Jean Lewis v. Ontario Condominium Corporation No. 14 and Linda Watt, 2016 HRTO 196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean Lewis Applicant

-and-

Ontario Condominium Corporation No. 14 and Linda Watt Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: February 11, 2016 Citation: 2016 HRTO 196 Indexed as: Lewis v. Ontario Condominium Corporation No. 14

WRITTEN SUBMISSIONS

Ontario Condominium Corporation No. 14 and Jean Watt, Respondents

Antoni Casalinuovo, Counsel

1This Decision addresses the respondents’ request that the applicant’s withdrawal of her Application be made on a “with prejudice” basis.

2In her Application, the applicant alleged that the respondents reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3A mediation was scheduled to take place on January 27, 2016. On January 18, 2016, the applicant filed a Request to Withdraw her Application with the Tribunal.

4Since the Tribunal did not receive a Response from the respondent within the timeframe set out in the Tribunal’s Rules of Procedure, the Tribunal confirmed the withdrawal and closed its file in the matter.

5By letter dated January 22, 2016, the respondent requested that the Tribunal make the withdrawal “with prejudice” in order to prevent the applicant to relitigate the substance of the Application in the future. Counsel for the respondent sought to rely upon my Decision in Marsden v. Halton Condominium Corporation No. 41, 2016 HRTO 2 (“Marsden”) in which I granted the applicant’s request that I dismiss her Application. In that decision I stated that, if the applicant in that case had sought to withdraw her Application, I would have ordered it withdrawn on a “with prejudice” basis. Counsel for the respondent sought to rely upon Marsden as authority that the Tribunal has the power to order that a withdrawal be made on “with prejudice” basis.

6While the Tribunal has the power to order that a withdrawal is made on a “with prejudice” basis, it has consistently refused to do so when the applicant has withdrawn his or her Application prior to a hearing. The Tribunal’s approach to requests to withdraw Applications before a hearing was set out in D.R. v. Upper Grand District School Board, 2011 HRTO 1751. In that case, the applicant sought to withdraw the Application in almost the exact same circumstances as this case – that is, just before mediation.

7The Tribunal commented 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.

8The Tribunal has consistently followed this approach in situations where an applicant has sought to withdraw his or her Application prior to a hearing. See Tinker v. Sudbury (City), 2015 HRTO 369; Anderson v. Carpenter Housing Co-operative Inc., 2014 HRTO 1545; Sharma v. Securitas Canada Ltd., 2014 HRTO 1386; Myers v. William Osler Health System, 2014 HRTO 1331; Damphouse v. St. Thomas (City), 2014 HRTO 199; McDermott v. Ross, 2013 HRTO 1576; Zaman v. CLV Group Inc., 2013 HRTO 842; Hall v. Thunder Bay Regional Health Sciences Centre, 2012 HRTO 1171.

9I see no reason to depart from this consistently followed approach. Nothing I said in Marsden changes the Tribunal’s approach flowing from its decision in D.R. v. Upper Grand District School Board. The Marsden case was an exceptional one due to the applicant’s behaviour, which is summarized extensively in that Decision. It does not mark a departure to the Tribunal’s approach to pre-hearing withdrawals reflected in the caselaw that has followed D.R. v. Upper Grand District School Board.

ORDER

10For these reasons, the applicant’s request to withdraw her Application is granted without terms.