Ontario Human Rights Commission v. 571566 Ontario Inc. o/a Cadillac Tavern, 2007 HRTO 3

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Complainant/Commission

-and-

571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Vladimir (aka Walter) Perin Sr., Walter Perin Jr. Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil Date: January 22, 2007 Citation: 2007 HRTO 3

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

1This is a Commission initiated complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging a breach of settlement. The Complaint is dated October 29, 2006 and was referred to the Tribunal on December 1, 2006. The Tribunal set an Initial Conference Call (“ICC”) pursuant to its Rules of Practice 2004 (“the Rules”) for December 18, 2006.

2On December 11, 2006 the Tribunal received a Notice of Motion filed by Counsel to Ms. Martha Glover seeking various orders and remedies, including, a request that Ms. Glover be added as a party complainant to the complaint, that the Commission and its Director of Legal Services, Hart Schwartz, be added as respondents to the complaint, and a declaration that the Commission is in a conflict of interest. Ms. Glover was the complainant in an earlier complaint which had been referred to the Tribunal (HR-0910-05), and a party to the settlement of that complaint. It is the alleged breach of that settlement which is the subject of the instant Commission initiated complaint.

3For reasons that are not entirely clear, despite Ms. Glover’s obvious interest in the settlement, the Commission initiated the instant complaint without making Ms. Glover a co-complainant and (it is alleged in the Motion) without consulting with Ms. Glover as to what remedies she might be entitled to as a result of the breach of the settlement. Indeed the Commission filed the complaint and referred it to the Tribunal without ever giving Ms. Glover notice. Ms. Glover became aware of the referral because the Tribunal identified her as having a potential interest and provided notice to her counsel.

4The Tribunal held the ICC on December 18, 2006. Counsel for the Commission and Counsel for Ms. Glover participated. No one participated for any of the Respondents. During the ICC, the Tribunal canvassed the participants’ respective positions on the Motion and on the appropriate procedure to deal with this matter. The Commission took the position that the Tribunal was without jurisdiction to add Ms. Glover as a complainant, but indicated that it might consider consenting to her being added as an intervenor. Counsel for Ms. Glover expressed serious concern with the Commission’s actions (and as she alleged, inaction) leading up to, and following the referral. She urged the Tribunal to deal with those aspects of the Motion adding the Commission as a respondent and having the Commission declared as being in a conflict.

5Counsel for the Commission and Ms. Glover indicated that they wished to consult with their respective clients and with each other and would report back to the Tribunal if they were able to resolve any or all of the issues raised in the Motion. The Tribunal adjourned the ICC.

6By correspondence dated December 22, 2006 counsel for Ms. Glover advised that a partial agreement was reached in regards to Ms. Glover’s party status. The correspondence read, in part:

1. The Commission consents to Ms. Glover being added as an "intervenor with full party rights". On the understanding that Ms. Glover could then proceed on the basis as having the same rights as she would if she were a named complainant in this proceeding, if so ordered by the Tribunal, Ms. Glover would then be content to leave aside the request in her motion to be added as a party complainant.

2. With respect to Ms. Glover's request to amend the complaint to include remedies sought by Ms. Glover, the Commission does not wish to have the complaint amended but believes Ms. Glover can achieve the same result through her own pleadings. While it is our view that the proper approach would be to amend the complaint, we will be guided by the Chair's direction.

3. Ms. Glover wishes to proceed with her motion, save and except the modifications as set out above.

7By correspondence dated January 2, 2007, Counsel for the Commission confirmed that counsel for Ms. Glover accurately set out the Commission’s position. He confirmed that his client consented to adding Ms. Glover as an “intervenor with the same rights as a party” in the matter.

8At the request of the Commission and Ms. Glover the Tribunal convened a conference call on January 4, 2007. At this time, in addition to Counsel for Ms. Glover and the Commission, Mr. Gregory Elliot participated. Mr. Elliot advised that he was representing only the Personal Respondent Mr. Vladimir Perrin Sr. Counsel for the Commission and Ms. Glover confirmed their clients’ respective positions. Mr. Elliot had no submissions on the dispute between the Commission and Ms. Glover. The Tribunal indicated that it would issue a decision providing procedural direction.

