HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Jean-Marc Lang
Complainant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Enfants en Péril (Children at Risk)
Respondents
DECISION
Adjudicator: Patricia E. DeGuire
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 TTY: (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
INTRODUCTION
1Master Jean-Marc Lang (the “Complainant”) filed two complaints with the Ontario Human Rights Commission (the “Commission”) in which he alleges discrimination in service on the basis of ethnic origin and ancestry contrary to sections 1 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) (the “ Complaints”). He is a minor who suffers from a disability. He avers that the Province of Ontario and Enfants en Péril (Children at Risk) (the “Respondents”) discriminated against him. The subject-matter referred to the Tribunal and received by it in January 2001. The title of proceeding is: “Jean-Marc Lang par son tuteur Monsieur Michel Lang.”
2The parties now advise the Tribunal that they have arrived at a settlement of the Complaints. They have submitted a Form 3 to the Tribunal: the prerequisite before the Tribunal may issue an Order disposing of a case. Mr. Michel Lang, the Complainant’s parent, signed the Form 3.
3The Complainant formally brings a written motion asking the Tribunal to issue an Order approving the Minutes of Settlement. The reasons stated for requesting the Order is that the Complaints “involve a person under a disability”. All the parties support the motion.
4The fact that the Complainant is a minor is not a stated ground for the parties’ motion.
5In support of the motion, the Complainant submits copies of two Affidavits, which he had filed in the Superior Court of Justice (the “Court”) for a civil action. Those documents indicate that Mr. Michel Lang and Hélène Boisvert-Lang—parents of the Complainant—had applied to the Court to act as joint litigation guardians for the Complainant “in an action for damages from an alleged breach of sections 7 and 15 of the Canadian Charter of Rights and Freedoms by the Queen in Right of Ontario”: (the “Civil Action”).
6Particularly, the Tribunal’s records indicate that in the Civil Action, the Complainant, among others, had alleged that Ontario had failed to provide adequate services for children with autism, and had challenged the eligibility requirements of the Pre-school Autism Programme offered by Ontario.
7The Tribunal notes that the factual allegations in the Civil Action are similar to those in the Complainant’s original Complaints before it.
ISSUEs
8Does the Tribunal have jurisdiction to grant the Order requested by the parties? The parties’ request raises the broader question, viz, whether the Tribunal has the power to approve settlements at all, and particularly, where the Complainant is a minor, whether he or she is disabled? It is important to note that the crucial fact at issue in this motion before the Tribunal ought to be that the Complainant is a minor. That the minor is disabled is an incidental issue.
9These are the Tribunal’s Decision and Reasons concerning the written motion.
DECISION
10The motion is denied. The Tribunal does not have jurisdiction to grant the Order.
PARTIES’ POSITIONS
11The parties agree that because the settlement involves the claims of a person under a disability, to bind the Complainant to the settlement, they require the Tribunal’s approval of the settlement or the approval of any other body, the Tribunal may direct. The salient clause of the Minutes of Settlement is reproduced here:
In order to bind the Complainant, who is a person under a disability, the Commission shall submit this settlement for the approval of the Tribunal, or such other body as the Tribunal may direct.
12In response to the Acting Registrar’s request for proof that a court had appointed Mr. Michel Lang as the litigation guardian for the Complainant, counsel for the Commission says that in 2001, the Commission was given copies of the two Affidavits, which were filed in the Court in respect of the Civil Action.
13Counsel for the Commission submits that the Tribunal’s Rules of Practice do not require an “Affidavit or evidence of a Court-appointed guardianship for the purposes of the Complaints”. Therefore, obtaining such a document from the Lang family was not necessary.
14Moreover, she argues, there is no requirement in the Ontario Rules of Civil Procedure to file an Affidavit when a minor or person under disability is a plaintiff or an applicant. Nor is there a requirement for a court order appointing a litigation guardian when the person is acting as a defendant or respondent. Also, counsel states that a court order was not requested from the Lang family because the Complainant is not a defendant or respondent. And an Affidavit was not requested because these Complaints are “not considered ‘proceedings’ as . . . defined in the Ontario Rules of Civil Procedure”.
15None of the other parties has made submissions to the Tribunal.
16Even though the parties had not made submissions on whether the CLRA and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) would affect their request, the Tribunal judicially notices those statutes. (See section 7 of the Interpretation Act, R.S.O. 1990, c. I.11).
17The Tribunal directed the Acting Registrar to ask the parties to make written submissions on whether the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) has any effect on their request.
PARTIES’ SUBMISSIONS ON THE CLRA
The Commission’s Position
18The Commission submits that the CLRA does not prevent the Tribunal from issuing an Order disposing of the Complaints according to the Minutes of Settlement. It supports Ontario’s view that the CLRA affects only the terms of the mechanics of payment of the settlement amount.
19Moreover, the Commission submits that once the Order is issued, any party can file a copy of the Order with the Superior Court under section 19 of the SPPA. That filing has the effect of transforming the Tribunal’s Order into the Superior Court’s order. Thus, removing the limit of settlement imposed by the CLRA.
20The Commission submits that the Tribunal does not have the jurisdiction to appoint a litigation guardian because the power to do so lies exclusively with the Superior Court. However, the Commission relies on the Tribunal’s decision in Arzem v. R., January 5, 2005, unreported, to support its position that the lack of jurisdiction does not prevent the matter from moving forward. Moreover, the Commission relies on that decision to support its view that once the Tribunal has issued the Order as requested in this motion, the absence of a guardian for the property of the minor can be cured.
Mr. Lang’s Position
21Mr. Lang submits that section 47(1), at the onset, refers to an application being made by either the child’s parent or by another person, on notice to the Children’s Lawyer, concerning the property of a child. As the father of the Master Lang, and the “complainant” in this matter, he sees no reason to make an application to a court to be appointed as guardian; nor does he intend to do so.
22Further, he submits that at no time during these proceedings—from the onset of filing the Complaints until now—had he been advised that he ought to apply to a court to further or settle these Complaints. He submits that the Tribunal is empowered, and is able to “dispose” of the Complaints. Therefore, since no application has been brought to a court to address the issue of guardianship of the property of the Complainant, the Tribunal “. . . should move to bring a close to the agreed upon settlement of the parties without further delay”.
23The Tribunal notes Mr. Michel Lang’s Reply to Ontario’s and the Commission’s submissions. Significantly, he objects to Ontario’s three recommendations about how the Tribunal can deal with the matter. He objects to an application under section 47 of the CLRA because it is not in the best interest of the child. However, his concession is, in view of the concerns raised by the Tribunal and the parties, he is prepared to undertake to file an Order or decision issued by the Tribunal sanctioning the settlement. Alternatively, he proposes that the Tribunal should file its Order with the Court under Rule 71 of its Rules of Practice.
24The Respondent Enfants en Péril’s has declined to make submissions, stating that the Commission and Ontario should address the issue.
Ontario’s Position
25The focus of Ontario’s submissions is the status of the Complainant qua a disabled person as opposed to qua minor.
26Ontario submits that the Minutes of Settlement seeks the Tribunal’s approval to bind the Complainant. It agrees that none of the Code, the SPPA or the Tribunal’s Rules prescribes a procedure for their request. It refers to specific subsections of the Rules of Civil Procedure, and recites them, as prescriptive procedures in civil matters whether proceedings had been commenced. Further, Ontario submits that it is open to the Tribunal to direct that the appropriate application be brought in the Superior Court under Rule 7.08(3).
27Regarding the CLRA, Ontario says that section 51 does not permit the payment directly to the Complainant or to his parent. The fact that the parent may be regarded as the Complainant’s “next friend” in the matter before the Tribunal or as the “litigation guardian” in the Civil Action does not constitute a guardian of the property of the Complainant for the purpose of the CLRA. Further, Ontario submits that the Tribunal does not have the jurisdiction under the CLRA to so appoint the parent, because that power resides with the Superior Court, the Family Court and the Ontario Court of Justice.
28Nevertheless, Ontario submits that the fact that there is no guardian of the property of the Complainant in this matter should not be of concern to the Tribunal in determining whether it has jurisdiction to approve the settlement or whether to approve the settlement. Ontario argues that sections 47, 48 and 51 of the CLRA affect this settlement only in so far as the terms of the mechanics of payment of the amount. It proposes three ways that the Tribunal can deal with the payment of the settlement amount:
(i) The Respondent may discharge its payment obligation under the Minutes of Settlement by paying the money into the Superior Court pursuant to ss. 36(6) to 36(6.5) of the Trustee Act and Rule 7.09 of the Rules of Civil Procedure.
(ii) Alternatively, if this Tribunal directs that an application be brought to the Superior Court for approval of the settlement, the court has the discretion under Rule 7.09 of the Rules of Civil Procedure to direct that the settlement amount be paid otherwise than into court.
(iii) In the further alternative, prior to payment being made by the Respondent, the appropriate family member or other person may apply to the court to be appointed guardian of the property of the minor under s. 47 of the CLRA.
THE LAW and analysis
29Under the section captioned “Issues”, the Tribunal states that the crucial fact at issue in this motion before the Tribunal ought to be that the Complainant is a minor. That the minor is disabled is an incidental issue. Thus, the Tribunal’s reasons are based on the status of the Complainant qua minor.
30The settled law in Ontario is, the Superior Court of Justice has general supervisory power—often referred to as “inherent parens patriae jurisdiction”—to deal with all matters related to children. That power is exercised when there is a gap in enabling legislation or in the case of a judicial review: (Besson v. Newfoundland (Director of Child Welfare) (1982), 1982 CanLII 32 (SCC), 30 R.F.L. (2d) 438 (S.C.C.); G. (C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 1998 CanLII 3391 (ON CA), 39 R.F.L. (4th) 389 (O.C.A.); and R. L. v. Children’s Aid Society of the Niagara Region, [2002] O.J. No. 4481, affirmed by the Ontario Court of Appeal, 2002 CanLII 41858 (ON CA), [2002] O.J. No. 4793.
31The source of the Court’s inherent power originates from its very nature as a superior court of law. It may exercise its power summarily—without a normal trial, and without waiting for the outcome of any other pending proceeding—as part of the process of the administration of justice. This is distinct from a superior court’s statutory jurisdiction, which defines the limits within which that jurisdiction is to be exercised. (See Current Legal Problems, 1970, ed. Lord Lloyd of Hampstead and Georg Schwarzenberger, Vol. 23 at p. 28 – Stevens & Sons, London, 1970).
32The scheme and procedures under the CLRA are significant means by which one may obtain guardianship of the property of a child other than the Court. The relevant sections are reproduced here:
- (1) In this Part,
“court” means the Ontario Court of Justice, the Family Court or the Superior Court of Justice.
- (1) Upon application by a child’s parent or by any other person, on notice to the Children’s Lawyer, a court may appoint a guardian of the child’s property.
(2) A guardian of the property of a child has charge of and is responsible for the care and management of the property of the child.
The appointment of a guardian by a court under this Part has effect in all parts of Ontario.
(1) If no guardian of a child’s property has been appointed, a person who is under a duty to pay money or deliver personal property to the child discharges that duty, to the extent of the amount paid or the value of the personal property delivered, subject to subsection (1.1), by paying money or delivering personal property to,
(a) the child, if the child has a legal obligation to support another person;
(b) a parent with whom the child resides; or
(c) a person who has lawful custody of the child.
(1.1) The total of the amount of money paid and the value of personal property delivered under subsection (1) shall not exceed the prescribed amount or, if no amount is prescribed, $10,000.
(2) Subsection (1) does not apply in respect of money payable under a judgment or order of a court.
(3) A receipt or discharge for money or personal property not in excess of the amount or value set out in subsection (1) received for a child by a parent with whom the child resides or a person who has lawful custody of the child has the same validity as if a court had appointed the parent or the person as a guardian of the property of the child.
(4) A parent with whom a child resides or a person who has lawful custody of a child who receives and holds money or personal property referred to in subsection (1) has the responsibility of a guardian for the care and management of the money or personal property.
33The CLRA makes it clear that a parent or parents wishing to be the guardian of the property of their child must make an application to a “court”, that is, one of the following: the Ontario Court of Justice, the Family Court or the Superior Court of Justice. After the Court has given notice to the Children’s Lawyer, it may exercise its discretion to appoint such a guardian.
34Notably, section 69 states that the CLRA does not “deprive the Superior Court of Justice of its parens patriae jurisdiction”.
35Clearly, a guardian of the property of the child is not required when the parent or guardian is a court-appointed guardian, if the money is payable under a judgement or order of the court, or if the property owing to the child does not exceed $10,000.
36However, when there is no guardian of the property of the child, and the payment exceeds $10,000, payment of the money is not made lawfully to any of the persons listed in subsection 51(1). And, the person who is under the duty to pay the money is not discharged of that duty lawfully, if a payment in excess of $10,000 is paid to the minor or to any of the persons listed in that subsection.
