HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zachary Bonnah by his Litigation Guardian Gregory Bonnah
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services
Respondent
INTERIM decision
Adjudicator: Brian Cook
Date: November 25, 2008
Citation: 2008 HRTO 308
Indexed as: Bonnah v. Ontario (Community and Social Services)
[1] The Tribunal has received an Application for Contravention of Settlement (Form 18) filed under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is Zachary Bonnah by his Litigation Guardian Gregory Bonnah. Mr. Bonnah was a party to an agreement that settled a complaint filed in 2006 with the Ontario Human Rights Commission (the “Commission”) under the old Code. The other party was identified as “Her Majesty the Queen in Right of Ontario in the right of Ministry of Community and Social Services”. A Memorandum of Settlement was signed by the parties in January 2008.
[2] A letter dated January 24, 2008, from the Commission’s Investigation Officer, was provided with the Application. The letter confirms that a settlement between the parties was reached, and indicates that “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.”
[3] Section 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.
[4] Since the time that the settlement was reached, the Code has been amended and section 43 of the old Code was repealed.
[5] Pursuant to subsection 45.9 of the amended Code, if a settlement of an application is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order. This is what the Mr. Bonnah has done.
[6] Section 54 of the amended Code provides:
- Section 45.9 of the new Part IV applies to the 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.
[7] This section indicates that section 45.9 only applies if the settlement was “approved by the Commission”. The letter from the Commission’s Investigations Officer indicates that approval of the Commission was not necessary.
[8] Based on the above provisions of the Code and the facts of this case, there may be an issue about the Tribunal’s jurisdiction to hear this Application. 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 of this case.
[9] The Tribunal draws the applicant’s attention to the sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. Links to the Centre and other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar whose contact information is contained on the cover page of this decision.
[10] The Tribunal makes the following Order:
a. Under Rule 1.7(p) of the Tribunal’s Rules of Procedure, the Tribunal directs the Commission to file with the Tribunal and deliver to the parties by December 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, and any other facts relevant to the complaint by the Commission. The Registrar is directed to provide a copy of this decision together with the parties’ contact information to the Commission’s legal branch;
b. The parties are requested to provide further submissions to the Tribunal on its jurisdiction (power) to hear the Application for Contravention of Settlement (Form 18) filed by Mr. Bonnah. In addition to any other submissions, the parties should address the following issue:
Does s. 54 of the Code give the Tribunal the jurisdiction (power) to hear the Application if the Commission did not approve the settlement?
c. The submissions of the applicant shall be delivered to the respondent and filed with the Tribunal by December 31, 2008. The submissions of the respondents shall be delivered to the applicant and filed with the Tribunal by January 14, 2009. The applicant may deliver and file a reply by January 21, 2009.
[11] I am not seized of this matter.
Dated at Toronto this 25^th^ day of November, 2008.
“Signed by”
Brian Cook
Vice-Chair