|
Civil Litigation Dicta - Frivolous and Vexatious (5). Jagadeesh v. Canadian Imperial Bank of Commerce [procrustes issues]
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
Although styled as a fairness/bias issue (at paras 53-94), I locate this theme more consistently in the general administrative category of 'control of process' - here in a new(!)'Procrustes' sub-topic:i. Improperly Narrowing the Scope of the Complaint
[54] Mr. Jagadeesh’s first argument is that the Commission investigator improperly limited the scope of his complaint, by refusing to consider allegations of discrimination that he made in the documentary evidence he submitted to the investigator in support of his complaint, rather than in the complaint form itself.
[55] In support of this contention, Mr. Jagadeesh points out that the complaint form directs complainants to describe their situation in the body of the form, further stating that "“[i]f you have any supporting documents, keep them with you. You may be asked for them at a later date during the process”".
[56] Mr. Jagadeesh stated at the beginning of the narrative portion of his complaint that "“I have tried to give as much detail as possible – within the 3 page limit. I have kept all ORIGINAL, dated, emails, doctor reports, medical records & supporting documents”". He went on to state "“As advised by you, I am NOT attaching any of these documents at this time, & plan to show you all the details in the future”".
[57] As I understand Mr. Jagadeesh’s argument, it is that his reference to his 102 pages of supporting documentation in his complaint form essentially incorporates those documents by reference into his human rights complaint. As a result, he says that the investigator was required to consider any additional allegations of discrimination that he raised in those documents.
[58] These additional allegations include, amongst other things, his claim that his employer had him followed and photographed, as a means of intimidating him, and his claim that senior CIBC managers were sexually exploiting junior employees in exchange for favours.
[59] I cannot accept this argument. There is a distinction between allegations of discrimination, which must be identified in the complaint form, and the evidence by which a complainant hopes to establish the veracity of their allegations, which can be provided later in the investigation.
[60] As this Court stated in Manfoumbi-Mouity v. Canada (Attorney General), 2017 FCA 240, the Commission does not violate the principles of procedural fairness by limiting its analysis to allegations contained in the complaint form, as filed. Nor does the Commission treat a complainant unfairly by limiting the number of pages in the complaint form: at para. 2.
[61] Consequently, there is no merit to Mr. Jagadeesh’s argument with respect to the allegedly unfair limiting of the scope of his complaint.
ii. Not Giving Mr. Jagadeesh a Sufficient Opportunity to Put His Evidence Before the Investigator and the Commissioners
[62] Mr. Jagadeesh further submits that he was treated unfairly as he was unable to put his allegations of discrimination fully before the investigator and the Commissioners. This was because the investigator cut his interview short, and because the Commission limited the number of pages of submissions that he could provide in response to the investigation report.
[63] As noted earlier, Mr. Jagadeesh had some 102 pages of evidence that he believed supported his complaint. He provided these to the investigator. While his interview with the investigator may not have lasted as long as he wanted it to, the investigator offered Mr. Jagadeesh the opportunity to provide her with any other documents, evidence and witness information that he believed supported his complaint, beyond that he had already provided. Mr. Jagadeesh has not identified any specific information or evidence that he was unable to put before the investigator. Indeed, he confirmed to the investigator that he had provided the Commission with everything that he had with respect to his allegations of discrimination against the CIBC.
[64] Insofar as Mr. Jagadeesh’s response to the investigation report is concerned, fairness requires that parties be given an opportunity to respond to such reports: Radulesco v. Canadian Human Rights Commission, 1984 CanLII 120 (SCC), [1984] 2 S.C.R. 407 at pages 410-411, [1984] S.C.J. No. 48, Canada (Attorney General) v. Davis, 2010 FCA 134 at para. 6. Such opportunity does not, however, have to be unlimited, and it is not unfair to limit the number of pages that a party can file with the Commission commenting on an investigation report: Manfoumbi-Mouity, above at para. 2.
[65] In my view, the opportunities afforded to Mr. Jagadeesh to provide the Commission investigator with additional information and to respond to the investigation report respected his participatory rights and were sufficient to satisfy the requirements of procedural fairness.
iii. Conducting a Biased Investigation
[66] Mr. Jagadeesh further asserts that the second investigation into his human rights complaint was not a neutral one, and that the investigator was biased against him.
[67] Mr. Jagadeesh says that this is demonstrated by the fact that the investigation report was "“procedurally unfair, biased, under inclusive, unreasonable, and also unethical, because many of his crucial evidences were ignored, overlooked, and misconstrued and, many critical details of central importance were not even considered”". He goes on to state that "“[t]here were fundamental flaws in the analysis. It also included most irrelevant peripheral details to distract and misguide the Commission’s final decision makers”".
