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.

What Happened?

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  As an application can only be withdrawn with the permission of the Tribunal at this stage of the proceeding, the Tribunal was tasked with determining whether it should allow the withdrawal.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 following:

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 unsubstantiated

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 unsubstantiated.

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 hearing.