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Schleyer v. Caledon Ski Club, 2018 HRTO 1137 (CanLII)

Date:
2018-08-17
File number:
2016-26191-I
Citation:
Schleyer v. Caledon Ski Club, 2018 HRTO 1137 (CanLII), <https://canlii.ca/t/htmqp>, retrieved on 2024-03-28

HUMAN RIGHTS TRIBUNAL OF ONTARIO

 

______________________________________________________________________

B E T W E E N:

Erin Schleyer

Applicant

-and-

 

Caledon Ski Club and William Yeigh

Respondents

 

______________________________________________________________________

 

DECISION

______________________________________________________________________

 

Adjudicator:             Maureen Doyle

 

Date:                          August 17, 2018 

 

File Number:            2016-26191-I

                                   

Citation:                    2018 HRTO 1137

                                   

Indexed as:              Schleyer v. Caledon Ski Club

______________________________________________________________________


 

WRITTEN SUBMISSIONS

 

 

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Erin Schleyer, Applicant

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Simone Ostrowski, Counsel

 

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Caledon Ski Club, Respondent

) )

 

Sarah Smith, Counsel

 

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William Yeigh, Respondent

) )

 

Karina Pylypczuk, Counsel

 

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Introduction

[1]            A hearing in this Application was scheduled for May 1 and 2, 2018. The Notice of Hearing advised parties that the Disclosure of documents upon which the parties intended to rely, and witness statements for their witnesses, were due March 19, 2018.

[2]           On March 15, 2018, counsel for the personal respondent wrote to the Tribunal advising that he understood from counsel for the applicant that the applicant intended to withdraw this Application, and accordingly the personal respondent requested that he not be required to take any further steps until the Application was withdrawn or the applicant advised that she did not intend to withdraw. On this basis, the personal respondent received an extension of the deadline to March 31, 2018.

[3]           On March 26, 2018 the applicant filed a Form 9, “Request to Withdraw”. 

[4]           The organizational respondent filed a Form 10 responding to the applicant’s request to withdraw her Application and objecting to the applicant’s request to withdraw, due to the fact that it had already devoted “considerable time and resources”  responding to and preparing for the hearing of this Application. It submitted that in the alternative, if the Tribunal permits the applicant to withdraw her Application, withdrawal should only be permitted on a “with prejudice” basis to her ability to file a new application in respect of the same issues. It cited Peidl v Linex Manufacturing (“Peidl”) 2016 HRTO 1613 and Loro v. Complex Services Inc. (“Loro”)  2016 HRTO 412. It also submitted that it understands that the applicant is withdrawing as she wishes to advance a civil claim on the same facts and allegations, and submits that this is “forum shopping” and an abuse of process.

[5]           On March 28, 2018, the personal respondent provided his position regarding the applicant’s request to withdraw her Application and stating that he agrees with and supports the position taken by the organizational respondent.

[6]           The applicant was directed to provide submissions in response to the respondents’ position regarding withdrawal. Instead, she provided submissions indicating that she wished to defer her Application. It was her position that a civil claim may raise issues which overlap with her Application, but that she wished to defer her Application in case “human rights issues raised in her civil claim are not fully or appropriately dealt with in that forum”. In the alternative, she requested that she be permitted to withdraw her Application.

[7]           Both respondents opposed deferral, submitting that as no civil claim had yet been commenced, there was no other proceeding to which the Tribunal could defer.

[8]           The hearing dates were cancelled.

[9]           The applicant subsequently filed a civil claim and the respondents continued to oppose the applicant’s request to defer or withdraw her Application.

[10]        On June 11, 2018, the applicant advised that she wished to withdraw her Application.

[11]        In Lewis v. Ontario Condominium Corporation No. 14 2016 HRTO 196, the Tribunal considered the respondent’s request that the applicant’s withdrawal of her Application be on a “with prejudice” basis, where the applicant sought to withdraw her application days prior to a scheduled mediation. The Tribunal stated:

 While 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 Board2011 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.

The 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.

The 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 1545Sharma v. Securitas Canada Ltd.2014 HRTO 1386; Myers v. William Osler Health System2014 HRTO 1331Damphouse v. St. Thomas (City)2014 HRTO 199McDermott v. Ross2013 HRTO 1576Zaman v. CLV Group Inc.2013 HRTO 842Hall v. Thunder Bay Regional Health Sciences Centre, 2012 HRTO.

[12]         In Peidl, where the Tribunal permitted the applicant to withdraw the application on a “with prejudice” basis, the applicant filed a Request to Withdraw his application on the last business day before the hearing. Further, the Tribunal noted that he had remained active in the proceeding up to the last minute, having filed a request for production only ten days before the hearing was to commence, and obliging the respondent to respond. The Tribunal also noted that it did not find the applicant’s reason in requesting withdrawal to be credible (he wanted to file a civil suit) and was inconsistent with his stated  reason for withdrawing (financial difficulties).        

[13]        In Loro, the parties attended the hearing and participated in mediation/adjudication. Prior to the commencement of the hearing, however, the applicant’s counsel announced that her client wished to withdraw the Application in order to commence a civil action. The Tribunal granted the request to withdraw on a “with prejudice” basis.

[14]        While I appreciate the fact that the respondents have expended time and resources in responding to this Application, the applicant’s actions here are not the same kind of “last minute” actions considered in Peidl and Loro. In fact, I note that it appears that this applicant and her counsel made some effort to advise the respondents of her intention to withdraw prior to the March 19, 2018 date for disclosure of documents and witness statements required by Rules 16.2, 16.3, 17.1 and 17.2 (cf. the personal respondent’s March 15, 2018 correspondence to the Tribunal noted above). In all the circumstances, I am not persuaded that the present circumstances merit a departure from the Tribunal’s consistently followed approach. Should the applicant file a further application with the Tribunal regarding the same allegations as form the basis of this Application, it will be open to the respondents to raise their objection at that time and request that the Tribunal refuse to consider a new application.

ORDER

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

Dated at Toronto, this 17th day of August, 2018

 

“Signed by”

 

__________________________________

Maureen Doyle

Vice-chair