Valid Human Rights Point?

Valid Human Rights Point?

August 16, 2013 By Janko Predovic

I recently came across an Human Rights Tribunal of Ontario (HRTO) decision in which an unidentified man, attempting to show the “ridiculousness” of the human rights protection systems in Canada, proceeded with a frivolous complaint against A&W, the popular hamburger chain.

The Usual Suspects

Filing his complaint as “Gloria Ironbox” (a reference to famed feminist attorney Gloria Allred, as she was parodied in a TV cartoon), this man attempted to fight the ingrained “heterocentric” hamburger family associated with A&W. It appears his goal was to show that if a comedian can be compelled to pay $20,000 to a pair of lesbian hecklers at his show because of comments he made to them during the show, perhaps A&W can be compelled to pay Gloria Ironbox $50,000 for a “misogynistic” hamburger family unit. My favourite section asks: “But what about the ‘Unappreciated Custodial Parent Burger’, ‘That Aunt that No One Talks About Wrap’, and ‘Morgentaler Combo’?”

What do you think – is this a valid attack on over-sensitivity and encroaching rights tribunals or just a waste of time and resources? I remain undecided, though fully entertained.

The text of the decision is reproduced below.

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HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________

B E T W E E N:

John Doe
Applicant

-and-

A & W Canada
Respondent

______________________________________________________________________

DECISION
______________________________________________________________________

Adjudicator: David A. Wright
Date: July 19, 2013
File Number: 2013-14611-I
Citation: 2013 HRTO 1259
Indexed as: Doe v. A & W Canada
______________________________________________________________________

[1] The applicant is a resident of Cornwall who has not identified himself. The applicant filed an Application using the name of a cartoon character, containing allegations he acknowledges are “ridiculous” that appear intended to lampoon views with which he disagrees. When the fictional name was raised by the Tribunal and identification was required, the applicant sought leave to bring the Application under a “pseudonym”. The Request is denied, and the Application is dismissed, for the reasons that follow.

THE APPLICATION

[2] The Application was filed on June 2, 2013, by e-mail under the name “Gloria Dawn Ironbox”. It was sent from an e-mail account identified with that name. Gloria Ironbox is the name of a parody “feminist” cartoon character in an episode of an American TV series. The Application describes the applicant’s identity as “womyn, expressing myself as a whole, empowered person free of the shekels [sic] of gender”, “lesbianism and radical feminism; complete separation from forced association with men”; and “living in a lesbian commune”.

[3] The Application alleges discrimination with respect to goods, services and facilities because of sex, sexual orientation, gender identity, gender expression, family status and marital status contrary to s. 1 of the Human Rights Code, R.S.O, 1990, c. H.19, as amended (the “Code”). The narrative describes the allegations and their effect as follows:

On May 31, 2013, I attended the Cornwall Square Mall and ordered a hamburger meal from the A&W in the foodcourt. It was my first time ordering from a fast food establishment of that sort. I noticed that the hamburger meals were given names of various family members (e.g. “Mama Burger”, “Teen Burger”, “Grampa Burger”, etc.) The sizes of the hamburgers increased with maleness and seniority in the heteronormative family (i.e. Papa Burger bigger than Mama or Teen burger… etc.). I wanted a light burger so I ordered the “Mama Burger” meal.

As a lesbian feminist, the whole notion of labelling a burger patron as a “Mama” or “Papa” or “Teen” based solely on the choice of meal is highly degrading and an attack on my womyn identity. The level of humiliation and degradation I felt exceeded that which I felt when I was raped. The whole heteronormative, phallocentric marketing scheme of A&W is highly degrading to non-traditional families, especially members of the LGBTQ2S community. Since that visit, I have found myself isolating and I have started doubting my own self-worth.

[4] The Application seeks $50,000 for loss of dignity and self-respect and the following order:

A&W should be required to develop and implement a modern burger family which is more inclusive and empowers members of the LGBTQ2S community. Science has shown that up to 5 adults can take part in the procreation process. Therefore, the notions of motherhood, and more importantly, fatherhood, should be completely abolished. Fatherhood is a concept which perpetuates the oppression of womyn and serves to legitimize our patriarchal, misogynistic society. Any references to males should be omitted, as at present, all forms of relationships between womyn and men are basic forms of institutional rape.

Other portions of the Application contain similar rhetoric.

CASE ASSESSMENT DIRECTION AND RESPONSE

[5] On June 19, 2013, I issued a Case Assessment Direction, which was sent to the “Gloria Ironbox” e-mail address and by courier to the address provided in the Application.

[6] The Case Assessment Direction reads as follows:

This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application has not yet been delivered to the respondent, and this Case Assessment Direction is sent only to the applicant.

