Court File and Parties
COURT FILE NO.: 16-59563
DATE: March 2, 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Peidl
A N D:
Linamar Corporation
BEFORE: Arrell, J.
COUNSEL: C. Donovan, for the Plaintiff
B. O'Connor, for the Defendant
Heard: In writing
The Honourable Mr. Justice H.S. Arrell
ENDORSEMENT RE COSTS
[1] The plaintiff alleged he was dismissed wrongfully by the defendant on the basis of discrimination because of disability.
[2] The defendant maintained the dismissal, through indefinite layoff, was as a result of the corporation having to downsize due to economic downturn.
[3] The plaintiff initially brought an application before the Human Rights Tribunal for Ontario on the basis of discrimination. After prolonged legal wrangling before the HRTO, he withdrew his application one day prior to the fixed hearing dates. The defendant objected to the withdrawal, however, the tribunal granted the withdrawal "with prejudice". The tribunal pointed out in its ruling, that the plaintiff had abused the tribunal process.
[4] Prior to seeking to withdraw his HRTO application, the plaintiff issued a notice of action in this court, within the applicable limitation period for wrongful dismissal, based on discrimination, among other reasons.
[5] The defendant brought this motion seeking to strike the part of the claim dealing with discrimination on the basis of the doctrine of issue estoppel and abuse of process. I dismissed the motion. Peidl v. Linamar Corporation 2018 ONSC 241.
[6] The parties have been unable to agree on costs and have made written submissions. This is my decision on that issue.
[7] The plaintiff seeks costs of $9227.45 of the motion on the basis that he was totally successful on the motion before me. The defendant argues that no costs should be awarded as a result of the plaintiff's prior conduct before the tribunal which the tribunal stated was an abuse of its process.
[8] One business day prior to the set hearing dates the plaintiff filed and served a Notice of Withdrawal of his application. The defendant was opposed and made written submissions to the hearing officer. He released his decision a few days later granting the withdrawal of application but "with prejudice".
[9] Vice Chairman Sanderson, in his ruling for the tribunal, made it clear that the conduct of the plaintiff in withdrawing his application in the circumstances before him showed that the plaintiff did not respect the seriousness and significance of the tribunal's processes. He further stated that the result of the plaintiff's last minute withdrawal was that all of the resources and time expended by the defendant and the tribunal was wasted and if this had been a civil case likely costs would have been awarded. The tribunal, however, had no authority to make any order for costs.
[10] The vice chairman also noted that by commencing the civil action the plaintiff may have removed the jurisdiction of the tribunal. He agreed with the defendant that the plaintiff's actions amounted to an abuse of process and granted the withdrawal on the condition the withdrawal is "with prejudice to the applicant's ability to file a new Application regarding the same issues."
[11] I agree with the sentiments of the Vice Chairman that the plaintiff abused the tribunal process. I have allowed his action to proceed in our court but he has wasted a great deal of public resources getting to this position as well as no doubt some resources thrown away by the defendant.
[12] I have concluded that under all the circumstances that this is one of those rare cases where I should exercise my discretion and refuse to award costs to the successful litigant due to his behaviour in the conduct of the litigation before the tribunal. See rule 57.01(f)(e,f,h,i) Rules of Civil Procedure.
[13] I therefore order that there will be no order as to costs on the motion before me.
Arrell, J.
Released: March 2, 2018
COURT FILE NO.: 16-59563
DATE: March 2, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Peidl
- and –
Linamar Corporation
ENDORSEMENT RE COSTS
HSA