HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Men-Chong Luk
Applicant
-and-
York Condominium Corporation No. 382 and Brookfield Condominium Services Ltd.
Respondents
DECISION
Adjudicator: Josée Bouchard
Indexed as: Luk v. York Condominium Corporation No. 382
APPEARANCES
Men-Chong Luk, Applicant
Self-represented
York Condominium Corporation No. 382 and Brookfield Condominium Services Ltd., Respondent
Siobhan McClelland, Counsel
INTRODUCTION
1This is an Application, pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"), alleging the respondent York Condominium Corporation No. 382 ("York Condominium") contravened the terms of the settlement reached between the parties.
2The Tribunal held the hearing on May 6, 2016. Following the conclusion of the hearing, the Tribunal received unsolicited submissions from the applicant. I decline to consider these submissions as the hearing had concluded and it would be prejudicial to the respondents to do so.
BACKGROUND
3On October 9, 2015, the parties signed Minutes of Settlement ("MOS") and the applicant signed a "Full and Final Release".
4The applicant commenced this Application on November 18, 2015, alleging York Condominium failed to comply with paragraph 2 of the MOS, which provides:
- The Respondent York Condominium Corporation No. 382 agrees to institute a policy pursuant to which it will investigate any complaints that owners or residents have violated any of the condominium's rules, and if substantiated, take what it deems to be appropriate action in accordance with the Human Rights Code, the Condominium Act and any other applicable statutes or law.
5The MOS does not require the policy to be completed and implemented by a particular date.
6York Condominium finalized and implemented the Complaints about Residents policy (the "policy") on March 1, 2016.
7The applicant argues that York Condominium has not adopted and implemented the policy within a reasonable period of time. She alleges that since October 9, 2015, she has been verbally attacked at least three times by a resident of York Condominium, and she knows of another resident who has been verbally attacked. She maintains that the incidents were not dealt with appropriately. She argues that because of the seriousness of these incidents, York Condominium should have taken its obligations more seriously by urgently adopting the policy. The applicant distinguishes Shaw v. York Condominium Corporation No. 73, 2013 HRTO 1565, a case in which the Tribunal found an eight-month delay reasonable to adopt a formal policy in compliance with minutes of settlements. The applicant argues there is no indication in Shaw that individuals had been threatened or felt unsafe and as a result, the eight-month delay was reasonable.
8York Condominium argues that it complied with paragraph 2 of the MOS by adopting a detailed policy, including a process to file complaints, to investigate complaints and to determine the outcome of investigations. York Condominium submits it adopted the policy within a reasonable period of time, less than five months after signing the MOS.
9York Condominium outlined the steps taken to adopt the policy:
a. On October 20, 2015, the Board of York Condominium (the "Board") discussed the MOS. In light of the upcoming November Annual General Meeting and Board elections, the matter was adjourned until the establishment of the new Board.
b. On November 10, 2015, the Board instructed the property manager to develop a draft policy to address owners and residents' complaints.
c. On November 17, 2015, York Condominium held its Board elections.
d. On December 1, 2015, the new Board met for the first time. It discussed and reviewed a draft policy and requested changes.
e. On January 21, 2016, the Board considered the new draft policy and asked that legal counsel review it. Legal counsel reviewed the draft policy in advance of the March 1, 2016 Board meeting.
f. On March 1, 2016, the Board approved the policy.
10York Condominium submits that, even without a formal written policy, all complaints, including the applicant's, are taken seriously and investigated. Not only did the MOS fail to provide a timeline to adopt the policy, but York Condominium maintains that it addressed the alleged verbal attacks and as a result there is no reason for the Tribunal to find that the policy should have been adopted on an urgent basis. York Condominium argues that Shaw applies to this case, and a delay of less than eight months to comply with a duty to adopt a policy pursuant to minutes of settlement is reasonable.
ANALYSIS AND DECISION
11Section 45.9(3) of the Code states:
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),
(a) within six months after the contravention to which the application relates […]
12Section 45.9(8) of the Code states:
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.
13The applicant has the onus of proving a contravention. See, for example, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.
14Where the terms of a settlement do not contain timelines for compliance the Tribunal has applied a reasonableness standard. See, for example, Sugarman v. St. Lawrence College, 2012 HRTO 664, and Kong v. Toronto Standard Condominium Corporation No. 1959, 2013 HRTO 687.
15I find no contravention of paragraph 2 of the MOS. The language of the MOS requires York Condominium to "institute a policy" pursuant to which it will investigate complaints that owners or residents have about violations of York Condominium's rules, and if substantiated, take action in accordance with the Code, the Condominium Act and any other applicable statutes or law.
16York Condominium adopted a policy in compliance with the MOS that deals with complaints by an owner or resident about the behaviour of another resident. The policy provides that all "written complaints about violations of the Condominium Act will be investigated by management thoroughly and expeditiously". The policy includes procedures to file and investigate complaints and provides that management will present a report of its findings to the complainant as well as any follow-up action taken to minimize the likelihood of reoccurrences. I also find that York Condominium adopted the policy within reasonable timelines.
17I am sympathetic to the applicant's position that, because of verbal threats experienced by some residents, York Condominium should have adopted the policy on an urgent basis. However, although the applicant is not satisfied with York Condominium's investigations, I accept York Condominium's position that it took residents' complaints seriously and acted on them, thus mitigating the need to adopt the policy on an urgent basis.
18I apply Shaw, above, to conclude that the Board adopted and implemented the policy within a reasonable timeline, five months from the execution of the MOS. I find that York Condominium was diligent in developing its policy, given the election of a new Board during that period, the fact that the Board only meets monthly and the review process that included a review by legal counsel. There is no basis for me to find that either the letter or spirit of paragraph 2 of the MOS was contravened.
19For these reasons, the Contravention of Settlement Application is dismissed.
Dated at Toronto, this 13th day of May, 2016.
"Signed by"
Josée Bouchard
Vice-chair