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Administrative - Abuse of Process [SPPA s.23(1)]

. Danso v. The Human Rights Tribunal of Ontario et al. ['vexatious litigant' issue here]

In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court considered (and dismissed) a JR of an HRTO decision (and reconsideration), here against a local police services board. Central to the case was a prior HRTO finding that the applicant was a 'vexatious litigant' [grounded under SPPA 23(1): 'Powers re control of proceedings - Abuse of processes'], though here in an extension of the typical administrative use of this provision - which IMHO is of questionable jurisdictional validity.

This tribunal-administrative 'declaring' of a person as a vexatious litigant, with necessary corollary rules (eg. that require leave of the tribunal to commence further application), are plainly a wholesale mimicking of the same civil litigation rules that Ontario has articulated - in CJA [at s.140] and the RCP [at R2.1] - though after much legislative and regulation-making thought and deliberation. This new, administrative form all pivots on SPPA 23(1) [ie. 'A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.'] but in a fashion that has been interpretively strained to extend it's jurisdiction beyond the 'proceeding' before it (ie. a general HRTO 'declaration'). This may indeed be a necessary and policy-justifiable interpretation - made in response to the institutional stressor that 'vexatious applicants' pose - but IMHO are not justifiable as a matter of statutory interpretation. Properly, this goal needs legislation. See Papouchine (Div Ct, 2022) for similar:
[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.


[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.
[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.

[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.
The court then proceeded to dismissed the applicant's arguments grounded in Vavilov 'reasonableness', procedural fairness and bias.

. Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin

In Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin (Div Ct, 2020) the Divisional Court considered the SPPA s.23(1) abuse of process authority to justify re-instatement of a tenant after an illegal eviction. The landlord had attempted to rely on evidence that justified the illegality, but was denied that effort as to allow it would have been to condone the illegality, and thus tolerate an abuse of process:
[21] The appellant then sought to introduce evidence from two witnesses with respect to funding and events at the care home prior to the eviction, as well as evidence from the investigator. The Board refused to hear evidence about the staff grievances, their threats to resign and the investigation, as to do so would bypass the procedures for termination of a tenancy under the Act (Transcript, p. 24). The Board member also concluded that the proposed evidence would not show that the return of the respondent would cause unsafe conditions, as all the staff complaints were against his parents’ demands and harassment, and there were no allegations of violence against anyone (Transcript, pp. 34, 35). However, the Board member did tell the appellant’s counsel that she would hear arguments and “any evidence you want to present on this remedy being requested” (Transcript, p. 17).

[22] The Board member was informed by the appellant’s counsel and Don Ferguson, the Executive Director of the appellant, that the respondent’s former room remained empty, but that the Ministry had assigned the room to another individual JJ. JJ was in transitional temporary housing paid for by the appellant because of the Board’s order to keep the room vacant. Mr. Ferguson also told the Board that he feared the staff would quit if the respondent were reinstated, and he might have to close the home.


[26] The member explained why she refused to hear the appellant’s evidence with respect to the reasons that the tenant was evicted, relying on s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the “SPPA”). At para. 9, she stated,
In my view, allowing the Landlord to introduce evidence regarding what led to the Tenant’s unlawful eviction would have amounted to an abuse of process as it would have allowed the Landlord to circumvent the Act’s requirements respecting how landlord’s [sic] can lawfully terminate a tenancy.

[45] The appellant relies on s. 10.1 of the SPPA, which provides that a party in a hearing may call and examine witnesses, present evidence and submissions, and conduct cross-examinations of the witnesses “reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.” The appellant submits that the Board denied it a fair hearing by refusing to hear its witnesses and allowing it to cross-examine witnesses, and the Board improperly relied on s. 23(1) of the SPPA in finding that allowing the admission of the evidence would result in an abuse of process.

[46] Subsection 23(1) of the SPPA provides that a “tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” This is a broadly worded power.

