No abuse of process

Motion to dismiss claim is denied
|Canadian Employment Law Today

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.