Complaint was vexatious because it had already been appropriately dealt with

JUDICIAL REVIEW

Complaint was vexatious because it had already been appropriately dealt with

Applicant began full-time employment with respondent employer in 1997, and he remained employed until 2009, when he was terminated for time theft. Labour arbitrator upheld applicant’s termination after grievance arbitration hearing. Applicant did not allege discrimination at arbitration proceedings. Applicant obtained psychiatric report that he claimed established he had disability at time of his termination. Applicant requested that employer reinstate him based on psychiatric report, but employer refused. Applicant bought human rights complaint alleging discrimination in employment by employer on prohibited grounds of race, colour, ethnic origin and disability. Human Rights Commission advised applicant that complaint of discriminatory acts was not linked to any prohibited ground of discrimination and closed file. Arbitrator agreed to reopen applicant’s grievance of his termination, but upheld termination. Applicant requested commission reopen complaint. Commission issued report that recommended applicant’s complaint be dismissed pursuant to s. 41(1)(d) and (e) of Canadian Human Rights Act. Commission decided not to deal with applicant’s complaint on basis that it was filed out of time and was vexatious. Applicant applied for judicial review of commission’s decision. Application dismissed. Applicant was aware of conclusions and recommendations in report and was aware of case he had to meet. Applicant made extensive submissions in response to report. Commission did not breach applicant’s right to procedural fairness. Commission’s decision with respect to timeliness was reasonable. Commission’s reasons did not leave applicant with impression that it did not consider his allegations before it rejected them. Commission’s decision that complaint was vexatious was reasonable. Notion of vexatious complaint included complaints that were res judicata, abuse of process, collateral attacks or barred by issue estoppel. Commission found that complaint was vexatious because it had already been appropriately dealt with and to allow applicant to raise new grounds of discrimination when he could have had all his human rights issues dealt with at arbitration was abuse of process and vexatious. There was no unfairness in arbitration proceedings. Commission’s reliance on finality of arbitration proceedings to conclude that complaint was vexatious did not cause unfairness or injustice.
Khapar v. Air Canada (Feb. 10, 2014, F.C., Catherine M. Kane J., File No. T-509-13) 239 A.C.W.S. (3d) 984.