[68] The Commission is clearly subject to the duty of fairness when exercising its statutory power to investigate human rights complaints: SEPQA, above. Amongst other things, this requires that the Commission and its investigators be free from bias.
[69] The test for determining whether actual bias or a reasonable apprehension of bias exists in relation to a particular individual is well known: the question is what an informed person, viewing the matter realistically and practically–and having thought the matter through–would conclude. That is, would he or she think it more likely than not that the individual, either consciously or unconsciously, would not decide the matter fairly: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, 68 D.L.R. (3d) 716; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, at paras. 20-21, 26.
[70] That said, the non-adjudicative nature of the Commission’s responsibilities means that the standard of impartiality required of Commission investigators is something less than that required of the Courts. The question is thus not whether there exists a reasonable apprehension of bias on the part of the investigator, but rather, whether the investigator approached the case with a "“closed mind”": Zündel v. Canada (Attorney General) (1999), 1999 CanLII 9357 (FC), 175 D.L.R. (4th) 512 (T.D.), at paras. 17-22, aff’d 2000 CanLII 16731 (FCA), [2000] F.C.J. No. 2057, 195 D.L.R. (4th) 394.
[71] As the Federal Court stated in Canadian Broadcasting Corp. v. Canada (Canadian Human Rights Commission), (1993), 1993 CanLII 16517 (FC), 71 F.T.R. 214, [1993] F.C.J. No. 1334 (F.C.T.D.), the test in cases such as this is thus "“whether, as a matter of fact, the standard of open-mindedness has been lost to the point where it can reasonably be said that the issue before the investigative body has been predetermined”": at para. 43.
[72] The burden of demonstrating bias rests on the person alleging bias. An allegation of bias is a serious allegation, and challenges the very integrity of the individual whose conduct is in issue. Consequently, a mere suspicion of bias is not sufficient: R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193 at para. 112; Arthur v. Canada (Attorney General), 2001 FCA 223, at para. 8. Rather, the threshold for establishing bias is high: R. v. R.D.S., above at para. 113. Mere disagreement with the findings of the investigator does not amount to evidence of bias.
[73] The Commission addressed Mr. Jagadeesh’s allegations of bias and unethical conduct on the part of the investigator in its decision. It observed that he "“did not provide any concrete examples that would lead the Commission to find that the [investigation report] or investigation was ‘biased or unethical’ or that a reasonably informed person, viewing the matter realistically and practically, would draw such a conclusion”".
[74] I will address Mr. Jagadeesh’s allegations as to the thoroughness and reasonableness of the Commission decision further on in these reasons. Insofar as his allegation of bias on the part of the investigator is concerned, however, suffice it to say that there is no evidence before us that would support such an allegation. . Elsimali v. Pinedale Properties
In Elsimali v. Pinedale Properties (Div Court, 2024) the Divisional Court granted a landlord-initiated R2.1 ['frivolous and vexatious'] request to dismiss an RTA s.210 appeal, here where the landlord was successful on an LTB reconsideration (aka 'review') which was the reason for the appeal. As the recon decision was interlocutory, an appeal would require leave - thus the court lacked jurisdiction:[5] The appellants have made submissions in response to the notice under r. 2.1. They submit that the same policy reasons that support no appeals from interlocutory decisions support this appeal in the particular circumstances of this case. This does not assist the appellants. It is often the case that one side or the other submits that an interlocutory appeal would efficiently end the matter. The issue is jurisdiction.
[6] Further, the appellants assume that there will be a problem arising from the interpretation of Hassan. That remains to be seen. The reviewing Member did not purport to definitively interpret that case, quite the contrary. The Member found there “may” be a conflict with that case and that the hearing decision failed to “distinguish or address” that case. It is insufficient to say that there might be a problem with the final LTB decision, before it is rendered.
[7] The appellants also rely on decisions of this Court that permitted some discretion in the context of proposed interlocutory appeals from the Licence Appeal Tribunal, specifically The Personal Insurance Company v. Jia, 2020 ONSC 6361 and Security National Insurance Company v. Kumar, 2018 ONSC 3556. However, those decisions have been expressly not followed in what is now the leading case on the issue, finding no right of appeal from an interlocutory order: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874. There is no right of appeal from an interlocutory order of the LTB: Ainsley v. Proulx, 2023 ONSC 6308. There is no jurisdiction to hear this proposed appeal.
