Dealing Successfully with the Self-Represented Litigant: Employer has Civil Claim of Former Employee Dismissed in its Entirety

By James D. Kondopulos and Andrew Eyer

In a recent B.C. Supreme Court case, Hall v. Trueblue (c.o.b. Labour Ready), [2017] B.C.J. No. 2212 (S.C.), a self-represented litigant named Tammy Kay Hall filed a brief notice of civil claim against her former employer alleging she had been “wrongfully terminated due to disability and no notice provided”.

In its defence, the employer highlighted that its employment contract with the plaintiff limited her entitlement to notice on termination of employment without cause to the statutory minimum under the Employment Standards Act, R.S.B.C. 1996, c. 113 (the “ESA”). The defendant also pointed out that the plaintiff had been paid all of the monies owed to her under the ESA pursuant to an order of the B.C. Employment Standards Branch well in advance of her civil claim.

The defendant employer brought an application to dismiss the entirety of the plaintiff’s claim because:

  1. there was no genuine issue for trial and the claim was bound to fail (an application for summary judgment);
  2. the claim was outside the jurisdiction of the court; and
  3. the claim represented an abuse of process.

The Court allowed the employer’s application on every ground, dismissing the whole of Hall’s claim and awarding costs against her.

Summary Judgment
The Court carefully reviewed the plaintiff’s pleadings to determine if they revealed a genuine issue for trial. They did not. According to Madam Justice Sheri Ann Donegan, there was insufficient information to at least formulate “a complete cause of action that, when resolved, [would] have legal consequences between the parties”.

The plaintiff’s notice of civil claim stated conclusions of law without the material facts. The only allegation of fact made was “no notice provided”. This was wholly inadequate to ground a cause of action.

No Jurisdiction
Under the Human Rights Code, R.S.B.C. 1996, c. 210 (the “HRC”), any person who believes he or she has been subjected to prohibited discrimination in employment on the basis of a ground protected by the HRC may file a complaint with the B.C. Human Rights Tribunal.

As confirmed by the Court, the complainant may not file his or her complaint with a B.C. civil court because the tort of discrimination does not exist in British Columbia and the Court does not have the jurisdiction to determine whether an alleged wrongful dismissal or other alleged employment wrong constitutes prohibited discrimination.

Abuse of Process
A claim may be struck as an abuse of process where it is an attempt to relitigate an issue which has already been decided.

The Court found that Hall’s claim constituted a “clear and unacceptable” abuse of process. The plaintiff had already recovered all monies owed to her under the ESA. It was simply improper for her to have another kick at the can and attempt to achieve double recovery. She had already received the amounts to which she was statutorily and contractually entitled.

Potential Amendment of Pleadings and Award of Costs
The Court was scrupulously fair to the self-represented plaintiff. Justice Donegan considered whether Hall should be allowed a short period of time to file amended pleadings. She, however, concluded it would not be appropriate to do so given that the defendant, to its credit, had already been “exceedingly fair and reasonable” to the plaintiff on several occasions in the course of the litigation.

Hall failed to amend defects in her claim pointed out to her by the defendant’s legal counsel. Despite clear notice of the hearing being served on her on more than one occasion, she even failed to show up for the hearing itself. In these circumstances, it was reasonable to find that the plaintiff was disinterested in pursuing the litigation any further, and the defendant should not be put to any further unnecessary time and expense. It was also reasonable to award the defendant its costs on the ordinary scale.

Takeaway Points
This case is welcome news for any party seeking to have an unmeritorious civil claim dismissed at a preliminary stage. It also demonstrates that being fair and reasonable with a self-represented litigant is good practice not only because it is the standard expected by the courts but because it can go some way in demonstrating that the litigant has been given a full opportunity to advance his or her claim and have his or her day in court. Finally, the case serves as a useful reminder that costs may be awarded against a litigant who persists in pursuing a claim without merit and putting the other party to a whole lot of needless trouble.

James D. Kondopulos was co-counsel for the successful defendant in Hall v. Trueblue (c.o.b. Labour Ready). He is a founding member and partner (practising through a law corporation) of the employment and labour law firm of Roper Greyell LLP. He has been named by Lexpert as one of Canada’s leading lawyers under 40 and is ranked as a leading employment lawyer in the Canadian Legal Lexpert Directory. He is also recognized as a leader in the area of employment and labour law in both Who’s Who Legal and Best Lawyers International, Canada. James can be reached by e-mail at jkondopulos@ropergreyell.com. For more information about his practice and Roper Greyell, please visit www.ropergreyell.com.

Andrew Eyer is an articled student at Roper Greyell and assisted James in writing this article. He can be reached by e-mail at aeyer@ropergreyell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.

This article was first published on the Lawyer’s Daily website of LexisNexis Canada Inc.

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