Jones v. Highmark Properties (No. 1)
1995-11-16
BOARD OF INQUIRY (HUMAN RIGHTS CODE)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended
Date: November 16, 1995 File: BI-0038-95
B E T W E E N:
Ontario Human Rights Commission
COMMISSION
and
Keltie Jones
COMPLAINANT
A N D:
Highmark Properties
RESPONDENT
DECISION
Adjudicator:
Heather MacNaughton
Date:
November 16, 1995
Board File No.:
BI-0038-95
Decision No.:
95-049
Counsel for the Commission:
Naomi Overend
Counsel for the Complainant:
Neil McCormick
Counsel for the Respondent:
Ron McCloskey and Laura Cooper
THE HISTORY
In August 1989, Mr. Keltie Jones filed a complaint with the Ontario Human Rights Commission (Commission) against Highmark Properties (Highmark), alleging that income criteria applied by Highmark when accepting tenancy applications were discriminatory. In June 1992, Jones and Highmark executed a written settlement of that complaint. Subsequently, Mr. Jones alleged that Highmark had resiled from the settlement. In November 1992, Mr. Jones filed a second complaint with the Commission alleging a breach of settlement pursuant to section 43 of the Ontario Human Rights Code RS.O. 1990, c.H.19, as amended (Code). The section 43 complaint was processed by the Commission.
In April 1995, the Commission decided that a Board of Inquiry should be appointed to inquire into the section 43 complaint. On May 8, 1995, I was assigned to conduct the inquiry.
THE MOTION
- At the outset of the hearing into the section 43 complaint, Highmark moved for an order dismissing the complaint for lack of jurisdiction on the basis that:
the Commission exceeded its jurisdiction by referring the complaint to the Board; and
the Board of Inquiry did not have jurisdiction to hear the matter.
- The grounds for the motion were that the settlement which formed the basis of the complaint had never been approved by the Commission; that such approval was a necessary precondition under s. 43; and that the complaint was, as a result, improperly brought under s.43.
THE ISSUE
- The issue before me on this motion is a very narrow one. Did the Commission approve the settlement reached between Mr. Jones and Highmark? Section 43 of the Code states:
Where a settlement of a complaint is agreed to in writing, signed by the parties and approved by the Commission, the settlement is binding upon the parties, and a breach of the settlement is grounds for a complaint under section 32, and this Part applies to the complaint in the same manner as if the breach of the settlement were an infringement of a right under this Act.
It is clear from the wording of the section, and all parties agree, that it is fundamental to founding a complaint under this section that the written settlement be approved by the Commission. The parties do not agree whether that approval was granted.
Highmark filed an affidavit in support of their motion. Annexed to the affidavit was various correspondence from the Commission in which the Commission took the following positions:
it would not be in a position at the hearing to present evidence that it had approved the settlement;
it was of the view that it could not prove a violation of s. 43;
it could not proceed with the case because the Commission had not approved the settlement. The Commission had adopted a policy of administratively closing some files without the Commissioners approving the settlement. The original complaint had been administratively closed because the terms of the settlement were manifest i.e. all terms had been complied with at the time of execution;
Commission staff felt that due to the manifest nature of the settlement no Commission approval was necessary; and
the administrative closure of the file had not been recognized by Commission staff when they recommended that a Board of Inquiry be appointed on the Section 43 complaint.
Neither the Commission, nor the Complainant Mr. Jones filed material in response to that affidavit. Counsel for the Centre for Equality Rights in Accommodation (CERA), who appeared as agent for Mr. Jones, submitted that he wished to lead evidence that the settlement had been approved, despite the position being taken by the Commission. By an interim decision released on August 25, 1995, I ordered that Mr. Jones be permitted to lead his evidence on this issue alone.
The parties appeared before me on September 6th and 7th, 1995.
The Evidence
To understand the sequence of events that occurred in this file, it is essential to understand the history of the internal processes at the Commission dealing with settlements. Mr. Mark Frawley, currently senior legal counsel for the Commission, was between 1990 and 1994, the Acting Director for Case Management and a member of the Case Management Working Group.
The Case Management Working Group had among its members several Commissioners. Mr. Frawley testified that the group concluded that the then existing practice, which required the Commissioners to approve all settlements, was cumbersome, time consuming, and delayed closure of files. Further, in a significant number of cases, the Commissioners were approving concluded settlements, in that all elements had been complied with prior to the approval.
The Case Management Working Group drafted a revised Procedures Manual Directive respecting approval of settlements. The Directive divided settlements into "Jurisdictional Approval Settlements" and "Administrative Approval Settlements". Standard minutes of settlement, releases and correspondence were drafted, and circulated, for each type of settlement.
The distinction between a jurisdictional settlement and an administrative one, as defined by the Case Management Working Group, was whether the terms of the settlement were manifest or completed.
A file could be administratively closed if: