Boloni v. Heritage Restoration, 2009 HRTO 792

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ceresela Boloni

Applicant

-and-

Heritage Restoration Inc.

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: June 8, 2009

Citation: 2009 HRTO 792

Indexed as: Boloni v. Heritage Restoration

INTRODUCTION

1The applicant filed an Application alleging Contravention of Settlement pursuant to s. 45.9 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.

2The applicant indicated 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 told to proceed with this Application. A copy of a s. 53(3) Application, dated November 21, 2008, was included with this Application.

3On February 17, 2009, the Application and Request to Expedite were delivered by the applicant to the respondent by mail. A Statement of Delivery was filed by the applicant with the Tribunal. The respondent did not provide a Response to either the Application or the Request to Expedite.

4In an earlier Interim Decision, 2009 HRTO 356, the Tribunal denied the applicant’s Request to Expedite and directed the respondent to file a Response to the Application, which the respondent has now done. The earlier Interim Decision also identified that the material filed with the Application raised an issue of whether the Tribunal has jurisdiction over the matters raised in the Application, as it was 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.

7The Tribunal sought submissions from the parties with respect to the interpretation and application of the above provisions in the circumstances. The Tribunal also directed the Commission to provide a statement of facts in relation to the applicant’s Complaint file with the Commission and indicated that the statement of facts should include information about whether the Commission had 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.

8The Tribunal also sought submissions from the parties on the interpretation and application of the following provisions of the Code, in the circumstances, and, in particular, whether or not the applicant’s Complaint is “continued” under s. 53(2) of the Code, permitting an application under s. 53(3) or (5):

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.

THE COMMISSION’S STATEMENT OF FACTS

9The Commission confirmed that the minutes of settlement were not approved by the Commission pursuant to s. 43 of the Code. The Commission indicated that because its staff were unable to effect the settlement, the Commission’s file was transferred to the Investigation Office and the file has not been closed. The Commission also indicated that the file remained active on December 31, 2008, and, therefore, would be eligible for an application to the Tribunal under s. 53(5) of the Code.

THE PARTIES’ POSITIONS

10The respondent submits that the Application is untimely.

11The applicant agrees that the Tribunal lacks the necessary statutory authority to enforce the terms of the settlement pursuant to s. 43 of the Code as the settlement was not approved by the Commission. The applicant submits, however, that the original Complaint remains outstanding and unresolved. The applicant requests that the original Complaint against the corporate and individual respondents be scheduled for hearing on its merits forthwith consistent with the applicant’s s. 53(3) Application filed with the Tribunal on or about November 21, 2008, well within the statutory time limits outlined in the Tribunal’s Rules of Procedure for filing such an application.

DECISION

12Pursuant to s. 45.9(3) of the new Part IV of the Code, “[i]f a settlement of an application made under section 34 or 35 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 under subsection (8)”. Section 54 of the Code provides that s. 45.9 of the new Part IV of the Code applies to enforcement of a settlement that “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 that “was agreed to in writing, signed by the parties and approved by the Commission.”

13In the circumstances, it is clear that the settlement in question was not approved by the Commission. As such, it appears that the applicant may not make an application for an order under subsection 45.9(8) of the Code. The Application alleging Contravention of Settlement is dismissed.

14The question remains as to whether the applicant’s Complaint is “continued” under s. 53(2) of the Code, permitting an application under s. 53(3) or (5).

15In Schleifer v. Toronto (City), 2008 HRTO 249, the Tribunal considered the approach to determining whether a complaint is “continued” within the meaning of s. 53. At paras. 12 to 16, the Tribunal stated as follows:

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.

16The applicant agrees with the relevant facts set out by the Commission in its statement of facts. A mediation meeting was convened by the Commission on July 27, 2007, the parties were represented by legal counsel, a resolution was reached and minutes of settlement were signed. The respondent refused to honour the provisions of the settlement, taking the position that the applicant breached the confidentiality provision(s) of the settlement. The applicant denies any breach. The applicant submits that the original Complaint remains outstanding and unresolved.

17As in Schleifer, supra, I find that it is clear that on July 27, 2007, the parties reached a voluntary settlement of the applicant’s Complaint at the Commission that included a clear expression of the parties’ intent to resolve the complaint. A copy of minutes of settlement, signed by the parties, was included with the applicant’s Application for Contravention of Settlement. The minutes of settlement state that “this settlement is in full, final and complete settlement of this human rights complaint”. The applicant also signed a release which was included with her Application.

18As in Schleifer, supra, 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. There is also no suggestion of any duress leading to the signing of the settlement. 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. Accordingly, the Tribunal has no jurisdiction over the applicant’s s. 53(3) Application and it is also dismissed.