Mehedi v. George Brown College, 2012 HRTO 473

Golam Mehedi Applicant

-and-

George Brown College and Steven Bartlet Respondents

Adjudicator: Judith Keene Date: March 7, 2012 Citation: 2012 HRTO 473 Indexed as: Mehedi v. George Brown College

Appearances

Golam Mehedi, Applicant | Self-represented George Brown College, Respondent | Kim Pepper, Counsel

1This is a Decision in respect of an Application filed on July 26, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Pursuant to a Case Assessment Direction (“CAD”) dated August 9, 2011 and Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal directed, on its own initiative, that a summary hearing 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 it would succeed.

2A teleconference summary hearing was held on January 17, 2012. I heard evidence from the applicant, and the respondent made representations upon which the applicant was allowed to comment. I have concluded that the Application has no reasonable prospect of success.

Initial jurisdiction issues

3In his Application, the applicant indicates that he wants to “amend [a] settlement” to add compensation for $2700 legal fees and $5000 compensation against the defendant Stephen Bartlet. In the circumstances of this Application, this raised two issues of jurisdiction.

4The first issue was whether the Tribunal has jurisdiction to deal with an Application to amend a settlement. The applicant could not direct me to a provision in the Code that allows this. However, section 45.9 (8) of Code provides that if, “on an application under subsection (3), the Tribunal determines that a party has contravened the settlement [of an Application], the Tribunal may make any order that it considers appropriate to remedy the contravention.” With the agreement of the parties, we proceeded on the basis that the applicant was alleging breach of a settlement concerning an Application he had filed in 2010 (HRTO File 2010-04752-I; “the 2010 Application”). Both parties agreed that the settlement in question was signed on July 4, 2011, and that it dealt with both the 2010 Application and a civil suit filed by the applicant in 2010. The settlement document did not contain separate provisions relating to the Application and the civil suit, but both parties agreed that the Tribunal had jurisdiction to determine whether the settlement was breached.

5The second issue was whether the Tribunal had jurisdiction to deal with an alleged breach of a settlement by Stephen Bartlet. The 2010 Application was dismissed as against the personal respondent on July 10, 2010: 2010 HRTO 1486. The only way in which the personal respondent is involved in these circumstances is in respect of the settlement of the civil action, to which he was a party. I find that I have no jurisdiction to deal with the applicant's claim for compensation against the personal respondent in this Application, as that individual was not a respondent to the 2010 Application on July 4, 2011, the date the 2010 Application was settled. Mr Bartlet will be removed as a respondent to this Application and the style of cause will be amended accordingly.

6After the summary hearing, the applicant sent to the Tribunal and to the respondent some documents, received on January 30, 2012, by which he purported to amend the Application that is the subject of this hearing (HRTO file 2011-09496-S) to add Stephen Bartlet as a respondent. As stated above, the applicant had in fact included Mr. Bartlet in this Application; the above-noted Interim Decision addresses the reasons I have decided that he should be removed. In any event, in the paragraphs below I have concluded that there was no breach of settlement in this matter.

The history of the settlement

7The applicant filed the 2010 Application on February 2, 2010, under section 34 of Part IV of the Code. The Application named both George Brown College (the “College”) and Steven Bartlet as respondents. As noted above, that part of the 2010 Application that was against Stephen Bartlet was dismissed by order of the Tribunal on July 10, 2010: 2010 HRTO 1486. On January 7, 2011, the applicant and the College participated in a mediation of the 2010 Application which did not result in settlement. The 2010 Application was scheduled for a hearing.

8In July of 2010 the applicant started a civil action in negligence and breach of fiduciary duty against the College in the Superior Court of Justice. The action raised allegations that were similar to those raised in the 2010 Application. After the dismissal of the 2010 Application against the personal respondent, the applicant amended his Statement of Claim to name the personal respondent as a defendant in the civil action.

