Sharma v. Securitas Canada Ltd., 2014 HRTO 1386

Human Rights Tribunal of Ontario

B E T W E E N:

Anita Sharma Applicant

-and-

Securitas Canada Ltd. and Milroy Mariampillai Respondents

-and-

United Steel Workers, Local 5296 Intervenor

DECISION

Adjudicator: Mark Hart Date: September 17, 2014 Citation: 2014 HRTO 1386 Indexed as: Sharma v. Securitas Canada Ltd.

1The hearing in this matter is scheduled to proceed this Friday, September 19, 2014.

2On Monday, September 15, 2014, the applicant filed a Request to Withdraw her Application and filed the requisite Form 9.

3On September 16, 2014, the respondents filed a letter registering their objection to the applicant’s Request to Withdraw. While this objection was not filed in the form of a Response to Request to Withdraw (Form 11) as required by Rule 10.3, I will nonetheless consider the substance of the respondents’ objection.

4The respondents object to the applicant withdrawing her Application at this late stage and review the procedural history of this matter. The respondents take the position that the applicant’s actions are an abuse of process which maximizes the legal costs for the respondents and the personal stress to the personal respondent. The respondents state that the applicant should be required to attend the hearing and put in her case as alleged. The respondents note that there already is a decision on public record in this matter in which the allegations against the personal respondent are addressed, and the personal respondent should be given a chance to clear his name. The respondents take the position that the applicant should be discouraged from invoking a legal process to level what they regard as vexatious allegations, only to withdraw her Application at the last minute and not face any cost consequences.

5Rule 10.5 of the Tribunal’s Rules of Procedure states that, “where a Response to an Application has been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine”.

6In 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.

7In McDermott v. Ross, 2013 HRTO 1576, the applicant sought to withdraw his Application two days before the scheduled hearing. In response, the respondent sought an order requiring the applicant to sign a release, an award of costs, and that the record reflect that the respondent vehemently denied any and all allegations of wrongdoing and that the applicant’s accusations were never substantiated. The request for these terms was denied by the Tribunal and permission was granted for the Application to be withdrawn.

8In the instant case, the respondents in effect are not asking for the Tribunal to impose terms on any withdrawal of the Application, but instead are asking that the request to withdraw be denied and that the applicant be compelled to proceed with the hearing. I see no basis or purpose for doing so. The Tribunal has no power to compel a party to appear at a hearing, although there are consequences to an applicant who fails to appear, namely that the Application will be dismissed as abandoned. Here, essentially the same result is achieved by the withdrawal. The applicant has decided not to pursue her allegations against the respondents, and hence these allegations are just that – allegations without any determination that either of the respondents acted in violation of the Code. While I appreciate that the personal respondent may have experienced stress and upset at having allegations made against him, the fact remains that no determination has been made by this Tribunal that these allegations are well-founded. In terms of the allegations previously having been addressed in a decision that is part of the public record, the personal respondent perhaps may take comfort in the fact that any search of his name in the decision database will also pull up this Decision showing that the allegations were withdrawn without any adverse determination to him.

9Accordingly, I see no reason to depart from the Tribunal’s existing case law under Rule 10.5, and hereby grant permission for the applicant to withdraw her Application. The hearing day scheduled for September 19, 2014 is hereby cancelled.