Constantinescu v. Correctional Service Canada

Constantinescu v. Correctional Service Canada
Collection
Canadian Human Rights Tribunal
Date
2022-04-20
Neutral citation
2022 CHRT 13
File number(s)
T2207/2917
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Ruling
Grounds
National or Ethnic Origin
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
13
Date:
April 20, 2022
File No.:
T2207/2917
[ENGLISH TRANSLATION]
Between:
Celia Constantinescu
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Correctional Service Canada
Respondent
Ruling
Member:
Gabriel Gaudreault
Table of Contents
I. Introduction 1
II. Background 2
III. Decision 3
IV. Issues 3
V. Legal Framework 3
A. Abuse of Process 3
B. Remedies for Abuse of Process 6
VI. Positions of the Parties 8
A. Position of the Complainant 8
B. Position of the Respondent 11
(i) Argument Regarding Vexatious Behaviour 12
(ii) Argument Regarding the Unnecessary Complexity of the Complaint 16
C. Complainant’s Reply 20
VII. Analysis 23
A. Abuse of Process 23
B. Remedies 29
C. Other Vexatious Behaviour and Excessive Delays 35
VIII. Order 36
I. Introduction
[1] This is a ruling of the Canadian Human Rights Tribunal (the “Tribunal”) on an abuse of process caused by the conduct of the Complainant, Cecilia Constantinescu, in her complaint against the Respondent, Correctional Service Canada. This proceeding, brought by the Tribunal, was made necessary by the Complainant’s actions and conduct.
[2] Ms. Constantinescu filed a complaint with the Canadian Human Rights Commission (the “Commission”) in October 2015, and this complaint was referred to the Tribunal on May 31, 2017.
[3] Ms. Constantinescu alleges that the Respondent discriminated against her in the course of employment under section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “CHRA”) and that she was harassed in matters related to employment under paragraph 14(1)(c) of the CHRA, because of her sex or her national or ethnic origin.
[4] In July 2017, the Tribunal and the parties began the case management process and, more specifically, the process for disclosing documents potentially relevant to the dispute, which continues to this day.
[5] Following the last correspondence from Ms. Constantinescu, dated January 22, 2021, the Tribunal considered it necessary to address the issue of a potential abuse of process in the case, which could result in the Tribunal dismissing and closing the complaint. The Tribunal therefore asked the parties to make representations on the subject, which they did.
[6] The Tribunal received the Complainant’s written representations on February 23, 2021, and those of the Respondent on March 23, 2021. Ms. Constantinescu then made her first request to extend the time to file her reply, which was granted. Next, she required the assistance of a lawyer, Kwadwo D. Yeboah, who appeared in the Tribunal case on June 29, 2021. Mr. Yeboah requested an extension of time to file his client’s reply so that he could familiarize himself with the case, and the request was granted. The reply was filed accordingly on September 30, 2021.
II. Background
[7] First, the Tribunal would like to note that it is not possible to read this ruling in isolation; it has to be read in light of all the interlocutory decisions preceding it in this case.
[8] It is absolutely necessary to become fully acquainted with this case and its long, complex history to properly understand the major issues in dealing with this complaint, which includes the following interlocutory decisions by the Tribunal:
Constantinescu v. Correctional Service Canada, 2018 CHRT 8 [2018 CHRT 8]
Ruling on the disclosure of documents
Constantinescu v. Correctional Service Canada, 2018 CHRT 10 [2018 CHRT 10]
Ruling on a stay of proceedings
Constantinescu v. Correctional Service Canada, 2018 CHRT 17 [2018 CHRT 17]
Ruling on expanding the scope of the complaint
Constantinescu v. Correctional Service Canada, 2019 CHRT 49 [2019 CHRT 49]
Ruling on amending 17 previously rendered or non-existent interlocutory decisions and ruling on abuse of process
Constantinescu v. Correctional Service Canada, 2020 CHRT 3 [2020 CHRT 3]
Ruling on the motion for recusal
Constantinescu v. Correctional Service Canada, 2020 CHRT 4 [2020 CHRT 4]
Ruling on the disclosure of documents combining six different applications
Constantinescu v. Correctional Service Canada, 2020 CHRT 8 [2020 CHRT 8]
Ruling on the disclosure of documents
Constantinescu v. Correctional Service Canada, 2020 CHRT 30 [2020 CHRT 30]
Ruling on the disclosure of documents
[9] In addition to these rulings, there are those that the Tribunal rendered orally throughout the proceedings during case management conference calls (the “CMCCs”), as well as those in the correspondence and written directions the Tribunal sent to the parties. There are also the warnings given to the Complainant during the CMCCs she took part in and in the correspondence the Tribunal exchanged with her, some of which will be addressed later on in this ruling.
