Human rights applications can be frustrating for employers. As
even frivolous cases must usually go to a hearing in order to be
dismissed, employers are forced to incur substantial costs.
Employees, on the other hand, are often able to obtain free legal
advice along the way. Plus, the Human Rights Tribunal
("Tribunal") does not award costs. Accordingly, unlike
the Courts, the system is designed so that there are few
consequences for an employee advancing a claim and then, perhaps
because the claim had no merit all along, withdrawing the claim.
Fortunately, a recent decision from the Tribunal found that
an employee who tried to withdraw her claim at the last second
could not do so without adverse consequences.
The Applicant advised the Tribunal 1.5 hours before the hearing
that she wanted to withdraw her application. As an application can
only be withdrawn with the permission of the Tribunal at this stage
of the proceeding, the Tribunal was tasked with determining whether
it should allow the withdrawal. The employer, quite rightfully,
argued that the case was without merit but, nonetheless, they had
been forced to incur "tremendous expense and
inconvenience" defending the proceeding up to the date of the
hearing. The employer also claimed that the employee did the same
thing under the grievance procedure under the Collective Agreement
between the employer and the employee's bargaining agent.
The Tribunal agreed and, in finding that the applicant's
conduct was deserving of "sanction", stated the
In my view, 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. In my view, such circumstances at the very least
warrant an order preventing the applicant from filing any future
application against the respondent and its current and former
officers, officials, employees or agents in any way arising out of
or relating to the allegations raised in the application or, where
the application relates to the employment context, arising out of
or in any way relating to the applicant's employment or
cessation of employment with the respondent.
In addition, in my view, given that 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 reputationally, 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 my view, the request for permission to withdraw
in such circumstances 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
Accordingly, even though there was no hearing on the merits of
the application, the Tribunal barred the applicant from filing
future claims in relation to the allegations raised in her
application and also found that the allegations were
Importance for Employers
This case is important as it signals that the Tribunal
understands that human rights applications should not be instituted
lightly and that they can take a toil on an employer and the
workplace. As a result, an applicant must take the case seriously
and if wishing to withdraw the case must not do so at the last
second. If they do, like in the case above, the Tribunal may just
bar the applicant from future claims and find the allegations were
without merit. In other words, the Tribunal may just find in the
employer's favour without testing the evidence at a
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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