Pannu v. Toronto Transit Commission, 2014 HRTO 1734

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yadwinder Pannu Applicant

-and-

Toronto Transit Commission Respondent

DECISION

Adjudicator: Mark Hart Date: December 1, 2014 Citation: 2014 HRTO 1734 Indexed as: Pannu v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Yadwinder Pannu, Applicant Patrick James, Counsel

Toronto Transit Commission, Respondent Steve Lavender, Counsel

1This is an Application dated December 10, 2013, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing in this matter commenced on September 15 and 16, 2014 and is scheduled to continue on December 10, 11, 15 and 17, 2014 and February 5, 2015. At the hearing dates on September 15 and 16, 2014, I addressed certain preliminary issues regarding further disclosure, heard opening statements from the parties, and heard the applicant’s evidence, including cross-examination and questioning by me as the adjudicator, subject to further cross-examination arising out of the additional disclosure I ordered.

3On September 19, 2014, I issued a Case Assessment Direction confirming the orders that I had made at the hearing, including a deadline of November 14, 2014 for the applicant to make the disclosure I had ordered or, if he could not obtain some of the ordered disclosure, to report on the efforts he had made to that date.

4The Tribunal was not notified that the ordered disclosure had been made by the applicant by November 14, 2014 nor did the Tribunal receive any report from the applicant regarding the efforts he had made to obtain the ordered disclosure. Accordingly, on November 19, 2014, the Tribunal wrote to the parties to note the applicant’s default and directed him forthwith either to comply with the Tribunal’s directions or provide an explanation for any non-compliance.

5On November 24, 2014, applicant counsel wrote to the Tribunal to advise that the applicant was withdrawing his Application due to medical reasons, and enclosed the requisite form confirming the withdrawal. The respondent disputes that there are any medical reasons to support the withdrawal, stating that there is no evidence that the applicant suffers from any illness that makes his continued participation in the hearing problematic. The respondent further requests that, as the applicant has testified and been cross-examined and has failed to comply with the Tribunal’s direction to provide further disclosure, any withdrawal should be “with prejudice” to the filing of any future Application arising out of the same or related facts. Applicant counsel in turn replied that the applicant’s health has taken a turn for the worse and states that there is ample evidence on the record that he suffers from various medical illnesses that make his continued participation in the hearing impossible.

6Rule 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”.

7In 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.

8In my view, the D.R. decision is distinguishable on the basis that, in that case, the applicant withdrew the Application in advance of the commencement of the hearing. Here, where the request to withdraw is made after the hearing already has commenced and particularly after the applicant has already testified in chief and been cross-examined, it is my view that the imposition of the terms requested by the respondent is reasonable and appropriate.

9As a result, the applicant’s request to withdraw his Application is granted, on the basis that said withdrawal is “with prejudice” to the filing of any future Application arising out of the same or related facts.

10The currently scheduled hearing dates are hereby cancelled, and the parties are relieved from any outstanding obligations to serve or file materials related to the hearing.

ORDER

11For the foregoing reasons, I hereby make the following order:

a. The applicant’s request to withdraw his Application is granted, on the basis that said withdrawal is “with prejudice” to the filing of any future Application arising out of the same or related facts; and

b. The currently scheduled hearing dates are hereby cancelled, and the parties are relieved from any outstanding obligations to serve or file materials related to the hearing.