III. Decision
[10] Having considered the parties’ representations and reviewed the entire case, its background and its full context, the Tribunal, is now able to rule on whether an abuse of process may have occurred.
[11] For the reasons that follow, the Tribunal finds that the Complainant’s repeated and unsubstantiated allegations of bias against the decision maker are an abuse of process that justifies dismissing the complaint.
IV. Issues
[12] The issues are the following:
Was there an abuse of process in the proceedings related to this complaint?
If so, what is the appropriate remedy in this case?
V. Legal Framework
A. Abuse of Process
[13] This Tribunal already considered the issue of abuse of process at another stage in these proceedings, in its ruling in 2019 CHRT 49. The Tribunal refers the reader to its analysis at paragraphs 108 and following of that ruling.
[14] To recap, the doctrine of abuse of process engages the inherent power of the Tribunal to prevent the misuse of its procedure in a way that would “bring the administration of justice into disrepute” (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para 37 [Toronto]).
[15] More specifically, an abuse of process involves proceedings that are unfair to the point that they are contrary to the interest of justice and amount to oppressive treatment. There may be an abuse of process where the proceedings are oppressive or vexatious and violate the fundamental principles of justice underlying the community’s sense of fair play and decency (Toronto, at para 35).
[16] Furthermore, the Federal Court of Appeal has clearly stated that unsubstantiated allegations of bias may be considered an abuse of process. In this regard, in Rodney Brass v. Papequash, 2019 FCA 245 [Rodney Brass], that court wrote the following at paragraph 17:
[17] The Supreme Court of Canada recently reiterated that there exists a strong presumption of judicial impartiality (Yukon Francophone School Board, Education Area # 23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282). Allegations of judicial bias are extremely serious as they attack the integrity of the entire administration of justice in general and the reputation of the judge at issue, in particular. For these reasons, unfounded allegations of bias may fall, in some instances, under the ambit of the doctrine of abuse of process (Abi-Mansour v. Canada (Aboriginal Affairs), 2014 FCA 272, [2014] F.C.J. No. 1145 (QL); Joshi v. Canadian Imperial Bank of Commerce, 2015 FCA 105, 474 N.R. 215).
[Emphasis added]
[17] A few years before, that same court also wrote the following in Abi-Mansour v. Canada (Aboriginal Affairs), 2014 FCA 272 (CanLII) at paragraphs 13 to 15 [Abi-Mansour 2014]:
13] In Coombs v. Canada (Attorney General), 2014 FCA 222 at paragraph 14, this Court characterized repeated allegations of bias as attacks on the “integrity of the entire administration of justice.” In McMeekin v. Minister of Human Resources and Skills Development, 2011 FCA 165, at para. 32, Sharlow J.A. stated that unsupported allegations of improper conduct constituted an abuse of process. Such conduct comes within the ambit of the doctrine of abuse of process which, as the Supreme Court of Canada observed in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paragraph 43 focuses on “the integrity of the adjudicative functions of courts.”
[14] I am therefore of the view that Mr. Abi-Mansour’s repeated unsupported allegations of bias are an abuse of process. Persons who invoke the court’s assistance in its capacity as an independent arbiter of disputes and who then repeatedly allege bias when the court’s decisions do not meet their expectations are not using the judicial system in good faith. The Court is entitled to decline to lend its assistance to such litigants.
[15] Going forward, Mr. Abi-Mansour should know that unsubstantiated allegations of bias expose him to the dismissal of his proceedings as an abuse of process, either at the request of the opposing party or on the Court’s own motion. He should govern himself accordingly.
