Peidl v. Linex Manufacturing, 2016 HRTO 1613

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Peidl

Applicant

-and-

Linex Manufacturing

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: December 14, 2016

Citation: 2016 HRTO 1613

Indexed as: Peidl v. Linex Manufacturing

WRITTEN SUBMISSIONS

David Peidl, Applicant

Wesley Jamieson, Counsel

Linex Manufacturing, Respondent

Brandin O’Connor, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

Background

2The hearing of this matter was scheduled for December 12 and 13, 2016. The parties were active in advance of the hearing, as the Tribunal rendered four Case Assessment Directions between October 11 and December 6, 2016, as a result of preliminary issues raised by the parties. The primary issue, raised by the respondent, was that the scope of the Application was unclear because of delay issues and because of the applicant’s failure to particularize his allegations. In that regard, two of the Case Assessment Directions included directions to the applicant to provide particulars. The Tribunal’s Case Assessment Direction of November 23, 2016 directed the applicant to respond to the respondent’s objections regarding the applicant’s purported particulars to the effect that the submissions provided by the applicant did not comply with the Tribunal’s directions and were not in fact particulars, but new allegations. I would not disagree with that assessment. On December 2, 2016, two days past the deadline the Tribunal set, the applicant responded to the respondent’s objection and also made a request for the production of documents. The respondent responded to the applicant’s production request and renewed its objection to the particulars filed by the applicant. The Tribunal’s Case Assessment Direction of December 6, 2016 advised the parties that in light of the short time before the hearing the Tribunal would address the preliminary issues at the hearing if the parties were unable to resolve the matter through Mediation/Adjudication, in which they had agreed to participate.

3Accordingly, the expectation was that the matter would proceed to hearing and would be resolved either through mediation or by an adjudicated decision. However, on Friday, December 9, 2016, the last business day before the hearing, the applicant filed a Request to Withdraw the Application. In the covering e-mail message, counsel for the applicant advised that the applicant was unable to proceed with the Application because of financial considerations and was sorry for any inconvenience.

4The respondent filed a Response to a Request for an Order later on December 9, 2016, in which it strenuously objected to the Request to Withdraw and submitted that the applicant’s conduct of the applicant amounts to an abuse of process. The respondent set out the significant procedural history of this matter and submitted that the applicant repeatedly failed to comply with the Tribunal’s directions and also did not meet his pre-hearing disclosure obligations. The respondent submitted that it had been put to significant expense in responding to the Application, in particular with respect to its efforts to prepare for the hearing over the last several weeks.

5The respondent submitted that the applicant’s tactics were to use the Tribunal’s processes to obtain extensive production and cause the respondent to incur significant costs to extract settlement. The respondent submitted that, having failed to do so, the applicant proposes to simply walk away from his Application with which he never intended to proceed. The respondent submitted that the Applicant has filed a Notice of Action in the Hamilton Court based on the same facts and included the Notice with its submissions. Consequently, the respondent submitted that the applicant’s explanation that the withdrawal is for financial reasons is “non-sensical” since the applicant did little to prosecute his Application and because he has chosen to proceed in the more expensive venue of civil court.

6The respondent submitted that in these circumstances the Tribunal should:

• Deny the Request to Withdraw and proceed with the hearing;

• In the alternative, allow the parties to make submissions on the first day of hearing regarding the request;

• In the further alternative, require the parties to proceed with mediation;

• In the further alternative, grant the Request to Withdraw with prejudice.

7In summary, the respondent submitted that the applicant’s behaviour amounts to a “stunning abuse” of the Tribunal’s processes, committed in the knowledge that the Tribunal cannot award costs.

Analysis and Decision

8Rule 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.”

9In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated as follows:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process…

10In my view, the applicant, through his conduct, has shown that he does not respect the seriousness and significance of the Tribunal’s processes. The respondent has been required to expend significant time and resources in responding to the Application and, in particular, preparing for the hearing of the Application. As noted above, there was significant pre-hearing activity in this matter, which was largely the result of the applicant’s failure to properly particularize his case, notwithstanding repeated direction from the Tribunal. The applicant remained active in the proceeding and filed a production request only ten days before the hearing was to commence, to which, of course, the respondent was required to respond. There was every indication that the hearing of this matter would proceed. The Tribunal expended its resources giving directions regarding the pre-hearing issues and scheduled scarce hearing days for this matter. The result of the applicant’s last minute withdrawal is that all of the resources and time expended to bring this matter forward were wasted. In a civil action, the respondent would have been entitled to costs, but, unfortunately in these circumstances, the Tribunal does not have the authority to make such an order.

11Moreover, the applicant’s explanation for his decision to withdraw the Application – financial concerns – does not appear to be credible. Rather, it would appear that the applicant has chosen to abandon this Application in favour of pursuing a civil action based on the same facts. Doing so may well have removed his complaint from the Tribunal’s jurisdiction, but civil actions are in any event more expensive proceedings than human rights applications, as the respondent noted.

12In these circumstances, I agree with the respondent that the applicant’s actions amount to an abuse of process. I do not agree with the respondent’s suggestion that the matter should be forced on in some manner despite the applicant’s clear intention not to prosecute the Application further. To do so would simply result in more wasted resources. Rather, I find it appropriate to grant the Request to Withdraw on the condition that the withdrawal is with prejudice to the applicant’s ability to file a new Application regarding the same issues.

order

13The applicant’s Request to Withdraw the Application is granted with prejudice to the applicant’s ability to file a new Application regarding the same issues.