Sugarman v. St. Lawrence College, 2011 HRTO 481

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharna Sugarman

Applicant

-and-

St. Lawrence College

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 8, 2011

Citation: 2011 HRTO 481

Indexed as: Sugarman v. St. Lawrence College

APPEARANCES

Sharna Sugarman, Applicant ) Self-represented )

St. Lawrence College, Respondent ) Siobhan O’Brien, Counsel

1This is an Application filed under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent breached a Memorandum of Settlement dated October 28, 2008 (“the Memorandum”), which settled a complaint the applicant had filed with the Ontario Human Rights Commission (“the Commission”). The Memorandum was subsequently approved by the Commission in November 2008.

2The applicant filed an Application for Contravention of Settlement dated July 21, 2009, with the Tribunal and, in February 2010, sent the respondent a different Application for Contravention of Settlement dated October 6, 2009. In addition to filing a Response to an Application for Contravention of Settlement, the respondent filed a Response to a Request for Order During Proceedings (“Response to a RFOP”) requesting that the Tribunal dismiss the applicant’s Request for Order During Proceedings (“RFOP”). At the time, the Tribunal had not received a RFOP filed by the applicant.

3A hearing commenced on January 6, 2011, and the applicant participated by telephone. The Applications are very similar and at the January hearing, the Tribunal indicated that it would consider both Applications. At the hearing, the respondent provided the Tribunal with a copy of the RFOP and the Memorandum.

4In both Applications, the applicant alleges that para. 3 of the Memorandum was violated by the respondent. Para. 3 states:

The corporate respondent will place OHRC posters in visible areas of the campus such as the student association, student services and residences. The corporate respondent will take the complainant’s suggestions for other locales to the appropriate department for consideration (see Exhibit “A” for the list). The complainant will be notified of the outcome of this consideration.

5At the hearing, and during her testimony, the applicant raised concerns that paras. 2 and 4 of the Memorandum may not have been properly implemented by the respondent. The respondent objected to the introduction of these concerns on the basis that they were not identified as issues in either Application. The Tribunal requested submissions from the parties on this issue which the parties have now provided.

6This Interim Decision addresses whether or not the applicant is now able to raise concerns that paras. 2 and 4 of the Memorandum have not been properly implemented. For the reasons set out below, I have determined that the applicant cannot now allege that other paragraphs of the Memorandum have not been properly implemented.

7Sections 45.9 and 54 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),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

54 . Section 45.9 of the new Part IV applies to the 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.

8The Applications, which are briefly worded, do not allege that paragraphs other than paragraph 3 of the Memorandum have been breached. The Memorandum was signed in October 2008, approved by the Commission in November 2008, and the hearing commenced in January 2011. The delay in raising these new concerns is 19 to 20 months beyond the six-month period referred to in section 45.9(3).

9The Tribunal has stated in a number of cases that it has set a fairly high onus on applicants to provide a reasonable explanation for a delay in filing a section 34 application (which has a one-year limitation period) and has dismissed those applications which have been filed outside that limitation period in the absence of a reasonable explanation. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; and Klein v. Toronto Zionist Council, 2009 HRTO 241. I accept that the applicant in this proceeding similarly has to provide a reasonable explanation for the delay in raising concerns about the implementation of the Memorandum beyond those she identified in relation to paragraph 3.

10The submissions that the applicant filed raised some procedural matters, but do not address the issue of delay. As the applicant has not provided any explanation for the delay in raising these new matters, the Tribunal will not permit the applicant to allege that paragraphs of the Memorandum, other than paragraph 3, have allegedly been breached. Accordingly, I need not determine whether the respondent is prejudiced by the delay in raising these concerns. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579.

11With respect to the applicant’s submission that the evidence of Wanda Williams be “thrown out” because the respondent had not identified at the beginning of the hearing that Ms. Williams was going to testify, or alternatively that she be given wide latitude to cross-examine Ms. Williams, the Tribunal notes that Ms. Williams is still being cross-examined by the applicant. When the hearing resumes, the applicant can continue to cross-examine Ms. Williams on relevant points. At the end of the hearing, the parties can make submissions about Ms. Williams’ testimony.

12At the January 2011 hearing date, the Tribunal addressed the issue of the applicant’s RFOP. In the RFOP, the applicant alleged that the respondent had committed human rights violations against a former employee and she requested production of material pertaining to that employee. The Tribunal has denied the RFOP on the grounds that the allegations and the requested material are not relevant to the issue of whether paragraph 3 of the Memorandum was breached by the respondent.

13In her submissions, the applicant referred to James Vinkle, the current student president, and indicated that she wants to have him testify as one of her witnesses. Mr. Vinkle attended the January 2011 hearing date as an observer. After the respondent’s evidence, the Tribunal will hear submissions from the parties about Mr. Vinkle testifying if the applicant still wants him to testify.

14If either party wishes to rely upon any additional documents or witnesses not previously identified, they are directed to deliver it to the other party and file it with the Tribunal immediately. The respondent states that it has now complied with paragraph 3, and one of its witnesses is still testifying, the Tribunal notes that no documentary evidence has been filed supporting this position and there has been no evidence about the date by which paragraph 3 was allegedly complied.

15The hearing will continue on the scheduled March dates.