Martel v. Ontario (Ministry of Community Safety and Correctional Services), 2016 HRTO 895

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Martel

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: July 6, 2016

Citation: 2016 HRTO 895

Indexed as: Martel v. Ontario (Ministry of Community Safety and Correctional Services)

APPEARANCES

Wayne Martel, Applicant

Suzanne Martel, Representative

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent

Indira Sawh, Counsel

Introduction

1This Application for Contravention of Settlement was filed under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") on April 9, 2015. The parties signed Minutes of Settlement on July 30, 2014, resolving an earlier Application filed with the Tribunal. The applicant alleges that the respondent has breached terms of those Minutes of Settlement.

2On June 8, 2015, the respondent filed a Response to an Application for Contravention of Settlement. The respondent disagrees that there has been a breach of the Minutes of Settlement. The respondent also raised the issue of timeliness, noting that applications for contravention of settlement are to be made within six months after the contravention to which the application relates.

3By Case Assessment Direction dated June 15, 2015, the Tribunal directed that a teleconference hearing be scheduled, in order to allow the parties to make oral submissions as to whether the Minutes of Settlement have been breached. The parties were also directed to deliver and file any documents or case law that they wished to rely upon no later than 14 days before the date of the hearing.

4On December 15, 2015, the respondent filed a Request for an Order During Proceedings ("Request"), seeking dismissal of the Application on the basis of delay in light of section 45.9(3) of the Code. Section 45.9 of the Code provides, in part, as follows:

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),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. …

(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.

5The applicant did not file a Response to the Request.

ANALYSIS AND DECISION

6In this Application, two terms of the July 30, 2014 Minutes of Settlement are at issue. The first term states that the two individual respondents in the previous Application:

agree to complete the online course offered by the Ontario Human Rights Commission entitled Human Rights 101 within 60 days of the date of these Minutes of Settlement.

7The second term states that:

The corporate Respondent sees no obstacle to the destruction of the Complainant's fingerprints and photograph in accordance with the practice prescribed by law. The Applicant recognizes that jurisdiction over this issue rests with the Royal Canadian Mounted Police and not with any of the Respondents.

The online course

8With respect to the first term at issue, the applicant submits that he was never provided with any documentation confirming that the individual respondents did in fact attend a course. The applicant seeks written confirmation of the type of course taken by the individual respondents, and when it was completed.

9By email to the applicant dated May 26, 2015, and copied to the Tribunal, counsel for the respondent advised the applicant that she had confirmation from the Ontario Provincial Police (the "OPP") that both individual respondents took their respective courses as outlined in the Minutes of Settlement. Counsel for the respondent stated further that both individual respondents completed the online course offered by the Ontario Human Rights Commission (the "Commission") entitled Human Rights 101 within 60 days of July 30, 2014, as per the Minutes of Settlement.

10In its Response to the Application, the respondent submitted that the Minutes of Settlement do not indicate that the respondents in the previous Application are under any obligation to provide written confirmation that the courses were taken. The respondent also submitted that, however, in a gesture of good will, counsel for the respondent wrote to the applicant by email on May 26, 2015, and provided written confirmation that the courses were taken. The respondent also attached to its Response an email from a Manager with the OPP, indicating that one of the individual respondents took the online course on August 1, 2014, and that the other individual respondent took the online course on September 29, 2014, in accordance with the Minutes of Settlement.

11By email to the respondent dated October 18, 2015, and copied to the Tribunal, the applicant asked that he be provided with a "confirmation document" indicating that the individual respondents completed the course as per the agreement. In an email response dated October 19, 2015, counsel for the respondent stated that she was providing written confirmation, as counsel to the individual respondents, that they took the required courses as stipulated in the Minutes of Settlement. She stated that she spoke with each individual to confirm that the courses were taken. She also stated that there is no "Certificate" as none was required by the Minutes of Settlement, and that there was an option to print a certificate when the individuals were taking the course, however, they did not print one. She also explained that she contacted the Commission to see if the Commission could send her a certificate, but was told that it had to be done soon after the course was taken, and that it would no longer be possible to print one.

12At the hearing, the applicant expressed doubt that the individual respondents took the online course, and requested proof. The respondent submitted that the Minutes of Settlement do not require the respondent to provide written confirmation that the individual respondents took the online course, but the individual respondents took the course within 60 days of the Minutes of Settlement, and the respondent advised the applicant in writing, on more than one occasion, that they took the course in accordance with the Minutes of Settlement.

