Moncur v. Beach Grove Golf and Country Club, 2014 HRTO 764

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Moncur

Applicant

-and-

Beach Grove Golf and Country Club

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 29, 2014

Citation: 2014 HRTO 764

Indexed as: Moncur v. Beach Grove Golf and Country Club

APPEARANCES

Cathy Moncur, Applicant

Mary Jane Campigotto, Counsel

Beach Grove Golf and Country Club, Respondent

Nancy Jammu-Taylor, Counsel

Introduction

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), which alleged that (1) the respondent club contravened the settlement between the parties of a previous human rights Application before the Tribunal, and (2) the respondent club subjected the applicant to reprisals for claiming and enforcing her rights under the Code. The respondent club filed a Response, which denied the allegations.

2The parties filed written submissions, and attended a hearing where they called witnesses, submitted documents, and made oral submissions, which addressed these two issues.

3The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the respondent club contravened a settlement and subjected her to reprisals within the meaning of the Code. The following are my reasons.

BACKGROUND

4In 1990, the applicant’s husband became a member of the respondent club. As the spouse of a member, the applicant was permitted to attend and participate in activities at the respondent club. The main activity that the applicant and her husband participated in was curling.

5In 1996, the applicant was hit by a car, and suffered a permanent brain injury. She has cognitive limitations as a result of the injury.

6In 2008, the applicant filed an Application (Form 1) under s. 34 of the Code (the “first s. 34 Application”), which alleged that the respondent club had discriminated against her. The details of the first s. 34 Application were not before me.

7On May 19, 2009, the parties signed Minutes of Settlement in which they agreed to a full and final settlement of the first s. 34 Application.

8On December 31, 2009, the applicant filed an Application for Contravention of Settlement (Form 18) under s. 45.9 of the Code (the “s. 45.9 Application”), which alleged that the respondent club breached the settlement of the first s. 34 Application. The Minutes of Settlement were attached to the s. 45.9 Application.

9The s. 45.9 Application also included allegations that the respondent club subjected the applicant to reprisals for claiming and enforcing her rights under the Code. These additional allegations should have been filed in a Form 1 under s. 34 of the Code, not a Form 18 under s. 45.9 of the Code.

10On January 21, 2010, the respondent club filed a Response, which denied the allegations of breach of settlement and reprisal.

11On consent of the parties, I exercised my authority pursuant to Rule 5.2 of the Tribunal’s Rules of Procedure to vary the application of the Tribunal’s Rules in order to accept and treat the applicant’s reprisal allegations as a Form 1 Application filed under s. 34 of the Code (the “second s. 34 Application”).

12Between April 2011 and December 2012, I issued four Case Assessment Directions (April 18, 2011, May 5, 2011, July 6, 2011, and January 19, 2012), and four Interim Decisions (October 3, 2011, May 16, 2012, September 4, 2012, and December 13, 2012) dealing with, among other things, the respondent club’s request to dismiss one of the reprisal allegations in the second s. 34 Application on a preliminary basis, the applicant’s requests to adjourn and reschedule hearing days, the applicant’s requests to hold the proceeding in abeyance, the applicant’s refusal to provide her availability for an additional hearing day, the applicant’s request to amend the second s. 34 Application to withdraw certain reprisal allegations, and the applicant’s request to amend the second s. 34 Application to add a reprisal allegation.

13The hearing of the s. 45.9 Application and the second s. 34 Application took place over four days between April 2011 and April 2013. I heard the testimony of four witnesses: the applicant, her husband, another member of the respondent club, and the respondent club’s general manager. I also admitted into evidence a large number of documents that were tendered by the parties, including letters, emails, Board and committee minutes, by-laws, policies, reports, newsletters, minutes of settlement, and court orders.

ANALYSIS

Applicable Law and Issues

14Section 45.9 of the Code provides that (1) if a settlement of an application made under s. 34 of the Code is agreed to in writing and signed by the parties, the settlement is binding on the parties, and (2) a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order to remedy the contravention.

15Section 8 of the Code provides that every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

16The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.

17In this case, the main issues that I am required to determine are as follows:

1) Did the respondent club contravene the settlement of the first s. 34 Application?

2) Did the respondent club subject the applicant to reprisals for claiming and enforcing her rights under the Code?

Did the respondent club contravene the settlement of the first s. 34 Application?

18Minutes of Settlement are contracts, and, as such, the same principles of contract interpretation apply. See Precision Remodeling Ltd. v. Soskin, 2008 CanLII 31411 (ON SC) at para. 27. The primary goal of contractual interpretation is to give effect to the intentions of the parties. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888 at p. 901.

19The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, and it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. See Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at paras. 54, 55 and 58.

20As the Ontario Court of Appeal explained in Dumbrell v. The Regional Group of Companies Inc., 85 OR (3d) 616, 2007 ONCA 59 at para. 50:

In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it a moment's thought until it became a problem: see Kim Lewison, The Interpretation of Contracts, 3rd ed. (London: Sweet & Maxwell, 2004) at 18-31.

21Regardless of ambiguity, however, courts may have regard to the context or the factual matrix in order to determine the intent of the parties and the scope of their understanding (i.e. contracts are to be interpreted with regard to objective evidence of the context or factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties). See Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at paras. 33-34.

22This Tribunal has adopted the above approach in the context of the settlement of human rights disputes. See Thornton v. Toronto Police Services Board, 2012 HRTO 2412 at paras. 13-14, and Ihasz v. Ontario (Revenue), 2011 HRTO 1991 at para. 21.

23In her s. 45.9 Application, the applicant alleged that the respondent club breached clauses 3, 5 and 7 of the May 19, 2009 Minutes of Settlement.

Clause 3

24I will begin with clause 3 of the Minutes of Settlement, which reads as follows:

The Respondent Club acknowledges that it has begun the process of adopting a Human Rights, Harassment and Bullying Policy (the “Policy”), which establishes standards and procedures for receiving and handling complaints of discrimination, failure to accommodate, harassment, and bullying. The Respondent Club undertakes to retain the services of a consultant with expertise in human rights to review its draft Policy. Said consultant shall be selected in consultation with the Ontario Human Rights Commission. Within one month of the date of signing these Minutes, the Respondent agrees to provide the draft Policy to the consultant and to the Applicant for review. The consultant shall, within two months of receiving the draft Policy, consider any written comments from the Applicant and revise and finalize the Policy, as necessary. Upon finalization, a copy of the Policy shall be provided to the Applicant. Members of the Respondent Club shall be notified of the Policy’s adoption.

25The following contextual facts are not in dispute. In the past, the respondent club did not have a human rights policy. In the spring of 2008, the applicant requested that the respondent club draft and adopt such a policy. By the late summer of 2008, when the applicant filed her first s. 34 Application, the respondent club still did not have such a policy. In the spring of 2009, when the parties signed the Minutes of Settlement resolving the first s. 34 Application, the respondent club had drafted, but not yet adopted, such a policy.

26Clause 3 is linked to clauses 1 and 2 of the Minutes of Settlement. There is no dispute that the respondent club fulfilled the terms of clauses 1 and 2. Pursuant to clause 1, the respondent club published a statement in its newsletter to members, which acknowledged and thanked the applicant for her efforts in improving the respondent’s club’s policies and procedures on harassment, discrimination and bullying. Pursuant to clause 2, the respondent club provided the applicant with a letter of regret, which was read out at a Board of Directors meeting. The letter expressed regret for misinterpreting the applicant’s intentions in bringing forwards human rights issues, acknowledged her efforts to identify the need for policies and procedures on harassment, discrimination and bullying, and credited her for the development of such policies and procedures.

27With respect to clause 3, following the signing of the Minutes of Settlement, the respondent club retained the services of a consultant with expertise in human rights, who was acceptable to the applicant, and provided a six-page draft Anti-Discrimination, Harassment and Bullying Policy to the consultant and the applicant for review. After reviewing the respondent club’s draft Policy, the applicant provided a revised 14-page draft Anti-Discrimination, Harassment and Bullying Policy to the consultant. Both parties also provided the consultant with the exact wording of clause 3.

28The consultant then informed the respondent club’s counsel that the applicant had provided a draft Policy of her own. In response, the respondent club’s counsel told the consultant that the club objected to the applicant providing her own draft Policy because clause 3 only provided her with a right to provide “comments”. Ultimately, however, the consultant decided to review both the club’s six-page draft Policy and the applicant’s 14-page draft Policy.

29The consultant subsequently provided a Policy Review report to the parties, which stated:

Executive Summary

Beach Grove’s current Anti-Discrimination, Harassment and Bullying policy remains consistent with legal and industry standards for clarifying expectations of a harassment-free workplace. However, opportunities exist for revising the existing policy to reflect best practices in workplace respect.

A proposed revised policy appears in Appendix A….

Background

Ms. Cathy Moncur modified Beach Grove’s Policy in June 2009, which has formed the basis for this review.

Policy Analysis

Generally speaking, Beach Grove’s existing Policy captures current human rights expectations effectively. It covers key responsibilities and risks associated with human rights legislation and provides reasonable expectations for a harassment-free workplace as well as responses to effectively address issues.

Conclusion

Generally speaking, Beach Grove’s Anti-Discrimination, Harassment and Bullying policy was in keeping with current trends and best practices in preventing and effectively intervening in human rights concerns. It is more than sufficient in covering the organization’s diligence. Any and all suggestions I have made were to improve upon this and are at the complete discretion of the organization to adopt or not.

Appendix A – Suggested Revisions to Beach Grove’s Existing Policy

Below is the suggested policy.

[Emphasis added]

30The suggested Anti-Discrimination, Harassment and Bullying Policy in Appendix A was 16 pages in length.

31In the fall of 2009, the respondent club’s Board of Directors adopted its six-page Anti-Discrimination, Harassment and Bullying Policy, and in February 2010, it notified its members that it had adopted the Policy.

32In her s. 45.9 Application, the applicant alleged that the respondent club breached a number of aspects of clause 3 of the Minutes of Settlement, but at the hearing, she only pursued one allegation, namely, that the club breached clause 3 by adopting its own six-page Policy rather than 16-page Policy that the consultant had attached as Appendix A to its Policy Review report. The respondent club, on the other hand, denied that it breached clause 3.

33The applicant’s position is that pursuant to clause 3, the respondent club was to draft an initial Policy for submission to an independent third party, who, with written input from the applicant, would develop a final Policy for adoption by the club. In short, she stated that clause 3 required the club to adopt the final 16-page Policy that was developed by the consultant. She stated that the most important word in clause 3 is “finalize”.

34The respondent club’s position, on the other hand, is that pursuant to clause 3, the consultant was asked to review the club’s six-page Policy, consider any comments provided by the applicant, and finalize the Policy as necessary. The respondent club stated that it adopted its six-page Policy because the consultant found that it was consistent with legal and industry standards. The respondent club further stated that clause 3 did not require it to adopt the final 16-page Policy because it was merely a suggested Policy. The respondent club stated that that the most important words in clause 3 are “as necessary”.

35In my view, clause 3 of the Minutes of Settlement, though it appears to have some minor gaps, is clear and unambiguous on its face. As such, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. I find that the respondent club did not breach clause 3. Both parties provided the consultant with the exact wording of clause 3. Pursuant to clause 3, after receiving and reviewing the respondent club’s six-page draft Policy and the applicant’s written comments, the consultant was required to “revise and finalize” the Policy “as necessary”. The plain meaning of these words, within context, is that the consultant was required make any revisions to the six-page Policy, which, in its independent expert opinion, it deemed necessary, and then inform the parties what the final Policy would be.

36In view of the fact that the consultant’s Policy Review report indicated that the respondent club’s six-page Policy was consistent with legal and industry standards, the 16-page Policy in Appendix A of its Policy Review report was a “suggested” Policy, and the club had “complete discretion” as to whether to adopt the “suggested” Policy, I find that the consultant, who, in the words of the Ontario Court of Appeal, was a “stranger” to clause 3, relied on the intent expressed in the written words of the clause, and concluded that it was not necessary to make revisions to the respondent club’s six-page Policy, and that the club could adopt its six-page Policy as the final Policy. I also find that the consultant’s “suggested” 16-page Policy was outside the scope of clause 3.