[8] Subrule 2.1.01(1) authorizes the Court to dismiss a proceeding as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is such a case.
[9] In the alternative, appellants ask that this proceedings be changed into an application for judicial review. This proposal raises the issue of prematurity – the application would be premature and the appellants would have to show exceptional circumstances before the Court would exercise its discretion to hear the application. I am not persuaded to convert this appeal in this r. 2.1 process, in which the respondent has not been given a right to make submissions.
[10] This proceeding is therefore dismissed under r. 2.1 of the Rules of Civil Procedure. . Sieluzycki v. Ontario
In Sieluzycki v. Ontario (Div Court, 2024) the Divisional Court considered a situation of a grossly-mismatched single self-presenter against (this time, seven) salaried (or maybe a couple of hourly-paid) lawyers, here at costs hearing.
The court revokes the applicant's fee waiver on the following reasons:Revocation of Mr. Sieluzycki’s Fee Waiver
[24] Section 4.10 of the Administration of Justice Act, RSO 1990, c A.6 says:Revocation of fee waiver
4.10 (1) A certificate given to a person under section 4.3 or 4.4 respecting a court proceeding or enforcement in a proceeding may, despite anything to the contrary in those sections, be revoked by order of a judge, deputy judge or associate judge of the court in which the proceeding was commenced, if the judge, deputy judge or associate judge is of the opinion that the person’s actions in the proceeding or enforcement are frivolous, vexatious or otherwise an abuse of the process of the court.
Same
(2) A certificate given to a person under section 4.5 or 4.7 respecting the enforcement of an order may, despite anything to the contrary in those sections, be revoked by order of a judge, deputy judge or associate judge of the court in which the order was made or filed, as the case may be, if the judge, deputy judge or associate judge is of the opinion that the person’s actions in the enforcement are frivolous, vexatious or otherwise an abuse of the process of the court.
Submissions
(3) Before making an order under subsection (1) or (2), the judge, deputy judge or associate judge shall give the person an opportunity to make submissions.
Same
(4) Submissions shall be made in the manner and form specified by the judge, deputy judge or associate judge.
Restriction on further fee waivers
(5) In making an order under subsection (1) or (2), the judge, deputy judge or associate judge may make an order that the person may not, despite anything contrary in this Act, make any further requests for a fee waiver under this Act with respect to the same proceeding or any related proceeding or with respect to the same enforcement, without permission obtained in advance from a judge, deputy judge or associate judge, as applicable.
Decision final
(6) The decision of the judge, deputy judge or associate judge is final.
Rules of court and Statutory Powers Procedure Act do not apply
(7) The rules of court and the Statutory Powers Procedure Act do not apply to this section.
No Fee
(8) No fee is payable for anything done in connection with this section. [25] A fee waiver is an administrative direction provided under the statute that entitles people to start and engage in court proceedings without paying the regular fees to do so. A fee waiver is obtained by a litigant delivering an affidavit attesting to his or her inability to afford court fees.
[26] Fee waivers are important devices to ensure access to justice so that everyone is able to have their rights adjudicated before His Majesty’s courts without regard to their economic status.
[27] However, there is no process for court staff to inquire into the truth or completeness of an affidavit delivered in support of a fee waiver. It is a process that is susceptible to abuse therefore. Moreover, it follows as surely as night follows day that vexatious litigants who bring multiple or repeated frivolous or vexatious lawsuits invariably do so freed from the obligation to pay court fees under fee waivers.
[28] Section 4.10 was added to the statute in 2020 as a mechanism to provide oversight and some measure of judicial control over fee waivers. The section applies only where a judicial officer forms the opinion that a person’s actions in a proceeding are frivolous, vexatious, or otherwise an abuse of the process of the court. Moreover, the person must be given notice and an opportunity to respond.
[29] Following the procedure set out in that statute, I gave notice to Mr. Sieluzycki that I was considering withdrawing his fee waiver and prohibiting further fee waivers in related matters. I invited him to make submissions.
[30] Mr. Sieluzycki did not provide submissions to support his continued entitlement to fee waivers. However, in his factum supporting the motion to set aside the September 3, 2024 order, Mr. Sieluzycki submits,The Moving Party is of the opinion that undue prejudice occurs against the Moving Party when Justice Frederick Meyers prohibits the Moving Party from obtaining the fee waiver certificates since restricting the Moving Party’s eligibility for the fee waiver certificates is procedurally unfair towards the Moving Party in a way that causes the Moving Party to experience significant difficulties in exercising the Moving Party’s rights (i.e., the right to security of the person). [31] I take this to mean that Mr. Sieluzycki believes the withdrawal of fee waivers would be unfair to him and a breach of his security of the person.
