Damphouse v. St. Thomas (City), 2014 HRTO 199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rick Damphouse

Applicant

-and-

The Corporation of the City of St. Thomas

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: February 13, 2014

Citation: 2014 HRTO 199

Indexed as: Damphouse v. St. Thomas (City)

WRITTEN SUBMISSIONS

Rick Damphouse, Applicant

Self-represented

Corporation of the City of St. Thomas, Respondent

John W. Saunders, Counsel

1This Decision addresses the applicant’s request to withdraw his Application.

2In his Application dated November 16, 2012, the applicant alleged that the respondent had violated his right under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), to be free of reprisal or threat of reprisal.

3The respondent filed a Response, denying having violated the Code.

4The Tribunal issued a Notice of Confirmation of Hearing in this matter, indicating that hearing dates were scheduled for March 3 and 4, 2014.

5On January 24, 2014, the parties participated in a preliminary hearing by teleconference, regarding the issue of production of certain documentation. At the conclusion of that preliminary hearing, the applicant’s representative advised that she had intended to provide an amended Application to the Tribunal, but that it did not appear that this had been done. In the circumstances, the applicant’s representative was directed to advise the Tribunal and the respondent by January 29, 2014 regarding the applicant’s intentions with respect to this Application.

6On January 28, 2014, the applicant’s representative advised that it was her understanding that the applicant intended to communicate with the Tribunal himself “to indicate his intention of withdrawing the above referenced application without prejudice and with immediate effect”.

7On January 30, 2014, the applicant wrote to the Tribunal, copying the respondents, advising that prior to the preliminary hearing on January 24, 2014, it had been his understanding that his Application as originally drafted by him had been “withdrawn” and that a “new Application” had been filed by his representative. He states that he learned at the preliminary hearing that no “new Application” had ever been filed. He stated that he was writing to request that this Application be withdrawn “without prejudice and with immediate effect”.

8On February 5, 2014, the respondent filed written submissions in Response to the applicant’s request to withdraw his Application without prejudice. The respondent requested that the Tribunal “dismiss the Application” with prejudice or in the alternative that the Tribunal “grant the Applicant leave to withdraw on condition that the withdrawal is with prejudice”. The respondent submits that it has expended significant time and resources in defending against the Application, and further submits that a new Application at this time would be untimely. It indicates that it seeks to object to any new Application on the basis of timeliness. It also asks the Tribunal to consider awarding it costs.

9In D.R. v. Upper Grand District School Board, 2011 HRTO 1751, the Tribunal allowed the applicant to withdraw his Application without conditions, commenting at paragraph 4 as follows:

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.

10I see no reason to depart from the approach in Upper Grand District School Board (see also McDermott v. Ross, 2013 HRTO 1576). If the applicant seeks to file a new Application, the respondents may raise their objection to the timeliness of the allegations at that time.

11For these reasons, the applicant’s request to withdraw his Application is granted without terms.