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Vexatious litigants and abuse of process at Tribunal

vexatiousThe Human Rights Tribunal of Ontario has the authority to govern its own proceedings. Within this authority is the power to declare any applicant a vexatious litigant and to identity any abuse of process, either of which may result in the dismissal of an Application. The recent interim decision of Bissonnette v. Windsor Police Services Board addresses both of these issues.

Background

The applicant filed two Applications, months apart, naming the identical respondents, Windsor Police Services Board et. al in each Application. Both Applications allege “reprisal and gender discrimination” with respect to the promotional process to the rank of Inspector in the Service, contrary to the “Code”.[i] There was a clear overlap between allegations made in both Applications. After having filed, the applicant then sought to amend the latter Application a number of times. The applicant was self–represented.

The respondents sought to have the second Application dismissed as an abuse of process or have it deferred until the completion of the first Application, again noting the considerable overlap in allegations of both Applications.

The respondent further argued that the second Application contained allegations, that even if true were statue–barred as they had occurred long past the limitation period. In regard to the question of limitation period, the Tribunal relied on a number of decisions where it was found that “untimely allegations may be raised for the purposes providing context”.[ii] The respondents also argued against the fact that the applicant had filed a number of requests to amend the second Application, and alleged this constituted an abuse of process. Rule A8 of the Tribunal’s Rules of Procedure states:

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

Analysis

The Tribunal disagreed with the respondent’s position, stating that an Application may be considered an abuse of process, and thereby dismissed where the issues in question had been addressed in a prior decision.[iii] In the case before the Tribunal, no decisions had been rendered nor had the applicant been given an opportunity to be heard.

The Tribunal stated that it does have the power to find an individual a vexatious litigant as part of the Tribunal’s power to control its processes and prevent abuse of power. The Tribunal held that an individual could be declared a vexatious litigant if the Tribunal was satisfied that, on an objective standard, the applicant has persistently and without reasonable grounds instituted vexatious proceedings or conducted herself in a vexatious manner during the proceedings.

The Tribunal cited Banigan v. Sheridan College Institute of Technology, 2013 HRTO 707 where the applicant was declared a vexatious litigant. As a result, the Application was dismissed for abuse of process and the applicant was prohibited from filing further Applications against the respondent without leave of the Tribunal.

Decision

The applicant did not meet this test which included “serial” filing of Applications, or the filing of further Applications once the matter had already been adjudicated. There had not been a decision made in regard to the previous Application. Further, the various filings were consistent with the applicant’s uncertainty respecting the appropriate procedure, reminding the respondent that the applicant was self-represented. As such, the tribunal declined to find that the applicant’s conduct would justify her being declared a vexatious litigant. Ultimately, the Tribunal suggested the most fair and expeditious way to proceed was either deferral or consolidation, not dismissal.

The takeaway

Although requesting that the Tribunal declare an applicant a vexatious litigant may sometimes be an effective strategy, there remains a “criteria” that must be met. If this threshold cannot be met, the approach may not be a cost effective response to a human rights application.

[i] Bissonnette v. Windsor Police Services Board, 2016 HRTO 1621 (CanLII), para. 1

[ii] Ibid., para.8

[iii] Ibid., para. 18

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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