Faizool Shaffick v. The Oakville Club Ltd., Larry Montpetit and Bram Weitzman, 2011 HRTO 413

Human Rights Tribunal of Ontario

B E T W E E N:

Faizool Shaffick

Applicant

-and-

The Oakville Club Ltd., Larry Montpetit and Bram Weitzman

Respondents

DECISION

Adjudicator: Eric Whist

Date: February 25, 2011

Citation: 2011 HRTO 413

Indexed as: Shaffick v. Oakville Club

APPEARANCES

Faizool Shaffick, Applicant ) Cecil Norman, Representative )

The Oakville Club, Larry Montpetit ) Lior Samfiru, Counsel and Bram Weitzman, Respondents )

1This Application alleging a Contravention of Settlement, was filed on March 15, 2010, under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing was held on February 15, 2011.

DECISION

2This Application is dismissed on the basis that I am not satisfied that there was a settlement between the parties that resolved the applicant’s Transitional Application, Tribunal File TR-0247-09 (the “Transitional Application”), notwithstanding the parties having signed and filed with the Tribunal a TR-10 Form stating that they had settled their dispute. The parties clearly dispute the terms of the Minutes of Settlement and the related Release, which were, in fact, never signed by all parties. I am not satisfied that there was any “meeting of the minds” in relation to a proposed settlement. As there was no settlement there has been no contravention of a settlement.

3In these circumstances the Tribunal invites the parties to provide submissions as to whether its Decision finally disposing of Transitional Application should be reconsidered.

BACKGROUND

4The following chronology of events is not in dispute. The applicant filed the Transitional Application with the Tribunal on April 29, 2009, under section 53(5) of the Code. The underlying complaint was first filed with the Ontario Human Rights Commission on March 3, 2008.

5A hearing to consider the merits of the Transitional Application was scheduled for December 15, 2009. Several weeks prior to the scheduled hearing, the parties, on their own initiative, entered into settlement discussions. The applicant’s representative wrote to the respondents’ counsel to put forward a proposed financial settlement as well as to provide proposed Minutes of Settlement and a proposed Release. The respondents’ counsel made a financial counter-proposal. On December 14, 2009, the applicant’s representative agreed to the financial settlement proposed by the respondents’ counsel.

6The respondents’ counsel made a number of revisions to the Minutes of Settlement and Release provided to him by the applicant’s representative. On December 14, 2009, he sent these documents to the applicant’s representative, unsigned. The respondents contend that the applicant’s representative indicated that he accepted the revised documents. On this basis, the respondents’ counsel then sent the applicant’s representative a TR-10 Form signed by the respondents.

7The TR-10 Form confirms the settlement of a transitional application. It will be signed by all parties and filed with the Tribunal. By signing and filing the TR-10 Form, the parties indicate that they understand the binding nature of their settlement and confirm the Tribunal may finally dispose of the application and close its file.

8The applicant added his signature to the TR-10 Form and his representative sent this document to the Tribunal on December 14, 2009. The Tribunal then cancelled the hearing scheduled for December 15, 2009, and issued an Order noting the parties’ agreement as confirmed by the TR-10 Form and finally disposing of the Transition Application.

9The Release, as revised by the respondents, discharged them from any and all present and future complaints or causes for complaint of any nature whatsoever including under the Ontario Human Rights Code, Employment Standards Act 2000 and the Workplace Safety and Insurance Act (“WSIA”). The applicant revised the Release by crossing out the reference to the WSIA. The applicant then signed and returned both the Minutes of Settlement and his revised Release to the respondents on December 14, 2010.

10On December 17, 2009, the applicant filed an appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) of a Workplace Safety and Insurance Board (“WSIB”) complaint he had made in reference to an injury he had sustained while working for the respondents.

11When the respondents learned of the WSIAT appeal, counsel wrote to the applicant’s representative to state that the applicant had failed to abide by the conditions of the Release and, as a consequence, the respondents would not provide the applicant with the agreed financial settlement.

12On January 8, 2010, the respondents’ counsel wrote to the Tribunal to state that the applicant had failed to execute the agreed upon release and that the settlement had not been executed.

13On January 13, 2010, the applicant’s representative responded to the January 8, 2010, letter stating that the applicant had merely crossed out a reference to the WSIA which had been inserted into the release without discussion or the applicant’s knowledge. The applicant’s representative asserted that it was therefore incumbent on the respondents to release the agreed upon funds to the applicant. A copy of this letter was provided to the Tribunal.

14On January 15, 2010, the Tribunal wrote to the parties to state that by its December 15, 2009 Order the Tribunal had disposed of the Application and closed its file and that it had done so on the parties’ advice that they had settled their dispute. The Tribunal stated that the parties could write to the Tribunal within 30 days if they required anything further.

15On March 15, 2010, the applicant filed his Application for Contravention of Settlement alleging that the respondents breached the terms of the settlement on January 5, 2010, when they indicated that they would not provide the applicant with a financial settlement.

ANALYSIS

16The Application alleging a Contravention of the Settlement asks that the Tribunal decide whether the respondents breached the Minutes of Settlement that were negotiated by the parties in December 2009. However, clearly there is an issue as to whether the parties have, in fact, settled all aspects of their dispute.

17The respondents seek to rely on the documents drafted and sent to the applicant on December 14, 2009. The applicant wants to rely on the documents as revised by him and returned to the respondents later that day. Each party argued that the other party unilaterally made changes to the proposed Minutes of Settlement and/or the Release that were not agreed to.

18In my view the parties never arrived at a “meeting of the minds” to settle their dispute. I understand the respondents argue that the applicant’s representative agreed to their version of the revised Minutes of Settlement and Release in the December 14, 2009 telephone conversation. However, even if I accept this account of events, I do not consider this means that, in this case, there was a “meeting of the minds” because I also find the applicant and his representative’s closer review of those documents disclosed the reference to WSIA proceedings which had not been specifically discussed or negotiated.

19The respondents’ proposed Minutes of Settlement and Release were returned to them the same day with the applicant’s revisions removing the reference to WSIA noted on them. It is clear this remained an outstanding issue between the parties.

20Whereas both parties signed and filed a TR-10 Form, that form includes the specific provision that “The parties confirm that they have entered into minutes of settlement which resolve this Application and that all parties have signed the minutes of settlement”. This was not done here. There are no Minutes of Settlement signed by both parties. The respondents never signed Minutes of Settlement.

21I am of the view that the TR-10 Form was signed by the parties in anticipation of a settlement and was done on an expedited basis in order to have the Tribunal cancel the hearing scheduled for the next day. Both parties were working quickly. Both parties failed to immediately notice changes inserted into the settlement documents. While more care and attention might have saved the settlement process, this did not happen. I cannot find a settlement of the Transitional Application was achieved and therefore I am unable to find there has been a breach of that settlement.

Reconsideration

22The Tribunal’s authority to reconsider a decision on its own motion derives from section 45.7(2) of the Code and Rules 26.9 and 26.10 of the Tribunal’s Rules of Procedure. Rule 26.10 states that when the Tribunal decides to reconsider a decision on its own initiative it will include an opportunity for the parties to make submissions.

23The Tribunal directs the parties to provide submissions on whether the Tribunal should reconsider its decision disposing of the Transitional Application.

24The applicant is directed to provide to the respondents and file with the Tribunal submissions within 21 days of the date of this Decision. The respondents may respond to the applicant's submissions within 28 days of the date of this Decision.

25I am not seized of this matter.