[Emphasis added]
[18] And in a case involving the same applicant, Abi-Mansour v. Canada (Passport), 2015 FC 363 (CanLII) [Abi-Mansour 2015], the Federal Court wrote the following at paragraphs 47 and 48:
[47] The Applicant claims that tensions arose with Prothonotary Tabib in file T-550-13 and that the Order is a form of reprisal against him. In other words, he claims that she was biased and even urges the Court to presume bad faith on the part of Prothonotary Tabib.
[48] Those are very serious allegations which the Applicant has failed to establish to any appreciable degree. As the Respondent points out, the Applicant has been cautioned not to make unfounded allegations against members of the Court. In its decision dated November 13, 2014 affirming the order of Justice Roy referred to above, the Federal Court of Appeal went as far as to warn the Applicant that unsubstantiated allegations of bias “expose him to the dismissal of his proceedings as an abuse of process, either at the request of the opposing party or on the Court’s own motion”, and directed him to “govern himself accordingly” (Abi-Mansour v Department of Aboriginal Affairs, 2014 FCA 272, at para. 15).
[19] In that same decision, the Federal Court, relying on the cautions that Federal Court of Appeal judges had given to the appellant to rein in his allegations of bias, dismissed the applicant’s application solely on the basis of his unfounded allegations and reprehensible conduct regarding a prothonotary, since the applicant was once again attacking the integrity of the adjudicative function of the courts.
[20] The Federal Court concluded as follows, at paragraph 50:
[50] Clearly, the message of the Federal Court of Appeal has not been heard by the Applicant. By making unsupported allegations of improper conduct against Prothonotary Tabib, he is again attacking the integrity of the adjudicative function of the courts. This, in and of itself, given the unequivocal caution given by the Court of Appeal, is sufficient to dismiss the Applicant’s appeal as an abuse of process.
[Emphasis added]
[21] Similarly, in Dove v. Canada, 2016 FCA 231 (CanLII) at paragraph 5, the Federal Court of Appeal, too, gave an appellant a clear warning in similar circumstances:
[5] Mr. Dove and his co-litigants should know that, while they are entitled to be heard, they are not entitled to blame their lack of success on the bad faith and corruption of the judges who hear and decide their cases and on collusion between the lawyers who represent the Crown and the judges and prothonotaries who have heard their cases. Such allegations have consequences and if Mr. Dove continues in his present vein, he will have to deal with those consequences: see Abi-Mansour v. Canada (Department of Aboriginal Affairs), 2014 FCA 272, [2014] F.C.J. No. 1145, at paragraphs 9-15.
[Emphasis added.]
B. Remedies for Abuse of Process
[22] The decision to dismiss a proceeding (or to order a stay of proceedings) must not be taken lightly, as the consequences are necessarily final and irreversible; it is “that ultimate remedy”, in that it is final and brings any proceedings to an end (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC) at para 86 [Tobiass]; R. v. Regan, 2002 SCC 12 (CanLII) at para 53 [Regan]).
[23] However, the Supreme Court has recognized that such a remedy is discretionary and that a reviewing court cannot interfere lightly with a decision maker’s exercise of this discretion (Tobiass, at para 87; Elsom v. Elsom, 1989 CanLII 100 (SCC) at 1375; R. v. Carosella, 1997 CanLII 402 (SCC) at para 48).
[24] In a criminal law context, the Supreme Court has stated that a stay of proceedings (in other words, stopping the proceedings) normally aims to remedy some unfairness to an individual resulting from misconduct by the state, which is in practice, in that context, the prosecution (Tobiass, at para 89).
[25] That said, there is another, “residual” category in cases where staying (in other words, stopping or dismissing) a proceeding could be justified, where the panoply of diverse and unforeseeable circumstances in which a prosecution is conducted are unfair or vexatious to such a degree that they contravene fundamental notions of justice and undermine the integrity of the judicial process (Tobiass, at para 89).
[26] In the case at hand, the second category is the relevant one, as will be explained later on in the Tribunal’s reasons.
[27] That said, when the integrity of the justice system is harmed like this, a stay of proceedings—in our case, it is, rather, a matter of dismissing the complaint and closing the file—is only appropriate when two criteria are met:
the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
no other remedy is reasonably capable of removing that prejudice.
