In a recent decision, the Human Rights
Tribunal of Ontario (the Tribunal) came down on an applicant for
withdrawing her complaint on the proverbial courtroom steps.
AD (the Applicant) alleged discrimination with respect to
employment because of disability and reprisal contrary to the Human
Rights Code (the Code). On the morning of the
first scheduled day hearing, the Applicant's counsel informed
the Tribunal and the other parties that she had instructions to
withdraw the Applicant's application. Pursuant to the
Tribunal's Rules of Procedure, once an application and response
have been filed, an application may be withdrawn only with the
permission and upon the terms of the Tribunal.
In light the withdrawn application, the employer submitted that
this was a case that "cried out" for an award of costs.
By way of background, the Tribunal does not have jurisdiction to
award costs. Notwithstanding the Tribunal's lack of
jurisdiction in this regard, the employer pursued such request and
highlighted the fact that the Applicant had displayed similar
behaviour in a grievance arbitration proceeding, where she withdrew
her grievance after the arbitrator had ordered her to disclose her
While the Tribunal did not award costs in favour of the
employer, it did indicate that the Applicant's conduct in the
matter was worthy of some sanction. The Tribunal noted that the
Applicant did not appreciate the significant impact that her
last-minute decision to withdraw had not only on the respondent
employer but also on the Tribunal. The Tribunal held that the
Applicant had put the employer and its employees through
considerable expenses and inconvenience, which could not pass
In this instance, the Tribunal declared that the Applicant was
prohibited from filing any future application against the
respondent employer and its current and former officers, officials,
employees or agents in any way arising out 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. The Tribunal went further and
stated that the request to withdraw the application to avoid a
decision finding that the allegations raised in the application
were unsubstantiated was "tantamount to a failure to
present evidence to prove the Applicant's allegations, and
warrants a declaration that the allegations raised therein are
A part of the employer's response was a request to have the
Applicant declared a vexatious litigant. In making its submission,
the employer pointed to the Applicant's similar conduct in a
grievance arbitration, as well as a previous application that had
been filed by the Applicant with a previous employer.
Notwithstanding the Applicant's past, the Tribunal held that
the circumstances in this application did not meet the "high
threshold" required to make a vexatious litigant
This decision, while employer friendly, confirms the high
threshold for successfully arguing that an individual is a
vexatious litigant. Additionally, it is a reminder to employers
that the Tribunal cannot award costs. For now, sanctions against
last minute withdrawal of complaints such as declarations and
prohibitions will have to suffice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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