Drummond v. Community Living Ajax Pickering Whitby, 2015 HRTO 654

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arlene Drummond

Applicant

-and-

Community Living Ajax Pickering Whitby

Respondent

-and-

Canadian Union of Public Employees and its Local 2936

Intervenor

DECISION

Adjudicator: Mark Hart

Date: May 19, 2015

Citation: 2015 HRTO 654

Indexed as: Drummond v. Community Living Ajax Pickering Whitby

APPEARANCES

Arlene Drummond, Applicant

Sharmaine Hall, Counsel and Hannah Shaikh, Student-at-law

Community Living Ajax Pickering Whitby, Respondent

Paula Rusak, Counsel

Canadian Union of Public Employees and its Local 2936, Intervenor

Devon Paul, Counsel

1This is an Application dated June 27, 2013, and amended by order dated January 5, 2015, alleging discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing in this matter was scheduled to proceed in Toronto on May 14, 15 and 21, 2015. Shortly before 8:00 a.m. on the morning of the first scheduled day of hearing on May 14, 2015, applicant’s counsel advised the Tribunal and the other parties that she had received e-mail correspondence from the applicant instructing her to withdraw the Application, and that she was trying to contact the applicant to confirm her instructions. Applicant counsel indicated that she would appear at the hearing at 9:30 a.m. to speak to this new development.

3I commenced the hearing at 9:30 a.m. on May 14, 2015. The applicant was not in attendance. Applicant counsel confirmed that she now had had an opportunity to speak directly with her client, and confirmed her client’s instructions to withdraw the Application.

4Rule 10.5 of the Tribunal’s Rules of Procedure states that, “where a Response to an Application has been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine”.

5Accordingly, I requested submissions from the parties regarding whether I should grant the applicant’s request to withdraw the Application and what if any terms I should impose.

6The respondents acknowledged that this Tribunal does not have jurisdiction to award costs, but submitted that this case cried out for an award of costs to be made against the applicant. The respondent noted that it had been put to tremendous expense and inconvenience as a consequence of the applicant’s pursuit of her Application, and that this had taken an emotional toll on its employees. The respondent noted 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 medical records. The respondent reiterated its position that the Application was without merit.

7The respondent requested that I declare the applicant to be a vexatious litigant. In making this request, the respondent relied upon not only the applicant’s conduct in this proceeding and in the grievance arbitration proceeding, but also made reference to a previous application that had been filed by the applicant with this Tribunal against a previous employer. In my view, there is an insufficient basis in this proceeding to warrant a declaration that the applicant is a vexatious litigant. The applicant’s prior application against a former employer had been filed in 2008, on its face appears to raise a legitimate issue under the Code, and was resolved between the parties. While I appreciate the significant impact of the current proceeding on the respondent and its employees, in my view the circumstances here do not meet the high threshold required to make a vexatious litigant declaration.

8I do agree with the respondent, however, that the applicant’s conduct in this matter is worthy of some sanction. I appreciate that the applicant may have intended to proceed with her case, and may have made a last-minute decision that she was not prepared to do so. What the applicant appears not to sufficiently appreciate is the significant impact that her last-minute decision to withdraw has had, not only on the parties to this proceeding but also on this Tribunal. Significant resources have been allocated to this matter which have now been wasted. In my view, the applicant needs to appreciate that the initiation of an application with this Tribunal is a serious matter that required her to give serious consideration at a much earlier time to the issue of whether she was truly prepared to proceed with the hearing.

9Accordingly, in my view, the circumstances of this case warrant a departure from this Tribunal’s general approach to the granting of permission to withdraw an Application as set out in the case law: see for example D.R. v. Upper Grand District School Board, 2011 HRTO 1751; McDermott v. Ross, 2013 HRTO 1576; Sharma v. Securitas Canada Ltd., 2014 HRTO 1386.

10Recently, in Pannu v. Toronto Transit Commission, 2014 HRTO 1734, I granted the respondent’s request for me to impose terms where an applicant withdrew his application after the hearing had commenced and he had testified in chief and been cross-examined. In that case, I granted the respondent’s request for an order that the withdrawal be considered to be “with prejudice” to the filing of any future Application arising out of the same or related facts.

11In 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 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.

12In 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 unsubstantiated.

ORDER

13Accordingly, for the foregoing reasons, while I grant permission for the applicant to withdraw her Application, I do so on the following terms:

a. That the applicant is barred from filing any future application against the respondent or its current and former officers, officials, employees or agents in any way arising out or relating to the allegations raised in the Application or arising out of or in any way related to her employment or cessation of employment with the respondent; and

b. That the allegations raised in the Application and the amendments thereto are declared to be unsubstantiated.