(R. v. O’Connor, 1995 CanLII 51 (SCC) at para 75 [O’Connor]; Regan, at para 54)
[28] The Supreme Court has noted that the first criterion is important because it concerns, rather, the prospective nature of a stay of proceedings. The idea is that the remedy must not only redress a wrong that has already been done (the past wrong, or the retroactive nature of the remedy), but also prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole (Tobiass, at para 91; Regan, at para 54). It must therefore be determined whether the abuse could continue or reoccur, which is why it is important to analyze the prospective nature of this remedy, namely, a stay of proceedings.
[29] The Supreme Court has stated that only in rare cases will the alleged past misconduct be so egregious that the mere fact of going forward in the light of it would be offensive (Tobiass, at para 91).
[30] Only once the court or tribunal has determined that carrying on the proceeding will plague the judicial process, and that no remedy other than a stay is available, can the decision maker exercise their discretion (Regan, at para 56). And if any doubt remains after analyzing these two criteria, the Supreme Court instructs us that the decision maker may apply a third criterion, the balancing of interests, which it describes as follows:
“[I]t will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”. In these cases, “an egregious act of misconduct could [never] be overtaken by some passing public concern [although] . . . a compelling societal interest in having a full hearing could tip the scales in favour of proceeding”.
[Regan, at para 57, citing Tobiass, at para 92]
[31] Bearing in mind these principles, as well as those in its decision in 2019 CHRT 49, the Tribunal will now analyze the issue of the abuse of process caused by the Complainant in this case.
VI. Positions of the Parties
[32] The Tribunal has read the representations of the Complainant and those of the Respondent, as well as their supporting documents, in particular the affidavits of Christian Pierre Fradin, Isabelle Bastien and Éric Tessier.
[33] The Tribunal will focus on those arguments of the parties that are necessary, essential and relevant to its decision (Turner v. Canada (Attorney General), 2012 FCA 159 at para 40).
A. Position of the Complainant
[34] The Complainant is of the view that the representations requested by the Tribunal concern, in her own words, a [translation] “potential measure” of an “exceptional nature” that is “unfair, disproportionate, forced and contrary to the spirit of justice being done, the principles of natural justice, the interests of the public” and the CHRA, and the rules of procedure.
[35] She adds that she believed, for a certain time during the proceedings, that the member hearing the case was simply inexperienced, but then concluded that he was simply biased against her case, which led to her requests for disclosure of documents being rejected and to the member tolerating certain irregularities on the part of the Respondent and its representatives.
[36] She finds it unfair that in other cases before the Tribunal, disclosure requests and other measures were granted while this was not done in her case.
[37] She adds that starting the debate over from the beginning to justify that she did not abuse the process would be a long exercise. She argues that it is not up to her to prove that she did not abuse the process; rather, the Tribunal itself must show that there was such an abuse.
[38] Ms. Constantinescu also tried to justify the statements in her communication dated January 22, 2021. She states that she sent this communication in a context where she had recently learned that the Respondent had investigated her after she took part in target practice sessions with Mr. Ouellet and had failed to inform her of this. She writes that this fact should have been in the summary of the conference call on December 4, 2020, which was not the case, adding in passing that the Commission, for its part, has not taken part in the proceedings for more than a year.
[39] The Complainant also argues that on January 20, 2021, a few days before her correspondence, the Respondent had applied to the Federal Court to have it strike out her application for judicial review of the Tribunal’s decision concerning recusal. In her view, the respondent’s application to the Federal Court was inappropriate and concerning in terms of justice being done, in asking again that her application for judicial review be struck out, even though the hearing date had already been set.
[40] In her view, the Respondent’s application to strike was based on saving judicial resources. She adds [translation] “that an army of lawyers” from the Department of Justice is involved in her various proceedings against Correctional Service Canada, and that these lawyers charge and bill the Department and taxpayers [translation] “unbelievable” sums of money.
[41] The Complainant writes that on that same day, January 20, 2021, she asked the Respondent to disclose to her some documents concerning one individual in particular. The Respondent asked the Tribunal to add this subject to the agenda for the CMCC to be held on January 26, 2021.