37Accordingly, I find that the respondent club’s decision to adopt its own six-page Policy, rather than the “suggested” 16-page Policy, was in compliance with clause 3 of the Minutes of Settlement.

Clause 5

38I now turn to clause 5 of the Minutes of Settlement, which reads as follows:

The Applicant shall be permitted to access copies of all minutes of Board meetings from 2006 to present with a view to identifying objectionable references to her by name. Upon the Applicant’s request, the Respondent Club shall prepare a list of proposed amendments changing references to the Applicant by name to “Member”. Said list of proposed amendments shall be brought by way of motion to the Board for approval.

39Beyond the fact that this clause was part of the settlement of the applicant’s first s. 34 Application, there were no undisputed contextual facts before me with respect to this clause.

40Following the signing of the Minutes of Settlement, the respondent club permitted the applicant to access copies of Board minutes from 2006 onwards.

41On November 25, 2009, the applicant sent the respondent club a letter, which stated that she had researched the minutes, but it had been an “overwhelming task” to identify “all” references to her by name. The letter then requested that, with the exception of the May 2009 minutes (which indicated that the Board read out the letter of regret to the applicant pursuant to clause 2 of the Minutes of Settlement), the respondent club use the “find and replace” function on a word processing program to scan the minutes and replace her name with the word “member”.

42On December 3, 2009, the respondent club’s general manager sent an email in response, which denied the applicant’s request, and stated that, since she had spent time and effort reviewing the Board minutes, she should send a list of the objectionable references that she had identified to date.

43On December 4, 2009, the applicant’s husband sent the respondent club’s general manager an email, which stated that the respondent club had an obligation to accommodate the applicant’s disability-related needs by using the “find and replace” function in a word processing program. The email also stated that, with the exception of the May 2009 minutes, the applicant identified all the references to her by name in the Board minutes to be objectionable.

44On December 7, 2009, the respondent club’s manager sent the applicant’s husband an email, which maintained that clause 5 of the Minutes of Settlement required the applicant to identify the objectionable references in the Board minutes. The email further stated that the respondent club presumed that not all references to the applicant by name were objectionable, and reiterated that she should send a list of the objectionable references.

45On the same day, the applicant’s husband sent a further email to the respondent club’s general manager, which stated that the applicant had come home exhausted after reviewing Board minutes and found the process extremely time-consuming. The email further stated that the “accommodation” that the applicant was asking for was that all references to her be changed, with the exception of that in the May 2009 minutes because that particular reference was “the one sure thing that she did not find objectionable.”

46On the same day, the respondent club’s general manager also sent the applicant’s husband a further email, which stated that he may take a run at using the “find and replace” function in a word processing program, but his time was limited, and there may not be electronic copies of all Board minutes.

47Following this exchange of emails, no further steps were taken by either party to fulfill the terms of clause 5 of the Minutes of Settlement.

48At the hearing, the applicant testified that she found the process of reviewing the Board minutes difficult and overwhelming because of her brain injury, and that the respondent club had an obligation to accommodate her disability-related needs by using the “find and replace” function in a word processing program. She also stated that she was willing to forego any compliments to her in the minutes.

49The respondent club’s manager testified the applicant has still not identified the objectionable references to her by name in the Board minutes. He stated that the minutes may contain references that she finds objectionable, but there are also references commending her.

50The applicant’s position is that the respondent club had a duty to accommodate her disability-related needs by using the “find and replace” function in a word processing program to identify references to her by name, rather than subjecting her to the onerous task of visually reviewing all Board minutes, and that by failing to accommodate her needs, the respondent club breached clause 5.

51The respondent club’s position is that the applicant has still not identified objectionable references to her by name in the Board minutes, but when she does, the respondent club will comply with its obligations under clause 5.

52In my view, clause 5 of the Minutes of Settlement, though it appears to have some minor gaps, is clear and unambiguous on its face. As such, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. I find that the respondent club did not breach clause 5. Clause 5 required the applicant to identify objectionable references to her by name after accessing copies of all minutes of Board meetings from 2006 onwards. I find that the applicant was unable to fulfill this term by herself because of limitations related to her brain injury. However, I do not accept her argument that the respondent club was then required to use the “find and replace” function on a word processing program to scan the minutes and replace her name with the word “member” in all the Board minutes except for one.

53The problem with this argument is that even the applicant herself admits that using the “find and replace” function would capture non-objectionable references to her by name, such as compliments. I also disagree that the respondent had a duty to accommodate the applicant’s disability-related needs in the implementation of the terms of the Minutes of Settlement. In my view, there is no such freestanding duty, particularly where the parties did not include such a term in the Minutes of Settlement. Furthermore, I fail to see why the respondent should be obliged to perform this time-consuming task when there is no evidence that the applicant made any attempt to have her husband or someone else assist her in identifying objectionable references.

54In essence, the applicant was proposing a renegotiation of the terms of clause 5. The respondent club’s refusal to renegotiate the terms of clause 5 does not amount to a breach of settlement.

Clause 7

55I turn last to clause 7 of the Minutes of Settlement, which reads as follows:

The Respondent shall submit its umbrella curling policy and its October 2007 rules amendment to the Ontario Curling Association for review and comment.

56Beyond the fact that this clause was part of the settlement of the applicant’s first s. 34 Application, there were no undisputed contextual facts before me with respect to this clause.

57On June 10, 2009, which was approximately three weeks after the parties signed the Minutes of Settlement, the applicant’s husband sent the respondent club’s umbrella curling policy and the October 2007 rules amendment by email to the Ontario Curling Association (the “OCA”), and requested that it review and comment on them. In his email, he stated that he was sending these documents because he assumed that the respondent club had not done so.