9At some point, the applicant obtained a default order from the Court. However, the respondent brought a successful motion to have the default order set aside. A judge of the Ontario Superior Court of Justice ordered that the applicant pay the respondent costs in the amount of $1200 in respect of that motion. The applicant does not dispute that he failed to obey the order of the Court.

10On July 4, 2011 the College and the applicant participated in a mandatory mediation in connection with a civil action. A settlement was reached. The respondents indicate that, in order to reach a settlement, the College was prepared to waive the payment of the $1200 earlier ordered by the Court.

11A document entitled “Minutes of Settlement and Release” (“the 2011 Settlement”), was produced in evidence by the parties. In the initial recitals, the 2011 Settlement refers to “an application with the Human Right Tribunal of Ontario bearing file number 2010-04752-I” (the “Application”), a clear reference to the 2010 Application. The document also refers to “a civil action against the College and Steven Bartlet in the Toronto Registry of the Superior Court of Justice bearing action number CV-10-407466”.

12Paragraph 1 of the 2011 Settlement reads as follows:

The College shall:

(a): pay to the plaintiff for the sum of $10,800 as nontaxable damages and reimbursement for legal disbursements and

(b) pay both parties’ costs of the mediation conducted on July 4, 2011 with Bruce Ally

13In my view, paragraph 1(a) above identifies the sum of $10,800 as nontaxable damages and reimbursement for legal disbursements. There is no further mention of legal disbursements in the document.

14The respondents testified that the sum to be paid in settlement was arrived at after the respondent made an offer of $10,000 in nontaxable damages to which the applicant responded by extending a counter-offer of $10,000 in nontaxable damages plus $800 to cover certain legal expenses. The respondent accepted the applicant's counter-offer.

15The applicant acknowledged signing the 2011 Settlement. While at first he indicated that he felt he had no choice but to sign, he also stated in response to a question that if he had been really unhappy with the settlement, he could have chosen not to sign. He stated that he had filed the current Application because he was not completely happy with the 2011 Settlement.

16On July 4, 2011, shortly after the signing of the 2011 Settlement, the applicant sent an email to the respondents’ solicitor requesting additional payment, over and above the amount agreed to in settlement, to cover legal fees. The respondents’ solicitor responded the same day and advised the applicant that because a settlement had been reached, there would be no further payment. There was no further response from the applicant.

17On July 11, 2011 the applicant attended at the office of the respondents’ solicitors. He signed the Form 25 and the consent which allowed for his civil action to be dismissed. After he had signed these documents the respondents’ solicitor gave the applicant a check for the $10,800 agreed to in settlement. The applicant did not dispute that he cashed the check on July 11, 2011.

18On July 11, 2011 the respondents’ solicitors forwarded a check to Bruce Ally, the mediator for the July 4, 2011 mediation. The respondents assert that this payment satisfied their obligations under paragraph 1(b) of the 2011 settlement. The respondents’ solicitor also forwarded the executed Form 25 to the Tribunal on July 11 2011.

Analysis and Decision

19The applicant took the position that the 2011 Settlement was not a final agreement until the Form 25 was signed. However, he admitted that this was not what the 2011 Settlement said. Paragraph 3 of the 2011 Settlement reads as follows:

The Plaintiff hereby agrees to withdraw the Application as settled. In this regard, the Plaintiff agrees that he will sign the required form (Form 25) which will be prepared by the College’s solicitors for submission to the Human Rights Tribunal of Ontario for the purpose of having the Application dismissed.

20The applicant could not point to anything in the 2011 Settlement that had been promised and not done by the respondent. In the circumstances, I find that there is no reasonable prospect that the Application can succeed.

21As noted in the CAD of July 19, 2011, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. It appears to me that the applicant cannot demonstrate such a link. I find that there is no reasonable prospect that the Application can succeed.

22The Application is dismissed.

Dated at Toronto this 7th day of March, 2012.

”signed by”____________________

Judith Keene Vice-chair