[42] She adds that she had asked to examine this same individual, now deceased, on discovery. She had been requesting this since the beginning of the proceeding, but the Tribunal never dealt with her request. She also states that she objected to the Respondent’s request that this disclosure request be discussed during the CMCC.
[43] In addition, the Complainant argues that the Respondent failed to comply with a Tribunal order to provide, before the CMCC, certain information as directed by the Tribunal. The Respondent also allegedly failed to offer any excuses before the CMCC to justify this delay. According to the Complainant, this was the first time the Complainant had failed to comply with a Tribunal order without providing an explanation.
[44] The Complainant also states that the summary of the CMCC on January 26, 2021, should contain a note mentioning that the complaint proceedings had come to a halt, but it does not, not to mention that she received this summary a week later, on February 3, 2021. In her view, she should have received the summary [translation] “immediately”.
[45] Finally, Ms. Constantinescu repeated every point in the correspondence dated January 22, 2021, and tried, for each point, to justify why she had written it. Her claims include the following:
The CMCC summaries do not fully reflect all the issues in the case and how it has been conducted.
These efforts to obtain certain documents, particularly the positions held by the Respondent’s witnesses or employees, are not being supported by the member assigned to the case.
She was investigated by the Respondent in connection with shooting practice sessions with Mr. Ouellet, which is a violation of her rights under the charters.
It is her firm conviction and position that the member is biased, and she will keep believing that such is the case so long as higher authorities fail to deal with this issue.
She was forced to take part in the management of her case.
In another Tribunal case (Davis v. Canada Border Services Agency,2011 CHRT 6), the member preferred to withdraw from a case in which a recusal motion had been filed, which is not what happened in her case.
She raised bias at the first opportunity.
She is entitled to ask that a disclosure request be made in writing, which is in accordance with the rules of practice.
B. Position of the Respondent
[46] The Respondent focuses on two major arguments overarching its representations.
[47] First, it is of the view that the Complainant’s vexatious behaviour, including the repeated, unsubstantiated allegations of bias made against the member, are in and of themselves an abuse of process and that, for this reason alone, the complaint should be dismissed.
[48] Second, it adds that the Complainant complicated her complaint for no good reason when there had been nothing complicated about in the first place. As a result, the Complainant caused excessive delays in the proceeding, which undermined the Respondent’s ability to respond to the complaint and caused direct harm to its witnesses, both psychologically and in terms of their reputations.
(i) Argument Regarding Vexatious Behaviour
[49] First, the Respondent is of the opinion that the case law recognizes the Tribunal’s power to dismiss a complaint for abuse of process.
[50] It adds that the Complainant’s representations regarding this decision and her vexatious behaviour in them support finding an abuse of process. In its view, she does not grasp the magnitude of what the Tribunal is asking of her with regard to the minimum of civility necessary for the proceeding to go ahead smoothly. More importantly, it argues that the Complainant has shown, in addition, that she has no intention of correcting her behaviour.
[51] The Respondent adds that on March 13, 2018, in a published decision, the Tribunal was quick to caution the Complainant to correct her behaviour (see 2018 CHRT 8, at para 32).
[52] The Respondent adds that in a piece of correspondence dated December 3, 2018, the Complainant accused the Tribunal of favouritism, an accusation which it denounced. On December 4, 2018, the Tribunal therefore intervened by issuing a direction in which it asked her to exercise restraint and rein in her allegations of bias. The Tribunal also noted that the Complainant’s disrespectful behaviour towards it, its administration and the other parties had been going on for some time now.
[53] The Respondent argues that the Complainant criticized the Tribunal again in her correspondence dated August 28, 2019. She had also gratuitously attacked the professional integrity of the Respondent’s lawyers.
[54] Then, on December 15, 2019, one year after having been formally notified by the Tribunal in its direction dated December 4, 2018, that she had to file a motion for recusal, the Complainant asked the Tribunal to issue directions to change the member assigned to the case as soon as possible.
[55] The Respondent adds that on December 16, 2019, the clerk sent a Tribunal decision (2019 CHRT 49) in which the Tribunal dismissed Ms. Constantinescu’s request to reconsider 17 interlocutory decisions, as this was an abuse of process. The Respondent notes that the Complainant mentioned at that time that this confirmed that the member had wanted to punish her for having sought to recuse him the day before.