58On September 9 and 21, 2009, the OCA sent the applicant’s husband’s emails, which provided comments on the respondent club’s umbrella curling policy and the October 2007 rules amendment The applicant and her husband did not forward these comments to the respondent club, or bring it to the respondent club’s attention that they had received these comments.

59In mid-October 2009, the 2009-2010 curling season began. On October 20, 2009, the respondent’s club’s general manager emailed the respondent club’s umbrella curling policy and the October 2007 rules amendment to the OCA, and requested that it review and comment on them. The OCA never responded to the email.

60On December 28, 2011, after the hearing before this Tribunal had already began, the applicant’s husband sent an email to the OCA, which queried whether the respondent club’s October 20, 2009 email had any attachments. On January 2 and 3, 2012, the OCA sent the applicant’s husband a response by email, which confirmed that the respondent club’s umbrella curling policy and the October 2007 rules amendment were attached to the email.

61The applicant’s position is that the respondent club breached clause 7 because it purposely submitted its umbrella curling policy and the October 2007 rules amendment to the OCA for review and comment after the 2009-2010 curling season had already started in order to avoid implementing any required policy changes in the new curling season.

62The respondent club’s position is that it did not breach clause 7 because there was no time line for submitting its umbrella curling policy and the October 2007 rules amendment to the OCA.

63In my view, clause 7 of the Minutes of Settlement is clear and unambiguous on its face. As such, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. I find that the respondent club did not breach clause 7 because it does not contain a time line or deadline for the respondent club to submit its umbrella curling policy and the October 2007 rules amendment to the OCA for review and comment, or require that the respondent club do so before the 2009-2010 curling season. I would also note that other clauses in the Minutes of Settlement (clauses 2, 3 and 11) do have time lines or deadlines.

64Moreover, in my view, if the applicant truly believed that it was critical that required policy changes be implemented before the 2009-2010 curling season, she would have forwarded the comments that her husband received from the OCA to the respondent club prior to the new season. In fact, the applicant withheld this information from the respondent club until the hearing before this Tribunal.

Did the respondent club subject the applicant to reprisals for claiming and enforcing her rights under the Code?

65There are two outstanding allegations of reprisal. The first allegation is that following an interaction between the applicant’s husband and a female member of the respondent club, the club called the police to investigate a false allegation of assault against the applicant’s husband, and subsequently suspended his membership for three months. The applicant’s position is that the respondent club’s actions were reprisals against her for claiming and enforcing her rights under the Code. I dismissed this allegation on a preliminary basis at the hearing with written reasons to follow. My reasons are in the first section below.

66The second allegation is that after the applicant and her husband jointly commenced a civil claim against the respondent club for defamation, conspiracy and intimidation because of the respondent club’s actions in the first allegation, the respondent club expelled the applicant’s husband from membership in the club, which effectively ended the applicant’s membership. The applicant’s position is that the respondent club’s action was a reprisal against her for claiming and enforcing her rights under the Code. I will deal with the merits of this allegation in the second section below.

67Although I dismissed the first reprisal allegation on a preliminary basis, given that there was a continuum of facts connecting the first and second reprisal allegations, I granted the applicant’s request to present evidence about the first allegation. That evidence is set out in the first section below.

First Reprisal Allegation

68On November 13, 2009, the applicant and her husband participated in a curling event at the respondent club. After the event, the curling teams went to the lounge and sat at different tables. At some point, the applicant’s husband was invited over to another table to discuss curling trivia. While he was having the discussion, he stood behind a seated woman, who was an acquaintance, and placed his hands on her shoulder/neck area.

69There is a dispute between the woman and the applicant’s husband about what the latter did with his hands. The woman alleges that he put his hands tightly around her neck and violently pushed her head back and forth. The applicant’s husband, on the other hand, maintains that he merely placed his hands on her shoulders, and did not make any forceful or violent motions.

70On November 15, 2009, the woman and her husband sent letters of complaint to the respondent club, which alleged that the applicant’s husband had assaulted her, that the applicant’s husband’s presence at the club would now impede their ability to enjoy themselves, and that the club had to deal with this matter quickly and in the most serious way possible.

71On November 16, 2009, the respondent club’s general manager referred the woman’s allegation of assault to the police, and informed the woman that the club would be conducting its own investigation, as well.

72At the hearing before this Tribunal, the applicant’s husband testified that, although there had been incidents of vandalism, theft, providing alcohol to minors, and assault on the respondent club’s premises in the past, he was not aware of the club ever calling the police. The applicant also called another member as a witness. That member also testified that he was not aware of the club calling the police with respect to such incidents, including where the incidents were more serious than the allegation made against the applicant’s husband.

73The respondent club’s general manager testified that he became the general manager in January 2009, and was not privy to information about the previous incidents. He stated that he referred this particular incident to the police because the woman had used the word “assault” in her complaint, which is a criminal allegation that was outside the respondent club’s jurisdiction or authority to deal with.

74Between November 16 and 19, 2009, a police officer investigated the assault allegation, including interviewing witnesses. On November 19, 2009, the officer sent the applicant’s husband an email, which stated that there were no reasonable grounds to continue with a charge of assault because, although there were varying witness accounts about what had happened and he believed that the applicant’s husband had placed his hands on the woman, he relied mostly on what the bartender saw, and concluded the applicant’s husband did not rock or shake the woman to the point of assault.

75On November 21, 2009, the applicant’s husband sent a letter of complaint to the respondent club, which alleged that the woman and her husband had made false statements about him, and requested that the club discipline them.

76The respondent club conducted its own investigation of the incident, which concluded that it was difficult to determine the exact truth because there were varying witness accounts of what had happened ranging from violent shaking to playful non-violent shaking. Pursuant to its by-laws, the respondent club decided to convene a hearing to deal with both complaints.

77Based on the documents before me, it appears that certain witnesses who were friendly with the woman supported her account of what happened and certain witnesses who were friendly with the applicant’s husband supported his account of what happened, but the bartender, who was not connected to either the woman or the applicant’s husband, indicated that he saw the applicant’s husband put his hands on the woman’s shoulders and the woman’s head moving back and forth, but that the movement was not violent, everyone was laughing, and no one raised a concern at that time.

