HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Teresa DiFalco
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministers of Health and Long-Term Care and of Labour, Angela Forest, Peter Inokai and Adam Redish
Respondents
case Resolution Conference DECISION
Adjudicator: Ailsa Jane Wiggins
Indexed as: DiFalco v. Ontario (Health and Long-Term Care)
AppearanceS
Teresa DiFalco, ) Cal DiFalco,
Applicant ) Representative
Her Majesty the Queen in Right of Ontario )
as represented by the Ministers of Health and )
Long-Term Care and Labour, )
Angela Forest, Peter Inokai )
and Adam Redish, ) Cathy Phan,
Respondents ) Counsel
INTRODUCTION
1This Application was filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) filed with the Ontario Human Rights Commission (the “Commission”) was abandoned upon filing this Application with the Tribunal.
2This Application deals with an alleged breach of a settlement arising out of an earlier human rights complaint and a civil action against the corporate respondents (“the employer”) and others. The applicant also alleges that the respondents’ conduct in implementing the settlement, and their failure to implement certain provisions of the settlement, amounted to reprisal under the Code.
BACKGROUND
3The applicant, respondents, and others entered into Minutes of Settlement in the summer of 2007 (the “Settlement”) to resolve an earlier human rights complaint and a civil action.
4The applicant believed that the respondents had breached the Settlement. She first sought the assistance of the Commission in enforcing the Settlement, and then filed the Complaint on February 15, 2008.
5On November 24, 2008, the Commission issued its decision not to refer the Complaint to the Tribunal. The applicant had 15 days to apply to the Commission for reconsideration, but did not do so. Rather, the applicant filed this Application with the Tribunal on December 6, 2008, 12 days from the date of the Commission’s decision.
6The respondents asserted that it was not a “continued complaint” within the meaning of section 53(2) of the Code and that the Tribunal did not have jurisdiction to hear this Application. In an Interim Decision, 2009 HRTO 493, the Tribunal held that the Application was properly before the Tribunal and that the Tribunal had jurisdiction to hear and decide it.
SUMMARY OF ALLEGATIONS AND EVIDENCE
7At the Case Resolution Conference (“CRC”) I heard testimony from the applicant, Brad Jardine, the applicant’s financial adviser, Natalia Gonzalez, Employee Relations Adviser, Ministry of Government Services, and Armand Dekemp, Comptroller, Ontario Pension Board.
Payment and Timing of Payment of Pension Contributions
8Section 9 of the Settlement provides that the Ministry of Labour and/or the Ministry of Health will pay the Ontario Pension Board (“OPB”), on behalf of the applicant, a sum of money representing the employer’s share of the pension contributions for the applicant.
9Section 19 of the Settlement provides that the settlement monies will be issued within four to six weeks of the Settlement being signed. The Ontario Human Rights Commission was the last to sign, signing on September 21, 2007.
10The applicant alleged that the employer’s share of her pension contributions has not yet been paid to the OPB.
11Mr. Dekemp of the OPB testified that the payment was made and within the time required by the Settlement, but due to an administrative error it came through the regular payroll system instead of through the normal channels. The payment was made to the OPB without any supporting documentation or explanatory note, so when the applicant contacted the OPB to ask if the payment had been received, it advised her that the payment had not been received. She was told by the respondents that payment had been made to the OPB.
Pension Credit Date and Appointment of Contact Person
12Section 12 of the Settlement provides that if, within one year of the date of the Settlement, the OPB directs the employer to deal with issues associated with the applicant’s pension credit date, the employer will treat such request in the same fashion as it treats such requests from other employees and apply its usual practices to the applicant. Section 12 also provides that the “employer will provide the name, contact information and position identification of a Ministry employee who will act as the contact person for the resolution of the matter addressed in this clause”.
13The contact person initially named by the employer was a witness for the employer against the applicant in her original human rights complaint. The applicant believes that the respondents intentionally named that contact person as an act of reprisal against her.
14As to the appointment of a contact person, the respondents note that the Settlement does not put any limitation on who the contact person may be. The initial contact person appointed by the respondents was in human resources and was the usual person charged with implementing settlements on behalf of the employer. However, after the applicant complained about the employer’s choice of contact person, it did appoint a new contact person.
15The applicant alleges that the employer’s failure to pay the employer’s pension contributions to the OPB meant that the applicant was unable to resolve the issue with her pension credit date within the one year time frame.
Confidentiality of Settlement
16Section 15 of the Settlement requires the parties to keep the terms of the Settlement and the subject matter of the complaint and civil action confidential. In the case of the employer, “persons involved in the development or approval of the settlement terms” are exempted from the confidentiality provisions.
17The applicant alleges that the employer violated this provision by communicating with one of their witnesses involved in the Commission’s investigation of the original complaint. The applicant testified that she believed that when the contact person was appointed she would have knowledge of the Settlement because the employer would have told her about it.
