Schleifer v. Toronto (City), 2008 HRTO 249

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

Date: November 12, 2008

Citation: 2008 HRTO 249

Indexed as: Schleifer v. Toronto (City)

Human Rights Tribunal of Ontario 655 Bay Street, 14^th^ Floor Toronto ON M7A 2A3 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 and Sandra Cuff ) Respondents ) Heather Crisp, Counsel

1The applicant has filed two Applications at the Tribunal under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The full details of the Applications and background to this decision are set out in two previous interim decisions of the Tribunal, Schleifer v. Toronto (City), 2008 HRTO 124, (“Schleifer #1”), and Schleifer v. Toronto (City), 2008 HRTO 182, (“Schleifer #3”). The first Application seeks enforcement of a settlement reached at the Ontario Human Rights Commission (the “Commission”) and the second purports to abandon a complaint at the Commission and make an application to the Tribunal with respect to its subject-matter pursuant to s. 53(3) of the Code.

2This decision deals with the question of whether the second Application is within the Tribunal’s jurisdiction. The parties signed Minutes of Settlement and the applicant signed a release in March, 2008, during a Commission mediation, but the settlement was not formally approved by the Commission. The text of the settlement provides that it is “in full and complete release of the human rights complaint” and a detailed full and final release is attached.

3In a previous interim decision, Schleifer v. Toronto (City), 2008 HRTO 124,, the Tribunal identified possible jurisdictional issues with both Applications, sought a statement from the Commission about the processing of the complaint at the Commission and submissions from the parties.

4The Commission provided its statement of facts on October 17, 2008, which is set out in Schleifer #3. The Commission acknowledged that it was an error that the settlement was not placed before the Commissioners, and states that the file was not formally closed as settled. The Commission proposed that as a solution to the jurisdictional questions in the Applications, the applicant could withdraw her s. 53(3) application, and undertook that the Minutes would be placed before the Commissioners for approval within one week of the withdrawal. In Schleifer #3, the Tribunal suspended the requirement for further submissions and sought confirmation from the applicant of whether she wished to withdraw her s. 53(3) Application.

5The applicant made submissions on October 8, 2008 arguing that the Tribunal had jurisdiction to hear the s. 53(3) Application. She argues that the settlement was not finalized since the Commission did not approve the settlement. The applicant sent the Tribunal further correspondence on October 26, 2008. She indicates that she would like to proceed with the s. 53(3) Application. She states that in her view, the mediated settlement “did not solve the problem” and that proceeding with the s. 53(3) Application would “allow the complaint to start over from the beginning and provide an opportunity to correct the problems and insure [sic] that the new settlement would be done in a proper manner”. She understands that the Tribunal may decide that it does not have jurisdiction over the s. 53(3) Application, but will “leave the jurisdiction and legal questions with the Tribunal”.

6The respondents reiterate their position that the Tribunal does not have jurisdiction over the s. 53(3) Application. They state that the respondents have implemented the Minutes of Settlement, and that it would be unfair to now permit the applicant to proceed with the s. 53(3) Application as if there had been no settlement. They believe that the solution proposed by the Commission is “appropriate”.

7As the applicant did not accept the Commission’s suggestion to withdraw the s. 53(3) Application, the Tribunal must determine whether it is within its jurisdiction. The applicant made her submissions on this issue, and, in view of the decision I have reached, it is not necessary to seek further submissions from the respondents.

ANALYSIS

8As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Commission decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal.

9The provisions of the amended Code set out new procedures and rules regarding the enforcement of Code rights through the Tribunal. They also deal with a number of transition issues, which are always present in a changeover to a new legal regime.

10Sections 53(1) to (4) and (8) of the new Code read as follows:

Complaints before Commission on effective date

53. (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.

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

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

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.

Expedited process

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

Application barred

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

11Section 43 of the old Code reads 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.

THE TRIBUNAL’S Jurisdiction over the s. 53(3) application

12Under sections 53(1) to (3), the Tribunal only has jurisdiction to determine the applicant’s s. 53(3) Application if it was “continued” at the Commission after June 30, 2008, the “effective date”. The word “continued” must be given an interpretation that reflects the Legislature’s intention and purposes in enacting the transition provisions, “an orderly and rational changeover from one legal regime for the enforcement of Code rights to another”: Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160. At the root of these provisions is the goal that outstanding complaints that have not been resolved will be addressed under the previous system, for six months, with the exception of those where the complainant decides to “opt out” and file a transition application under s. 53(3). Following the initial six-month period, complaints that remain unresolved may be the subject of an application under s. 53(5) for a further six months.

13There is no question that on March 28, 2008, the applicant and respondent reached a voluntary settlement of her complaint at the Commission that included a clear expression of the parties’ intent to resolve the complaint. The applicant also signed a full and final release which clearly indicated that she understood that she was releasing the respondent from any claims she might have related to the subject-matter of the complaint. There is no indication that anything in the settlement made it conditional on the Commission’s approval or that the parties were waiting for such approval to implement its terms. In fact, they were advised by the mediator that such approval was not needed and proceeded to act as if it was binding. There is no suggestion of any duress leading to the signing of the settlement.

14However, under Commission policy, the mediator ought to have placed the settlement before the Commission for approval. The Commission’s file, moreover, remains open despite the settlement.

15In my view, whether a complaint is “continued” within the meaning of s. 53, permitting an application to be made under s. 53(3), does not depend only on whether the Commission’s file remains open or has been closed. When the applicant has expressed a clear, informed intention to put an end to the matters at issue in the complaint and signed legally binding documents to that effect, which clearly express their meaning and consequences, it would not be consistent with the intention of the legislation to find that it is “continued”. The mere fact that the Commission has left a file open does not change the fact that the parties have agreed that the complaint is at an end through a settlement and release. The unequivocal and binding expression of the parties’ intention to resolve the complaint means that it is not “continued” within the meaning of s. 53(3).

16The fact that the Commission did not approve the settlement under s. 43 of the old Code does not mean that the release and expression of intent in the settlement to finally resolve the complaint do not have legal effect. It is true that s. 43 states that a settlement approved by the Commission is “binding upon the parties”. However, this does not mean that a settlement not approved by the Commission is not binding. To make this a precondition for a voluntary settlement, in my view, the Legislature would have explicitly stated that a settlement of a complaint not approved by the Commission is of no force or effect. Indeed, it appears that this has not been the Commission’s practice in interpreting s. 43, since it has not required approval of settlements that do not involve future obligations.

17As the parties have agreed that the complaint is at an end, the applicant’s Commission complaint is not “continued” within the meaning of s. 53. Accordingly, the Tribunal has no jurisdiction over the s. 53(3) Application, File T-0183-08, and it is dismissed.

18In light of this decision, it is appropriate to set the following schedule for submissions on whether the Tribunal has jurisdiction over the first Application, File 2008-00051-S:

1. 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 with the Tribunal and deliver to the parties, by November 27, 2008, a statement advising whether it has approved the settlement of Ms. Schleifer’s complaint.

2. By December 4, 2008, the applicant shall make any further submissions regarding the Tribunal’s jurisdiction to hear application 2008-00051-S.

3. The respondent may respond by December 11, 2008.

4. The applicant may reply by December 18, 2008.