Human Rights Tribunal of Ontario
B E T W E E N:
Cheryl Schleifer
Applicant
-and-
City of Toronto, John Janson and Sandra Cuff
Respondents
DECISION
Adjudicator: David A. Wright
Indexed as: Schleifer v. Toronto (City)
Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2C7 Phone (416) 326-1312 / 1-866-598-0322 Fax (416) 326-2199 / 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca
WRITTEN SUBMISSIONS BY
Cheryl Schleifer, Applicant ) On Her Own Behalf
City of Toronto, John Janson, Sandra Cuff, ) Heather Crisp, Counsel Respondents )
1This decision deals with two applications filed with the Tribunal by the applicant against the respondents. The first, an application under s. 45.9 (3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleges a breach of a settlement reached in an Ontario Human Rights Commission ("Commission") complaint under the old Code. The second, an application under s. 53(3) of the Code, purports to withdraw the same Commission complaint and make an application at the Tribunal with respect to its subject-matter.
THE FIRST APPLICATION
2The first application was filed on July 9, 2008 under s. 45.9 (3) of the Code, alleging that the respondents contravened a settlement of a complaint filed by the applicant at the Ontario Human Rights Commission (the "Commission") under the old Code. The Commission complaint alleged discrimination in employment on the basis of disability.
3The Tribunal issued a Notice of Intent to Dismiss the first complaint, on the basis that "it appears the Application is outside the Tribunal's jurisdiction because the initial settlement in question was not approved by the Ontario Human Rights Commission", citing s. 54 of the Code. The applicant was invited to make submissions on the issue, but did not do so. It appears from her correspondence that her intention was instead to proceed with the second application.
THE SECOND APPLICATION
4The second application, under s. 53(3) of the Code, was dated September 3, 2008, and purported to abandon the original Commission complaint and make an application to the Tribunal with respect to its subject-matter.
5The respondents ask that the Tribunal not process the second application. They argue that the Tribunal does not have jurisdiction over it, as the Commission complaint was settled.
6A mediation has been scheduled in the second application on November 21, 2008.
THE COMMISSION COMPLAINT AND SETTlement
7The settlement between the applicant and respondents was reached during mediation at the Commission on March 28, 2008. The settlement provided, among other terms, that the applicant would be interviewed for a position and that certain obligations of the respondent City would be triggered if she passed the interview.
8The settlement provided that it was "in full, final and complete release of this human rights complaint". In a letter, the Commission's Mediation Officer who participated in the mediation wrote to Ms. Schleifer as follows:
Please be advised that this case was settled pursuant to Minutes of Settlement signed by the parties. Approval of the settlement by the Commission is not required, since the parties have now fulfilled their respective obligations under the terms of the settlement.
I enclose a fully executed copy of the Minutes of Settlement and Release for your records.
Since this matter has now been concluded to the satisfaction of all parties, the file has been closed.
The Commission thanks you for your co-operation in resolving this matter.
The statement in the letter that the obligations under the terms of settlement had been fulfilled was not, in fact, correct, as the interview had not taken place.
RELEVANT STATUTORY PROVISIONS
9Section 43 of the Code, as it stood at the time of the settlement, read as follows:
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.
10Section 54 of the current Code reads as follows:
Section 45.9 of the new Part IV applies to enforcement of a settlement that,
(a) was effected by the Commission under the old Part IV before the effective date or during the six-month period referred to in subsection 53(2); and
(b) was agreed to in writing, signed by the parties and approved by the Commission.
11Subsections 53 (1) to (3) of the Code read as follows:
- (1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.
(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,
(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and
(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.
(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.
DECISION
12Based on the above provisions and the facts of this case, there may be an issue about whether the Tribunal has jurisdiction to hear either or both of these applications. As a result, the Tribunal determines that it is appropriate to receive submissions with respect to the interpretation and application of these provisions in the circumstances. The Tribunal makes the following order:
a. Under Rule 1.7(p) of the Tribunal's Rules of Procedure, authorizing the Tribunal to require any person to produce information in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal directs the Commission to file and deliver to the parties, by October 17, 2008, a statement of facts in relation to the complaint filed by the applicant. This should include information about whether the Commission has approved the settlement, the Commission's position on the status of the Commission complaint as of September 5, 2008, and any other relevant facts related to the processing of the complaint by the Commission.
b. The parties are requested to provide further submissions to the Tribunal on its jurisdiction to hear these applications. In addition to any other submissions, the parties should address the following issues:
(i) Is the March 28, 2008 settlement binding upon the parties in light of s. 43 of the old Code?
(ii) Does s. 54 of the Code give the Tribunal the jurisdiction (power) to hear the first application if the Commission did not approve the settlement?
(iii) Does s. 53 of the Code give the Tribunal jurisdiction to hear the second application? In particular, is the applicant's complaint "continued" under s. 53 (2) of the Code, permitting an application under s. 53(3)?
c. The submissions of the applicant shall be delivered to counsel for the respondents and filed with the Tribunal by October 31, 2008. The submissions of the respondents shall be delivered to the applicant and filed with the Tribunal by November 14, 2008. The applicant may deliver and file a reply by November 28, 2008.
d. The mediation remains scheduled for November 21, 2008. If a party does not intend to attend, it shall advise the Tribunal within five days of the date of this decision.
13I am not seized of these applications
Dated at Toronto, this 6th day of October, 2008.
"Signed by"
David A. Wright
Vice-Chair