[32] In terms of procedural fairness, the statutory mechanism ensures that Mr. Sieluzycki has notice of the issue and a right to respond. There is no lack of procedural fairness.
[33] Substantively, I do not see how it can be either unfair or a breach of the right to security of the person to have one’s access to fee waivers limited after demonstrating abuse of the court’s processes. There is no right to bring frivolous or vexatious civil proceedings. Frivolous and vexatious proceedings are dismissed summarily. In fact, the problems posed by vexatious proceedings and vexatious litigants are so pervasive as to be the subject of numerous laws and rules designed to curtail them. (Consider, for example, the overlapping content of Rules 2.1, 21.01 (3)(d), and 25.11 (b) and (c) of the Rules of Civil Procedure.) To the same end, amendments to s. 140 of the Courts of Justice Act have just recently been proclaimed into force to decrease procedural constraints and costs involved to declare someone to be a vexatious litigant.
[34] Given that the court’s resources are very limited and constrained, efforts to limit abusive proceedings will enhance access to justice generally by freeing up scarce court resources to be available to parties with meritorious or at least non-frivolous issues. They also protect defendants from being vexed with unrecoverable costs responding to meritless proceedings.
[35] Furthermore, an order under s. 4.10 does not prevent access to justice. Rather, it deprives people who want to bring frivolous or vexatious lawsuits of the ability to do so without paying applicable court fees. But if a person who is subject to an order under s. 4.10 wishes to bring a proceeding that is not frivolous, vexatious, or an abuse of process, he or she may apply to a judge to obtain a fee waiver. If a proposed claim, or step in an existing claim, has some apparent merit, the hurdle of demonstrating the merit to a judge is not a high bar at all. So, a person of limited means will not lose access to justice at all for claims that are not frivolous, vexatious, or an abuse of process.
[36] A “frivolous” claim is one that lacks a legal basis. Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (ON CA), at para. 14.
[37] A “vexatious” claim is one instituted with out reasonable grounds or is brought where it is obvious that it cannot succeed, i.e., to vex the defendants. Currie at para 15.
[38] A proceeding is an abuse of process when it is inconsistent with the objectives of public policy: Currie, at para. 16, relying on Canam Enterprises Inc. v. Coles, 2000 CanLII 8514 (ON CA) at para. 31, rev’d on other grounds 2002 SCC 63. To quote the Court of Appeal at para. 55 of Canam,The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. [39] Mr. Sieluzycki brings repeated and ever-broadening claims for the same underlying transaction. He has brought claims with no apparent merit on their faces. He does not accept failure. Rather, he tries again, or brings a new proceeding, and/or appeals.
[40] In my view, Mr. Sieluzycki’s application for judicial review is frivolous and vexatious. It had no merit and it was brought to challenge proceedings before tribunals that equally had no merit. Mr. Sieluzycki brought legal proceedings in the Small Claims Court arising out of his aborted his car sale transaction. But his efforts to expand the civil complaints into government incidents or matters of fundamental human rights was obviously not going to succeed.
[41] I have no idea whether Mr. Sieluzycki is bringing proceedings deliberately to leverage his chances of success by causing the private respondents costs and time, or whether he has just been misguided. Either way, in my judgment, he should not be entitled to continue to do so under fee waivers designed to enhance access to justice. His proceedings unfortunately do the opposite.
[42] I therefore revoke Mr. Sieluzycki’s fee waiver in this proceeding. In addition, I order that he is prohibited from making any further requests for a fee waiver with respect to this proceeding or any related proceeding without permission obtained in advance from a judge.
[43] Mr. Sieluzycki may make a motion for permission to obtain a waiver for a proposed future proceeding, or a step in an existing proceeding, in writing by Notice of Motion addressed to the attention of the Senior Regional Justice (or any judge as the RSJ may delegate) in the Region in which Mr. Sieluzycki proposes to seek a fee waiver. The motion may be made without notice to any responding party.
[44] Mr. Sieluzycki’s written, without notice motion in a proceeding, or in a proceeding to be commenced, shall be supported by an affidavit of no more than six pages in length setting out the reason(s) why Mr. Sieluzycki believes he should be permitted to obtain a fee waiver for the proposed proceeding or step. The affidavit shall include full particulars of Mr. Sieluzycki’s assets and liabilities, his annual projected revenue and expenses, and all other information required for the fee waiver sought under the Administration of Justice Act.
|
