Ceresela Boloni v. Heritage Restoration Inc., 2009 HRTO 356

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ceresela Boloni

Applicant

-and-

Heritage Restoration Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: March 26, 2009

Citation: 2009 HRTO 356

Indexed as: Boloni v. Heritage Restoration

INTRODUCTION

1The applicant filed an Application for Contravention of Settlement (Form 18) pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges a contravention of minutes of settlement entered into between the applicant and the respondent on July 27, 2007, to resolve a Complaint filed with the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Code. The applicant also filed a Request to Expedite Proceedings (Form 14).

2The applicant indicated in her Application (Form 18) that she had previously filed an Application under s. 53(3) of the Code with the Tribunal, seeking compliance with the July 27, 2007, minutes of settlement, and was asked by a representative of the Tribunal to complete an Application for Contravention of Settlement (Form 18). A copy of an Application under s. 53(3) of the Code, dated November 21, 2008, was included with this Application (Form 18).

3On February 17, 2009, the Application (Form 18) and Request to Expedite (Form 14) were delivered by the applicant to the respondent by mail. A Statement of Delivery was filed by the applicant with the Tribunal. The respondent has not provided a Response to either the Application or the Request to Expedite.

THE TRIBUNAL’S JURISDICTION

4The material filed with the Application raises an issue of whether the Tribunal has jurisdiction over the matters raised in the Application, as it is not clear if the settlement in question was “approved by” the Commission.

5Section 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.

6Section 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.

7Subsections 53(1), (2), (3) and (5) of the Code read as follows:

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.

(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.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

8The Tribunal determines that it is appropriate to receive submissions with respect to the interpretation and application of these provisions in the circumstances, as set out in the Tribunal’s Order below.

REQUEST TO EXPEDITE

9Rule 21.1 of the Tribunal’s Rules of Procedure (the “Rules”) provides that an applicant may request “that the Tribunal deal with an Application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute”. Rule 21.2 and Form 14 require that a Request to Expedite Proceedings describe urgent circumstances that may affect the fair and just resolution of the merits of the Application and the harm that would result if the request is denied. Further, in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, the Tribunal held as follows, at paragraph 9:

For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

10The applicant submits that the continuing breach of settlement by the respondent brings the administration of justice into disrepute and the Tribunal’s effectiveness into question. The applicant submits that she has suffered a great loss as a result of the respondent’s continuing breach of settlement. The original alleged violation(s) led to her losing her job with the respondent and the continuing breach of settlement has caused significant financial hardship. In addition, she submits that the important societal goals of the Code will not be met if the Tribunal does not take swift and sure action to ensure compliance with settlements and that parties to a settlement must be bound by the terms of the settlement or the process for resolution of complaints cannot succeed. The applicant submits that the circumstances of this case demand that the Tribunal deal with this matter on an expedited basis.

11Having reviewed the materials filed, and having regard to the Tribunal’s Rules and the decision in Weerawardane referred to above, the Request to Expedite is denied. I find that the applicant has not identified any truly urgent circumstances that may affect the fair and just resolution of the merits of the Application, thereby requiring an urgent resolution of the issues in dispute as compared with the time required to complete the Tribunal’s regular process. The applicant alleges that the continuing breach of settlement has caused significant financial hardship, however, I find that there are no particular indications of urgency in this case as compared with other applications alleging breach of settlement.

FAILURE TO RESPOND

12Pursuant to Rule 24.3 of the Tribunal’s Rules, a party who is served with a Form 18 must deliver and file their Response (Form 19), if any, not later than fourteen (14) days after the Form 18 was delivered. Rule 1.22 of the Tribunal’s Rules confirms that a document delivered by mail is deemed received five days after the postmark date. It is now more than 10 days after the date for filing the Response and the respondents have not filed a Response.

13A Tribunal application is a legal proceeding. If a contravention of settlement is found the Tribunal may make any order it considers appropriate to remedy the contravention. Failure to file a Response may lead to orders against a respondent without their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules which reads as follows:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

14The applicant has provided an address for the respondent. The Tribunal shall send a copy of this decision to the respondent by regular mail and courier.

15If the respondent wishes to participate in this proceeding, a Response must be filed in accordance with paragraph 16(d) of the Tribunal’s Order, set out below. If a Response is not received by the date set, the Tribunal shall proceed without further notice to respondent, and make take any or all of the other steps set out in Rule 5.5.

ORDER

16The Tribunal makes the following Order:

a. Under Rule 1.7(p) of the Tribunal’s Rules, 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 April 16, 2009, a statement of facts in relation to the applicant’s complaint file with the Commission. 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 relevant facts related to the processing of the complaint by the Commission.

b. The parties are requested to provide submissions to the Tribunal on its jurisdiction to hear this Application. In addition to any other submissions, the parties should address the following issues:

(i) Is the July 27, 2007, 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 Application if the Commission did not approve the settlement?

(iii) Does s. 53 of the Code give the Tribunal jurisdiction to hear the Application? In particular, is the applicant’s complaint “continued” under s. 53(2) of the Code, permitting an application under ss. 53(3) or (5)?

c. The submissions of the applicant shall be delivered to the respondent and filed with the Tribunal by April 30, 2009. The submissions of the respondent shall be delivered to counsel for the applicant and filed with the Tribunal by May 14, 2009. The applicant may deliver and file a Reply by May 21, 2009.

d. The respondent shall file a Response to the Application by May 14, 2009.

e. The Registrar shall send to the Commission a copy of the Application, the Complaint, the Minutes of Settlement and Release, and copies of correspondence from the applicant’s counsel to the Commission dated August 23 and December 27, 2007.

17I am not seized of this matter.