37The Commission and Ontario argue that the fact that there is no guardian of the property of the Complainant should not affect the Tribunal’s determination about whether it has jurisdiction to approve the settlement so as to bind the Complainant or whether it should approve the settlement. By inference, Mr. Michel Lang supports that view. The Tribunal disagrees.
38The Minutes of Settlement stipulates: “The Ministry shall pay to the Complainant . . . ” a specified sum of money, which is in excess of $10,000. The Complainant in this case is a minor.
39If the Tribunal were to grant the Order approving the Minutes of Settlement, in effect, it would be sanctioning acts that the CLRA specifically does not permit. Clearly, the Tribunal does not fall within the exhaustive definition of the term “court” stated in subsection 18(1). By inference, any person listed in subsection 51(1) wishing to receive payment in excess of $10,000 must seek direction from any of the courts named in subsection 18(1). That the Complainant, the payee stipulated in the Minutes of Settlement, is a minor and is not listed in subsection 51(1) of the CLRA indeed heightens the Tribunal’s concern.
40Issuing an Order and then causing it to be filed in the Court under subsection 19(1) of the SPPA is not a cure. By inference, subsection 19(1) is premised on the fact that the Tribunal had the jurisdiction to issue the decision or the order. Nor is it the cure the Tribunal had contemplated in its decision in Arzem, supra. To be clear, in that case, the Tribunal was not dealing with the approval of a settlement. In that case, the Tribunal dealt with the continuation of the hearing on the merits where it seems that none of the persons identified as litigation guardians or the “next friend” of the complainant has been appointed by the Court.
41It is indeed a curious phenomenon that the parties have asked for the Tribunal’s sanction “[i]n order to bind the Complainant . . . .” That assurance is provided in the Code. 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. (Emphasis added).
42The Tribunal’s assurance by way of an Order can offer no greater certainty than that. Critically, a substantial element of binding the parties is that the parties must agree to the settlement in writing and sign it too. In this case, a party—the Complainant—is a minor who does not have the legally capacity to enter into a contract. The person who signed for him—his parent—is not a court-appointed litigation guardian or guardian of the property of the Complainant.
43Perhaps the Tribunal could have concluded its Reasons at this point, but will go on to consider whether there is a gap in the Tribunal’s enabling statute because of the valid submission raised by the Commission and the Complainant: that the Tribunal’s Rules do not require an affidavit or evidence of a court appointed guardianship for the purposes of the Complaints.
44The Tribunal can make rules governing a practice or procedure before it—of general or particular application—but, the rules must be consistent with the Code and with the SPPA. (See section 25.1 of the SPPA).
45None of the Code, the SPPA or the Tribunal’s Rules of Practice is an exhaustive tool to deal with all matters that come before the Tribunal; nor are they collectively.
Is There A Gap In the Enabling Legislation?
46No statute or statutory scheme, regardless of how comprehensive it may seem, covers every eventuality. There is always the possibility that issues or challenges may arise, which the Legislature or the statutory scheme had not foreseen. That is precisely the reason why common law developed the doctrine of inherent jurisdiction. Where there is a gap in the statute, a superior court has the inherent jurisdiction to deal with those matters. This conclusion is supported by the Supreme Court of Canada in Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495.
47In that case, the respondent, Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation, filed a grievance under the collective agreement. Pending the hearing of the grievance by an arbitrator, the respondent sought an injunction by the Supreme Court of British Columbia. The injunction was granted. The appellant, Canadian Pacific appealed. The Court of Appeal dismissed the appeal on the ground that the Canada Labour Code did not provide for interlocutory injunctions, and thus, the only relief available was interlocutory injunction via the court. The appellant appealed to the Supreme Court of Canada.
48The two issues before the Supreme Court of Canada were: (a) whether superior courts in British Columbia have jurisdiction to issue injunctions in connection with disputes between federally regulated employers and employees concerning the interpretation, application, administration or alleged contravention of collective agreements; and (b) whether the superior courts in British Columbia can issue interlocutory injunctions in circumstances where there is no cause of action to which the injunction is ancillary?
