Bonnah v. Ontario (Community and Social Services), 2009 HRTO 400

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, Susan Bihum, Alexander Bezzina and Susan Fournier

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: April 7, 2009

Citation: 2009 HRTO 400

Indexed as: Bonnah v. Ontario (Community and Social Services)

1The Tribunal received an Application under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a contravention of a settlement. In an Interim Decision, 2008 HRTO 308, the Tribunal sought submissions from the parties and information from the Ontario Human Rights Commission (the “Commission”) regarding whether the Tribunal can deal with the Application. The requested submissions and information has now been received.

2As noted in the Interim Decision, the parties in this case signed Minutes of Settlement on January 9, 2008 following a conciliation meeting at the Commission. In a letter dated January 24, 2008, the Commission’s Investigation Officer advised that approval of the settlement by the Commission was not required because the parties had fulfilled their respective obligations under the terms of the settlement.

3Pursuant to sections 45.9 and 54 of the Code, the Tribunal can determine if there has been a breach of a settlement that was “effected by the Commission” prior to December 31, 1998, if the settlement was “agreed to in writing, signed by the parties and approved by the Commission”.

4When the Tribunal reviewed the Application, it noted that there was a question as to whether the Tribunal could deal with the Application because the Commission had not approved the settlement.

5The Interim Decision sought submissions from the parties on the question of whether the Tribunal could deal with the Application since the agreement was not approved by the Commission. The Commission was also asked to provide information about the status of the complaint and the settlement.

6The Commission responded by letter dated December 11, 2008. The Commission advised that the settlement was reached with the Commission’s assistance and that “it is the Commission’s standard practice to place these types of settlements before the Commissioners for approval.” In this case, “the failure to obtain Commission approval of the settlement was made in error.” The Commission further submits that the applicant “should in no way be penalized for the way the Commission handled the complaint and settlement.” Finally, the Commission advised that it has now approved the settlement and provided a copy of the approved Minutes.

7The respondent submits that the Tribunal cannot deal with the Application because it was not approved by the Commission, and that there was no reason for it to have been approved by the Commission at the time because the terms of the settlement had been fully honoured by the respondent before the parties signed the Minutes. The respondent further submits that there is no merit to the Application because it does not agree that the settlement has been contravened.

8The applicant submits that the respondent did not honour the terms of the settlement. This submission appears to be based in large part on an interpretation of the terms of the settlement. The applicant’s view of the purpose and terms of the financial settlement appears to differ from the respondent’s. The applicant made no submissions on the question of whether the Tribunal has the power to deal with the Application.

Analysis

9The current Code came into force on June 30, 2008. Pursuant to section 45.9 of the current Code, if a settlement is reached and a party believes that another party has contravened the settlement, an application to remedy the contravention for enforcement may be made to the Tribunal.

10Section 54 of the current Code provides that section 45.9 also applies to settlements made under the old Code:

54. 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.

11The issue before me is whether the Application can be dealt with by the Tribunal. There does not appear to be any dispute that the settlement in question was “effected by the Commission” under the Part IV of the old Code before June 30, 2008 (the “effective date”). It is also not disputed that the settlement was not approved by the Commission at the time. However, the Commission has now approved the settlement. The date of approval is not clear but it was prior to December 30, 2008, which was the end of the six-month period mentioned in section 54(a).

12In these circumstances, I am satisfied that the Tribunal may deal with the Application to determine whether the terms of the settlement have been contravened.

13In his Application, the applicant named three personal respondents, in addition to the corporate respondent (the Ministry). It appears that the personal respondents were named because they had been named as respondents at the time of the original complaint to the Commission. However, the parties to the settlement that is the subject of the current Application were the applicant and the corporate respondent. The personal respondents were not parties to the settlement. It would therefore appear that the personal respondents are not parties to the current Application. If the applicant disputes this, he shall make submissions as to why the personal respondents should be parties to the current Application within two weeks. If no such submissions are received, the personal respondents shall be removed as parties to the Application.