Gricken v. Macera, 2015 HRTO 295

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Gricken

Applicant

-and-

Domenic Macera

Respondent

DECISION

Adjudicator: Naomi Overend

Date: March 11, 2015

Citation: 2015 HRTO 295

Indexed as: Gricken v. Macera

WRITTEN SUBMISSIONS

Janice Gricken, Applicant

Self-represented

Domeic Macera, Respondent

Kristin Brisbee, Representative

1This Decision deals with whether the applicant may withdraw her Application.

background

2Following a summary hearing with respect to this Application, at which a number of preliminary issues were raised, I issued a Case Assessment Direction seeking written submissions from the parties on the impact of a prior, incomplete Application (the “initial Application”) filed by the applicant against the same respondent. The applicant did not file submissions, but instead filed a Form 9 seeking leave to withdraw her current Application. This was faxed to the Tribunal and respondent on Saturday, February 28, 2015, and under the Tribunal Rules would be deemed to have been received on Monday, March 2, 2015.

3The respondent’s representative did not apparently receive the applicant’s Form 9 Request until late in the day March 2, 2015, as there was a power outage in her office. She did not file a Response to the Form 9 until the afternoon of March 4, 2015, by which time the Tribunal had advised the parties by letter faxed earlier that day that its file with respect to this Application had been closed. In this letter, the Tribunal noted: “The respondent has not responded to the Request and the time for doing so has now passed.” Rule 10.3 of the Tribunal’s Rules of Procedure states:

Where a Respondent or other person or organization receiving notice under Rule 10.1 wishes to respond to a Request to Withdraw, the response must be in Form 11, Response to Request, and must be filed no later than two days after the Request to Withdraw was delivered.

decision and analysis

4The respondent filed lengthy written submissions in advance of the summary hearing. His representative made detailed oral submissons at the summary hearing. In response to the Case Assessment Direction issued after the summary hearing, the respondent filed extensive supplementary written submissions. It is understandable that, having gone to this effort, the respondent now asks that the Tribunal rule on his submissions concerning abuse of process and costs rather than allowing the applicant to withdraw.

5However, even if the applicant had not sought to withdraw her Application, it may well have been unnecessary for the Tribunal to weigh in on the respondent’s abuse of process arguments given the other issues raised at this preliminary stage, including delay.

6I would note, parenthetically, that in making the abuse of process argument, the respondent has incorrectly stated that the initial Application was “dismissed” by the Tribunal. The initial Application was administratively closed when the applicant failed to file the necessary information to complete it.

7The respondent also argues that the current Application is an abuse of process because the applicant brought two proceedings before the Landlord and Tenant Board (“LTB”) which raised similar issues. However, the current Application addresses employment issues. While the proceeding before the LTB peripherally touched on the employment issue in addressing the tenancy issues, it is not clear to me where the LTB would derive its jurisdiction to determine whether the applicant had been discriminated against with respect to employment.

8With respect to the issue of costs, as the Tribunal has noted on repeated occasions, it does not have the authority to award costs. See, for example, Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.

9I note that the Tribunal has allowed withdrawals in other cases in which some of the same arguments have been raised. See, for example, Sharma v. Securitas Canada Ltd., 2014 HRTO 1386, and D.R. v. Upper Grand District School Board, 2011 HRTO 1751, in which the Tribunal commented at para. 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.

order

10In light of the considerations set out above, I find that there is an insufficient basis to refuse the applicant’s request for leave to withdraw her current Application. Accordingly, I will not exercise my discretion to overturn the closing of the Tribunal’s file.