Catherine Harvey v. Ellesmere X-Ray Associates and Samuel Rabinovitch, 2009 HRTO 220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Harvey

Applicant

-and-

Ellesmere X-Ray Associates and Samuel Rabinovitch

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: March 2, 2009

Citation: 2009 HRTO 220

Indexed as: Harvey v. Ellesmere X-Ray Associates

1The applicant filed an Application on November 31, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability and reprisal. The Application indicated that a court action had been commenced based on the same facts as the Application and a copy of the statement of claim was filed with the Application.

2In an Interim Decision, 2009 HRTO 35, the Tribunal sought submissions with respect to whether, in the circumstances, the Application was barred by virtue of section 34(11) of the Code which provides, in part:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn…

3The applicant was to provide her submissions by January 20, 2009, the respondents by February 3, 2009, and any reply of the applicant was to be provided by February 10, 2009. On January 19, 2009, the applicant sent an email to the Tribunal’s Registrar, followed by a letter dated January 20, 2009, which was received by the Tribunal on January 21, 2009. Both the email and the letter stated as follows:

In view of the Interim Decision in this matter dated January 9, 2009, I am withdrawing my Complaint without prejudice to my right to re-file the Complaint in the event I dis-continue the civil action against my former employer Ellesmere X-Ray Associates.

4The applicant also filed a Request to Withdraw (Form 9) dated January 23, 2009, indicating that she was applying to withdraw the Application without prejudice to her right to re-file in the event she discontinues the civil action against her former employer.

5Notwithstanding the requirements in the Tribunal’s Rules, the applicant did not copy the respondents with her correspondence dated January 20, 2009, or deliver the Request to Withdraw to them. However, it appears the applicant did forward her January 19, 2009 email to the respondents on February 2, 2009.

6In the circumstances, the Tribunal orders as follows:

a. the applicant will provide a copy of her letter dated January 20, 2009 and deliver her Request to Withdraw to the respondents as soon as possible and, in any event by March 5, 2009, and will file a Statement of Delivery (Form 23) of the Request to Withdraw with the Tribunal;

b. by March 12, 2009, the respondents shall deliver to the applicant and file with the Tribunal a Response to the applicant’s Request to Withdraw; and

c. by March 15, 2009, the applicant shall deliver and file a reply, if any.

7I am not seized of this matter.