisions that do not go his way (principles (d) and (g)).
[22] It is not only a matter of the nature or number of proceedings commenced or matters pursued by Raymond. It is important to consider the grounds relied on by Raymond; the grounds, although frequently detailed and replete with legal terminology, are generally lacking in substance.
[23] For example, in support of the motion for leave to appeal from the order of Regional Senior Justice McNamara, setting aside the default judgment granted in the Action, Raymond relied on the following grounds:
• Horace was in contempt of the default judgment by failing to grant Raymond access to his mother as had been ordered;
• Horace’s contempt was deliberate; and
• Horace committed perjury, given the contents of his affidavit filed in support of the motion to set aside the default judgment.
[24] Those grounds have nothing to do with the substantive elements of the decision of the Regional Senior Justice to set aside the default judgment (principles (c) and (d)).
[25] In support of the motion for leave to appeal Justice Roger’s dismissal of Raymond’s motion for leave to appeal the order of the Regional Senior Justice, Raymond included a copy of his letter of complaint to the Ontario Judicial Council. In that complaint he alleges that both of my colleagues had been “accepting ‘tribute’ in exchange for favourable justice”. Although it is not entirely clear, Raymond appears to allege that the “tribute” was paid by Horace. In addition, Raymond alleges that Justice Roger and Regional Senior Justice McNamara (a) were acting as “operatives” of Horace, and (b) together with Horace, were part of a criminal conspiracy against Raymond.
[26] Regional Senior Justice McNamara and Justice Roger have been subjected to the highest level of disrespect—questioning their respective integrity and judicial independence. That is how Raymond responds when the outcome of litigation is not in his favour.
[27] There is also the matter of the interests of the public in the administration of justice. The court time and judicial resources taken up by vexatious proceedings have an impact on the access other members of the public have to justice. That factor was addressed in paragraphs 65, 67, and 68 of the 2012 decision in Canada (Attorney General) v. Mennes, 2012 ONSC 3918:
Succinctly put, a vexatious litigant order also serves the public interest in access to justice. As Power J. noted in Roscoe v. Roscoe [citation omitted]:
This court has limited resources and must, therefore, attempt to deal with the work before it in a fashion that is fair to all users of the court. While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment, not only to those directly involved in the litigation, but, as well, to the system at large.
There are, however, a small class of litigants who effectively remove themselves from the court process and require leave to participate because of their own behaviour. That class of litigant is small in the extreme. That class of litigant must now include Mr. Mennes.
In coming to the conclusion with an objective eye that Mr. Mennes fits within that class of litigant, and has persistently and without reasonable grounds instituted meritless and repetitive proceedings, I have considered the context of his pattern of conduct as a whole.
[28] I find that Raymond fits within the class of litigants who have “persistently and without reasonable grounds instituted meritless and repetitive proceedings” (Mennes, at para. 68).
c) Summary
[29] The answer to Issue No. 1 is “yes”. What remains to be determined is the terms of the order in response to my finding that Raymond has instituted vexatious proceedings in this and other courts.
Issue No. 2 – Scope of Prohibitive Order
a) The Existing Actions
i) The Action in this Court
[30] In a decision released together with these Reasons, I grant the motion for summary judgment. Raymond’s action against his father is dismissed.
ii) The Small Claims Court Actions
[31] A settlement conference was conducted in Small Claims Court action No. 15-SC-136128 in July 2016. The presiding Deputy Judge released his endorsement in August 2016. From that endorsement, I note the following:
• In 2016, the defendants were unsuccessful on a motion for an order dismissing Raymond’s claim as disclosing no cause of action.
• At the settlement conference, a request was made on behalf of the defendants for an order dismissing the action as frivolous and vexatious or as disclosing no cause of action. In response to that request, D.J. McNeely said, “While I am of the view that the Plaintiff has very little chance of success in this action, it cannot be said at this time that he has no chance of success”.
[32] D.J. McNeely also commented on the potential for the outcome of the Action to be determinative of the issues raised in the consolidated Small Claims Court actions:
Nevertheless, the proceedings in the Superior Court of Justice, which involves the Plaintiff and his father, and the decision made by the Superior Court may be determinative on the proceedings in this Court concerning the issue of whether the father was justified in requesting the assistance of the OPS, and whether the OPS and its members exceeded their authority.
While the Action in this Court involves different parties than the Action in the Superior Court of Justice, it arises from the same circumstances, originating from the Plaintiff’s departure from his father’s home with the interventions by the members of the OPS in this regard. To avoid contradictory findings in this Action and the Superior Court Action, the Superior Court Action should be resolved before this Action goes to trial. Accordingly [the consolidated Small Claims Court actions are] stayed until the final determination of the [Action], or until further order of this Court.
