Francis v. Toronto Police Services Board, 2012 HRTO 2348

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Desmon Francis

Applicant

-and-

Toronto Police Services Board, Gleen Jones and Adrian Pillach (Formerly Szablowski)

Respondents

DECISION

Adjudicator: Alan G. Smith

Date: December 14, 2012

Citation: 2012 HRTO 2348

Indexed as: Francis v. Toronto Police Services Board

APPEARANCES

Anthony Desmond Francis, Applicant

Self-represented

Toronto Police Services Board, Glenn Jones and Adrian Pillach (Formerly Szablowski)

Rebecca Bush and Kevin McGivney, Counsel

Self-Represneted

BACKGROUND

1This Application was filed on January 20, 2012 under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleges that the respondents have violated my order in Francis v. Toronto Police Services Board, 2011 HRTO 2018 (November 8, 2011), dealing with the applicant’s previous Contravention of Settlement Application arising out of the settlement agreement resolving the applicant’s original Transitional Application. In that Decision, I made the following Order which disposed of this previous Contravention of Settlement Application:

The Respondents shall courier a cheque, payable to the applicant, in the amount of $1,000 to the applicant’s last known address within thirty days of this Decision.

2In this Application for Contravention of Settlement the applicant alleges that the respondents failed to courier a cheque, payable to the applicant, in the amount of $1,000 to the applicant’s last known address by December 8, 2011, pursuant to this Order.

3The respondents deny the allegations and submit that there has been neither a contravention of settlement, nor a breach of my Order. The respondents note that in Francis v. Toronto Police Services Board, 2011 HRTO 2018, I stated that the respondents attempted to fulfill their obligations under the Minutes of Settlement and concluded that there was a trivial breach of the Minutes of Settlement.

4The respondents submit that they have fully complied with the Tribunal’s Decision.

5A Case Assessment Direction was issued by the Tribunal on May 17, 2012, directing that a teleconference hearing be scheduled to hear oral submissions from the parties regarding the current allegation of breach of settlement.

6Pursuant to s. 43(2) of the Code a teleconference was held before me on September 17, 2012. The purpose of the hearing was to determine whether the Application should be dismissed or a further order made with regard to the current allegation of breach of settlement. The applicant participated in the hearing and made oral submissions. The respondents also participated through counsel and made oral submissions. The parties’ written submissions were also considered by me in this Decision.

argument

7The respondents state that, as per my Order of November 8, 2011, a cheque in the amount of $1,000.00 payable to the applicant was couriered by mail room clerk Ms. Cathy Dawes from the respondents’ counsel’s office to the applicant’s residence at 34 Faye Drive, North York, Ontario, on November 15, 2011. The respondents provided a FedEx Express proof of delivery document indicating successful delivery of the cheque at that address on November 16, 2011.

8In correspondence with the Tribunal on April 26, 2012, the applicant argued that:

So for the purposes of clarification, I am, in no uncertain terms, advising that the Respondents have breached the original Minutes of Settlement, as requested in my last Application for Contravention of Settlement (Form #18) dated 20 January 2012, I wish to have the Settlement nullified and return to a proper mediation as originally requested. To date, I have not received either the Settlement funds, or even a valid excuse for the failure to comply. The fact that the Respondents have now breached this Settlement/Decision no less than TWICE now is a reasonably good indicator of the level of contempt that they have handled this matter with specifically, and me in general. [underlining and bolding in original]

9During the course of the hearing the applicant again stated that he never received the requisite payment from the respondents. He further advised that, “nothing had changed from the last breach of settlement hearing”.

analysis

10Given the applicant’s apparent dissatisfaction with my Decision of November 8, 2011, he could have requested a Reconsideration of the Decision pursuant to Tribunal Rule 26. Notwithstanding that he was informed of this option by the Tribunal on May 10, 2012, and again in the Case Assessment Direction of May 17, 2012, the applicant instead chose to file the present contravention application.

11In my view, the applicant is raising the same issue as he did in his previous Application for Contravention of Settlement concerning the respondents’ failure to pay the settlement funds in the timeframe specified in the minutes of settlement. That issue, the remedy for breach of settlement, was finally determined by me in the November 8, 2011 decision. Therefore I am now functus officio with respect to this issue, in other words since a decision on an issue has been reached, the Tribunal no longer has jurisdiction over the issue.

12The additional issue the applicant raises in this Application is with respect to the enforcement of my Order in that Decision. If the applicant did not receive the $1,000 pursuant to my Order of November 8, 2011, the proper avenue is for him to seek enforcement through the procedures outlined in section 19 of the Ontario Statutory Powers and Procedures Act, R.S.O. 1990, Chapter S.22, whereby an order of the Tribunal is enforceable through the Superior Court of Justice.

ORDER

13Having found that the Tribunal does not have jurisdiction over the issues raised, the Application is dismissed.