The Application makes allegations that appear to have no reasonable prospect of success, and/or are frivolous and vexatious. It is difficult to see how the allegations about the names of the respondent fast food chain’s burgers could constitute discrimination within the meaning of the Code. Many of the statements made by the applicant are outrageous (for example, “the level of humiliation and violation I felt exceeded that which I felt when I was raped”; “science has shown that up to five adults can take part in the procreation process”; “any references to males should be omitted as at present, all forms of relationships between womyn and men are basic forms of institutional rape”). The applicant seeks, among other things, damages of $50,000.

The Tribunal is a quasi-judicial administrative agency that applies the protections against discrimination, harassment, and reprisal in the Code, based on the law and the evidence called before it. As noted in Ouwroulis v. New Locomotion, 2009 HRTO 335 (CanLII), 2009 HRTO 335 at para. 7:

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules.

As stated in Gurney v. McDonald’s Restaurants of Canada, 2011 HRTO 984 (CanLII), 2011 HRTO 984 at para. 7:

It is not the purpose of the Code to police every comment made by a service provider to a customer, nor does a person’s hurt feelings, anxiety or upset about a situation mean that the Code was violated. The applicant’s claim for damages is entirely outside of the range of what the Tribunal would have ordered for a single, passing comment in a service situation, even assuming that discrimination could be made out. The Tribunal would not order a respondent to apologize as the applicant requests as it would violate freedom of expression rights.

However, it may not be necessary to address the issue of whether the Application is frivolous, vexatious, or has no reasonable prospect of success, since there is good reason to require confirmation of the applicant’s identity. I note that the applicant’s name is the same as that of a parody “feminist” fictional cartoon character in an episode of “The Family Guy”.

In all the circumstances, I find it appropriate to require the applicant to provide the Tribunal with identification. Within seven days of the date of this Case Assessment Direction, the applicant shall send the Tribunal a copy of a piece of government-issued identification confirming the applicant’s identity and address, failing which the Application may be dismissed as abandoned.

[7] It did not take long for the applicant to respond. On June 20, 2013, the applicant sent a “Notice of Motion” in a form similar to a court motion, then two Requests for Order During Proceedings in Form 10. The e-mail with the first Request for Order asked that the “Motion” be disregarded as he had subsequently found the appropriate form.

[8] The first Request for Order asked that the Case Assessment Direction requiring identification be set aside, or in the alternative that the applicant be granted leave to continue this matter under the new “pseudonym”, Gloria Vendetta Ironbox.

[9] The Request argues that a person may use any name informally under the common law. In support of this proposition, he notes that in Starson v. Swayze, 2003 SCC 32 (CanLII), 2003 SCC 32, Scott Jeffery Schutzman, the respondent who was contesting an order by the Consent and Capacity Board that he receive medication for his mental illness, was identified in the decision by his preferred name “Professor Starson”.

[10] The applicant also argues that he is entitled to make submissions on whether the Application should be dismissed in a summary manner, even without using his real name. The Request states:

Further, the decision by Adjudicator Wright is premature. The issue of identity, in this unique case, should be decided along with the question as to whether the complaint is dismissable summarily as being frivolous, vexatious or having not reasonable prospect for success. The merits of a complaint should be decided and the applicant should be permitted the opportunity to submit written representations defending why the complaint should not be summarily dismissed. Regardless of the perceived futility of abusiveness of this complaint, the very basic tenets of administrative law should apply. The applicant, under any name, whether perceived genuine or not, should be permitted to make representations.

Further, in Pardy v. Earle (BCHRT) (2011), a comedian was ordered to pay a couple of lesbian hecklers upwards of $20,000 for “hurt feelings” despite the uncontested fact that the two ladies provoked the “offensive” comments. Although the British Columbia Human Rights Tribunal is in a different jurisdiction, the principles and purposes of the tribunal are identical to that of the Human Rights Tribunal of Ontario (HRTO). Therefore, outrageous and abusive complaints should be treated fairly and consistently. The applicant takes the position that this complaint is no more outrageous, frivolous, vexatious or otherwise vulnerable to summary dismissal than the Pardy v. Earle case.

[11] The applicant’s description of Pardy v. Earle, 2011 BCHRT 101 (CanLII), 2011 BCHRT 101, application for judicial review denied, Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079 (CanLII), 2013 BCSC 1079, does not accurately reflect the facts of that case. I also note that, contrary to the applicant’s suggestion, the content of human rights legislation differs in significant ways in different jurisdictions.

