No abuse of process

Motion to dismiss claim is denied

On July 18, 1995, Catherine Jeffrey filed a complaint against her former employer, Dofasco Inc., with the Ontario Human Rights Commission, alleging that Dofasco discriminated against her in the workplace by terminating her employment on March 14, 1994, without first accommodating her disability to the point of undue hardship. The complaint was referred to the board of inquiry that held a hearing by conference call on Nov. 3, 1998.

In January 1999 the Human Rights Commission filed a statement of facts and issues with the board, giving notice that it intended to bring a motion to amend the complaint. The commission wanted to add allegations of harassment and reprisal with respect to three incidents involving the withholding of benefits to Ms. Jeffrey, surveillance of her and excessive visits by a Dofasco visitation representative. The board heard the commission’s motion. On June 15, 2000, it granted the motion and ordered that the complaint be amended to include new allegations involving discrimination and harassment.

Dofasco did not file an amended response to the new allegations in the complaint. Instead, it filed a motion for an order dismissing the complaint on the grounds of an abuse of process. As grounds for this motion, Dofasco relied on the fact that Ms. Jeffrey had successfully portrayed herself as totally disabled since 1990 in order to obtain over $100,000 through a disability pension from Health and Welfare Canada. The commission had pleaded positions that were premised on the assumption that Ms. Jeffrey was capable of working. Dofasco argued that it would be an abuse of process to permit the claim to continue.

Dofasco further argued that, by virtue of the Canada Pension Plan disability entitlement determination, Ms. Jeffrey was estopped from arguing at the board of inquiry that she was capable of doing productive work at Dofasco.

In response, the commission argued that the issues and the parties before the CPP adjudicative structure were not the same as the board. It disputed the argument that Ms. Jeffrey had claimed for the last ten years to have been virtually unemployable and now arguing the opposite before the board. Furthermore, it argued that there was no medical evidence regarding Ms. Jeffrey’s ability to work with accommodation.

The board had the authority, pursuant to the Statutory Powers Procedure Act, to “prevent abuse of its processes.” The jurisprudence had defined an abuse of process as “something that would shock the public, conduct which would violate those principles of fundamental justice which underlie the community’s sense of fair play and decency or is vexatious or oppressive in character.” The board recognized that this was a difficult test to meet and that an abuse of process was found only in the most exceptional circumstances.

Dofasco argued that what amounted to an abuse of process that warranted a dismissal was the fact that Ms. Jeffrey received a CPP disability pension, asserting that she was unable to perform any productive work while claiming the opposite to suit her purposes in the human rights complaint.

The board was unable to determine from the material filed the extent of Ms. Jeffrey’s disability during the 1990-1994 period. A hearing was required to make a determination as to the extent of her disability. Furthermore, the board accepted the argument made by the commission that the extent of a person’s disability is on a continuum (a sliding scale). For these reasons, the board denied the motion to dismiss the claim on the grounds of an abuse of process.

The board also considered the argument put forward by Dofasco that Ms. Jeffrey was estopped from bringing this claim because of a previous determination by the CPP adjudicative structure. The requirements for this argument were that the:

1) same question has been decided;

2) judicial decision which is said to create the estoppel was final; and

3) parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised.

The board held that the first and third parts of this test were not met. The issues before the CPP’s director of appeals and controls programs were not the same as those before the board. The CPP regime decided whether Ms. Jeffrey met the test for qualification for disability benefits based on the Canada Pension Plan Act. Before the board, the issues were whether Ms. Jeffrey was disabled and incapable of performing productive work at Dofasco and, if so, whether Dofasco was required to accommodate Ms. Jeffrey and if it did so to the point of undue hardship.

As well, the parties were not the same before the board as the parties before the CPP regime. Under the Human Rights Code, the commission is charged with the responsibility for the enforcement of the statute and is a party before the board. There is a public interest component of the code which is unlike the “private” matter of an application for CPP disability benefits.

The board, having found that the first and third branches of the test were not met, did not consider whether the second branch was met. The motion was therefore dismissed.

For more information:

Jeffrey v. Dofasco Inc., Ontario Board of Inquiry, Docket No., BI-0183-98, Decision No. 01-008-1, Apr. 30/01.

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