Steeves v. Skyline-55 Town Centre Inc., 2015 HRTO 1651

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Steeves

Applicant

-and-

SkyLine-55 Town Centre Inc., Town Centre Commercial Inc. and J.N.J. Toronto Inc. o/a Lion Security Services

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: December 4, 2015

Citation: 2015 HRTO 1651

Indexed as: Steeves v. Skyline-55 Town Centre Inc.

APPEARANCES

Heather Steeves, Applicant

Richard Miller, Counsel

SkyLine-55 Town Centre Inc., Town Centre Commercial Inc. and J.N.J. Toronto Inc. o/a Lion Security Services, Respondents

David Strashin, Counsel

Introduction

1This is an Application under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging a contravention of a settlement of a Tribunal application. The original Application filed by the applicant alleged discrimination against the respondents on the basis of disability was settled before the hearing took place.

2The Application alleging a contravention of settlement directed the respondents to file a Response to the Application within 14 days after the Application was delivered to the respondents. The respondents did not file a Response.

3On September 23, 2014, the Tribunal wrote to the parties directing that the respondents file a Response by October 7, 2014 together with an explanation for the failure to file a Response. The letter advised the respondents about the consequences of not filing a Response and the respondents’ attention was drawn to Rule 5.5 of the Tribunal’s Rules of Procedure which provides that where an Application is delivered to a respondent who does not respond to the Application, the Tribunal may deem the Respondent to have accepted all the allegations in the Application.

4The respondents have not complied with the direction to file a Response and on November 3, 2014, the Tribunal issued an Interim Decision 2014 HRTO 1616 which ordered, among other things, that the respondents are deemed to have accepted all of the allegations set out in the Application.

relevant law

5The following Code provisions are relevant to resolving the issues in this case:

45.9(1) 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.

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8), …

(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

analysis

6The Application reads: “The respondents have not complied with any of the non-monetary “public interest” remedies, specifically set out in paragraphs 2, 3 and 4 of the Minutes of Settlement between the parties, despite requests for compliance made through counsel.” Those paragraphs read as follows:

2. Each respondent agrees to draft and implement their own Anti-Discrimination, Anti-Harrassment and Accommodation Policy. Each respondent agrees that the Policy will address the presence of service animals in buildings. The Respondents agree to draft and implement the policies within three (3) months of the date of these Minutes of Settlement. The Respondents agree to have their counsel send copies of the Policies to the Applicant’s counsel within one (1) month of their implementation.

3. Each Respondent agrees to have their respective managers, who work at 55 Town Centre Court, Toronto On. complete the Ontario Human Rights Commission’s online training module. The Respondents agree to have their respective managers complete the training within three (3) months of the date of these Minutes of Settlement. The Respondents agree to have their counsel send an email verifying that the training was completed within one (1) month of its completion by all the Respondents.

4. The Respondents, SkyLine-55 Town Centre Inc. and Town Centre Commercial Inc. agree to post signs/posters indicating that Service Animals are permitted in the building located at 55 Town Centre Court, Toronto, On. The Respondents, SkyLine-55 Town Centre Inc. and Town Centre Commercial Inc., agree to post the signs, at least, at the security desk in the building, and at the front entrance of the building. The signs/posters will be posted within (1) month of the date of these Minutes of Settlement. The respondents agree to have their counsel send copies of the poster/sign to the Applicant’s counsel within one (1) month of their implementation.

7The applicant confirmed that all of the other provisions of the agreement have been complied with including the monetary component of the agreement.

8The applicant is seeking an order from the Tribunal directing the respondents to comply with paragraph 2, 3 and 4 of the agreement. She is also seeking to have additional terms imposed including the necessity to hire an external consultant to draft the policies outlined in paragraph 2 of the agreement. As well, the applicant is seeking general damages for the contravention.

