Lisa Weitzmann v. Reliant Home Warranty Corporation, 2009 HRTO 387

Human Rights Tribunal of Ontario

B E T W E E N:

Lisa Weitzmann Applicant

-and-

Reliant Home Warranty Corporation, a subsidiary of Reliant Home Mortgage Corporation, Jeffrey Burns, Kenneth Min and Kevin Hamilton Respondents

INTERIM DECISION

Adjudicator: David Muir Date: April 3, 2009 Citation: 2009 HRTO 387 Indexed as: Weitzmann v. Reliant Home Warranty Corporation

1This is an Application dated September 24, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2During a conference call mediation on January 20, 2009 in the above-noted matter, the parties agreed to enter into Minutes of Settlement to resolve this Application. The personal respondents, Kenneth Min, Kevin Hamilton and Jeffrey Burns each agreed to sign and return the Minutes of Settlement to the Human Rights Tribunal of Ontario and jointly and severally agreed to pay the applicant a particular sum by February 3, 2009. Each of the personal respondents agreed to send his portion of the total sum owing to the applicant's home address.

3The personal respondents advised that the corporate respondent Reliant Home Warranty Corporation no longer exists. As a result, the corporate respondent was not a signatory to the Minutes of Settlement.

4A consent order was attached to the Minutes of Settlement, and the settlement included a term stating that the parties agreed to file an original signed copy or copies of the Minutes of Settlement with the Tribunal and requested that the Tribunal finally dispose of the Application and asked the Tribunal to issue the attached consent order.

5However, prior to receiving the signed Minutes of Settlement from the parties, the Tribunal issued a order on January 21, 2009 finally disposing of the Application on the basis that the parties had agreed to resolve the Application on terms acceptable to them and had entered into a written settlement. This order was issued in error, since as of that date, there was no settlement agreement signed by the parties.

6By letter dated February 13, 2009, the applicant advised the Tribunal that two of the personal respondents, Kenneth Min and Kevin Hamilton, had signed the Minutes of Settlement and had paid their respective portions of the settlement amount to her. To date, neither the Tribunal nor the applicant has received signed Minutes of Settlement from Jeffrey Burns, the other personal respondent in this matter, and no payment to the applicant has been made by Mr. Burns.

7In Glover v. 571566 Ontario Inc. (Cadillac Tavern), 2006 HRTO 14, this Tribunal confirmed that it has the power to rescind an order which is purported to have been made on consent, where the Tribunal is satisfied that one or more of the parties did not in fact consent to the order. In the instant case, the applicant's consent to an order finally disposing of the application was contingent upon all of the personal respondents signing the Minutes of Settlement, which did not happen. As a result, the applicant did not in fact consent to the order as issued, and the order must be rescinded.

8This leaves the matter of the status of this Application. As matters stand, there is a signed settlement agreement between the applicant and the personal respondents Min and Hamilton, whereby they have jointly and severally agreed to pay the applicant the total sum owing under the settlement. In my view, the settlement agreement remains valid as it applies to these two personal respondents, and the Application as against them is thereby finally disposed of. This does not prevent the applicant from taking steps to enforce the settlement agreement as against these two individuals pursuant to s. 45.9(3) of the Code, and the applicant in fact has filed a new Application with the Tribunal to do so.

9With regard to the third personal respondent, Jeffrey Burns, who has not signed the settlement agreement, the Application has not been finally disposed of as against Mr. Burns and thus will proceed against him alone. As a result, if the applicant's rights are found to have been violated by Mr. Burns, he will be solely responsible for all damages that she incurred, perhaps subject to some accounting for monies actually paid under the settlement agreement.

10If the applicant still wishes to proceed with the Application as against Mr. Burns and the corporate respondent, she is to so advise the Tribunal and Mr. Burns within 20 days of the date of this decision.

11For these reasons, I make the following order:

a. The Tribunal's order dated January 21, 2009 is hereby rescinded;

b. The Application is finally disposed of as against the personal respondents Kenneth Min and Kevin Hamilton;

c. If the applicant still wishes to proceed with the Application as against Mr. Burns and the corporate respondent, she shall so advise the Tribunal and Mr. Burns within 20 days of the date of this decision.