A.W. v. Ottawa International Soccer Club, 2011 HRTO 915

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.W. by her Litigation Guardian Carol-Lynne Saad

Applicant

-and-

Ottawa International Soccer Club, Bob Monaghan and William Lloyd

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: May 13, 2011

Citation: 2011 HRTO 915

Indexed as: A.W. v. Ottawa International Soccer Club

1This is an Application under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging a contravention of a settlement of a Tribunal application. The contravention Application was filed by Carol-Lynne Saad on behalf of A.W. (“applicant”), who was a minor at the time of the original application and at the time that the contravention application was filed. The Application was filed against the Ottawa International Soccer Club (“organizational respondent”), Bob Monaghan and William Lloyd (“individual respondents”). The original application filed by Ms. Saad on behalf of A.W. alleged discrimination against the respondents on the basis of race and was settled before the hearing was completed.

2A hearing into the contravention Application was held in Ottawa, Ontario on December 7, 2010. The parties filed an Application, Response and Reply prior to the hearing. The applicant was in attendance at the commencement of the hearing at 10 a.m. The respondents were given an additional 45 minutes to appear.

3A notice of confirmation of hearing dated August 5, 2010 was sent to the parties at their last known addresses. In addition to the organizational respondent, both of the individual respondents were sent copies of the Confirmation of Hearing to their home addresses.

4Mr. Monaghan contacted the Tribunal in relation to this matter on October 3, 2010 by email and advised, among other things, that he was not available to participate in the hearing in the month of December, 2010. He was advised by the Registrar of the Tribunal by return email on October 4, 2010 that the Tribunal would consider his request once he complied with the Rules and provided all parties to the application with a copy of his request and available dates. There is no record of any further communication from Mr. Monaghan after this date. I am satisfied that the respondents had notice of the hearing and chose not to appear. At 10:45 a.m., the Tribunal proceeded to hear the evidence of the applicant.

5At the commencement of the hearing, I granted the applicant’s request to anonymize the name of the minor child at the centre of the dispute, which gave rise to the original Application.

Relevant Law

6The following Code provisions are relevant to resolving the issues in this case:

45.9(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.

(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.

The Agreement

7The parties signed Minutes of Settlement (“agreement”) on April 28, 2009 following resolution discussions, which took place before and during the hearing of the original Application. The agreement is signed by Ms. Saad on behalf of the applicant and Bob Monaghan on behalf of the organizational respondent as well as himself and Bill Lloyd.

8The provision of the agreement which is at issue reads as follows:

2. The Club agrees to have the Ontario Soccer Association (the “OSA”) tailor their training program specifically to address the areas of racial discrimination, including a modern understanding of racism, and how to deal with internal complaints of discrimination and harassment. This training will reference and be informed by the Ontario Human Rights Commission’s policies on Racism and Racial Discrimination and on Internal Complaint Procedures. The training will be delivered by an individual or individuals with expertise in the areas of racism and racial discrimination and the handling of internal complaints. The training shall be attended by the Club Administrator, the Club Ombudsman and all members of the Club’s Board of Directors. Following the training, written confirmation shall be provided by the Club to the Applicant as to the date on which the training was held and confirming who attended the training.

9The applicant confirmed that all of the other provisions of the agreement have been complied with.

The Training

10The organizational respondent conducted a three hour training session on June 28, 2009.

11Ms. Saad alleges that the training did not conform to paragraph 2 of the agreement for the following reasons:

1. It was not “tailored specifically to address the areas of racial discrimination, including a modern understanding of racism, and how to deal with internal complaints of discrimination and harassment”;

2. It did not “reference” nor was it “informed by the Ontario Human Rights Commission’s policies on Racism and Racial Discrimination and on Internal Complaint Procedures.”

3. The training was not delivered by an individual or individuals with expertise in the areas of racism and racial discrimination and the handling of internal complaints.

4. The training was not mandatory for Club Administrator, the Club Ombudsman and all members of the Club’s Board of Directors.

12Ms. Saad received a copy of the notice announcing the training which was sent out to Club Presidents and Vice-Presidents. The notice described the training as “sensitivity training and how to deal with harassment issues within a soccer environment.” The training was mandatory for all Ottawa International Soccer Club competitive Head Coaches. The notice itself does not contain sufficient information to demonstrate compliance with the agreement.

13Ms. Saad also received a letter dated July 31, 2009, which was signed by Joyce Stewart, Chair of the Ontario Soccer Association Harassment Prevention/Volunteer Screening Committee. In that letter, Ms. Stewart confirmed that the training session contained the following elements:

1. Understanding your responsibilities as Club Officials and Coaches;

2. Case studies and global statistical research on the elements of Harassment and Discrimination;

3. Legal Principles of “Duty of Care” and “Vicarious Liability”;

4. Legal Principle of “Duty to Report”;

5. Canadian and Provincial/Territorial Human Rights Commissions statistics;

6. Criminal Code elements of Harassment;

7. What is Harassment (discriminatory behaviours are included);

8. How is Harassing behaviour displayed;

9. Examples of recent cases;

10. Risk Assessment and Volunteer Screening Policies and Procedures;

11. Q & A.

14The letter then goes on to say:

The Provincial Harassment Prevention Officers/Investigators have been involved in handling complaints, conducting education sessions, providing guidance in writing Club policies for over 10 years. Our Provincial Harassment Officers are professionals in the fields of Child Protection Services; Police, Child Advocate, and Human Resources. As the largest sport organization in Canada, the OSA has been very engaged in ensuring our athletes and all those participating in our programs are protected. Other Provincial and National Sports Associations have used our experience in developing their own Policies. The OSA reviews cases and trends each year to ensure that the Policy and/or Education materials remain current and relevant.

