HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sheril Barrer
Applicant
-and-
Nipissing University
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Barrer v. Nipissing University
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”), on May 31, 2011. The applicant alleges that there has been a contravention of the settlement that she and the current respondent as well as a number of personal respondents signed to settle an application she previously made to the Tribunal. This previous application was settled at mediation on November 16, 2010. The applicant alleges that she had difficulty participating in the mediation process that led to the settlement and was disadvantaged by not having legal counsel present.
2On June 3, 2011, the respondent filed a Response to the Application for Contravention of Settlement (Form 19) stating that the respondent has met all of its obligations under the settlement, that there has been no contravention of any of the provisions of the settlement and that the applicant’s concern about participating in the mediation, including having access to legal representation, does not constitute a contravention of the settlement.
3On June 20, 2011, the Tribunal delivered to the applicant a Notice of Intent to Dismiss the Application, indicating that it appeared that the Application for Contravention of Settlement was outside the Tribunal’s jurisdiction because a review of the Application failed to identify, how any term of a settlement of an application made under the Code has been contravened or breached.
4In the Notice of Intent to Dismiss the Tribunal requested written submissions from the applicant by July 21, 2011. An extension was granted and the applicant’s submissions were received on September 12, 2011.
5The applicant reiterates in her submissions that the mediation process was challenging and difficult for her and that she felt disadvantaged during the process, in part because she did not have legal representation.
Analysis
6The applicant has made an Application pursuant to section 45.9(3) of the Code. Subsections 45.9(1), (3) and (8) of the Code provide:
(1)If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.
(3) If 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).
(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.
7The applicant stated in her Application for Contravention of Settlement that she was not sure as to how to appropriately bring her allegations before the Tribunal. It is not the Tribunal’s role to provide the applicant with advice as to how she can challenge a settlement of an Application. The Applicant’s Guide (in particular page 2, which explains what applicants can do if they need help with their application) is available at the Tribunal’s website: www.hrto.ca
8In my view, based on my review of the Application and the applicant’s submissions, the applicant is not arguing that another party, the respondent, has contravened the settlement. She is, in effect, arguing that she signed the settlement under duress, meaning that she entered into a contract against her own free will, that the contract does not represent a voluntary agreement, and as a consequence the Tribunal should set aside or void the settlement.
9The Tribunal can only make an order under section 45.9(8) of the Code if it determines that a party has contravened the settlement. The Application in this case does not actually allege a contravention of settlement. As a consequence, the Tribunal does not have jurisdiction under the Code to consider the Application and the Application for a Contravention of a Settlement is dismissed.
Dated at Toronto, this 22nd day of September, 2011.
“signed by”
Eric Whist
Vice-chair