Kilpatrick v. Ontario (Attorney General), 2017 HRTO 1541

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Kilpatrick Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General Respondent

-and-

The Association of Management, Administrative and Professional Crown Employees of Ontario Intervenor

DECISION

Adjudicator: Maureen Doyle Date: November 22, 2017 Citation: 2017 HRTO 1541 Indexed as: Kilpatrick v. Ontario (Attorney General)

APPEARANCES

Michael Kilpatrick, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Respondent Caroline Cohen, Counsel

The Association of Management, Administrative and Professional Crown Employees of Ontario, Intervenor Derrick McIntosh, Counsel

Introduction

1This Application as drafted alleged discrimination with respect to employment because of disability, family status, marital status, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Additionally, the applicant originally named the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO) as a second respondent.

2In a Reply filed by the applicant following the Ministry of the Attorney General’s Response, the applicant stated new allegations. The question of the amendment of the Application so as to include those allegations was addressed by the Tribunal in an Interim Decision, Kilpatrick v. Ontario (Attorney General), 2015 HRTO 1301. The amendments were accepted by the Tribunal and the respondents filed amended Responses.

3Following a summary hearing in this matter, the Tribunal issued an Interim Decision, Kilpatrick v. Ontario (Attorney General,) 2016 HRTO 1142, dismissing the Application as against AMAPCEO, dismissing the allegation of reprisal and dismissing several allegations as untimely.

4The hearing for the merits of the Application was scheduled for November 6 and 7, 2017, in Toronto. The hearing convened on November 6, 2017 and all parties participated. Procedural matters were addressed and the parties provided opening statements.

5The procedural matters addressed included the applicant’s request, made for the first time at the hearing, that this Application and another Application he has filed with the Tribunal against the respondent, be consolidated. The respondent objected and indicated that the second application was not “hearing ready”. I delivered an oral ruling, dismissing the applicant’s request to consolidate, noting the very late timing of his request and the fact that neither party had filed pre-hearing disclosure regarding the other file, and noting that the respondent was not prepared to litigate the second matter at that time. At that point, consolidation would have required an adjournment of the hearing and accordingly I found that in these circumstances, consolidation would be neither fair nor expeditious.

6Following the procedural matters and opening statements, the applicant advised that he wished to withdraw his Application.

7The respondent took the position that the withdrawal should be “with prejudice” and the applicant took the position that the withdrawal should be “without prejudice”. Neither party elaborated with respect to what the withdrawal should be with or without prejudice to. The intervenor took no position.

8The litigation of this Application has engaged significant resources of the Tribunal, the respondent and the intervenor, requiring two Interim Decisions, a summary hearing, two Case Assessment Directions, two days of hearing set aside to hear the merits of this matter, and voluminous documentation was filed.

9Rule 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 permission of the Tribunal and upon such terms as the Tribunal may determine.

10In 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.

ORDER

11I grant permission for the applicant to withdraw his Application.