CCPartners | Blog

Cost-Effective Ways for Employers to Deal with Frivolous and Vexatious Complaints at the Human Rights Tribunal

Following significant changes to the human rights system in 2008, those wishing to file a human rights application can do so by directly filing a complaint with the Human Rights Tribunal (“Tribunal”), regardless of whether the claim has any merit or not.   Previously, under the old human rights system, the Human Rights Commission (“Commission”) acted as a “gatekeeper” and had the power to dismiss complaints that were trivial, vexatious or frivolous in nature.  As a result of the changes made to the human rights system in 2008, the Commission no longer retains this gatekeeping function. As a result, the number of cases going to a full hearing has increased dramatically, resulting in increased costs for employers who are forced to defend against allegations of discrimination if the matter has not settled beforehand. While this may be frustrating to employers, procedures still exist under the new human rights system to dismiss an Application at a preliminary stage.

Effective July 1, 2010, the Tribunal has introduced changes to its Rules of Procedure (Rule 19A) which gives it the power to hold summary hearings/preliminary hearings either on its own initiative or at the request of another party to deal with questions of whether an Application should be dismissed on the basis that there is “no reasonable prospect that the Application will succeed”.  If the request for a summary hearing is initiated by the employer, it must file detailed submissions explaining the basis on which the Application should be dismissed.  This process provides employers with an opportunity to dismiss claims without merit at a preliminary stage, and without having to go through the expense of a full hearing.  Employers can also use this process to argue that the allegations underlying the Application are either trivial, vexatious or constitute an abuse of the Tribunal’s processes.  If an employer is able to convince the Tribunal of this at a summary hearing, it has the power to dismiss the Application in whole or in part.

In cases where the summary hearing is initiated by the Tribunal, it normally issues a Case Direction indicating the steps the parties must take to prepare for the hearing, which may include but is not limited to, exchanging documents in advance of the hearing, and advising the parties that they may be asked to make submissions and present evidence as to why the Application should succeed or not.

At a summary hearing, the Tribunal is most concerned with establishing the following: (a) whether, assuming all of the allegations in the Application to be true, there is a reasonable prospect that the Application will succeed or (b) whether there is a reasonable prospect that the Applicant can prove on a balance of probabilities, that his or her Human Rights Code rights were violated.  Often, the onus is on the Applicant in these proceedings to establish a

link between the event and the grounds upon which he or she makes the claim.  The issue the Tribunal will focus

on is whether there is a reasonable prospect that evidence the Applicant has or that is reasonably available to him or her can show a link between the event and an alleged prohibited ground.

The use of the Summary hearing process can be an invaluable tool to employers to efficiently address Applications that are without merit, frivolous or vexatious in nature.  Further, it is beneficial to employers as it allows the Tribunal to dismiss Applications at an early stage, resulting in significant cost-savings to employers who may not have to invest the same level of time and expense that goes into preparing for a full-scale hearing.

Should you have any questions regarding the above, or wish to learn more about this issue for your workplace, please do not hesitate to contact one of the lawyers at CCP.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.