[56] The Respondent notes that the Tribunal, again in 2019 CHRT 49, had also issued an order to have the Complainant correct her vexatious behaviour. The Tribunal had also determined that the Complainant lacked restraint, used inflammatory, abusive and at times difficult to understand language, and made unsubstantiated allegations. It had also pointed out that this was not the first time it had asked her to correct her behaviour and that her comments sometimes crossed boundaries that should not be crossed. Finally, the Respondent adds that, at that time, the Tribunal was not about to dismiss Ms. Constantinescu’s complaint for abuse of process, but that it noted that she had less and less latitude in the proceeding.
[57] The Respondent argues that, despite these various warnings, the Complainant continued to exhibit vexatious behaviour, particularly in her correspondence dated May 20, 2020, and June 5, 2020, in which she made baseless accusations and insinuations contrary to the Tribunal’s order (2019 CHRT 49). The Respondent categorically rejects the Complainant’s claim that her statements are always supported by facts and evidence, and it is of the view that the Complainant’s accusations and insinuations are gratuitous and baseless.
[58] Moreover, the Respondent states that the Complainant, in an open letter dated June 8, 2020, wrote that she had no choice but to reluctantly proceed with her complaint, even though she thought that it was illegitimate to continue with the proceeding while a higher authority (the Federal Court) was supposed to rule on the member’s recusal. In that same correspondence, the Respondent states that the Complainant once again accused the Tribunal of rendering a biased decision.
[59] In the same vein, the Respondent notes that the Complainant attacked it and its representatives again in her representations dated November 27, 2020.
[60] The Respondent argues that on January 20, 2021, the Complainant filed a request for disclosure of documents when she learned how an individual involved in the complaint had died. In that request, Ms. Constantinescu asked that if this individual, at the time of their death, had left behind a letter or any evidence that talked about her or referred to her assault or intimidation, or that referred to CTP-5, the security breach on October 4 and 5, 2014, or any other facts concerning CTP-5, it should be disclosed to her.
[61] The Respondent, because of the context and the nature of the request, had asked in correspondence dated January 22, 2021, that this subject be added to the agenda of the CMCC scheduled for January 26, 2021. That same day, the Complainant objected to this request in correspondence that ultimately led to this ruling on her abuse of process.
[62] The Respondent argues that, in her representations regarding this ruling, the Complainant merely tried to justify the comments she had made in her correspondence dated January 20, 2021, and once again accused the member of bias. The Respondent states that this is the context in which the Tribunal asked that the issue of a possible abuse of process be debated.
[63] It adds that Ms. Constantinescu’s representations are themselves proof of her abuse of process and notes that procedural fairness demands that Ms. Constantinescu be the first to file her representations, contrary to what she claims (Dugré v. Canada (Attorney General), 2021 FCA 8 at paras 27 and 29 to 31).
[64] The Respondent also notes that disagreement with a tribunal’s or a court’s decision alone is incapable of supporting an allegation of bias on the part of a decision maker, adding that a party cannot raise groundless and wholly unsupported allegations of bias because of the damage they cause to the administration of justice (Dixon v. TD Bank Group, 2021 FCA 101 at paras 9 and 15 [Dixon]).
[65] The Respondent, citing the Federal Court of Appeal’s teachings in Rodney Brass, states that allegations of bias are serious because they cause damage to the administration of justice in general and to the decision maker’s reputation in particular. Therefore, allegations of bias may sometimes fall under the abuse of process doctrine. The Respondent is of the opinion that Ms. Constantinescu’s allegations that the Tribunal is biased against her are based on her dissatisfaction with unfavourable rulings or with how the Tribunal is managing the proceeding, which in its view is incapable of supporting an allegation of bias (Dixon, mentioned above).
[66] Moreover, the Respondent notes that the Tribunal already rejected the Complainant’s allegations of bias in its decision dated February 28, 2020, on the basis of waiver, but nonetheless considered her other arguments in the interests of justice and found no reasonable apprehension of bias.
