Celina Major v. InnVest Hotels GP Ltd. o/a Quality Suites Whitby, 2010 HRTO 42

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Celina Major Applicant

-and-

InnVest Hotels GP Ltd. o/a Quality Suites Whitby, Jason Weir, Dana Gillingham, Debra Berry, Janice Andrew, Darlene Dallaire and Ellen Cox Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: January 12, 2010 Citation: 2010 HRTO 42 Indexed as: Major v. InnVest Hotels

1This is an Application filed May 13, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"). The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on July 12, 2006. The Application alleges that the applicant was subjected to discrimination and harassment in the workplace owing to the applicant's place of origin, citizenship, ethnic origin and disability.

2The respondents made a Request for an Order seeking the dismissal of the Application for the reason that the substance of the Application was appropriately dealt with in another proceeding.

3During the course of the hearing with respect to the Request, it became evident the parties had signed Minutes of Settlement and the applicant signed a release in March, 2007 while this matter was still before the Commission. The text of the settlement provides that it "is full, final and complete settlement of this human rights complaint" and a detailed final release is attached to the Minutes of Settlement. I requested submissions from the parties as to whether this Application was within the jurisdiction of the Tribunal given the settlement and release. This Decision deals with that question.

4The respondents' position is that there was no meeting of minds concerning the scope of the settlement and therefore the settlement is not binding on the parties. They also argue that the settlement was never finalized since the Commission did not approve the settlement.

5The applicant's position is not clear although it would appear that she is of the view that the settlement is binding given that she has recently demanded that the respondents pay to her the monetary settlement called for by the Minutes of Settlement.

ANALYSIS

6Since June 30, 2008, the system for enforcing rights under the Code has been amended. Before the Tribunal would only hear individual complaints if they were referred by the Commission for a hearing. Now, applicants may file their applications directly with the Tribunal. The amended Code sets out new procedures and rules regarding enforcement of Code rights through the Tribunal. It also deals with transition issues.

7Pursuant to section 53(5) of the Code, the Tribunal only has jurisdiction to determine this Application if it is based on a complaint "continued" at the Commission as of December 30, 2008.

8I find that on March 26, 2007 the applicant and respondents reached a voluntary settlement of her complaint at the Commission. The terms of the settlement include a clear expression of the parties' intent to resolve the complaint. It reads in part: "the complainant agrees that this settlement is in full, final and complete settlement of this human rights complaint…". The terms of the Minutes of Settlement are straightforward, quite comprehensive and leave no room for misunderstanding. It is signed by the applicant and the corporate respondent, the signatures are witnessed and it is dated March 26, 2007.

9The applicant in addition signed a full and final release which clearly indicated that she understood that she was releasing the respondents from any claims she might have related to the subject matter of the complaint. The release executed by the applicant concludes: "I declare that I have had sufficient time and a full opportunity to obtain independent legal advice prior to signing this Release and/or entering into this settlement agreement…". There is no suggestion of any duress leading to the signing of the settlement.

10In my view, the fact that the Commission did not approve the settlement under s. 43 of the old Code does not mean that the release and the expression of intent in the settlement to finally resolve the complaint do not have legal effect. While the former s. 43 states that a settlement approved by the Commission is binding upon the parties, this does not mean that a settlement not approved by the Commission is not binding. In my view, to make this Commission approval a condition of every settlement, the Legislature would have had to have clearly stated that unless approved by the Commission a settlement is of no force or effect. I note that the parties could have chosen to make the settlement conditional on the Commission's approval by inserting a clause to that effect in the Minutes of Settlement; however, they did not.

11This analysis is consistent with the Tribunal's approach in Schleifer v. Toronto (City), 2008 HRTO 249, which considered the effect of a settlement, also not approved by the Commission, in assessing whether an application filed under s. 53(3) was continued within the meaning of the Code (at paras. 15-17):

In 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).

The 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.

As the parties have agreed that the complaint is at an end, the applicant's Commission complaint is not "continued" within the meaning of s. 53. Accordingly, the Tribunal has no jurisdiction over the s. 53(3) Application, File T-0183-08, and it is dismissed.

12I see no reason to take a different approach to the interpretation of "continued" complaint in the context of a s. 53(5) application. In my view, the parties agreed to end the complaint in March 2007. Consequently, the complaint is not "continued" within the meaning of s. 53(5) and the Application is not properly before the Tribunal. Accordingly, the Tribunal has no jurisdiction over the s. 53(5) Application. It is dismissed.