In Drummond v. Community Living Ajax Pickering Whitby, (“Drummond”), the Human Rights Tribunal of Ontario (the “Tribunal”) barred the Employee from filing any future applications against the Employer and declared the Application unsubstantiated.
In Drummond, an Employee filed an Application alleging discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code (“Code”). On the morning of the first scheduled day of hearing, the Employee’s counsel (the Employee was not in attendance) advised the Tribunal that she was withdrawing her Application.
The Tribunal’s Rules of Procedure state that an Application may be withdrawn only under the terms determined by the Tribunal and with its permission.
The Tribunal indicated in its reasons that an Applicant should not be permitted to withdraw an application “in the course of a hearing or on the proverbial courtroom steps after having put the respondent and the Tribunal to considerable expense and inconvenience, without having some type of sanction imposed.” Such a conduct should at the very least warrant an order preventing the Applicant from filing any future Application against the Employer.
The Tribunal disagreed with the Employer’s argument that the Employee’s conduct met the high threshold for a vexatious litigant declaration but agreed nonetheless that her conduct warranted some sanction.
Moreover, the Tribunal added that given “the filing of a human rights application is a serious matter that raises serious allegations against the respondent which may affect the respondent and its employees emotionally and reputational, an applicant should not be permitted simply to withdraw an application during the course of, or on the eve of, a hearing and thereby avoid a decision finding that the allegations raised in the application were unsubstantiated.” In the Tribunal’s view, the request for permission to withdraw the Application “is tantamount to a failure to present evidence to prove the applicant’s allegations, and warrants a declaration that the allegations raised in the application are unsubstantiated.”
This decision demonstrates openness from the Tribunal to sanction Applicants who waste both the Tribunal and the employer’s valuable resources. The Tribunal does not have the power to award costs against either party. Although the employer did not receive compensation in this case for its legal costs, if the application had been substantiated by the Tribunal, the employer would not have been required to pay the legal costs of the employee.