Rutherford v. Kawartha Participation Projects, 2016 HRTO 1646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Rutherford Applicant

-and-

Kawartha Participation Projects Respondent

A N D B E T W E E N:

Peter Rutherford Applicant

-and-

Kawartha Participation Projects Respondent

DECISION

Adjudicator: Laurie Letheren

Date: December 21, 2016

Citation: 2016 HRTO 1646

Indexed as: Rutherford v. Kawartha Participation Projects

WRITTEN SUBMISSIONS

Peter Rutherford, Applicant

Kimberly Ruiter, Counsel

Kawartha Participation Projects, Respondent

Christopher Edwards, Counsel

1The applicant filed two Contravention of Settlement Applications. In Interim Decision 2016 HRTO 1569, The Tribunal ordered that these Applications be heard together.

2On December 5, 2016, the applicant filed a Form 9, Request to withdraw, for each of the Applications.

3On December 6, 2016, the respondent filed a Form 11, Response to the Requests to withdraw in which it consents to the withdrawal, but requests that the Tribunal impose terms on the withdrawal.

4The respondent submits that the applicant sent correspondence in which he is attempting to impose unilateral conditions on the withdrawals which if not followed, would allow the applicant to re-litigate the same facts and allegations. The respondent claims this is an abuse of process. The respondent submits there are no cost consequences for the applicant in withdrawing an application at this stage and after the respondent has incurred the expense of responding.

5The respondent requests that the withdrawal be subject to the following conditions:

i. That the withdrawal is not subject to the unilateral conditions or terms imposed by the applicant in the letter from his counsel dated December 5, 2016.

ii. That the Applicant is not permitted to raise the allegations in the two Applications in any future proceeding.

6It appears from my review of the letter from the applicant to the respondent dated December 5, 2016 that the applicant does not impose any conditions on the withdrawals. The letter states, “withdrawing both applications at this time in order to give KPP time to make the following adjustments.” The letter then makes suggestions of the opportunities the respondent now has to make changes and suggests what some of those changes might be. It is speculative to assume the applicant will file another application based on the same facts and allegations should these suggestions not be made.

7Rule 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”.

8In 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.

9While the Tribunal has the power to order that a withdrawal is made on a “with prejudice” basis, it has consistently followed the above reasoning and refused to do so when the applicant has withdrawn his or her Application prior to a hearing. See Roberts v. Icon Property Management Ltd., 2016 HRTO 1583; Lewis v. Ontario Condominium Corporation No. 14, 2016 HRTO 196; and Sharma v. Securitas Canada Ltd., 2014 HRTO 1386. I see no reason to depart from this consistently followed approach.

10I find that it is appropriate to grant the applicant permission to withdraw the Application without any conditions.

11While the Tribunal has a responsibility to make orders and directions to prevent an abuse of its process and will not hesitate to do so in the appropriate circumstances, the concerns raised by the respondents are speculative. Should the applicant file a new Application raising the same issues, it would remain open to the Tribunal, at that time, to consider or seek the parties’ submissions about whether or not the new Application is an abuse of process and if so, what an appropriate remedy for any such abuse would be.

Order

12The request to withdraw is granted.