Elisabeth Mitchinson v. Niagara Child and Youth Services (now known as Pathstone Mental Health), 2012 HRTO 1243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elisabeth Mitchinson

Applicant

-and-

Niagara Child and Youth Services (now known as Pathstone Mental Health)

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: June 25, 2012

Citation: 2012 HRTO 1243

Indexed as: Mitchinson v. Niagara Child and Youth Services

WRITTEN SUBMISSIONS

Elisabeth Mitchinson, Applicant

Self-represented

Niagara Child and Youth Services (now known as Pathstone Mental Health), Respondent

Leslie A. Brown, Counsel

Introduction

1This is an Application filed under section of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement.

2This Interim Decision deals with a Request for Interim Remedy filed by the applicant as well as a Request for Summary Hearing filed by the respondent.

The Request for an Interim Remedy

3In her Request the applicant seeks the following Orders:

a. An Order requiring the respondent to deliver all payments directly to the Applicant; and made payable only to the Applicant; and in accordance with the schedule set out in the April 17, 2012 Minutes of Settlement (MOS);

b. An Order requiring the respondent to issue all payments forthwith to the Applicant that are past due on the date the Tribunal issues Order above;

c. An Order creating a constructive trust;

d. An Order requiring the respondent to forthwith issue, directly to the Applicant, the new letter of reference as provided in the MOS;

e. An order for the Respondent to forthwith pay to the Applicant any compensatory damages the Tribunal deems is just under the circumstances.

4The respondent opposes the applicant’s Request.

5The material background facts are not controversial, although the applicant makes a great number of allegations which have no substantial bearing on the issue before the Tribunal.

6The applicant filed an Application alleging a violation of the Code in respect of her employment with the respondent. At the hearing of that Application on April 17, 2012, the parties entered into settlement discussions which resulted in MOS which included, amongst other terms, the payment of a global sum to the applicant allocated between legal fees and general damages. I note that while the amount allocated to legal fees is not insubstantial, the much greater portion of the settlement monies were payable in the form of general damages. The MOS provided as they often do that the settlement funds would be payable to the applicant’s solicitor in trust. The applicant does not dispute that she signed the MOS.

7The applicant alleges that a dispute arose between the applicant and her solicitor about the amount that should be allocated to his legal fees. The applicant dismissed her solicitor the day after the MOS were signed. The applicant has since repeatedly requested that the respondents pay the settlement funds to her directly and has sought to amend the MOS to allow the funds to be paid directly to her. The respondent has attempted to comply with the terms of the MOS and delivered the settlement funds and the reference letter to the applicant’s former solicitor who, in accordance with the applicant’s instructions, returned them to the respondent’s counsel.

8The applicant’s former solicitor has apparently proposed that the applicant and the respondent agree to an amendment of the MOS to allow the funds to be payable directly to the applicant. The respondent has to date refused to agree to the suggested amendment of the MOS.

9As indicated the applicant has made a great number of allegations against both her former solicitor and the respondent. She alleges that she signed the MOS under duress. The applicant also alleges fraud and collusion between the respondent and her former solicitor. She submits that the MOS are unconscionable. While I make no conclusions on these allegations, and notwithstanding the somewhat voluminous material filed to date, the applicant provides little factual basis for any of these assertions. In my view none of these assertions of improper conduct on the part of the applicant’s former solicitor and the respondent are relevant to the issue before the Tribunal – that being whether or not the respondent has breached the settlement in attempting to comply with its terms and refusing to accept the amendment sought by the applicant and proposed by her former solicitor.

10The applicant’s essential claim in the Application is that the MOS should be amended to allow the settlement funds and the reference letters be sent directly to her rather than to her former solicitor in trust. The applicant’s former solicitor is apparently agreeable. The respondent is not prepared to agree to an amendment of the MOS, citing amongst other things the possible tax consequences of a change in the allocation of the funds as between general damages and legal fees. The applicant also suggests that her former solicitor is prevented from completing the transaction contemplated by the MOS subsequent to her dismissal of him, but does not explain why this would be so.

11The applicant argues that further delay in her receiving the settlement funds and reference letters will have a negative impact on her physical and mental health. The applicant also argues that the amendment she is seeking is a minor one and the insistence of the respondent that it can only pay the funds to the former solicitor in trust is in bad faith because they should know that her former solicitor is unable to receive them on her behalf.

12The granting of an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the Application and before any violation of the Code has been proven.

13The conditions for awarding an interim remedy are set out as follows in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

14In TA v. 60 Montclair, 2009 HRTO 369, at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:

whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

15The Tribunal in TA v. Montclair, above, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.

16I am not satisfied that the applicant has met the significant onus of establishing that her Request for Interim Remedy meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.

17Although this assessment is being made at an early stage of the proceeding, I am not satisfied, for the purposes of assessing the interim remedy request, that the applicant has met the burden of showing that the Application appears to have merit. The claim at its heart is that it is a breach of settlement to refuse to amend the MOS. It is not at all clear to me at this stage why that would be the case.

18The consequences for the applicant in not granting the relief sought will likely be delay in her receiving the settlement funds. The applicant claims that the delay in resolving the issue has affected her health and she has provided a statement from her family physician in support of this claim. These events, including her dispute with her former counsel, may be stressful for the applicant; however, I observe that the applicant could if she chose to, allow the MOS to be implemented in accordance with its terms. If she has a dispute with her former solicitor about his fees then she can have that issue dealt with in accordance with the normal process for resolving such disputes. The applicant also claims financial hardship in the delay in receiving the settlement funds. As discussed in TA v. Montclair, above, financial hardship as such is not a significant factor in determining whether it would be appropriate to grant an interim remedy. The question is whether there is any basis to conclude that the remedial authority of the Tribunal will be compromised if the interim remedy is not granted. The applicant articulates no reasons why the remedial purposes of the Code will be frustrated by the delay if I do not grant the Request and none are apparent from a review of the material. The respondent has attempted to comply with the MOS and states that it continues to be prepared to do so. The applicant appears to have prevented this from happening. I also agree with the respondent when it says that to grant this request would amount to an amendment of the agreement made by the parties with potential implications for both parties.

19For all of these reasons the Request for an Interim Remedy is denied.

The Request for Summary Hearing

20The Respondent has filed a Request for a Summary Hearing. The applicant opposes the Request.

21The Request for Summary Hearing is granted. A summary hearing will be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

22Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

23Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

21The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and explain how the allegations made in the Application could establish a breach of settlement.

24If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

25A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

26The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

Respondent’s other requests

27In its submissions in response to the applicant’s Request for an Interim Remedy, the respondent states that the Tribunal ought to make the following Directions in addition to dismissing the Request:

a. Direct that the Applicant comply with the terms of the MOS. The respondent states that upon the Tribunal’s directions it will re-send the package consisting of the settlement monies and the reference letters to the applicant's former solicitor;

b. Direct the Applicant (and her spouse) to cease any and all disturbing, coercive, abusive, discriminatory and threatening e-mail communications with the respondent;

c. Direct the Applicant (and her spouse) to maintain confidentiality of the MOS.

28These issues will also be addressed at the summary hearing.

Order and Directions

29The applicant’s Request for an Interim Remedy is dismissed. The respondent’s Request for a Summary Hearing is granted. The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

30I am not seized.