[33] I have seen nothing other than the plaintiff’s claim in each of the three Small Claims Court actions. D.J. McNeely had the benefit of reviewing settlement conference materials from the parties, reviewing the defences, and hearing submissions on behalf of the individual officers and the OPS Board. I have not had the benefit of those materials or the submissions made on behalf of the parties.
[34] In the circumstances, it is appropriate that D.J. McNeely or another Deputy Judge of the Small Claims Court determine whether the stay on the consolidated Small Claims Court actions is to be lifted. It is up to Raymond and/or one or more of the defendants in the Small Claims Court actions to seek the appropriate relief in that court.
b) Future Actions
[35] For the reasons discussed above, Raymond is no longer permitted unfettered access to the courts of Ontario. He requires leave from a judge of this court before commencing a proceeding in any court of the Province of Ontario. Leave is required regardless of the subject matter of the proceeding.
Disposition
[36] I order as follows:
It is declared that Raymond Carby-Samuels II (a.k.a. Horace Raymond Carby-Samuels II) has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the Ontario Superior Court of Justice (including the Divisional Court) and Small Claims Court, within the meaning of section 140(1)(a) and (b) of the Courts of Justice Act.
Raymond Carby-Samuels II (a.k.a. Horace Raymond Carby-Samuels II) is prohibited from instituting a proceeding, directly or indirectly, in any court in Ontario unless and until he has, prior to the commencement of a proceeding, obtained leave pursuant to section 140(3) of the Courts of Justice Act.
Raymond Carby-Samuels II (a.k.a. Horace Raymond Carby-Samuels II) is prohibited from continuing Small Claims Court Action No. 15-SC-138297 (in which Horace Carby-Samuels and Marcella Carby-Samuels are named as defendants) without first obtaining leave pursuant to section 140(3) of the Courts of Justice Act.
Raymond Carby-Samuels II (a.k.a. Horace Raymond Carby-Samuels II):
a) Is prohibited from continuing Small Claims Court Action Nos. 15-SC-136128, 15-SC-136187, and 15-SC-136436 (the “Small Claims Court Actions”) without first obtaining leave of that court from D.J. McNeely or any other Deputy Judge of the court; and
b) Shall serve a copy of these Reasons and the order taken out pursuant to these Reasons (the “Order”) on each of the defendants named in the Small Claims Court Actions. Service shall be effected within 30 days of the date of these Reasons.
Approval by the respondent to this application as to the form and content of the order to be taken out pursuant to these Reasons is dispensed with.
The Order shall be taken out within five business days of the date on which these Reasons are released.
The Order shall be served on the respondent within five business days of the date on which it is taken out. Service on the respondent by email at his last known email address shall be effective.
[37] With respect to the fifth term listed above, the draft order prepared by counsel for Horace shall be submitted to the civil counter specifically to my attention and for my signature.
Costs
[38] At the conclusion of the application, counsel for Horace provided the court with the bill of costs for the application. The total time for preparation of the application record, review of responding materials, and preparation for and attendance on the return of the application is 6.7 hours. All of the time is attributable to counsel; he is the only timekeeper involved in the matter. I find that amount of time to be entirely reasonable in the circumstances.
[39] Counsel’s full indemnity hourly rate is $325. Counsel has 18 years of experience at the bar. The full indemnity rate claimed is reasonable for a lawyer with that level of experience.
[40] In summary, the full indemnity costs associated with the work of counsel for Horace are:
Fees ($325 x 6.7) $ 2,177.50 H.S.T. (on fees) $ 283.08 Disbursements (filing fee) $ 220.00 Total $ 2680.58
[41] Given the findings made with respect to the proceedings pursued and the manner in which the proceedings have been pursued by Raymond, Horace is entitled to his costs of the application on a substantial indemnity basis. Costs are calculated as follows:
Fees ($2,177.50 x 0.6 x 1.5) $ 1,959.75 H.S.T. (on fees) $ 254.77 Disbursements $ 220.00 Total $ 2,434.52 Rounded to $ 2,435.00
[42] In summary, the respondent shall pay to the applicant his costs of the application on a substantial indemnity basis in the amount of $2,435.
Madam Justice Sylvia Corthorn
Released: November 16, 2017
CITATION: Carby-Samuels v. Carby-Samuels II, 2017 ONSC 6834
COURT FILE NO.: 17-71624
DATE: 2017/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Horace R. Carby-Samuels Applicant
– and –
Raymond Carby-Samuels II Respondent
REASONS FOR DECISION
Madam Justice Sylvia Corthorn
Released: November 16, 2017
[^1]: Oxford Dictionary (online). This definition speaks to the effect of one person’s (vexatious) conduct on another; it does so from the perspective of the person on the receiving end of the conduct.
[^2]: Black’s Law Dictionary, in The Law Dictionary (online). This definition emphasizes the intent of the actor (i.e. lack of bona fides, “wish” to annoy, and “not calculated”) over the perception of the person on the receiving end of the conduct.