9With respect to the remedial provision in subsection 45.9(8), some previous cases have held that the Tribunal has the authority to award both specific performance of the outstanding terms and other orders, including an award of general damages. See for example Salimi v. Toronto Community Housing Corporation, 2013 HRTO 66. Other cases have noted that the language of subsection 45.9(8) is different than the general remedial language for a breach of the Code contained in subsection 45(2)(1) in that, subsection 45.9(8) does not include any reference to damages for injury to dignity, feelings and self-respect and that the absence of this reference confines the damages that can be awarded for a breach of settlement to those which might be awarded for breach of contract. See Glover v. 571566 Ontario Inc., 2014 HRTO 1563.

10Applicants settle human rights applications in good faith and they expect the terms of settlement to be followed. The failure to implement a settlement undermines the good faith that is placed by applicants in the settlement process and may result in them feeling re-victimized.

11In this case, the applicant continues to require the services of Veteran Affairs which has offices in the building owned and operated by the respondents. However, she is reluctant to return to the building, fearing that she will face the same or similar treatment that she had experienced previously. Her expectation was that paragraphs 2, 3 and 4 of the settlement would have been implemented. This would have given her some assurance that on returning to the building she would not face the mistreatment she allegedly experienced before.

12In light of the fact that the respondents have been deemed to accept the facts as alleged by the applicant in the Application, I find that there has been a breach of the Minutes of Settlement.

13I am therefore satisfied that it is appropriate to direct the respondents to comply with the terms set out in paragraph 2, 3, and 4 of the Minutes of Settlement.

14The applicant has asked that an external consultant be retained to draft the policies outlined in paragraph 2 of the agreement. She cites the Tribunal’s decision of A.W. v. Ottawa International Soccer Club, 2011 HRTO 915 as an instance where the Tribunal ordered the respondent to retain an external consultant, in this case, to assist the respondent in delivering the training program which the respondent had agreed to deliver. In other circumstances I may have considered this request, however in this case I am inclined to deny the request. The fact is that the respondents have not been given notice of this remedy. The Application for Contravention of Settlement sets out the remedy that the applicant seeks, namely, an order that the respondents comply with the non-monetary “public interest” terms of the agreement together with an order for damages. There is no request in the Application that an external consultant be retained. The retention of an external consultant is not a term of the agreement and in all likelihood the retention of an external consultant would have a financial impact on the respondents. In these circumstances, I find that it would be unfair to order this remedy.

15With respect to the issue of compensation, the applicant is seeking $5,000.00 whereas the respondent has taken the position that $1.000.00 would be more appropriate.

16In my view, an applicant generally does not have an interest in public interest remedies. However, in this case the respondent’s failure to implement the public interest remedies did have some impact on the applicant. She is anguished and distresses over returning to the building in the absence of the implementation of the public interest remedies. Implementation of the public interest remedies would have given her some assurance that she would not face further mistreatment due to her disability when she returned to the building. In the circumstances, I find that compensation in the amount of $1,000.00 is an appropriate award.

order

1. Within 90 days of the date of this Decision, the respondents will draft and implement the policies set out in paragraph 2 of the Minutes of Settlement dated March 19, 2014 and, within 30 days of the implementation of the policies, will send copies of the policies to the applicant’s counsel;

2. Within 90 days of the date of this Decision, the respondents will have their respective managers complete the training set out in paragraph 3 of the Minutes of Settlement dated March 19, 2014 and within 30 days of the completion of the training will email the applicant’s counsel verification that the training has been completed;

3. Within 30 days of the date of this Decision, the respondents named in paragraph 4 of the Minutes of Settlement dated March 19, 2014 shall post the signs/posters identified in paragraph 4 in the locations identified in paragraph 4 and within 30 days after the posting of such signs/posters will send copies of the poster/sign to the applicant’s counsel;

4. The respondents will pay to the applicant the sum of $1,000.00 in monetary compensation within 30 days of the date of this Decision; and,

5. The respondents will pay post-judgement interest on any outstanding amounts in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, calculated 30 days from the date of this Decision.