78During the hearing before this Tribunal, the applicant called as a witness a member who saw the incident. The member testified that he had an unobstructed view of the incident and saw the applicant’s husband put his hands on the woman’s shoulders, but did not see him do anything violent, aggressive or unusual. In response to my questioning, the member admitted that he is friends with the applicant and her husband and heard their side of what happened, and is acquaintances with the woman and her husband and never heard their side of what happened.

79Prior to the hearing convened by the respondent club, the general manager mediated settlement discussions between the woman and the applicant’s husband, which ultimately floundered because the woman refused to resolve the matter unless she received a sincere apology from the applicant’s husband, and the applicant’s husband refused to apologize to her. On the day of the hearing, the applicant’s husband’s counsel sent the club’s counsel a proposed letter of regret to resolve the matter. The letter, which the woman rejected as a resolution, read:

I acknowledge that on the evening of Friday, November 13, 2009 in the Lounge of the Beach Grove Golf & Country Club, after a game of Curling, I placed my hands on your shoulders as I stood behind you while speaking with you, your husband and other individuals seated at the table. I regret that you interpreted my action as anything other than a sincere gesture of camaraderie between fellow curlers and fellow Club members. [Emphasis added]

80During the hearing before this Tribunal, the respondent club’s general manager testified that the hearing of the two complaints had to go ahead because the applicant’s husband did not want to apologize to the woman. He stated that a simple apology from the applicant’s husband would have resolved the matter.

81The respondent club’s hearing of both complaints took place on January 12, 2010. On January 15, 2010, the respondent club sent the applicant’s husband a decision letter, which found that he and the woman were acquaintances, that he had placed his hands on her shoulders, that he knew or ought to have known that his conduct was unwanted, and that his conduct likely caused the woman to suffer physically and mentally. As discipline, the respondent club suspended the applicant’s husband’s membership for three months. The respondent club also dismissed his complaint against the woman and her husband.

82During the hearing before this Tribunal, the applicant’s husband testified that in the past a member who vandalized the club was given a three-week suspension, a member who stole golf clubs and sold them was given a three-month suspension, members and Board members who damaged the golf course and provided alcohol to minors were not suspended at all, and a member who admitted to committing a sexual assault was given either a six-week or a three-month suspension, and a Board member who assaulted a member was not suspended at all and the victim had to apologize. I admitted into evidence an investigation report about the incident where the golf course was damaged and alcohol was provided to minors. The report found that the members and Board members caused minor damage to the golf course and volunteered to pay for the damage, and that they left unconsumed beer with the back shop boys, who were underage, and the latter took the beer for themselves, rather than disposing of it.

83The respondent club’s general manager testified that he was not privy to information about these previous incidents, and that each incident and suspension is judged on its own because the people who are doing the judging change from time to time. He stated that the factors that are taken into consideration in determining a penalty are the seriousness of the action and the Board taking proper action to address it. He stated the fact that volunteer members are judging other members also comes into play.

84On March 24, 2010, the applicant and her husband jointly commenced a civil claim in the Ontario Superior Court of Justice (the “Superior Court”) against the respondent club and its Board members, and the woman and her husband, for defamation, conspiracy and intimidation. Part of the claim alleged the following:

The Plaintiff Cathy Moncur currently has an outstanding Human Rights Complaint against Beach Grove and current President Romano Curti. On or about December 21, 2009 Cathy Moncur filed an Application for Contravention of Settlement with the Human Rights Tribunal wherein she claimed that Beach Grove and Romani Curti have violated the terms of the Minutes of Settlement which were entered in regards to her complaint. The Plaintiffs herein plead that the actions of the Defendants in prosecuting false assault allegations are a retaliatory attempt to humiliate, ostracize and pressure them to drop the Human Rights Complaint. The Plaintiffs plead and rely on the tort of intimidation.

The Plaintiffs plead that they have both suffered anxiety, fear and nervous shock as a result of the actions of the Defendants as particularized herein. [Emphasis added]

The applicant and her husband claimed over $350,000 in special, compensatory, aggravated, punitive, and exemplary damages.

85On December 21, 2010, the parties in the civil suit attended a mediation to attempt to resolve the Claim. In a Statement of Issues that the applicant and her husband filed for the mediation, they repeated the allegation set out in paragraph 84 above, including the specific allegation that “the actions of the Defendants in prosecuting false assault allegations are a retaliatory attempt to humiliate, ostracize and pressure them to drop the Human Rights Complaint,” and attached a copy of the applicant’s Application for Contravention of Settlement before this Tribunal. The parties were represented by different counsel than the counsel representing them before this Tribunal. The respondent club was represented by counsel for its insurer.

86The applicant and her husband and the respondent club and its Board members ended up signing Minutes of Settlement in which they agreed to a settlement of the claim. The main terms of the Minutes of Settlement were the following:

• A declaration would be issued that the respondent club’s Board of Directors made no finding that the applicant’s husband assaulted or battered the woman on November 13, 2009.
• A copy of the Minutes of Settlement and the declaration would be permanently inserted into the applicant’s husband’s file at the respondent club.
• The respondent club and its Board members would pay the applicant and her husband costs of $15,000.
• The action would be dismissed against all the defendants except for the woman and her husband.
• The applicant and her husband’s action against the woman and her husband would continue.

87The Minutes of Settlement did not include or refer to a Release, but on January 6, 2011, counsel for the respondent club’s insurer sent the applicant and her husband’s counsel a letter, which enclosed the $15,000, and requested that it be held in escrow pending the execution of a Full and Final Release by the applicant and her husband.

88The first day of the hearing before this Tribunal took place on April 28, 2011. On May 5, 2011, I issued a Case Assessment Direction (“CAD”), which provided the following direction to the parties at para. 10:

(…) I understand from the parties that the applicant began a civil proceeding, which raised at least one of the allegations of reprisal in her human rights Application, and that matter was subsequently settled. Accordingly, within four weeks of the date of this CAD, the respondent shall deliver to the applicant and file with the Tribunal written submissions on whether the Tribunal should dismiss any of the applicant’s reprisal allegations pursuant to section 45.1 of the Code and/or as an abuse of process. Within six weeks of the date of this CAD, the applicant shall deliver to the respondent and file with the Tribunal written submissions in response.

