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
INTERIM DECISION
Adjudicator: David A. Wright
Date: October 22, 2008
Citation: 2008 HRTO 182
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
[1] This interim decision relates to two Applications. In one, filed under s. 45. 9 (3) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") the applicant alleges a breach of a settlement reached at the Ontario Human Rights Commission (the "Commission"), prior to the current version of the Code taking effect on June 30, 2008. In the other, filed with the Tribunal under s. 53 (3) of the new Code, she states that she is electing to abandon the complaint with the Commission and make an application with the Tribunal with respect to the subject-matter of the previous complaint itself. The background to the Applications is set out in detail in a previous interim decision, Schleifer v. Toronto (City), 2008 HRTO 124. In short, the previous Commission complaint appeared to have settled but was not approved by the Commission pursuant to s. 43 of the old Code.
[2] In the previous decision, the Tribunal determined that there may be an issue about whether the Tribunal has jurisdiction to hear either or both Applications. The Tribunal requested a statement from the Commission about the facts of the processing of the complaint and the settlement. It also sought submissions from the parties about its jurisdiction to hear the Applications.
[3] On October 17, 2008, the Tribunal received the following statement from the Commission, in the form of a letter from Prabhu Rajan, the Acting Director of its Legal Services Branch, in response to its direction in the previous decision:
Ms. Schleifer's complaint was signed on November 7, 2007 and was formally filed with the Commission and served on the respondents on November 26, 2007. Her complaint (Complaint No. PRIS-78HN3P) alleged that she had been discriminated against because of disability with respect to employment.
On March 28, 2008, the parties engaged in mediation facilitated by Commission staff and a settlement was reached. The parties, with the Commission's assistance, drafted and executed the Minutes of Settlement that day itself.
The settlement agreement included a number of obligations on the respondents that were to occur in the future, such as requirements surrounding an anticipated interview process. It is the Commission's standard practice to place these types of settlements before the Commissioners for approval. Such settlements can be contrasted against 'administrative' settlements where obligations arising out of the agreement are met, effectively, on the spot (e.g. payment of a certain sum of money).
By letter dated March 31, 2008, Commission staff advised the parties that the complaint had been settled pursuant to Minutes of Settlement, approval of the settlement by the Commission was not required, and the file had been closed. Unfortunately, two of these statements were made in error.
First, Commission approval of the settlement was required in this case given the nature of the terms agreed to by the parties. The Minutes of Settlement should have been placed before the Commissioners for approval under section 43, which states:
Settlements 43. Where a settlement of a complaint is agreed to in writing, signed bv 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. R.S.O. 1990, c. H.19, s. 43.
Second, the Commission never formally closed this complaint as settled. The file was submitted to the mediator's manager for closure but was returned to the mediator to follow up on concerns arising out of the nature of the settlement and the probable need for section 43 approval.
Unfortunately, the settlement was not placed before the Commissioners for approval and there was no activity on this file until August 2008. On August 15, 2008, Commission staff spoke with respondent's counsel and was advised that Ms. Schleifer had filed a breach of settlement application with the Tribunal.
Given that this file remained open with the Commission, the file was marked for the section 53(3) 'opt-out' process. Section 53(3) of the Code states:
Applications to Tribunal during six-month period (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.
By letter dated August 22, 2008, the Commission provided Ms. Schleifer with information about this process. On or about September 3, 2008, Ms. Schleifer informed the Tribunal that she was making an application to the Tribunal under section 53(3). However, the Tribunal has not yet formally notified the Commission that it has accepted Ms. Schleifer's application under section 53(3) and, therefore, her file remains open at the Commission.
Both of the matters before the Tribunal may raise jurisdictional concerns. However, Ms. Schleifer should in no way be penalized for the way the Commission handled her complaint and settlement. The Commission, therefore, proposes the following resolution to the current situation before the Tribunal:
Ms. Schleifer could withdraw her second application, which deals with the merits of her original complaint filed with the Commission and was filed with the Tribunal pursuant to section 53(3): see Tassopoulos v. Toronto Hydro, 2008 HRTO 126;
The Commission would place the Minutes of Settlement before the Commissioners for approval within one week of being notified. The Commission retains its power to approve settlements under section 43 pursuant to subsection 53(2)(a), which states:
Commission powers continued for six months (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
- The Commission would inform both the parties and the Tribunal if the Minutes were approved.
- The above-proposed process is administrative in nature and within the Commission's authority. It is also a fair and equitable resolution for Ms. Schleifer who was, in no way, responsible for this current situation.
[4] The Tribunal thanks the Commission for its detailed submission and proposal of a solution. In the circumstances, the appropriate next step is to seek the parties' views
[5] Accordingly, the Tribunal orders as follows:
1) The deadlines for submissions by the parties set out in the previous decision are suspended, and the parties shall not be required to make such submissions unless the Tribunal directs them to do so.
2) By October 29, 2008, the applicant shall send a letter to the Registrar, copied to counsel for the respondents and to Mr. Rajan, advising whether she seeks to withdraw her s. 53(3) Application.
3) If the applicant asks to withdraw the s. 53(3) Application, the respondents shall, by November 5, 2008, send a letter to the Registrar, copied to the applicant and to Mr. Rajan, with their position on the request and any submissions they wish to make in support of this position.
4) The Registrar is directed to provide a copy of this decision to Mr. Rajan.
Dated at Toronto, this 22nd day of October, 2008.
"Signed By"
David A. Wright
Vice-Chair