Employers face a choice when confronted with a human rights application from an employee or former employee: settle or defend.
An interesting issue arose in a recent hearing at the Human Rights Tribunal of Ontario. After the hearing had commenced, the respondent employer said it was willing to pay the full amount of financial compensation requested by the applicant and asked the Tribunal to dismiss the application. The applicant refused to consent. He put a high value on the public interest aspect to his application and wanted the Tribunal to make a determination of whether there had been a violation of the Code.
The Tribunal refused the respondent employers’ request.
The employer argued that no useful purpose would be served by further proceedings and asked the Tribunal to direct that the money be paid without making a finding of a Code violation. The Tribunal found it lacked jurisdiction because it can only order a remedy where an infringement of the Code is found or where all parties consent.
The Tribunal also stressed that pursuant to section 43(2) of the Code the applicant must be given an opportunity to make oral submissions before the matter is finally disposed of by the Tribunal. Although up to this point the applicant had given evidence, he had not yet had an opportunity to present his argument.
The Tribunal also rejected the respondent’s alterative argument that it would be an abuse of process to continue with the hearing. The Tribunal noted that the applicant was not purely seeking financial compensation as a remedy, but even if he was the Tribunal still found that it would not be an abuse of process. The applicant had not exhibited oppressive behaviour or a refusal to abide by direction of the Tribunal regarding the scope or conduct of the hearing or any other conduct that has been associated with an abuse of process in the Tribunal case law. He wanted the Tribunal to make a finding of whether the Code had been violated. The Tribunal concluded,
The applicant’s position is that he wishes to avail himself of the hearing process; there is no subjective or objective indication that abuse of process is involved”.
The end result for the respondent employer is that it no doubt incurred significant costs to prepare for and defend the hearing, only to surrender at the last minute and have the potential for a public finding of a Code violation (the Tribunal only render a decision on the preliminary issue and has yet to decide whether the Code was indeed violated).
Litigating a human rights application is costly. Not only do legal fees accumulate but the Tribunal has very broad discretion to award remedies and make orders that have not been requested by the applicant. If the employer is considering settlement, the mediation process provided through the Tribunal should be utilized. Although not mandatory, the mediation services provided through the Tribunal give the parties the opportunity to have their case reviewed by a vice chair of the Tribunal whose role is to facilitate a settlement.
As this case illustrates, it is important for a respondent to assess the legal strength of its position at the outset of an application and not wait until the hearing to decide whether or not to defend. Once the wheels of a hearing are in motion the parties are in the hands of the Tribunal and the hearing will continue until its completion unless both sides agree otherwise.
Stringer LLP
www.stringerllp.com
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