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Administrative - Frivolous Proceedings. Furgasa v. Toronto District School Board
In Furgasa v. Toronto District School Board (Ont Div Ct, 2026) the Ontario Divisional Court allowed a JR, this brought against decisions of the Ontario Special Education Tribunal (OSET) and the HRTO addressing education services provided to a student categorized by the Board as 'exceptional', and who was 'living with autism'.
Here the court sets aside the earlier issuance of an administrative 'vexatious' litigant order against the applicant, who was eventually substantially successful in an important public interest issue:(ii) Vexatious Litigant Order
[152] I have been critical of the OSET, the HRTO and the TDSB in these matters.
[153] The OSET made a vexatious litigant order against the Applicant. This order was not made without a foundation for it, but I would set aside that order, in light of my conclusion that the Applicant has been “right all along” and has been frustrated by a set of processes and decisions that have denied the Applicant a decision on the merits for so many years that any victory now may be substantially illusory: K.S. cannot regain the lost opportunity for an education that he may have lost as a result of this prolonged set of proceedings.
[154] However, just because I conclude that the Applicant has been “right all along” about being entitled to a decision, on the merits, from the OSET, does not mean that the Applicant has not behaved vexatiously, as that term is understood in the jurisprudence.
[155] The Applicant could have sought judicial review of the 2019 OSET decision, which was the first time the OSET dismissed an appeal from the Applicant for lack of jurisdiction. The Applicant could have sought judicial review of the 2022 decision of the OSET again dismissing the appeal on jurisdictional grounds. Or the Applicant could have accepted the OSET’s decisions and pursued human rights complaints following the 2019 or 2022 decisions, rather than bringing new OSET proceedings on grounds previously decided. Bringing a third OSET appeal, on a basis already decided against the Applicant, was vexatious. It is of the very essence of vexatious conduct to repeatedly contest issues that have already ben decided. This is so even if the previous decisions turn out to have been wrong.
[156] Put in stark terms, tribunal decisions are authoritative until and unless they are overturned. A question, once decided, may not be relitigated between the same parties.
[157] The Applicant argues that there are annual rights of appeal that arise from annual decisions on identification and placement. This is true. But this is not a basis on which an applicant may relitigate an issue of principle that has already been decided: it is a waste of time and resources to relitigate decided questions.
[158] The Applicant also pursued issues which were secondary to his core concerns: seeking a recording of the SEAB proceedings that had been routinely destroyed, pursuing claims about interpreters – all of these were distractions from the Applicant’s core concerns and served to create an atmosphere of heightened conflict, and that the Applicant was seeking and pursuing conflict as an expression of unhappiness over the consistent denial of his core claims.
[159] I have noted above the failure of the tribunals and the TDSB to identify and make available effective routes of conflict resolution for the Applicant’s core concern, which I have found was worthy of the adjudicative process somewhere. So, my comments about the Applicant’s vexatious litigation conduct must be read in this context: the Applicant, represented throughout by counsel with specialized expertise in special education issues, tried multiple avenues to have his claims decided and primarily as a result of the TDSB’s litigation strategy, he was denied a decision on the merits, on the basis of a full record, for many years. This must be understood in the context in which it arises: advocating for an exceptional student such as K.S. can be an exhausting, unending parental duty. It is understandable that the Applicant, and his counsel, grew frustrated with the unsatisfactory processes below, and on that basis, I would excuse their past vexatious conduct without condoning it. This remedy does not preclude a future finding of vexatiousness below if future conduct by the Applicant, in the overall context of his litigation conduct, would justify it. . Leitch v. Human Rights Tribunal of Ontario
In Leitch v. Human Rights Tribunal of Ontario (Ont Divisional Ct, 2024) the Ontario Court of Appeal identified recognized vexatious litigant factors:[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 CanLII 172 (ON SC), Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720. .... . Dai v. Presbyterian Church in Canada
In Dai v. Presbyterian Church in Canada (Ont Div Ct, 2013) the court held that a tribunal's authority to control it's own processes extended to the ability to declare an applicant a vexatious litigant and bar him from commencing future proceedings before it without the consent of the tribunal. The court did not address which specific SPPA provision grounded this authority, nor whether it was a general SPPA authority or one that required s.25.1 rule-making by the tribunal - which is unfortunate given the several potential statutory sources for such authority.
. 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.
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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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