18Ms Gonzalez was appointed as replacement contact person due to the applicant’s dissatisfaction with the first appointee. Ms Gonzalez testified that she had no personal knowledge of the original complaint and that when she was first given the file it did not contain a copy of the Settlement. About a month after being appointed contact person she was given a copy of the Settlement.
Provision of Record of Employment and Tax Receipts
19The applicant also alleges that the respondents did not provide her with a Record of Employment (“ROE”) until March 18, 2008, and that she still has not received proper tax receipts. The Settlement did not state that the employer would provide the applicant with a ROE or with tax receipts, but these documents are required by law. The applicant also alleges that the ROE was completed incorrectly.
20The respondents point out that the only provisions in the Settlement that refer to tax forms relate to another defendant, not the respondents.
21The respondents argue that any delay in providing a ROE cannot be a breach of the Settlement as the Settlement does not mention the provision of a ROE.
Reprisal
22The applicant alleges that the respondents exhibited a pattern of carelessness, indifference and defiance, and that they applied an overly narrow interpretation of the Settlement. The applicant alleges that the cumulative effect of this behaviour was reprisal.
23The respondents deny that they acted in bad faith and say that there is no evidence of reprisal.
THE LAW
24Section 8 of the Code provides that:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. R.S.O. 1990, c. H.19, s. 8.
25Section 45.9(3) of the Code provides that:
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.
Section 45.9(3) applies to applications made under section 53(3) of the Code: section 53(6).
Decision
Payment and Timing of Payment of Pension Contributions
26The payment required by section 9 of the Settlement was made, and it was made within the time set out in section 19. The respondents admitted that there was an administrative error which resulted in the applicant being told repeatedly that the payment had not been made. However, it was made and she was eventually told that it had been made.
27Counsel for the respondents directed me to Gottwald v. Ontario (Ministry of the Attorney General), 1998 CanLII 13296 (ON P.S.G.B.). In that case, the Public Service Grievance Board dismissed a grievance relating to a settlement agreement. In that case, like the present one, there were administrative problems with the implementation of the agreement, and the employer conceded that it made errors. The Board found that the parties were bound by the clear language of the settlement agreement and that the errors made in implementing the agreement did not make it ambiguous.
28In my view, given that the payment was made, the administrative error did not amount to a breach of the Settlement.
Pension Credit Date and Appointment of Contact Person
29The respondents did not breach section 12 of the Settlement. They did not treat a request regarding the applicant’s pension credit date in a different fashion from the way they treat such requests regarding other employees.
30Section 12 of the Settlement does not contain any provisions regarding who may be appointed the contact person. The person initially appointed was the person in human resources who usually deals with those matters. Although they were not required to do so, the respondents appointed another contact person after the applicant complained to them about their choice of contact person.
Confidentiality of Settlement
31This issue of breach of the confidentiality provisions of the Settlement was not dealt with in detail in the Complaint nor was it addressed at any length at the hearing before me. Given that the Settlement directed that a contact person be appointed, I do not see how giving the contact person the file can be viewed to be a breach of the confidentiality provisions. In my view, there is no evidence to support the applicant’s allegation that the respondents breached the confidentiality provisions of the Settlement.
Provision of Record of Employment and Tax Receipts
32While the provision of a ROE and tax receipts are legal requirements, the Settlement did not state that they had to be provided. Therefore failure to provide a ROE and tax receipts in a timely manner does not constitute a breach of the Settlement.
Reprisal
33It is established human rights law that reprisal must involve a deliberate intent to retaliate and thus this intention must be demonstrated in order to show that a complainant’s rights under section 8 have been violated. See, for example, Jones v. Amway, 2001 CanLII 26217 (ON. H.R.T); and Chan v. Tai Pan Vacations, 2009 HRTO 273.
34Counsel for the respondents maintained that there was no evidence of reprisal and directed me to Brown v. Regency Care (Villa Forum), 2009 HRTO 1391. In that case, the Tribunal dealt with allegations of reprisal and breach of settlement. The Tribunal had to assess whether the respondent engaged in a reprisal in its interpretation of the minutes of settlement. The corporate respondent showed valid reasons for its actions and the Tribunal dismissed the application.
35While the administrative error regarding the payment of the employer’s portion of the pension contribution and the appointment of a contact person whom the applicant did not trust no doubt caused her distress, I cannot find these actions of the respondents amount to reprisal. There is no evidence of intention.
36Accordingly, in light of the above conclusions, I do not find that there has been a breach of the Settlement pursuant to section 45.9(3) or a violation of section 8 of the Code by any of the respondents. This Application is dismissed.
Dated at Toronto, this 7^th^ day of April, 2011.
”signed by”____________________
Ailsa Jane Wiggins
Member