Richard Banigan v. Canadian Air and Space Museum, 2010 HRTO 835

Human Rights Tribunal of Ontario

B E T W E E N:

Richard Banigan

Applicant

-and-

Canadian Air and Space Museum

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: April 16, 2010

Citation: 2010 HRTO 835

Indexed as: Banigan v. Canadian Air and Space Museum

1The applicant filed an Application for Contravention of Settlement (Form 18) pursuant to s. 45.9(3) 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 dated March 2, 2002, to resolve a Complaint filed with the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Code.

2On September 1, 2009, the respondent filed a Response to an Application for Contravention of Settlement (Form 19). The respondent submitted that the applicant had not provided a copy of a signed agreement as required by the Tribunal’s Rules and that it did not have a copy of a signed agreement. The respondent also submitted that it had not been able to obtain a copy of a signed agreement from the Commission and that it had extensive discussions with Commission staff who confirmed that the Commission’s files in this matter do not contain a signed agreement. The respondent also submitted that the time period for alleging a contravention of settlement had expired.

3In an Interim Decision, 2009 HRTO 1797, the Tribunal indicated that the material filed with the Application raised an issue as to whether the Tribunal has jurisdiction over the matters raised in the Application. As submitted by the respondent, the minutes of settlement attached to the Application are labelled “draft” and are not signed by the parties. In addition, it is not clear that any settlement was “approved by” the Commission.

4Section 43 of the Code as it stood at the time of the purported 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.

5Section 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.

6In the Interim Decision, the Tribunal directed the applicant to deliver to the respondent and file with the Tribunal a settlement agreement that is signed by the parties. The Tribunal indicated that if the applicant did not provide a copy of a signed settlement agreement, the Tribunal may dismiss the Application. The applicant has not provided a copy of a signed settlement agreement and the time for doing so has elapsed.

7There is no evidence before the Tribunal of a settlement signed by the parties and approved by the Commission, within the meaning of section 45.9 of the Code. It appears, therefore, that the Tribunal does not have jurisdiction over the matters raised in the Application.

8The Application is dismissed.