89On June 8, 2011, the respondent club filed a Request for an Order During Proceedings, which requested that the Tribunal dismiss the applicant’s first reprisal allegation pursuant to s. 45.1 of the Code, because it is an abuse of the Tribunal’s process, and/or pursuant to s. 34(11) of the Code. In support of its written submissions, the respondent club attached the December 21, 2010 Minutes of Settlement. No Release was attached.

90On June 24, 2011, the applicant filed a Response, which opposed the respondent club’s Request to dismiss the first reprisal allegation. In support of her written submissions, the applicant attached the same Minutes, but also attached a Release dated May 10, 2011, which was signed by the applicant. The Release was executed five days after I issued my CAD dated May 5, 2011. The applicant submitted that the Release was “drafted and agreed to by the parties.” The Release stated, in part:

THIS FULL AND FINAL RELEASE AND THE MINUTES OF SETTLEMENT in Ontario Superior Court of Justice Action bearing file number CV-10-14574 does not waive or restrict any entitlement which Cathy Moncur has to pursue her rights, claims and remedies in the Ontario Human Rights Tribunal.

91On June 27, 2011, the respondent club filed a letter, which stated:

Please be advised that we are unaware of the circumstances giving rise to such Release. As you will note that the Minutes of Settlement located at Tab 5 and dated December 21, 2010 make no mention of a Release. It is also interesting to note that the Release is dated May 10, 2011, long after the civil action was concluded.

92The applicant subsequently submitted a letter from her counsel in the civil proceeding dated July 15, 2011, which stated that counsel prepared the Release; the clauses and wording therein were standard; the clause at issue was included because the applicant’s human rights-related allegations did not form part of the settlement; and the respondent club’s counsel did not object to the terms of the Release.

93In turn, the respondent club submitted a letter dated October 14, 2011 from its insurer’s counsel, which stated that the Release was prepared by counsel for the applicant and her husband, and that he never had a discussion with the applicant and her husband or their counsel about the impact that the settlement would have on the applicant’s human rights claim.

94Pursuant to the settlement, on August 22, 2012, the Superior Court dismissed the claim against the respondent club and its Board members.

95At the hearing before this Tribunal, the respondent club’s general manager testified that he first learned of the Release when the club’s counsel in this proceeding brought it to his attention. He stated that he had concerns about the clause at issue because it was not part of the settlement, and the respondent club had never authorized such a clause. He stated that he believed that the insurer’s counsel accepted the Release because it was in the insurer’s interest to finalize the settlement of the civil claim.

96The applicant’s husband testified that he and the applicant first had discussions with their counsel about the Release, including having a term excluding the applicant’s human rights claim from the settlement, in November 2010. He admitted that there were no discussions about this particular term with the respondent club and its Board members at the December 21, 2010 mediation, but stated that this was because no human rights issues were discussed at the mediation. He stated that he and the applicant then had further discussions with their counsel about the Release, including this particular term, in March 2011, and a final draft was sent to them on May 4, 2011, which they then signed on May 10, 2011.

97The applicant’s husband further testified that there were email exchanges between him and the applicant and their counsel, which substantiate his testimony on this matter, but he was unable to disclose them because of solicitor-client privilege. When the respondent club’s counsel attempted to cross-examine him about his discussions with his counsel with respect to the Release, the applicant’s counsel objected and essentially directed him not to provide any details because he would be breaching solicitor-client privilege by doing so.

98I now turn to the relevant principles of law with respect to the respondent club’s request to dismiss the first reprisal allegation on a preliminary basis pursuant to s. 45.1 of the Code, because it is an abuse of the Tribunal’s process, and/or pursuant to s. 34(11) of the Code.

99In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal stated at para. 35 that there is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end.

100Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. In Dunn, above, the Tribunal stated at para. 37:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decision” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

101Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, also provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process are not finite, and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Johnston v. P & H Foods Division of Parrish & Heimbecker, 2013 HRTO 589 at para. 8, and Campbell v. Toronto District School Board, 2008 HRTO 62 at paras. 35-37.

102The Tribunal has dismissed applications as an abuse of process where an applicant has entered into a settlement resolving his or her human rights issues. In Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, the Tribunal explained at para. 39:

When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.

103Moreover, the Tribunal has dismissed applications even where the settlement agreement did not contain specific release language between the parties, but where it was apparent from the agreement that the parties intended to bar future litigation with respect to all outstanding issues, including human rights issues. See Holowka v. Ontario Nurses Association, 2010 HRTO 2171, and Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151.

104Section 34(11) of the Code also provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

105Section 46.1 of the Code provides:

(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

106In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal stated at paras. 10-11:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

107In its submissions, the respondent club stated that the first reprisal allegation should be dismissed because another proceeding has appropriately dealt with the substance of the allegation (s. 45.1 of the Code), allowing the allegation to proceed would constitute an abuse of process, and the allegation is barred by statute from proceeding (s. 34(11) of the Code).

108Specifically, the respondent club stated that the applicant and her husband commenced a civil action by way of Statement of Claim, which was based entirely on the November 13, 2009 incident involving the woman and the events flowing from the incident, the Claim indicated that the applicant and her husband were the subject of a retaliation by the respondent club for filing a human rights Application, and the Claim was resolved by way of Minutes of Settlement in which the respondent club and its Board members agreed to pay the applicant and her husband $15,000, and, in exchange, the applicant and her husband agreed to the dismissal of the Claim against the respondent club and its Board members.

109The respondent club further stated that, although Releases are often requested in litigious matters in order to ensure finality, and the club’s insurer’s counsel requested and accepted a Release from the applicant’s counsel for such a purpose, the term excluding the applicant’s human rights claim from the settlement is invalid because it was not part of or contemplated by the Minutes of Settlement, it was unilaterally inserted by the applicant and her husband’s counsel, and the Minutes of Settlement expressly provided that the applicant and her husband’s action against the woman and her husband would continue, but did not provide that the applicant’s human rights-related retaliation allegation would continue.

