Withdrawal of a Party Before Hearing

Two complaints involving alleged discrimination based on sex were referred to the Tribunal, to be heard together in a single inquiry in light of common issues of fact and law¹³⁸. However, prior to the commencement of the hearing the complainant notified the other parties and the Tribunal that she no longer wished to pursue the matter and withdrew her complaint. The respondent then took the position that there was no longer any public interest in continuing with a hearing into the complaint and that the Tribunal should decline to proceed any further. However, the Commission opposed the request of the respondent, arguing that the Tribunal had no discretion in the matter and was obliged to continue with the proceedings. It also argued that only the Commission was vested with the authority to determine if a hearing should be discontinued for reasons of the public interest.

The Tribunal noted that this issue had to be resolved by reference to the underlying objectives of the CHRA: "In examining the statutory scheme governing complaints of discrimination at the federal level, it is important to keep in mind that human rights complaints are not strictly private disputes. Human rights legislation, and its enforcement, serve both public and private purposes: the public purpose being the elimination of discrimination in society as a whole, and the private purpose being the determination of individual rights and remedies in individual cases."¹³⁹ These purposes are reflected in the fact that a complaint under the CHRA can be made by the victim of alleged discrimination as well as by the Commission directly (section 40). In addition, the CHRA accords party status at an inquiry before the Tribunal to the complainant, the respondent and the Commission, the latter mandated to represent the public interest (subsection 50(1) and 51).

Regarding the particulars of the case before it, the Tribunal pointed out that the anticipated inquiry was based only on two individual complaints, there being no suggestion that the Commission had ever contemplated exercising its authority under section 40(3) of the CHRA¹⁴⁰. While the CHRA mandates the Commission to represent the public interest at an inquiry on individual complaints, this fact does not transform the Commission into a party to the complaint itself. The Tribunal therefore concluded that there was no independent lis (legal action) between the Commission and the respondent making it possible to continue with proceedings when the complainant had withdrawn. In essence, once the individual complaints were withdrawn there was nothing left into which the Tribunal could inquire.

Situations may arise where the Commission itself decides to withdraw as a party prior to the hearing on an individual complaint. This arose in a case involving allegations of discrimination based on disability (alcoholism and depression) against the CBC.¹⁴¹ The complainant objected to the unexpected decision of the Commission to withdraw from the hearing, made just three days before the hearing was scheduled to begin. In his view, the public interest would not be served by allowing the withdrawal, especially when no justification for the decision had been offered. The complainant not only requested the Tribunal to force the Commission to remain as a party, but also to pay his legal costs. While the Tribunal deplored the inconvenience caused by the late withdrawal of the Commission, it found that it lacked the jurisdiction to assess the underlying reasons for the Commission's decision. It also lacked the authority to order that the complainant's legal costs be assumed by the Commission.

The impact of the death of a complainant on the continuation of a scheduled hearing was reviewed by the Tribunal in a case alleging discrimination based on disability.¹⁴² Prior to the scheduled hearing date, the parties advised the Tribunal that they had agreed in principle to settle the complaint and were in the process of finalizing the Minutes of Settlement. Unfortunately, the complainant died before the Minutes of Settlement had been signed and the agreement finalized.

The respondent's counsel argued that, given the death of the complainant, there no longer existed a right to claim compensation or other relief under the CHRA. It based its position on the common law principle actio personalis moritur cum persona and the fact that nothing in the CHRA or other relevant legislation provided for the Estate of a deceased person to continue a complaint before the Tribunal.

In reviewing the position of the respondent, the Tribunal found that the CHRA extends beyond the vindication of individual rights and "engages the broader public interest of freedom from discrimination."¹⁴³ It also noted that the parties before the Tribunal on an individual complaint include the Commission (representing the public interest) and (on order of the Tribunal) interveners. The Commission may also lay a complaint directly. In addition, the Tribunal referred to the types of remedies under the CHRA that extend beyond specific relief awarded a complainant, such as a "cease and desist order against the person who committed the discriminatory practice"¹⁴⁴, and an order that a "person adopt practices in consultation with the Commission to redress the discriminatory practice."¹⁴⁵ In light of the overall regime of the CHRA, the Tribunal found that a complaint did not have the character of an "action" such that it would be included in the common law rule based on actio personalis. To decide otherwise, reasoned the Tribunal, would allow an "anachronistic" legal maxim (now abolished in England and the common law provinces of Canada) "to override the purpose and objectives of the Canadian Human Rights Act."¹⁴⁶
  

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End Notes