BACKGROUND TO THE COMPLAINT

9In October 2001 Martha Glover filed a complaint against the Respondents 57156 Ontario Inc, operating as Cadillac Tavern, Walter Perin Sr. and Walter Perin Jr., alleging discrimination in employment on the basis of gender and sexual harassment. The Complainant was referred to the Tribunal on February 15, 2005. Following a series of delays in the exchange of pleadings and disclosure by the Respondents, that matter was set down for hearing in Windsor for March 1, 2006. Prior to the commencement of the hearing into the complaint, the parties (the Commission, Ms. Glover and the Respondents) entered into a settlement.

10As a result of the failure of the Respondents to comply with the terms of the settlement and other matters (which need not be fully canvassed here, but are reviewed in Tribunal decision 2006 HRTO 14), the matter was brought back to the Tribunal. By decision dated May 18, 2006 the Tribunal confirmed that the settlement reached March 1, 2006 was binding on all the parties. The Tribunal also indicated that if the Commission referred a complaint alleging breach of settlement, the Tribunal would deal with it expeditiously. A final decision disposing of Ms. Glover’s complaint on the basis of the March 1, 2006 settlement was issued on June 19, 2006. (2006 HRTO 16)

11The material facts set out in Ms. Glover’s Motion allege that following the final decision in Ms. Glover’s complaint, Counsel for Ms. Glover made several attempts to have the Commission take steps to enforce the settlement. It is undisputed that the Respondents had failed to make the 3rd and final payment owing to Ms. Glover under the terms of the settlement. The Respondents had also failed to implement the public interest remedies. Ms. Glover alleges that the Commission failed to respond to the requests and failed to take any action in enforcing the settlement.

12It is further alleged that on October 3, 2006 Counsel for Ms. Glover wrote Counsel for the Commission requesting some action be taken to enforce the settlement. In that correspondence she indicated that if no positive response was provided by October 6, 2006, Ms. Glover would initiate a complaint against both the Respondents and the Commission. Apparently the Commission replied on October 10, 2006 indicating that the Commission had initiated a complaint and it was to be placed before the Commissioners to determine whether it would be referred to the Tribunal. Ms. Glover alleges that she was not provided a copy of the complaint, given any information as to its contents, provided any opportunity for input, or told when it might proceed to the Commissioners.

13On October 30, 2006 Ms. Glover filed a complaint alleging breach of settlement. The named respondents were the original respondents in the settlement as well as the Commission and Hart Schwartz, the Commission’s Director of Legal Services. This complaint has not been referred to the Tribunal and the Tribunal has not seen the contents of this complaint. The Commission has advised that it has been given to the Commission’s “Trustee of Investigations” for processing. (The Trustee of Investigations is an individual, external to the Commission, designated by the Commission to investigate and assume carriage of complaints in which the Commission is a named respondent).

14As noted above, on December 11, 2006 Ms. Glover filed a Notice of Motion. The Motion seeks the following orders and remedies.

1. An order adding Martha Glover as a party Complainant to the within proceeding;

2. An order that the Commission is in a conflict of interest position with respect to Martha Glover, and as a result, further proactive measures are required in order to ensure that Martha Glover can fully and fairly participate in this proceeding;

3. An order adding the Commission and Hart Schwartz as party Respondents to the within proceeding;

4. An order prohibiting any internal Commission employee, contract or otherwise, to act as counsel in this proceeding, and including Hart Schwartz;

5. An order requiring the Commission to fully pay Ms. Glover’s for her counsel so that she may be properly represented in this proceeding;

6. An order inviting the Attorney General to intervene in this proceeding in its supervisory capacity over the Commission in order to ensure that justice is both done and seen to be done;

7. Such further and other relief as may be necessary and just and permitted by the Tribunal.

DECISION

15For the reasons provided below, I have decided that I will not entertain the requests set out in paragraphs 2, 3, 4, 5 and 6 of Ms. Glover’s Motion. A hearing will be scheduled to deal with the request in paragraph 1, along with the related issue of whether Ms. Glover should be added as an intervenor, and the scope of her intervention rights. I have identified certain information and documents the parties will be required to exchange in advance of the hearing. I have also identified the specific issues the parties should be prepared to address at the hearing.

16At the outset I would make the following two general observations.