110In her submissions, the applicant stated that the first reprisal allegation should not be dismissed because another proceeding has not appropriately dealt with the substance of the allegation (s. 45.1 of the Code), allowing the allegation to proceed would not constitute an abuse of process, and the allegation is not barred by statute from proceeding (s. 34(11) of the Code).

111Specifically, the applicant stated that no infringement of the Code or remedy for human rights damages was pled in the civil proceeding, the applicant was the secondary plaintiff in that proceeding, and, as evidenced by the Release, which was drafted and agreed to by the parties, the resolution of the civil matter did not deal with the substance of the reprisal allegation.

112The applicant further stated that the Release is valid because the clauses and wording therein were standard, and it was accepted by the respondent club’s counsel without objection.

113In my view, the first reprisal allegation should be dismissed on a preliminary basis pursuant to s. 45.1 of the Code, as an abuse of the Tribunal’s process, and pursuant to s. 34(11) of the Code because the Minutes of Settlement are clear and unambiguous that the parties contracted to settle all the allegations in the Statement of Claim against the respondent club and its Board members, including the allegation that the respondent club’s actions were a retaliatory attempt to pressure the applicant and her husband to drop the applicant’s human rights complaint. Although the Code was not specifically cited in the Statement of Claim, I am satisfied that the retaliation allegation and the remedy sought in the Statement of Claim are essentially the same as the reprisal allegation and the remedy sought in the second s. 34 Application before this Tribunal.

114In view of the fact that the first reprisal allegation is barred by s. 34(11) of the Code, the issue about the validity of the Release is moot because even if the Release was agreed to by both parties, the parties cannot grant the Tribunal jurisdiction over an Application which is barred by s. 34(11) of the Code.

115That said, I do not accept that the entire Release is valid. I agree with the respondent club that it is telling that the Minutes of Settlement expressly provided that the applicant and her husband’s action against the woman and her husband would continue, but did not provide that the applicant’s retaliation allegation would continue. Furthermore, although I accept that the standard terms of the Release are valid, I do not accept that the term excluding the applicant’s human rights claim from the settlement was standard or valid. This term was not part of the Minutes of Settlement, and the applicant’s claim that it was “drafted and agreed to by the parties” is simply untrue. In fact, the applicant and her husband’s counsel unilaterally drafted the Release. The respondent club’s insurer’s counsel accepted the Release, but the general manager’s testimony, which I found to be credible and reliable, is that counsel did so without consulting with the respondent club. In these circumstances, I do not accept that the respondent club is bound by that term of the Release.

116I also did not find the applicant’s husband’s testimony about how this term in the Release came about to be credible. On one level, his testimony that he and the applicant discussed this term with their counsel before and after but not during the mediation simply confirms the respondent club’s position that it was not a mutually-agreed upon term. At the end of the day, however, I simply did not find his testimony to be believable. I was particularly troubled that he attempted to partially waive solicitor-client privilege by providing the aforementioned testimony, but then coyly mentioned that there are emails to support his testimony, but he could not produce them because of solicitor-client privilege, and when the respondent club’s counsel attempted to cross-examine him on this matter, his counsel objected and essentially directed him not to provide any details because he would be breaching solicitor-client privilege by doing so. The fact that the applicant and her husband executed the Release with this term in it shortly after the hearing before this Tribunal began and the duplication issue was raised is suspicious on its face, and now, given the applicant’s husband’s evasive testimony about this matter, I find that it is more likely than not that it was raised for the first time and inserted into the Release after, and as a result of, the duplication issue being raised before this Tribunal.

117Accordingly, the first reprisal allegation is dismissed.

Second Reprisal Allegation

118On April 9, 2010, the respondent club sent the applicant’s husband a letter, which informed him that the Board would be convening a hearing to determine whether he should be expelled from membership in the club. The letter charged that by commencing a legal proceeding against the club and its directors seeking significant monetary and declaratory relief, he had acted in an improper and unbecoming manner that was likely to endanger the welfare, interest or character of the club, had acted contrary to the club’s by-laws which immunize the club and its Board members from liability in legal proceedings, and had expressed an intention not to submit to the authority of the Board to administer the affairs of the club.

119On April 19, 2010, the hearing took place. The applicant’s husband did not appear. On April 22, 2010, the respondent club sent the applicant’s husband a decision letter, which upheld the charges and expelled him from the club. As a result of the applicant’s husband losing his membership, the applicant was no longer permitted to attend and participate in activities at the club.

120At the hearing before this Tribunal, all the parties’ witnesses agreed that they were unaware of any previous situation where either a member had commenced a major civil suit against the respondent club, or the club had expelled a member.

121I now turn to the relevant principles of law with respect to the applicant’s allegation that the respondent club subjected her to a reprisal for claiming and enforcing her rights under the Code when it expelled her husband from membership in the club, and effectively ended her membership as well. In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

[Emphasis added]

122In her submissions, the applicant stated that all the elements of the Noble test have been met. First, she stated, the disciplinary proceedings against her husband were an indirect action against her because they resulted in the loss of her membership in the respondent club. Second, she stated, the disciplinary proceedings were related to her having claimed and attempted to enforce her rights under the Code because the evidence shows that they began around the time when she was attempting to ensure that the club adopted the 16-page Anti-Discrimination, Harassment and Bullying Policy pursuant to the May 2009 Minutes of Settlement. She also stated that the evidence shows that the respondent club accelerated the disciplinary proceeding against her husband after she filed her Application for Contravention of Settlement in December 2009. Third, she stated, an inference can be drawn that the respondent club intended to retaliate against her for claiming and enforcing her rights under the Code because the evidence shows that the discipline meted out against her husband was disproportionate compared to previous incidents at the club, and it was unprecedented in the club’s history to expel a member from the club.

