Masco Retail Cabinet Group LLC v. Kumarsingh, 2011 HRTO 2303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

BETWEEN:

Masco Retail Cabinet Group LLC and Patrick Jakins

Applicants

-and-

Peter Kumarsingh

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: December 23, 2011

Citation: 2011 HRTO 2303

Indexed as: Masco Retail Cabinet Group LLC v. Kumarsingh

WRITTEN SUBMISSIONS

Peter Kumarsingh )Cecil Norman, Representative of )Respondent

Masco Retail Cabinet Group LLC )Christopher D. Pigott and Tim

And Patrick Jakins )Lawson, counsel for the Applicants

1These parties are involved in three outstanding Applications filed pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision deals with an Application filed under section 45.9(3) of the Code, which alleges breach of settlement. In this Application, the applicants seek to enforce a settlement agreement they say was reached between the parties. They argue that the respondent has breached the settlement agreement by, among other things, filing a further application under the Code.

2The respondent disputes that any enforceable settlement agreement was reached. He argues that the applicants have not filed written, signed minutes of settlement along with their Application as they are required to do under Rule 24 of the Tribunal’s Rules of Procedure. The respondent states that the Application should be dismissed because it is outside the Tribunal’s jurisdiction to decide.

3For the reasons that follow, the Application is dismissed. The Application does not relate to a signed, written settlement agreement between the parties. There is no enforceable settlement agreement pursuant to section 45.9 of the Code and the Tribunal has no jurisdiction over this matter

OVERVIEW OF PROCEEDINGS

4The parties are involved in three Applications before the Tribunal. The first Application, file number 2009-04157-I, was filed on November 23, 2009 (“Application 1”) and alleges discrimination with respect to employment on the basis of race, colour, ancestry, place of origin, ethnic origin, disability and family status. In summary, the applicant alleges that the respondents have subjected him to discrimination by failing to accommodate his special needs arising from his family status and requiring him to travel overnight when his young children need him to be at home. He alleges that the respondents have been accommodating his white co-workers, but not him.

5The respondents have filed a Response to Application 1, denying the allegations of discrimination. In an Interim Decision, 2011 HRTO 174, the Tribunal removed all of the personal respondents named in Application 1 except Patrick Jakins. In December 2010, the parties participated in a mediation in Application 1 but were unable to resolve the dispute. Application 1 was scheduled to proceed to hearing in November 2011. In a Case Assessment Direction (“CAD”), the Tribunal adjourned the hearing of Application 1 pending the determination of the issues addressed in this Decision.

6On February 5, 2011, the applicant filed a second Application, file number 2011-08215-I, (“Application 2”) against MASCO Retail Cabinet Group LLC and Patrick Jakins and a number of additional personal respondents. Application 2 was not served on the respondents until September 2011 because it was incomplete.

7In essence, in Application 2, the applicant alleges ongoing failure to accommodate his special needs arising from his family status. He also alleges reprisal. He indicates that his employment with the corporate respondent has ended and alleges that Code-related grounds were a factor in that termination. As set out in a CAD dated September 8, 2011 and issued in Application 2, Application 2 was provided to the respondents but they were not required to provide a Response.

8On June 14, 2011, MASCO Retail Cabinet Group LLC and Patrick Jakins filed an Application for contravention of settlement, file number 2011-09178-S (“Application 3”) against Peter Kumarsingh. Application 3 is the subject-matter of this Decision.

9The applicants in Application 3 allege that, after a period of negotiation with the respondent’s representative, the parties agreed orally upon settlement terms. They say that, although the respondent Kumarsingh executed minutes of settlement and a release, he instructed his representative not to forward these documents to the applicants. Ultimately, the applicants have never received an executed copy of the Minutes of Settlement or the Release. They have not, themselves, executed either document. Neither party has acted upon the terms of the alleged settlement.

10The respondent has filed a Response to Application 3 in which he argues that no meeting of the minds occurred and that the respondent cannot be said to have agreed to the terms of resolution in the circumstances.

11In a CAD dated September 9, 2011, the Tribunal sought further submissions from the parties regarding whether the Application raises issues that fall within the Tribunal’s jurisdiction to decide. The parties have filed submissions as directed.

ANALYSIS

12Section 45.9(1) of Code states:

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.

The Positions Of The Parties

13The applicants argue that there are strong public policy reasons for enforcing and upholding settlement agreements reached voluntarily between the parties. They state that it is not open to a party to set aside an agreement simply because, after the fact, it is dissatisfied with the terms.

14The applicants state that agreed-upon settlement terms have been reduced to writing, in the form of minutes of settlement. They acknowledge that the minutes of settlement have not been signed by all of the parties, but argue that the only reason the applicants have not signed the minutes of settlement is because the document is being withheld by the respondent. The applicants argue that the Tribunal ought not to interpret “signed by the parties” in section 45.9 in a technical or narrow manner. They argue that the parties have accepted the terms contained in the minutes of settlement and that the Tribunal should not interpret “signed by the parties” so as to revoke an agreement reached by the parties. The applicants also argue that the minutes of settlement should be enforced to prevent an abuse of process.

15The respondent states that the Application should be dismissed because the applicants have filed no signed minutes of settlement in support of their Application, as required under Rule 24 of the Tribunal’s Rules of Procedure. The respondent argues that no settlement exists between the parties.

Conclusions

16I reject the applicants’ argument that an enforceable settlement agreement exists between the parties within the meaning of section 45.9 of the Code. The clear language of section 45.9 requires that the agreement be signed by the parties. In this case, there is no signed agreement.

17The interpretation of “signed by” proposed by the applicants is not supported by the language of the Code. Although I accept that the Code (and in particular the scope of the rights enshrined in the Code) must be interpreted purposively and liberally, it does not follow that such an interpretation may run contrary to the clear language of the statute. “Signed by” at section 45.9 cannot reasonably be interpreted to mean anything but its clear and ordinary meaning, which is to affix a signature to a document.

18I note that section 45.9 raises jurisdictional issues; it is not a provision that relates directly to the scope or interpretation of rights included in the Code. The applicants are, in essence, urging the Tribunal to take a liberal approach to its jurisdiction to enforce settlement agreements. I reject this argument and find that the approach proposed by the applicants is inconsistent with the language of the Code.

19In sum, I conclude that the applicants have not established that a binding settlement agreement exists within the meaning of section 45.9. The Tribunal does not have jurisdiction over the matters raised in the Application because there is no signed, written agreement between the parties. The Application is dismissed.

20Given my conclusion that the Tribunal does not have jurisdiction over the subject-matter of this Application, it is not necessary for me to address the applicants’ arguments concerning abuse of process. I note, however, that the applicants cite Tribunal jurisprudence to the effect that an application will generally be dismissed as an abuse of process where the parties have entered into a settlement agreement concerning the same subject-matter. I do not disagree with this general principle or with the Tribunal’s case law in this regard. However, I note that the facts of this Application are more closely aligned with those in Caldeira v. Sysco Food Services of Toronto, 2009 HRTO 1042, where the Tribunal declined to dismiss an application for abuse of process. In that case, as in this one, the parties negotiated terms of settlement but, in the end, one of the parties declined to sign the settlement agreement or provide it to the opposing party.

DECISION

21For all of the above reasons, the Application is dismissed. Pursuant to section 45.9 of the Code, the Tribunal does not have jurisdiction over the matters raised in the Application because there is no signed, written agreement between the parties.