49The Supreme Court of Canada précised the issues in two parts: the jurisdiction of the superior courts of British Columbia to grant injunction, and whether there is a need to have an underlying cause of action. In considering the jurisdictional question the Supreme Court of Canada states:
The governing principle on this issue is that notwithstanding the existence of a comprehensive code for settling labour disputes, where “no adequate alternative remedy exists” the courts retain a residual discretionary power to grant interlocutory relief such as injunctions, a power which flows from the inherent jurisdiction of the courts over interlocutory matters . . .The “residual discretionary jurisdiction in courts of inherent jurisdiction to grant relief not available under the statutory arbitrary scheme” was most recently affirmed by this Court in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at paras. 41, 54, 57 and 67, and New Brunswick v. O’Leary, 1995 CanLII 109 (SCC), [1995] 2 S.C.R. 967, para. 3.
50In holding that the Canadian Labour Code did not cover all aspect of any labour dispute, the Supreme Court of Canada states: “No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the scheme had not foreseen.” As the Supreme Court of Canada states: “If the rule of law is not to be reduced to a patchwork . . . there must be a body to which disputants may turn where the statutes and statutory schemes offer no relief.” (Para. 8.).
51By inference, one must first determine whether the statute or its scheme confers the power to grant the relief sought. The settled guiding principle is, a Legislature may confer incidental power—integral to the inherent jurisdiction of superior court—to an inferior tribunal, if its institutional setting supports such a conferral of power. (See Reference re: Residential Tenancies Act 1979 (Ontario), 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714 and MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725). However, the conferral must be expressed in clear and precise language.
52The Code is not complete or exhaustive about the procedures to be followed with respect to a party qua minor’s participation in proceedings before the Tribunal. Indeed, the Tribunal has exclusive jurisdiction to control its own proceedings and to make rules to do so. But, it can not adopt procedures, which when applied, would derogate from the inherent jurisdiction of the Superior Court.
53The Code states who the parties are in a proceeding before the Tribunal: see subsection 39(2). Of relevance to who the parties are in a proceeding before this Tribunal is the status of the Commission and the complainant. Significantly, the Legislature has given each of them individual status as a party. By doing so, the Commission and a complainant can act separately, and have separate representation in the same proceeding, without fear of a stay, even if their interests are divergent or inconsistent.
54Of significance as well is that the Commission—the co-complainant, if you will—is charged with the duty to have “carriage of the complaint”: the lead representative. Notably, the complaint—the factual allegation—is common to them. So, either can request monetary or public interest remedies, or both. Thus, it is logical that either party may seek a court-appointed guardianship for the purpose of complying with the law. For example, take a case where the Commission initiates a complaint or does so at the request of any person whose right under the Code had not been infringed—see subsection 32(2). If the beneficiary of the judgement or settlement is a minor, and money, exceeding $10,000, constitutes part of the remedy, would the Commission be precluded from obtaining either a guardianship or direction how to deal with the settlement lawfully?
55Apart from those specific enunciations, the Code does not give any specific procedural power regarding a party qua complainant. No assistance was gleaned from a review of the SPPA.
56Thus, the Tribunal concludes that neither the Code nor the SPPA is a complete or an exhaustive instrument in respect of the procedure that should be followed for a party, qua Complainant including a minor, in proceedings before the Tribunal. It follows, therefore, that there is a gap in the legislation in that regard.
57Also, it follows that the Tribunal has no jurisdiction under the Code or the SPPA to issue an order approving the settlement for a minor-complainant. The unanimous agreement of all the parties does not confer jurisdiction on the Tribunal to do a thing for which it has no jurisdiction.
58The Affidavits filed with the motion material are not useful in this case. The Tribunal is aware that if the court had approved the parent(s) as litigation guardians for the Complainant in the Civil Action, that appointment has effect in all parts of Ontario: section 50 of the CLRA. However, the extent of that appointment goes to the geography of its application, but not to legal instances, for example, the matter before this Tribunal. For one should not expect a court to appoint a guardian for a matter in the future. It makes sense that for each action or legal matter, the person or persons must seek the court’s approval for their guardianship.
59Based on the state of common law, and absent clear and precise language in the Code or the SPPA conferring incidental power vis-à-vis a complainant qua minor, the Tribunal concludes that it has no jurisdiction to appoint a litigation guardian or a guardian for the property of the minor; and it can not approve the settlement at all—regardless of the amount.
60The significant corollary is, the Tribunal can not exercise its power under section 41 of the Code to make an order directing a respondent to make payment to a minor or to any person who is not a court-appointed litigation guardian or guardian of the property of a minor, if the amount of damages exceeds $10,000.