123In sum, the applicant stated, the respondent club seized on the November 13, 2009 incident involving her husband to achieve through the back door what it could not through the front door, namely, kicking her out of the club as a retaliation for claiming and enforcing her rights under the Code against the club.

124In its submissions, the respondent club stated that the elements of the Noble test have not been met. First, it stated, the disciplinary proceedings, and, ultimately, the expulsion, were actions taken against the applicant’s husband, not the applicant. Second, it stated, there is no evidence that the disciplinary proceedings against the applicant’s husband were related to the applicant having claimed or attempted to enforce a right under the Code. It stated that the evidence shows that the applicant’s husband placed his hands on a woman, who complained, and that the club concluded that his conduct was inappropriate and imposed a three-month suspension. It also stated that the evidence shows that the applicant’s husband had an opportunity to resolve the complaint against him by apologizing to the woman, but he refused to do so. It further stated that the applicant’s husband’s subsequent decision to commence a major civil suit against the club was unprecedented in the club’s history, and that it led to his expulsion from the club. Third, it stated, in view of the above, there is no evidence that it intended to retaliate against the applicant for claiming and enforcing her rights under the Code when it expelled her husband from the club.

125In sum, the respondent club stated, it does not dispute that it made a decision to expel the applicant’s husband from the club, and that the expulsion also resulted in the applicant losing her status at the club. However, it stated, the evidence shows that the only factor that it considered was the fact that the applicant’s husband had sued the club, and there is no evidence that the fact that the applicant had claimed and enforced her rights under the Code was a factor in its decision.

126In my view, there is insufficient evidence before me to establish that the respondent club subjected the applicant to a reprisal for claiming and enforcing her rights under the Code when it expelled her husband from membership in the club. The applicant’s theory is that the club began unjustified disciplinary proceedings against her husband, and, ultimately, expelled him, which also resulted in her losing her membership, as a reprisal against her for claiming and enforcing her rights under the Code. The applicant’s theory is not outlandish, but, at the end of the day, she did not establish, on a balance of probabilities, that the respondent club subjected her to a reprisal for claiming and enforcing her rights under the Code.

127I will deal with the three elements of the Noble test together. I find that the respondent club’s decision to call the police and commence a disciplinary proceeding against the applicant’s husband because of the November 13, 2009 incident had nothing to do with the applicant claiming and enforcing her rights under the Code. It is undisputed that the applicant’s husband placed his hands on a woman’s shoulders, and that the woman and her husband then filed complaints with the club, which alleged that the applicant’s husband had assaulted her and demanded that the club deal with the matter quickly and in the most serious way possible. In my view, given that there was an assault allegation, it was not unreasonable for the club’s general manager to notify the police about the allegation, and given the nature of the complaint and the club’s by-laws, it was not unreasonable for the club to begin a disciplinary proceeding. Furthermore, the fact that the police found that there were no reasonable grounds to criminally charge the applicant’s husband with assault did not resolve the issue of whether he had touched the woman inappropriately.

128I also find that the respondent club’s decision to hold a hearing, its finding that the applicant’s husband had committed misconduct by placing his hands on the woman’s shoulders, and its decision to suspend his membership for three months had nothing to do with the applicant claiming and enforcing her rights under the Code. Although I cannot conclude with certainty that none of this would have happened if the applicant’s husband had been more conciliatory, in my view, his unreflective and antagonistic response to the woman’s complaint significantly contributed to the outcome. Specifically, I find that his stubborn refusal to consider the possibility that a woman may not appreciate having a male acquaintance place his hands on her shoulders, his counter complaint against the woman and her husband, his stubborn refusal to apologize to the woman, and his inflammatory, what I would call, “I regret that you are hypersensitive” draft letter to the woman, precluded a settlement of the woman’s complaint and a reduction in the length of his suspension because there were no mitigating factors.

129Furthermore, the applicant presented evidence about other incidents and suspensions that occurred at the respondent club, but, in my view, there were insufficient details about the facts and nuances of those situations to conclude that the club’s decision to call the police was unusual, and that the three-month suspension that it imposed on the applicant’s husband was disproportionate.

130I also find that the respondent club’s decision to hold a hearing, its finding that the applicant’s husband had had acted in an improper and unbecoming manner by commencing a civil suit against the club, and its decision to expel him from the club had nothing to do with the applicant claiming and enforcing her rights under the Code. Although the respondent club’s decision to expel a member appears to have been unprecedented in the club’s history, the applicant’s husband’s decision to commence a civil suit against the respondent club, which sought over $350,000 in damages, and indicated a clear intention to challenge the club’s authority to discipline a member, also appears to have been unprecedented in the club’s history. In my view, it is not difficult to see why a club would expel a member who sues the club in the manner that the applicant’s husband did. Furthermore, although the applicant believes that the respondent club’s actions against her husband constitute an indirect reprisal against her for claiming and enforcing her rights under the Code, the reality is that the club never commenced disciplinary proceedings against the applicant for filing human rights Applications against the club.

131There is some circumstantial evidence to support the applicant’s allegation that the respondent club subjected her to a reprisal for claiming and enforcing her rights under the Code. Specifically, the first disciplinary proceeding against her husband began around the time when she was attempting to ensure that the club adopted the 16-page Anti-Discrimination, Harassment and Bullying Policy pursuant to the May 2009 Minutes of Settlement; the club suspended her husband for three months a few weeks after she filed her Application for Contravention of Settlement against the club; one paragraph in the applicant and her husband’s Statement of Claim in their civil suit alleged that the club’s actions against the applicant’s husband were a retaliatory attempt to pressure them to drop the applicant’s human rights complaint; the expulsion of a member from the club was unprecedented; and the applicant automatically lost her membership privileges when her husband was expelled from the club.

132However, in view of my findings above, this circumstantial evidence is insufficient to draw the inference that the respondent club’s decision to expel the applicant’s husband from the club constituted an intentional retaliatory action against the applicant for having claimed and enforced her rights under the Code.

ORDER

133The Application is dismissed.

Dated at Toronto, this 29th day of May, 2014.

“Signed by” __________________________________

Ken Bhattacharjee

Vice-chair