Karsiem v. Ontario (Northern Development and Mines), 2010 HRTO 1415

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdallah Karsiem

Complainant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Northern Development and Mines and Dave Laderoute

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: July 6, 2010

Citation: 2010 HRTO 1415

Indexed as: Karsiem v. Ontario (Northern Development and Mines)

Appearances

Abdallah Karsiem, ) On his own behalf Complainant ) )

Her Majesty the Queen in Right ) Omar Shahab, Of Ontario as represented by the ) Counsel Minister of Northern Development and ) Mine, and Dave Laderoute, ) Respondents )

1The complainant filed a Complaint with Commission which was referred to the Tribunal under the provisions of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) which existed before the substantial amendments came into effect on June 30, 2008. The complainant alleges discrimination in the context of his employment.

2At the point at which the Complaint was referred to the Tribunal, the Commission was also a party. A period of negotiations between the parties took place after the referral to the Tribunal and the Commission actively participated in attempting to bring about a settlement of the complaint. Ultimately the Commission withdrew from this proceeding when the parties reached an impasse in their negotiations. The complainant then requested that the Tribunal proceed with the hearing.

3The respondent now requests that this complaint be dismissed on the basis that the parties achieved a resolution of the complaint by way of an oral agreement which was to be reduced to writing and signed by the parties. The respondent alleges that the complainant refused to sign the minutes of settlement. The respondent seeks to enforce the terms of the oral agreement.

4The complainant’s position is that he agreed to the monetary compensation and indicated his agreement to the Commission. The Commission provided the complainant with draft minutes of settlement for his review. The complainant responded that he could not agree to certain paragraphs which related to confidentiality and admissions of liability.

5The respondent’s position is that the jurisdiction to enforce the alleged agreement is found in section 49.5 of the Code. The respondent’s view is that although the section specifically references settlements which are in writing and signed by the parties, the Code is not limited to recognizing as settlements, only those which have been reduced to writing. For the reasons that follow, I have found it unnecessary, in the unique circumstances of this case, to decide that question.

6The role of the Tribunal is to bring applications and complaints to a fair, just and expeditious resolution. To that end, the Tribunal is empowered with the discretion to dispose of applications in a manner which meets the remedial imperatives of the Code and which best accords with the circumstances of each application.

7The parties filed written material including documents related to the settlement discussions and they took part in oral submissions on May 18, 2010. The respondent’s position is that the parties reached an agreement on July 9, 2009 and that the agreement is captured in the email of Mr. Obikoya, counsel to the Commission at the time. His email references the agreement to a monetary payment and includes the draft minutes of settlement which the complainant ultimately objected to.

8The complainant’s position is that Mr. Obikoya was correct in conveying his agreement to the monetary compensation but not the terms of the Minutes of Settlement. Indeed Mr. Obikoya’s email does not say that the complainant agrees to the terms of the draft agreement, however, I can understand from the language of the email why the respondents thought that might be the case.

9I reviewed all of the material in advance of the oral submissions and concluded that the parties appeared to have a common goal which was to bring about a final resolution of the complaint.

10During oral submissions, both parties confirmed that they were in agreement with two fundamental terms: that the complainant would receive a monetary payment and that he would provide the respondent with a full and final release.

11In my view, it would not serve the remedial purposes of the Code, nor the interests of the parties, to allow the Complaint to proceed when the parties agree to these fundamental terms. The terms over which they disagree are related to confidentiality and admissions of liability. Neither of these terms are compelling enough to weigh in favour of allowing the matter to proceed at great personal and public expense. Indeed, the benefits of the confidentiality provision are now lost as a result of this Request to enforce the terms of the agreement.

12I advised the parties of my decision at the conclusion of the oral submissions that the respondent was to pay the complainant the sum originally agreed upon and the complainant was to provide the respondent with a release. The complainant signed a release at the hearing which mirrors the language of the release contained in the original Minutes of Settlement. The parties were also given an opportunity to confirm that payment had been received by the applicant, which would obviate the need for the details of the monetary payment to be included in this Decision.

13In my view, this complainant has now been resolved in a manner consistent with the Code. As a result of my findings and the unique circumstances of this matter, I find it unnecessary to answer the question as it was posed by the respondent, namely whether section 49 encompasses both written and oral agreements.