OBA human rights law chair declared vexatious litigant by HRTO over service dog complaints
Adjudicator barred Andrew Sprague from making further claims against mall owner and security firm without leave after repeated complaints over treatment of him and his service dog
The chair of the Ontario Bar Association’s constitutional, civil liberties and human rights law section has been declared a vexatious litigant by the Human Rights Tribunal of Ontario over his repeated complaints against a mall operator and its security company for their treatment of him and his service dog.
According to the ruling, Andrew Sprague – who assumed the chair of the OBA section in September – has launched several HRTO applications against RioCan – which operates the Yonge-Sheppard Centre in Toronto – and VP Protection Inc. – its security providers – alleging they discriminated against him by requiring he produce documentation verifying that his dog is his service support animal before allowing him entry.
In her Oct. 15 decision, HRTO adjudicator Eva Nichols concluded that Sprague was “regularly and systematically” looking for the tribunal to reverse previous decisions finding that similar requests of people with disabilities did not amount to a breach of the Human Rights Code.
"In my view, the applicant has both instituted vexatious proceedings and conducted himself in a vexatious manner during these proceedings. He has filed more than one Application naming the same respondents alleging the same or very similar discriminatory actions. The two Applications which led to the current proceeding, were filed in December 2017 and March 2019. They allege the same facts. Contrary to his allegations in his submissions, I find that he is indeed attempting to relitigate issues that had already been decided by the Tribunal,” she wrote. “Declaring someone a vexatious litigant is an extraordinary remedy, but I am satisfied that in this case, it is appropriate to consider and take such an extraordinary step in terms of the applicant’s future interactions with these specific respondents.”
The vexatious litigant declaration relates only to Sprague’s applications involving RioCan and VP Protection, and does not affect any of his files naming other respondents, Nichols’ decision says.
As a result of her order, Sprague is barred from filing further applications against RioCan or VP Protection relating to the service-animal supporting-documentation allegations. In addition, he must seek leave from the HRTO to file applications based on any other allegations against the two companies.
“As the period of time to request a reconsideration of the decision has not yet passed, it would not be appropriate for me to comment on the decision at this time,” Sprague told Court Report Canada in a statement.
In a recent message to members, he said the discrimination he had experienced as a result of his disability was a big reason for joining the executive of the CCLHR back in 2015, despite his background as a privacy, information technology, business and regulatory lawyer.
“During my term as the chair of the OBA’s CCLHR Law Section, I will be strongly advocating for persons with disabilities. I make no apologies for this,” Sprague added.
According to Nichols’ ruling, 34 HRTO decisions in the last few years concern matters with Sprague as applicant against various respondents, including requests for interim remedies, reconsideration requests as well as requests to withdraw applications.
But it wasn’t all bad news for the lawyer. In fact, Sprague’s first case, filed in 2014 against RioCan alone, ended with a $1,000 award in his favour after Sprague and his pregnant spouse were stopped and asked for documentation proving that the dog with them was a service animal under the Accessibility for Ontarians with Disabilities Act. The tribunal found discrimination not only in the stop itself, but also for the security guard’s actions in leaving them standing outside while obtaining instructions about how to proceed.
However, the tribunal member in that case declined to find that the incident had a lasting impact on Sprague or to order any further steps regarding RioCan’s future Code compliance, prompting the lawyer to file an 80-page request for reconsideration that alleged the adjudicator was biased, misinterpreted evidence and misapplied the law.
A further application filed by Sprague against RioCan – making fresh allegations, but including another one over a service-dog documentation request – was dismissed in 2016 following a summary hearing, as was a reconsideration of that ruling.
The two more recent applications before Nichols – the first to name both RioCan and VP Protection as respondents – were each made on the same basis as the original complaint 2014, her decision says, although they concerned incidents on different dates.
In one of the cases, Sprague saw a request for an interim remedy ordering the companies to provide him and his service dog with “full and unfettered access” to the public areas of the mall without being stopped for verification rejected as outside the HRTO’s mandate.
RioCan took no position on the vexatious litigant declaration, which was requested by VP Protection. The security firm claimed at the tribunal that its employees are complying with the Code by courteously requesting documents, accusing Sprague of baiting their staff by not complying.
In his submissions, Sprague challenged VP Protection’s protocol as a violation of the AODA and claimed the tribunal’s rule dealing with vexatious litigant declarations should not be applied because it contravenes common law.
In addition, Sprague denied relitigating something that had been already been decided and said all of his applications to the HRTO had reasonable grounds. The lawyer also told Nichols that it would be difficult for the tribunal to legally justify a vexatious litigation declaration, arguing that he does not engage is conduct is considered vexatious under the common law.
But Nichols was not convinced:
“I find that the applicant does in fact satisfy the description of vexatious behaviour when he insists that the Tribunal is and has regularly been wrong in adjudicating his Applications and that it contravenes the law in its approach to the matter of who is a vexatious litigant and what constitutes vexatious behaviour before the Tribunal,” she wrote. “While it is a party’s privilege to disagree with the Tribunal’s decisions and procedures, this applicant’s apparent level of disrespect for the Tribunal and its Rules rises, in my opinion, to the level of conduct that can be considered vexatious. I base this observation at least in part in the contents of the applicant’s reconsideration requests where he claims that any adjudicator who does not agree with him must be biased and/or apply the law incorrectly.”
“The applicant has filed a large number of Applications against numerous respondents. While in a couple of cases the applicant was successful at satisfying the Tribunal that there had been a breach of the Code, the majority of his Applications and Reconsideration Requests were dismissed, as settled or withdrawn. All of this activity required significant administrative and adjudicative resources on the part of the Tribunal which would otherwise have been available to deal with other cases,” Nichols concluded. “I find that in accordance with the above, i.e., the attempt to relitigate an issue that has already been decided by the Tribunal; an abuse of the Tribunal’s resources as well as its processes, it is appropriate to declare this applicant to be a vexatious litigant.”
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