[67] The Respondent also notes that on March 9, 2021, Justice Mosley of the Federal Court dismissed the Complainant’s appeal from Prothonotary Molgat’s decision to strike out the judicial review of the member’s decision not to recuse himself (Constantinescu v. Canada (Attorney General), 2021 FC 213 [Constantinescu 2021 FC 213]).
[68] The Respondent believes that, in filing an application for judicial review with the Federal Court even though the case law confirms that she cannot apply for a review of an interlocutory ruling, the Complainant simply undermines the smooth conduct of the complaint proceedings by putting undue pressure on the member and the parties by constantly repeating these unsubstantiated allegations of bias. This, in its view, is an abuse of process.
[69] It adds that Ms. Constantinescu continues to abuse the process by using inflammatory, abusive and at times difficult to understand language, directed at both the Tribunal and the other parties. It alleges that, despite numerous warnings from the Tribunal, her behaviour has not changed, and she constantly repeats her baseless allegations of bias. It argues that the Complainant has also demonstrated that she has no intention of correcting her vexatious behaviour and that the Tribunal has no choice but to dismiss her complaint on this basis.
[70] Finally, the Respondent notes that Ms. Constantinescu behaved similarly in another proceeding before the Federal Court, an access to information case. The Respondent cites the comments of Justice Pamel concerning the Complainant’s behaviour, the judge writing that the Complainant “could have better served her cause by focusing on the real issues rather than fanning the flames with caustic language, regardless of her feelings” (Constantinescu v. Canada (Correctional Service), 2021 FC 229 at para 139 [Constantinescu 2021 FC 229]).
[71] The Respondent confirms that, for this reason, Justice Pamel did not award the Complainant costs, since this was the only remedy available to him to punish this conduct, which is something the Tribunal, unlike the Federal Court, is not empowered to do.
[72] The Respondent also relies on Poplawski c. Association accréditée du personnel non enseignant de l’Université McGill, 2012 QCCRT 430 [Poplawski], in which the Commission des relations de travail du Québec (Quebec’s labour relations board, “CRTQ”) dismissed the applicant’s proceeding, in particular because of his disrespectful behaviour and his failure to comply with the CRTQ’s instructions. The Respondent argues that his proceedings were dismissed because of conduct similar to that of the Complainant.
(ii) Argument Regarding the Unnecessary Complexity of the Complaint
[73] The Respondent also alleges that the Complainant is unnecessarily complicating her complaint before the Tribunal, which is lengthening the delays in the proceedings, whereas the hearings have still not begun even though the complaint was referred to the Tribunal in the fall of 2014. The delays are undermining its ability to make full answer and defence and are causing its witnesses harm, which is an abuse of process.
[74] The Respondent is of the view that the Complainant is using the Tribunal’s procedure in a vexatious and abusive way that brings the administration of justice and the human rights system into disrepute.
[75] The Respondent considers the last email from the Complainant, dated January 22, 2021, to be inappropriate. In that email, she asked, upon learning how one of the Respondent’s witnesses had died, for the disclosure of documents that had allegedly been in the witness’ possession at the time of his death. Considering such a request, the Respondent had asked that this issue be dealt with on appeal, to which the Complainant objected. The Respondent is of the view that this request shows just how far the Complainant is prepared to go to with the disclosure of documents.
[76] It adds that the Complainant’s case is not inherently complicated and is based primarily on credibility issues. Although the complaint is a delicate matter because of certain allegations, the Respondent considers that if the Complainant had not complicated her complaint to such a degree, the proceedings could have been completed long ago.
[77] The Respondent also argues that the Complainant cannot use disclosure to try to corroborate her allegations and obtain fresh evidence so that she could apply to the Tribunal to expand the scope of her complaint after the fact. On this point, it notes that the Complainant has already announced that she will be filing a second application to expand her complaint.
[78] In addition to the never-ending disclosure requests, the Complainant had also filed a motion for a stay of proceedings, and she admitted in her representations that she had used that motion to advance her goals (see 2018 CHRT 10). She also filed a motion to reconsider 17 interlocutory decisions, which the Tribunal found to be abusive.
