HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
L.D. on behalf of L.T.
Applicant
-and-
Toronto District School Board
Respondent
A N D B E T W E E N
L.D. on behalf of L.T.
Applicant
-and-
Toronto District School Board
Respondent
A N D B E T W E E
R.D. by his next friend L.D.
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: L.T. v. Toronto District School Board
APPEARANCES
L.T. and R.D. by his next friend L.D., ) L.D. on behalf of L.T. and L.D. as Applicants ) Next Friend of R.D.
Toronto District School Board, ) Wendy Lopez, Counsel Respondent ) )
1This Interim Decision relates to three Applications. L.T., the applicant in the first two Applications (2011-10123-S and 2011-09880-S) alleges that the respondent breached a settlement agreement. R.D, the applicant in 2011-8991-I, alleges discrimination in goods, services, and facilities on the basis of race, colour, ethnic origin and place of origin.
2In two Case Assessment Directions, the Tribunal directed that these matters be heard together and that they proceed by way of a summary hearing. The summary hearing was conducted by telephone conference call on April 10, 2012. I heard submissons from L.D. and counsel for the respondent.
3For the reasons that follow, the Applications in file numbers 2011-10123-S and 2011-09880-S are dismissed. I find that the Tribunal has no jurisdiction over the matters raised in these two Applications.
4In regards to Application 2011-8991-I, it is not clear whether L.D. has the authority to proceed with this Application as a next friend of R.D. As I indicate in more detail below, the parties are directed to file further materials in support of their respective positions on the issue of whether this Application can proceed.
ALLEGED BREACH OF SETTLEMENT
5The respondent raised a preliminary objection regarding L.D.’s ability to continue the Applications on behalf of L.T., given that L.T. has now reached the age of majority. L.T. was present on the telephone conference call and, at the outset of the hearing, she advised that she consented to L.D. continuing with the Application on her behalf.
6The parties agree that there is no written settlement agreement between them. The applicant’s allegations of a breach of settlement are based on comments she says were made to her by the mediator in the context of a Tribunal-facilitated mediation conducted regarding an earlier Application. The mediation in that matter took place over two days. At some point on the first day, the applicant says the mediator conveyed an offer to settle to her. She states that the mediator’s communication to her constitutes a settlement agreement, but that the respondent did not comply with the terms of this settlement.
7The respondent points out that it has no knowledge of the content of communications between the applicant and the mediator. However, it denies that it made any offer to settle to the applicant. In any event, counsel states that the fact that a second day of mediation was conducted is evidence that no settlement agreement was reached on the first day, as alleged by the applicant.
8Section 45.9(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, states:
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.
9The Tribunal has interpreted section 45.9(1) to mean that, absent a written agreement signed by the parties, the Tribunal does not have jurisdiction to enforce an alleged settlement. See Masco Retail Cabinet Group LLC v. Kumarsingh, 2011 HRTO 2303.
10The applicant has not established that a binding settlement agreement exists within the meaning of section 45.9. The Tribunal does not have jurisdiction over the matters raised in the Applications in file numbers 2011-10123-S and 2011-09880-S because there is no signed, written agreement between the parties. These Applications are dismissed.
R.D.’S APPLICATION
11The respondent argues that this Application may not proceed because R.D. is in the care and custody of the Children’s Aid Society and has been since November 2011. The applicant argues that the Application may proceed because it was filed before R.D. was taken into care and also because, under the terms of the care arrangement, she retains the authority to proceed with the matter on R.D.’s behalf. Neither party has filed any documents in support of its position.
12At the summary hearing, I heard submissions from the parties as to whether or not the Application has no reasonable prospect of success. However, I believe it is appropriate to address the issue of the L.D.’s ability to proceed with the Application as a preliminary issue.
13Based on the parties’ submissions and the materials filed, I am unable to determine the issue. Accordingly, the parties are directed to provide additional materials as follows:
a. Within two weeks of this Interim Decision, L.D. may deliver to the respondent and file with the Tribunal any document or information (including court orders) that shows that she is entitled to proceed with this Application as R.D.’s next friend, notwithstanding the fact that R.D. is in the custody and care of the Children’s Aid Society;
b. Within three weeks of this Interim Decision, the respondent may deliver to the applicant and file with the Triubnal any document or information in support of its position that the Application may not proceed; and
c. Within four weeks of this Interim Decision, the applicant may deliver to the respondent and file with the Tribunal material in reply to the respondent’s submissions.
14Once the Tribunal has received the parties’ materials, it may determine whether the Application may proceed or it may provide further direction to the parties. If the Tribunal finds that the Application may proceed, it will determine whether it has no reasonable prospect of success based on the materials filed and the parties’ submissions at the April 10, 2012 summary hearing.
SUMMARY
15The Applicatoins in Tribunal file numbers 2011-10123-S and 2011-09880-S are dismissed. I find that the Tribunal has no jurisdiction over the matters raised in these Applications.
16Based on the submissions and materials filed by the parties, I cannot determine whether or not R.D.’s Application may proceed. The parties are directed to provide additional materials, according to the schedule set out in paragraph 13, above.
Dated at Toronto, this 16th day of April, 2012.
”signed by”________________
Michelle Flaherty
Vice-chair