Complainant

Respondent

Parties

Olumide  Smith

Mason Hayes & Curran Limited

Representatives

  Self-Represented

Elizabeth Ryan Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011161-001

27/04/2017

It is  Complainant’s claim that he was discriminated against, victimised and harassed as a result of his race by the Respondent on 24 February 2017 with its consequence on 3 March 2017. The ES.1 Form was dated 18 April 2017 by the Complainant with the Respondent replying on 21 April 2017. The Complainant submitted his claim to the Workplace Relations Commission on 24 April 2017.

It is the Complainant’s case that by email dated 27 February 2017 at 7.01am the Respondent disclosed Private and Confidential Equal Status Complaint(s) made by the Complainant against the Court Service. The Complainant stated on the said date the Respondent’s act and/or omissions:

(A)    Failed to treat with respect his right to privacy, private life, family life and correspondence which the Respondent had no need or right to gain access and/or abuse in Court 6;

(B)    Without prior consent , due authorization and/or without following due to procedures given that he did not receive any appropriate Notice thereof, disclosed inappropriate private and confidential data/ information about him by the Respondent in a campaign against him in the High Court to provoke adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment; and

(C)    Disclosed with the purpose of effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offence environment during the said High Court hearing.

By letter dated 23 June 2017 the Respondent states that the Complainant’s claim against the Respondent arose out of the defence of legal proceedings on behalf of their client before the Rights Commissioner, EAT, Labour Court and High Court on a point of law. In March 2017 the High Court struck out both claims as being entirely frivolous and vexatious, and awarded costs to the Respondent’s client.

The Respondent submitted that the Complainant has no cause of action whatsoever under the Equal Status Act 2000-2015 against the Respondent, as the Respondent was not involved in the disposal of goods and/or provision of services to the Complainant pursuant to Section 5 of the Act or disposal of premises and/or provision of accommodation , Section 6 of the Act nor is it (i) a club or (ii) educational establishment.

The Respondent sought to have the claim dismissed that the claim was frivolous and vexatious pursuant to s. 22 of the Equal Status Act  2000-2015.

The Respondent filed a second submission on 26 July 2017. The Respondent made an application pursuant to that s.22 of the Equal Status Act 2000-2015 to strike out the above claims on the basis that the claims were made in bad faith and/or are frivolous , vexatious and/or misconceived. The Respondent submitted that the Complainant does not have standing to bring a claim under the Equal Status Act 2000-2015 against the Respondent , as no details have been furnished of any services or goods sought provided.

Section 5 (1) of the Equal Status Act 2000 provides:-

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

For completeness Section 2 (1) of the Act defines what constitutes a “service” and “goods”:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;”

Goods are defined in as; “means any articles of movable property”

There is a question as to whether the Complainant in this case sought to access a “service” of the Respondent within the meaning of Section 2 (1) of the Act.

There is an onus on a Complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the Respondents  that was available to the public generally and (b) he was discrimination against on at least one of the stated grounds of discrimination. 

On this basis it is necessary to consider whether Section 22 of the Equal Status Act 2000 is appropriate which provides for dismissal of claims:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.”

It is widely accepted by the Courts that the terms are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland, [1997] IESC 60

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”.

In 2005, McCracken Jreiterated this in Fay v Tegral Pipes Limited & Ors [2005] 2 IR 261, stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner[2014] IEHC 479 . instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.

Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

Irvine J in the High Court in Behan v McGinley [2011] 1 I.R. 47 and reiterated by Laffoy J  in Loughrey v. Dolan[2012] IEHC 578, relied on a decision of the Ontario High Court in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685 which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, are:

“• whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

• where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

• where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

• where issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

• where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

• where the plaintiff persistently takes unsuccessful appeals against judicial decisions.”

The Complainant’s claims relates disclosure of his personal information and Equal Status claims to the Court Service.

The Respondent was not offering a service within the meaning of Section 5 of the Act to the Complainant in its email of 27 February 2017 and subsequent hearing before the High Court.  

Having very carefully considered complaint before me against the Respondent, I am satisfied that it is a “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2015 and consequently dismissing it. 

Equal Status – Good and Services- Frivolous or Vexatious- Dismissal of Claim