[79] The Respondent adds that Ms. Constantinescu also announced that she was going to ask that certain witnesses for the Respondent be required to take lie detector tests, and that she was also going to examine other witnesses for discovery. It views these requests as being highly unusual and doubts their usefulness, such that motions would have to be filed to deal with these issues. Regarding the examinations for discovery, the Respondent notes that they would go against the principles establishing that proceedings before the Tribunal should be conducted informally and expeditiously. As for the lie detector tests, the Respondent notes in passing that assessing the credibility of witnesses is the Tribunal’s job, and that, for this reason, it is uncertain whether the results would be admissible.
[80] All of this, according to the Respondent, would draw out the complaint proceedings by once again preventing the Tribunal from hearing evidence and witnesses and considering the merits of the complaint.
[81] Relying on 2018 CHRT 8, the Respondent adds that the Tribunal had already cautioned the parties, in a context where the Complainant had filed a motion regarding issues that had already been decided, that the multiplication of motions (including motions on issues already decided) could lengthen the complaint process and be considered abusive.
[82] Relying on another Tribunal decision (2019 CHRT 49), the Respondent further argues that the Tribunal had also cautioned the parties that the proliferation of superfluous arguments, irrelevant to the issues to be addressed, prevented focusing on the merits of the case, the objective being to move to a hearing as quickly as possible. On this point, the Respondent considers that Ms. Constantinescu’s many disclosure requests and the proliferation of motions prevent focusing on the merits of the complaint and unnecessarily impede the case’s progress, which is an abuse of process.
[83] In addition to this, the Respondent writes, there are all the Complainant’s proceedings before the Federal Court and the Federal Court of Appeal. It cites Justice Mosley, at paragraph 24 of Constantinescu 2021 FC 213, in which the judge wrote the following:
[24] This appeal is one of the ten applications for judicial review or appeals filed by the applicant with the Federal Court or Federal Court of Appeal since 2018. All have required the use of public funds and judicial resources and have detracted from the handling of the applicant’s complaint.
[84] According to the Respondent, all these factors lead to the conclusion that Ms. Constantinescu has abused the process. This finding having been made, the Respondent alleges that we must now assess whether the excessive delay undermines the fairness of the proceeding by compromising its ability to defend itself. And if the Tribunal finds that the excessive delay does not undermine the fairness of the proceeding, then the Respondent alleges that it should assess whether it has directly caused psychological or reputational harm to the witnesses, to the point of bringing the human rights system into disrepute.
[85] Regarding the excessive delay, the Respondent relies on, among other authorities, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe], a leading Supreme Court decision, and the Tribunal’s decision in Cremasco v. Canada Post Corporation, 2002 CanLII 61852 (CHRT).
[86] The Respondent notes that the events giving rise to the complaint date back to the fall of 2014, and that the complaint was referred to the Tribunal in the spring of 2017, which it considers to be [translation] “still acceptable” as a timeframe. However, given the abuse of process caused by Ms. Constantinescu, the delay became excessive and compromised its ability to defend itself.
[87] Furthermore, the Respondent states that one of the main witnesses took his own life in February 2020, which also compromised its ability to defend itself, especially since the Commission referred the complaint to the Tribunal because of the irreconcilable testimonies. It notes that nearly six years later, Ms. Constantinescu has still not given her version of the events to the Tribunal, which means that her credibility has not been assessed. It adds that the Complainant has spread her version of the facts as if they had been proved, not only in the Tribunal case, but also before the federal courts, and even to politicians.
[88] The Respondent states that the delays affect the witnesses’ memories and their ability to testify. In addition, several witnesses (at least seven) have since left Correctional Service Canada to take retirement or for other reasons. Consequently, as the Complainant has been constantly repeating her version of the facts to every authority, the Respondent believes that she is the only one benefitting from the passage of time.
[89] The Respondent refers to Manoir Archer inc. c. Tribunal des droits de la personne, 2010 QCCS 4410, a decision of the Superior Court of Québec affirmed on appeal (2012 QCCA 343). It was decided that it was unreasonable for the Tribunal des droits de la personne du Québec, Quebec’s human rights tribunal, not to order a stay of proceedings because of delays in the investigation. The investigation took 65 months, two witnesses had died, and several witnesses no longer worked for the defendant. In the present case, the Respondent claims