17First, in a complaint alleging a breach of settlement, the task of the Tribunal is to determine whether a binding settlement within the meaning of Section 43 was reached, to determine whether there has been a failure by a party to comply with a term of the settlement and if so, to provide an effective and timely remedy. In order to ensure the integrity of the settlement process and to promote compliance by parties, the Tribunal will focus the inquiry to enable it to decide these issues fairly and expeditiously.

18Second, the Courts have long held that a challenge to the actions of the Commission prior to the referral of a complaint is not a matter over which the Tribunal will generally have jurisdiction. Except in rare cases such as abuse of process or bad faith, where the Commission’s alleged actions affect the Tribunal’s process, a party’s claim for relief lies to the Divisional Court.

19In view of these two principles, it is not appropriate to entertain the request for the orders set out at paragraphs 2 – 6 of Ms. Glover’s Motion, and I decline to do so. The Tribunal has the discretion and jurisdiction to control its process and is not required to entertain any request from any person who may seek to participate in a proceeding. Ms. Glover is not, at this point, a party to this complaint. While her frustrations with the actions of the Commission may be entirely legitimate, permitting her to raise the arguments and requests set out in paragraphs 2 – 6 would not advance the determination of this complaint.

20On the other hand, as a party to, and beneficiary of the settlement, Ms. Glover has an obvious interest in its proper enforcement and in this complaint. She seeks to participate and claim personal remedies for the breach of the settlement. The same reasons which have led me to decide that I will not entertain the requests in paragraphs 2 – 6, (that the Tribunal should focus the hearing of a Section 43 complaint to achieve an effective and timely resolution) suggest that she should participate, with the same rights as if she were a complainant. The Tribunal will have to determine how (or if) this can be achieved.

21The Commission has agreed to have Ms. Glover added as an “intervenor with full party rights”. Ms. Glover has indicated that she would be content with intervenor status and would not pursue her request to be added as a complainant if the Tribunal confirms that she will have the same rights as if she were a party complainant. Presumably this means that she would have the ability to obtain personal remedies, including monetary remedies against the Respondents. In reading Section 41, it is not obvious that the Tribunal has the jurisdiction to award monetary remedies to an intervenor. As a result, this issue and the issue of whether Ms. Glover should be added as a party complainant will need to be addressed.

22In addition, if after receiving submissions from the parties I determine that I cannot award damages to an intervenor, nor add Ms. Glover as a complainant, the question will arise as to whether this complaint should be deferred until a decision is made by the Trustee of Investigations on whether to refer Ms. Glover’s breach of settlement complaint. Arguably, hearing the two complaints at the same time makes practical sense, and would avoid a duplication of proceedings on the same issue – namely the alleged breach of the March 1, 2006 settlement. The parties will be required to address this issue at the hearing.

23In order to provide a proper context for the Motion, the Tribunal makes the following direction:

a. Within 20 days of this decision, Ms. Glover shall set out in detail the remedies she would request against the original respondents if she were granted the right to participate in this complaint.

b. She shall at the same time set out any additional material facts she will seek to rely upon in the hearing of the Motion. She must also serve and file all documents she will rely upon in the hearing of the Motion.

c. Within 20 days of receipt of the materials described above, the Commission shall set out in detail the remedies it will seek against the Respondents in its complaint.

d. At the same time the Commission shall set out the material facts it intends to rely upon in the hearing of the Motion. It must also serve and file all documents it will seek to rely upon in the hearing of the Motion.

e. If the Respondents wish to participate, within 20 days following receipt of the material from the Commission, they shall provide their position on the relief requested by Ms. Glover and the Commission, serve and file the material facts and all documents they will rely upon in the hearing of this Motion.

24At the hearing of the Motion, the parties should be prepared to address the following issues:

a. Does the Tribunal have the jurisdiction under the Code to award monetary or other relief to an intervenor, and in particular in cases where the intervenor has been granted “full party rights”?

b. Does the Tribunal have the jurisdiction to add Ms. Glover as a party complainant, and if so, should it add her as a complainant in these circumstances?

c. In the event that the answer to both (a) and (b) above is no, is it appropriate for the Tribunal to defer the hearing of this complaint until a decision has been made by the Trustee of Investigations to refer Ms. Glover’s complaint?

25This matter is referred to the Registrar for scheduling.