[12] The applicant also asserts that his right to freedom of expression under the Canadian Charter of Rights and Freedoms has been violated. The submissions state:

Further, the decision of the learned adjudicator infringed the applicant’s rights under the Canadian Charter of Rights and Freedoms (Charter) by denying him the right to express himself. Namely by not allowing the applicant to notify the world, via CanLii and QuickLaw that he is a misogynistic, drunkard asshole, and clearly single and unemployed, as only such an individual would have the time and luxury to come up with such a ridiculous action. The applicant is not filing a Notice of Constitutional Question as the applicant is not seeking a remedy pursuant to s. 24(1) of the Charter. Rather the applicant respectfully submits that the HRTO exercise its powers to control its process consistent with “Charter values”.

[emphasis added]

[13] The applicant also filed a Request to Amend the Application, on the basis that it is timely, does not cause prejudice to the respondent, and that the grounds for the original Application were poorly articulated and needed clarification. The Request adds further allegations, similar to those in the original Application. The proposed amendments include that a “lesbian feminist” need not necessarily be a biological female or identify as female, and a specific objection to the absence of the “Unappreciated Custodial Parent Burger”, “That Aunt that No One Talks About Wrap”, and “Morgentaler Combo” from the respondent’s menu. It says that the question of whether the applicant genuinely felt an affront to dignity and self-respect cannot be determined without evidence. The proposed revisions add various remedial requests, including proposed new products that, it is suggested, would better reflect the feminist views the applicant seeks to parody.

ANALYSIS

[14] The Tribunal has no jurisdiction to hear an application in which the applicant has used a false name, attempted to deceive the respondent and the Tribunal, and the submissions filed make clear that he or she does not believe in the allegations put forward. This is also an abuse of process. The Application is dismissed.

[15] The applicant acknowledges, in the materials filed subsequent to the initial Application, that the Application is “outrageous”, “ridiculous” and “abusive”. The applicant states in his subsequent submissions (assuming this part is in fact true) that he is in fact a man bringing the Application in the name of a woman. In essence, I understand his argument to be that the Tribunal should process the Application so that he can demonstrate what he sees as flaws in human rights systems in Canada. I disagree that he is entitled to do so. An Application that is not genuine and does not reflect the experience or views of the applicant is an abuse of process and outside the Tribunal’s jurisdiction.

[16] Section 34 (1) of the Code reads in relevant part as follows:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

[17] It is the intention of the Legislature in s. 34 to give the Tribunal jurisdiction to deal with genuine human rights Applications. The person must believe that his or her rights have been infringed. That is evidently not the case here and the Application is outside the Tribunal’s jurisdiction. The applicant has failed to provide identification when directed to do so.

[18] Moreover, it is an abuse of process to bring an application for a purpose unrelated to the enforcement of the legislation. As noted in Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), 2013 SCC 26 at paras. 39-41, the doctrine of abuse of process is characterized by its flexibility, and has at its heart the protection of the administration of justice and fairness. Allowing this matter to proceed would offend both, because it would use public and private resources for an improper purpose. It would be unfair to the respondent, who would be required to respond to an Application that the applicant does not believe in.

[19] There is nothing unusual in the process followed in this case as compared with the Tribunal’s normal process. The Tribunal’s process includes a detailed review of applications early in the process, to ensure that they are within the Tribunal’s jurisdiction, appear to have a reasonable prospect of success, and are not the subject of other legal proceedings. The Tribunal may seek written submissions on jurisdiction or deferral, or direct a summary hearing, by teleconference, on whether the Application should be dismissed on the basis that it has no reasonable prospect of success (see Rule 19A, the Tribunal’s Practice Direction on Summary Hearing Requests, and Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII), 2010 HRTO 1994). As part of the Tribunal’s active approach to case management, and given the variety of cases that arise, the Tribunal may direct a particular process in an individual case, always respecting procedural fairness.

[20] This Tribunal has found that the Charter values should affect the interpretation of the Code and this Tribunal’s exercise of discretion, and that ambiguity in the definition of Code rights should be interpreted in favour of protecting matters at the core of Charter rights, including freedom of expression; see, for example, Marceau v. Brock University, 2013 HRTO 569 (CanLII), 2013 HRTO 569 and the cases it cites. Criticism of the Code, decisions of this Tribunal, and those of other human rights tribunals is legitimate and an important part of a healthy democracy and legal system. There are many places in which do to so. However, freedom of expression does not give individuals the right to bring false claims through our justice system solely to “express themselves”.

[21] Tribunals and courts are a public resource, providing access to justice for individuals and groups in Canadian society who require impartial dispute resolution. Cases like this one delay the resolution of others’ disputes. There is no right or entitlement to abuse the system to make a point, and it is the responsibility of the Tribunal to prevent misuse of its process and to send a clear message that this conduct is not acceptable.

[22] For all these reasons, the Application is dismissed, on the basis that it is outside the Tribunal’s jurisdiction, the applicant has failed to provide identification as directed, and it is also an abuse of process.

Dated at Toronto, this 19th day of July, 2013.

“Signed by”
__________________________________
David A. Wright
Associate Chair

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