King v. Sherbourne Mental Health Centre, 2016 HRTO 59

Human Rights Tribunal of Ontario

B E T W E E N:

Randy King

Applicant

-and-

Sherbourne Mental Health Centre and Melanie Oda

Respondents

DECISION

Adjudicator: David Muir

Date: January 14, 2016

Citation: 2016 HRTO 59

Indexed as: King v. Sherbourne Mental Health Centre

WRITTEN SUBMISSIONS

Randy King, Applicant

Self-represented

Sherbourne Mental Health Centre and Melanie Oda, Respondents

Andy Pushalik, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods and services because of disability.

2In a Case Assessment Direction issued on November 23, 2015, the Tribunal directed that a summary hearing be held to determine whether or not some or all of this Application ought to be dismissed because all or part of it has no reasonable prospect of success.

3The summary hearing is scheduled to take place by telephone conference call on January 15, 2016.

4On December 15, 2015, the applicant filed a Request for Order During Proceeding ("Request") seeking an Order deferring this Application pending the conclusion of another proceeding he has launched.

5The respondents opposed the Request.

6The Request was denied in interim decision 2015 HRTO 1734, issued on December 24, 2015.

7On December 29, 2015, the applicant sought an adjournment of the summary hearing, citing medical grounds. The adjournment was denied in 2016 HRTO 24, issued on January 7, 2016, because the medical evidence (a doctor's note indicating the applicant could not participate in the hearing) was inconsistent with and less persuasive than other evidence available to the Tribunal that supported the conclusion the applicant was capable of participating in the scheduled summary hearing (see 2016 HRTO 24).

8In his submissions in support of the adjournment of the summary hearing the applicant advised that if the adjournment was not granted he had the option of "closing the file". The applicant then noted that it would not be "a year since the discrimination until April 2016".

9On January 11, 2016, the applicant sent an email to the Registrar in which he asked the Tribunal to "close" his file and to "confirm the closure/withdrawl (sic) by email and regular mail." The Tribunal chose to treat this as a Request to Withdraw despite the failure of the applicant to file the appropriate Form 9.

10The respondents contacted the Tribunal and were advised that they could make submissions in response to the applicant's request.

11The respondents wrote to the Tribunal on January 12, 2016 and advised that they consented to the applicant's request.

12The Tribunal's Rule 10 provides in part as follows:

10.1 Except where the withdrawal forms part of the terms of a settlement of an Application, an Applicant wishing to withdraw an Application must deliver a completed Request to Withdraw in Form 9 to:

a) all other parties;

b) any trade union or occupational or professional organization identified in the Application; and

c) any other person or organization identified as an affected person before filing it with the Tribunal.

10.5 Where a Response to the Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine.

13I have some concerns that this request to withdraw may seek to achieve indirectly what the applicant was unable to secure directly – a deferral or adjournment of the hearing pending conclusion of another proceeding. This concern arises from the applicant's own correspondence in which he appears to identify the ability to refile the substance of this Application before April 2016 as an option to avoid the effects of a ruling denying his adjournment request.

14However, the respondents have consented to the applicant's request. In all of the circumstances, including the consent of the respondents, I find that it most fair, just and expeditious at this stage to grant the applicant's request to withdraw.

15While 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 I have raised above remain speculative at this time. 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

16The request to withdraw is granted without prejudice to any argument that a subsequent Application raising the same facts and issues is an abuse of process.