Catherine Harvey v. Ellesmere X-Ray Associates and Samuel Rabinovitch, 2009 HRTO 443

Human Rights Tribunal of Ontario

B E T W E E N:

Catherine Harvey

Applicant

-and-

Ellesmere X-Ray Associates and Samuel Rabinovitch

Respondents

decision

Adjudicator: Brian Eyolfson

Date: April 15, 2009

Citation: 2009 HRTO 443

Indexed as: Harvey v. Ellesmere X-Ray Associates

1The applicant filed an Application on December 5, 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order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn…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. 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.

5Although it appeared that the applicant forwarded her January 19, 2009, email to the respondents on February 2, 2009, she did not copy the respondents with her letter dated January 20, 2009, or deliver the Request to Withdraw to them. In an Interim Decision, 2009 HRTO 220, the Tribunal ordered the applicant to provide a copy of her letter and deliver her Request to Withdraw to the respondents as soon as possible and, in any event, by March 5, 2009. The Tribunal also ordered the respondents to deliver and file a Response to the Request to Withdraw and provided the applicant with an opportunity to reply.

6The respondents responded by letter dated March 19, 2009, indicating they received a copy of the Applicant’s Request to Withdraw on that date. The respondents stated that they took no position with respect to the Applicant’s Request to Withdraw, other than to observe that the applicant has taken the position that her request to withdraw is “without prejudice to my right to re-file the complaint in the event, I dis-continue the civil action”. The respondents also drew attention to s. 34 of the Code which requires that an application be brought within one year after the incident to which the application relates. The applicant did not reply.

7In the circumstances, the Application is withdrawn, without terms.