[47] The August 2019 hearing was to deal with the remedy for an unlawful eviction. The appellant had removed the respondent from his room and the residence without following the process in the Act. As the Board found, that was a substantial interference with the tenant’s right to reasonable enjoyment. That only left the issue of remedy pursuant to s. 31.

[48] The appellant sought to adduce evidence respecting the situation that led it to evict the respondent and the funding structure for the care home. The Board correctly held that this evidence was not relevant to the issue of remedy, although it might properly be considered if the appellant commenced a proceeding under the Act seeking to terminate the tenancy lawfully. Therefore, the Board did not err in excluding the proposed evidence.

[49] Moreover, the Board did not err in relying on s. 23(1) of the SPPA. The member concluded that it would be an abuse of process for the appellant, who had not complied with the termination process under the Act, to then lead evidence at a hearing to determine the tenant’s remedy so as to justify keeping him out of the residential unit. Allowing a landlord to, in effect, justify an unlawful eviction in these circumstances would deprive the tenant of the notice and protections to which he is entitled under the Act. The Board made no error in law when it concluded that the leading of evidence of events that occurred prior to the eviction would be an abuse of process.


[74] The respondent also argues that the Board had the authority to order reinstatement pursuant to s. 23(1) of the SPPA to prevent an abuse of its process, relying on Metropolitan Toronto Housing Authority v. Ahmed, [2001] O.J. No. 1477 (Div. Ct.) and Kwak v. Marinecorp Mgt. Inc., [2007] O.J. No. 2692 (Div. Ct.)). However, the Board member did not rely on this section to justify her order of reinstatement. In my view, she had the authority to make the order pursuant to s. 31(1)(f) and made no error in law in doing so.

[75] The appellant makes much of the fact that the Ministry has now assigned JJ to the respondent’s room. However, JJ is not in physical possession of the room. Indeed, the respondent is still the lawful tenant of that room, given that his tenancy has not been terminated in accordance with the Act. In making the order, the Board member considered the interests of JJ, but reasonably concluded that the respondent should be reinstated, given that there has been no lawful termination of his tenancy, there is no danger of violence nor safety issues because of his conduct if he returns, and JJ is not in possession of the room.
. Martinez v. Toronto Police Services Board

The Divisional Court case of Martinez v. Toronto Police Services Board (Div Ct, 2012), emanated from police discipline hearings in relation to their conduct during the G20 demonstrations in June 2010. The officers moved to judicially review the decision of the Toronto Police Services Board to exercise it's statutory discretion under s.83(17) of the Police Services Act to serve notices of hearing more than six months after the day on which the Office of the Independent Police Review Director (“OIPRD”) decided to retain a public complaint for investigation.

No evidence was adduced as to prejudice caused by the delay, but in any event the application was dismissed as premature in light of the parties' as-yet unused abuse of process s.23(1) SPPA remedy, which could be applied at the administrative proceedings level to relieve against prejudice caused by the delay.

. Nyonzima v Human Rights Tribunal of Ontario

In Nyonzima v Human Rights Tribunal of Ontario 2012 ONSC 5120 (CanLII) the Divisional Court considered a judicial review application from an HRTO applicant whose case was not only dismissed, but held to be an abuse of process. The HRTO finding of abuse of process (rather than a simple dismissal) appears to have been motivated by a finding that the applicant had attempted to introduce forged letters into evidence. The court, citing the high level of review deference to be accorded to the HRTO both by reason of it's institutional expertise and that it was engaging largely in fact-findings in reaching it's conclusions, dismissed the judicial review.

. Papouchine v. Touram LP d.b.a. Air Canada Vacations

In Papouchine v. Touram LP d.b.a. Air Canada Vacations (Div Court, 2022) the Divisional Court endorses an HRTO tribunal 'frivolous proceedings' order grounded in the abuse of process provisions of SPPA s.23(1). The order mimicked RCP 2.1 and CJA 140 frivolous and vexatious provisions for the civil courts:
[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.


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.


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.


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Last modified: 02-03-24
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