McDermott v. Ross, 2013 HRTO 1576

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julian McDermott by his Litigation Guardian, Christopher McDermott

Applicant

-and-

Tyler Ross

Respondent

DECISION

Adjudicator: Mary Truemner

Date: September 19, 2013

Citation: 2013 HRTO 1576

Indexed as: McDermott v. Ross

WRITTEN SUBMISSIONS

Julian McDermott by his Litigation Guardian, Christopher McDermott, Applicant

Self-represented

Tyler Ross, Respondent

Self-represented

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation because of disability.

2Two days prior to the scheduled hearing, the applicant sent an email to the Tribunal stating that he would be withdrawing his Application.

3However, Rule 10.5 of the Tribunal’s Rules of Procedure does not allow for an applicant to unilaterally withdraw his or her application, but rather states:

Where a Response to the Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine.

4Upon being notified of the applicant’s position, the respondent sent his consent to the withdrawal of the Application on the condition that:

(i) the applicant sign a release, precluding them from ever again bringing these matters before the HRTO;

(ii) the tribunal consider awarding the respondent costs relating to legal consultation incurred on September 12, 2013, in preparation for the upcoming hearing; and

(iii) the record reflects that the respondent vehemently denies any and all allegations of wrongdoing and that the applicant’s accusations were never substantiated.

5In D.R. v. Upper Grand District School Board, 2011 HRTO 1751, the Tribunal allowed the applicant to withdraw without conditions, commenting as follows (at para 4):

The Tribunal appreciates the respondents’ concerns about the time and resources they have devoted to responding to this Application. Nonetheless, I see little to be gained by an inquiry at this stage into whether the circumstances of this Application and the possible motivation for the applicant’s decision to seek to withdraw the Application should lead to the sort of order sought by the respondents. If the applicant seeks to re-file the same allegations in another application, the respondents may raise their objection at that time and may request that the Tribunal refuse to consider a new application.

6The respondent has offered no reasons why the Tribunal should impose conditions on the withdrawal. In noting that the Tribunal has no jurisdiction to award costs and that there has been no finding that the allegations by the applicant were or were not substantiated, I see no reason to depart from the result in Upper Grand District School Board. See also Hall v. Thunder Bay Regional Health Sciences Centre, 2012 HRTO 1171. If the applicant seeks to re-file the same allegations in another application, the respondent may raise his objection at that time and may request that the Tribunal refuse to consider a new application.

7The applicant’s request to withdraw his Application is granted without terms or conditions, and the hearing that was to begin tomorrow is consequently cancelled.