61The question whether in making an order under section 41, where the monetary compensation is assessed in excess of $10,000, the Tribunal has the jurisdiction to direct a party to make application to the Court to seek guardianship is not before the Tribunal and need not be answered in this motion.
62Further, the Tribunal concludes that it does not have the jurisdiction to appoint a de facto litigation guardian or guardian of the property of a minor. Nor in this instance, does the Tribunal have the jurisdiction to compel the parent(s), the Children’s Lawyer, any other party in this case or any other interested person to apply to the courts to be appointed for either role for the purpose of resolving this matter.
63Chair Garfield made an analogous ruling in a case where the complainant had died intestate and there was no certificate of appointment of estate trustee without a will. (See Clark v. Toshack Brothers (Prescott) Limited and Joan Hubbard, 2003 HRTO 27, at para. 22.) The relevance of that ruling to this case rests in the fact that the fundamental issue in Clark, supra, was, as it is in this case, that the relief being sought from the Tribunal invoked the inherent jurisdiction of a superior court, and there is no explicit power in the Tribunal’s enabling statute to grant the relief.
64Significantly, the Tribunal concludes that its statutory function does not include the approval of settlements. It is not the Tribunal’s practice to review the Minutes of Settlement; it does not see the Minutes of Settlement at all. In fact, the Tribunal does not approve any settlement at all. The assurance that any party needs to bind one another to a settlement is found in section 43 of the Code. Thus, any sanction from the Tribunal by way of an Order would be jejune: legally or otherwise.
65In the case of a settlement, upon receiving a completed Form 3, the Tribunal issues an Order, “. . . disposing of the proceeding in accordance with the Minutes of Settlement”. If the Tribunal does not receive a properly completed Form 3, it may dispose of the matter administratively by closing its file; but not by issuing an Order.
66In this case, the Tribunal notes that Mr. Michel Lang has signed-off on the settlement; specifically, he has signed the Form 3. He is not a court-appointed guardian of the property of the Complainant or the litigation guardian, and the monetary settlement exceeds $10,000. Therefore, the form is not duly completed for the purpose of issuing an Order. Thus, the Tribunal will close its file administratively.
67It is apposite to make comments about the submissions made by the Commission’s counsel concerning the absence of the requirement in the Tribunal’s Rules of Practice to provide affidavit or evidence of a court-appointed guardian in matters before this Tribunal. Counsel’s observation is valid and timely. It will be referred to the Tribunal’s Rules Committee. The Tribunal has the options of making a rule or issuing a Practice Direction with respect to the procedures that must be followed when a complainant is a minor.
68Regarding the absence of a requirement in the Ontario Rules of Civil Procedure, those rules may be invoked only if the Tribunal believes doing so is appropriate. Otherwise, they do not govern the Tribunal’s process.
69The Tribunal concludes that it is inappropriate in this case to rely on Rule 4. The reason is, the Tribunal has held that there is a gap in the Code and the SPPA. Therefore, the Court alone, because of its inherent parens patriae jurisdiction, can grant the order sought: that can be dealt with by summary process.
CONCLUSION
70Succinctly, the relief the parties seek is to have the Tribunal endorse the settlement and bind the Complainant—a minor who has no legal capacity to enter into a contract—to the settlement, which is indeed a contract. Simply put, the Tribunal does not approve settlements. And even if it did, the Tribunal concludes that it has no jurisdiction to make the Order to approve the settlement as requested by the parties in this case. That power resides exclusively with the Superior Court or the courts defined in subsection 18(1) of the CLRA. Issuing an Order is tantamount to the arrogation of jurisdiction. Filing such an order in the Superior Court is not a cure neither for the arrogation of jurisdiction nor the absence of a court-appointed litigation guardian or guardian of the property of the child. Subsection 19(1) of the SPPA does not assist either.
71The Tribunal acknowledges that its determination may cause some inconvenience to the parties, but should not affect the settlement in any way.
72Finally, the Code contemplates that a party who is a complainant could be a minor or a disabled person or both. The inherent jurisdiction of a superior court as parens patriae existed well before Confederation. Given this Tribunal’s function as a whole, and the institutional context in which this power would be exercised, it would be indeed a dual of common sense and pragmatic procedural justice to confer on the Tribunal the power to appoint a guardian ad litem or guardian of the property of the child.
73For these reasons, the motion is denied.
Dated at Toronto, this 2nd day of February, 2005.
“Patricia E. DeGuire”
Patricia E. DeGuire
Vice-Chair