15Again, this letter does not contain sufficient information to demonstrate compliance with the agreement. The human rights related training appears to be part of a larger training agenda. There is no mention of racism or racial discrimination and the description of the individuals who delivered the training does not make reference to any expertise with respect to racial discrimination.

16Despite the failure to appear on the part of the respondents, I have taken into consideration the content of the Response. The Response confirms that all but one Board Member attended the training. The respondents allege that the required training was delivered by the Ontario Soccer Association (OSA) and that the parties agreed that the harassment training provided by that organization was consistent with federal and provincial human rights legislation.

17The applicant confirmed that during the negotiations leading up to the agreement, the parties agreed that the training could be delivered through modification of the OSA harassment training. However, the applicant testified that she received nothing from the respondents confirming that the OSA materials and training program had been modified to conform to the terms of the agreement.

18Ms. Saad also testified that she was very concerned about this statement from the Response which confirmed for her that the training was not consistent with the agreement of the parties:

As in any settlement/negotiations both sides want their points addressed. In this case, Ms. Saad wanted racial discrimination to be specifically identified since she erroneously accuses OISC of this while OISC also wanted racial discrimination identified in order that OISC volunteers would be trained on how to handle situations where members falsely accuse volunteers of racial discrimination in order to alter selection results or sue for cash reasons. At the course, this topic was specifically addressed. (Paragraph 18 of the Response)

19Unfortunately, this is the only aspect of the training that the respondents describe in any detail. In all other respects, the training is described in general terms as incorporating or consistent with all federal and human rights legislation. These general statements do not establish that the training was conducted in compliance with the specific requirements of the agreement. The respondents did not file any further documents, including materials from the training which could have assisted the Tribunal in determining the extent to which the respondents had complied with the terms of the agreement.

20I note that in the agreement it is the organizational respondent which agreed to conduct the training and not the individual respondents. As a result, I find that the organizational respondent has contravened the agreement.

Remedy

21Section 45.9 (8) of the Code gives the Tribunal jurisdiction to “make any order that it considers appropriate to remedy the contravention”.

22The applicant is seeking an order from the Tribunal directing the organizational respondent to comply with the original terms of the agreement. She is also seeking to have additional terms imposed including the necessity to hire an external consultant to deliver the training in accordance with the terms of the agreement within a reasonable timeframe. The applicant is also seeking damages for the contravention.

23This is not a case where there is minimal delay in the payment of money or where the damage experienced by the applicant may be remedied by a payment of interest. The training provision of the agreement goes to the heart of both the remedial focus of the Code and the priorities of the applicant in pursuing the original Application.

24I have considered the respondents’ argument from their Response that the settlement does not constitute an admission of liability and their concern that the training should not be directed at remedying allegations which they deny. However, notwithstanding their position that the applicant’s original allegations had no merit, the organizational respondent agreed to conduct training on certain explicit terms, which have yet to be fulfilled. I am satisfied that it is appropriate to direct the organization respondent, to conduct a new training session on the terms set out in the agreement within the next 90 days.

25The applicant has asked that an external consultant who meets the qualifications set out in the agreement be retained to conduct the training. I am satisfied that the addition of this provision is appropriate and will contribute to remedying the contravention. I agree with the applicant’s concern that only part of the training described in any detail in the respondents’ materials is the component on how the Club and its coaches can protect themselves from “false allegations” of racism by parents.

26I am satisfied that it is appropriate to direct the organizational respondent to retain an external consultant with expertise set out in the agreement to conduct the training. I believe retaining an external consultant with experience in racial discrimination will assist the organizational respondent in creating a more appropriate focus for the training. I am also of the view that this training should be conducted for a minimum of three hours and not included as one component of a broader training program unless at least three hours are devoted to this component.

27With respect to the issue of damages, Ms. Saad testified on A.W.’s behalf that A.W. participated in the original application, testified at the hearing and ultimately agreed to the settlement because she was most concerned about having a positive impact on the lives of other children. Ms. Saad testified that A.W. was very distressed and frustrated by the failure of the respondents to comply with the terms of agreement and that she had given up any hope that the organization would change. Ms. Saad also testified that her family is now subject to a life-time ban from the club which is another indication, in her view, that the respondents do not understand the issues she was attempting to address through the original application.

28Given the nature of this volunteer organization, the services it provides to children, and the costs it will have to assume to hire an external consultant to comply with the terms of the original agreement, I am reluctant to order significant damages. There is clearly a dispute over the extent to which the training complied with the agreement. If the respondents had participated in the hearing, the Tribunal would have been in a much better position to weigh the effectiveness of the remedies requested by the applicant. However, taking all of that into consideration, as well as the necessity to ensure that the goals of the Code are not undermined by parties who fail to comply with settlements they have freely entered into, I find an award of damages in the amount of $1000.00 to be appropriate.

Order

1. The organizational respondent will retain the services of an external consultant with expertise in the areas of racism and racial discrimination and the handling of internal complaints to deliver the training set out in paragraph 2 of the agreement. The training will last for a minimum of three hours;

2. The training will be completed, in accordance with paragraph 2 of the agreement, within 90 days of the date of this Decision;

3. The organizational respondent will advise the applicant, within 30 days of the training being completed, of the name and qualifications of the external consultant, the content of the training and the names of the persons in attendance.

4. The organizational respondent will pay to the applicant the sum of $1,000 in monetary compensation within 30 days of the date of this Decision.

5. The organizational respondent will pay post-judgement interest on any outstanding amounts in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 calculated 30 days from the date of this Decision.