Faizool Shaffick v. The Oakville Club Ltd., 2011 HRTO 925

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faizool Shaffick

Applicant

-and-

The Oakville Club Ltd.,

Larry Monpetit and Bram Weitzman

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: May 12, 2011

Citation: 2011 HRTO 925

Indexed as : Shaffick v. The Oakville Club Ltd.

WRITTEN SUBMISSIONS BY

Faizool Shaffick, Applicant ) Cecil Norman, Representative

The Oakville Club Ltd., Larry Monpetit ) Lior Samfiru, Counsel

and Bram Weitzman, Respondents )

1This is an Application dated April 27, 2009, made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 3, 2008, and abandoned upon filing this Application with the Tribunal.

2This matter was proceeding to a hearing in December 2009, when the parties advised that the matter had been settled and filed a confirmation of settlement form (Form TR-10). Accordingly, on December 15, 2009, the Tribunal issued an order disposing of the matter on the basis of the Form TR-10 and closed the file.

3Subsequently, the applicant’s representative wrote to request that the matter proceed to hearing or further mediation, on the basis of a dispute which had arisen between the parties regarded the purported settlement. Having invited and considered submissions from the parties, the Tribunal wrote to the parties on February 16, 2010, to advise that if the parties wished to proceed further regarding their dispute about the purported settlement, they should do so by filing a new Application with the Tribunal.

4Accordingly, the applicant filed a contravention of settlement application on March 15, 2010, which proceeded to a hearing on February 15, 2011. The Tribunal issued its decision in that matter on February 25, 2011 (2011 HRTO 413), in which it found that in fact, no settlement of the transitional application had been achieved. As a result, as there was no settlement, there was no foundation to support any finding of a breach of settlement.

5As a result of this finding, the issue arose as to the status of the original transitional application given that it had not been settled by the parties. In its Decision dated February 25, 2011, the Tribunal noted its power to reconsider a decision on its own motion and invited submissions from the parties on this issue. Submissions were filed by all parties.

6While the applicant filed a Request for Reconsideration in relation to the transitional application, this was not strictly necessary, as this reconsideration has been initiated by the Tribunal itself pursuant to Rule 25.9 of the Rules of Procedure for Transitional Applications (the “Transitional Rules”).

7The first issue for me to determine is whether the Tribunal’s order dated December 14, 2009 is a “final decision” from which reconsideration is available. In my view, the fact that the document issued by the Tribunal disposing of the transitional application was styled as an “order” as opposed to a “decision” is a difference in form rather than substance.

8The substance of what happened is that a Vice-chair of this Tribunal made a decision to finally dispose of the transitional application on the basis of the filing of a confirmation of settlement form, and this final decision was communicated to the parties by way of a document called an “order”. Accordingly, in my view, this order is a “final decision” within the meaning of Rule 25 and is therefore amenable to reconsideration. In this regard, I note that Rule 25.5(c) expressly refers to a “decision or order” being the subject of a reconsideration request.

9The next question is whether there is a proper basis for reconsideration of the Tribunal’s order within the grounds available under Rule 25.5. The bottom line here is that the transitional application was finally disposed of on the basis that the parties communicated to the Tribunal and confirmed that there was a settlement, which subsequently was found not to be the case. In other words, the underlying foundation upon which the order was issued in fact did not exist. Whether or not this amounts to “new facts or evidence” within the meaning of Rule 25.5(a) or an order in conflict with established jurisprudence or Tribunal procedure within the meaning of Rule 25.5(c), in my view, the lack of any real foundation for the order as issued amounts to a factor that in my opinion outweighs the public interest in the finality of Tribunal decisions within the meaning of Rule 25.5(d).

10In their submissions, the respondents submit that the Tribunal already has previously reconsidered the order dated December 14, 2009. In making this submission, the respondents rely on the fact that after the order was issued, the Tribunal received correspondence from the applicant’s representative asking that the matter proceed. By letter dated February 4, 2010, the Tribunal invited any response from the respondents, which was duly filed. This resulted in the Tribunal’s letter dated February 16, 2010, in which the parties were advised that the Tribunal had made an order disposing of the application on the basis of the Form TR-10 executed by the parties and advising the parties to file a new application if they wished to proceed with their dispute about the settlement. The respondents rely on the Tribunal’s February 16, 2010 letter as a prior reconsideration decision by the Tribunal.

11The February 16, 2010 letter is not in fact a decision by the Tribunal at all, let alone a reconsideration decision. Rather, this is a letter from the Registrar stating the fact that the Tribunal had issued an order and advising as to an avenue to address the parties’ dispute about the settlement. At the end of the day, after hearing the evidence and submissions of the parties, it was found that there in fact had never been a settlement. But that subsequent decision cannot serve to elevate a Registrar’s letter from what it was – that is, a mere statement of fact and outline of a potential option – into a reconsideration decision that the Registrar lacks the authority under the Rules to make. Accordingly, I find that the February 16, 2010 letter from the Registrar does not impose any barrier to my reconsideration of the Tribunal’s order in this matter.

12Finally, while the initiation of reconsideration was done by the Tribunal beyond the 30-day period for reconsideration provided in Rule 25, I have the discretion to waive this time period under the Rules and do so on the basis that there was no determination that a settlement had not been achieved until the Tribunal’s February 25, 2011 decision, at which time reconsideration submissions were sought from the parties.

13For all of these reasons, I find that there are factors that exist which outweigh the public interest in the finality of Tribunal decisions, and accordingly exercise my power and authority to reconsider and set aside the Tribunal’s order dated December 14, 2009 of my own initiative.

14As a result of this decision, the transitional application is once again a “live” proceeding. I am aware that prior to the purported settlement, a decision by a Workplace Safety and Insurance Board Appeals Resolution Officer dated November 4, 2009 (the “ARO decision”) had been released, upon which the respondents had sought dismissal of the transition application pursuant to s. 45.1 of the Code, on the basis that its substance already had been appropriately dealt with in another proceeding. I also am aware that the applicant has subsequently appealed the ARO decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

15Accordingly, I am hereby requesting submissions from the parties as to whether this matter should be deferred pending the result of the WSIAT appeal or should be scheduled for a preliminary hearing to address the issue of whether the application should be dismissed as a result of the ARO decision. The parties are to serve and file their submissions on these issues in accordance with the following schedule:

a) The respondents shall serve and file their submissions within 14 calendar days of the date of this decision;

b) The applicant shall file his submissions within a further 14 calendar days; and

c) The respondents shall file any submissions in reply within a further seven calendar days.

16I am not seized of this matter.