13To begin with, it is not clear to me if the individual respondents in the previous Application are parties to this Application and also, therefore, whether I have jurisdiction to consider if a term of the settlement that appears to relate only to them was breached, in light of section 45.9 of the Code. It appears that the applicant may have intended for the individual respondents to be parties to this Application, but did not fully complete a section of the Application concerning the naming of respondents, and both the June 15 CAD and the Notice of Hearing in this matter did not include the individual respondents as parties. The individual respondents were not in attendance at the hearing, however, their counsel was. In any event, I have found for the reasons that follow that the term of the Minutes of Settlement requiring the individual respondents to complete an online course was not breached, other than in a minor way by one individual respondent that was not raised by the applicant. I have also found that the allegation that this term was breached is untimely within the meaning of the Code.

14Having regard to the plain meaning of the terms of the Minutes of Settlement, I find that there is no requirement that the respondent provide written confirmation that the individual respondents completed the online course in accordance with the Minutes of Settlement. As to whether or not the individual respondents completed the online course in accordance with the Minutes of Settlement, in my view the applicant's expression of doubt that they did is rather speculative. Based on the representations of counsel for the respondent at the hearing, and the written confirmations, referred to above, that the individual respondents in the previous Application completed the online course in accordance with the Minutes of Settlement, I am satisfied that they did, with the exception that one of the individual respondents completed the course on September 29, 2014, one day past the 60 day time period agreed upon in the Minutes of Settlement. This was not raised by the parties at the hearing, and I find that it is a minor breach of the term that would not warrant a remedy.

15I also find that the allegation that this term of the Minutes of Settlement was breached is untimely, having regard to subsection 45.9(3) of the Code, which requires a party to make an application for contravention of settlement within six months of the contravention. In the present case, the individual respondents in the previous Application were to complete the online course by September 28, 2014; however, this Application was not filed until April 9, 2015, more than six months later.

16While subsection 45.9(4) of the Code provides that a person may apply under subsection (3) after the expiry of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the applicant did not establish good faith with respect to the delay. When the issue of delay was raised at the hearing, the applicant simply stated that he was not aware that there was a time limit.

Destruction of records

17With respect to the second term at issue, the applicant submits that he has not been provided with any documentation to ensure that his entire OPP file is destroyed. The applicant seeks a letter from the respondent stating that his OPP file has been destroyed in its entirety.

18In its Response to the Application, the respondent submits that the Minutes of Settlement clearly indicate that jurisdiction with respect to the destruction of the records rests with the Royal Canadian Mounted Police (the "RCMP"), and not with the OPP. The respondent submits that the Minutes of Settlement do not indicate any obligation on the OPP to do anything, but that in a gesture of good faith it attached an email to its Response, dated May 28, 2015, wherein a Manager with the OPP states as follows:

Please be advised that OPP Risk Management Section, Professional Standards Bureau has requested that the Detachment Commander at Russell County OPP Detachment complete the paperwork in order to make the request from the RCMP re: destruction of fingerprints and photographs in relation to the above-noted matter. As noted in the minutes of settlement and acknowledged by the applicant therein, the jurisdiction over this issue rests with the RCMP and not with the OPP or any of the respondents to the application.

19Prior to the hearing, the respondent also provided a copy of additional email correspondence to the applicant and the Tribunal, wherein a legal representative of the applicant emailed a Court Administrative Clerk with the OPP on June 17, 2014, regarding the destruction of the applicant's file. The email states that the only documents remaining on file are the applicant's photograph and fingerprints records, and requests that those records be destroyed. The Court Administrative Clerk responded by email dated January 21, 2015, stating that the RCMP advised that it was not prepared to destroy the records at the time, but that the request could be re-submitted for further consideration after August 17, 2016.

20At the hearing, the applicant submitted that his file should have been destroyed, and that he was seeking confirmation in writing of everything that was destroyed. The applicant also submitted that he would pursue this matter with the RCMP.

21With respect to the destruction of the fingerprints and photograph records, the respondent submitted that jurisdiction rests with the RCMP, and that the OPP made a request to the RCMP, but received the response set out in the email dated January 21, 2015, referred to above. The respondent submitted that the Minutes of Settlement clearly state that the jurisdiction over this issue rests with the RCMP.

22Having regard to the plain meaning of the terms of the Minutes of Settlement, I do not find that there has been any breach of the term relating to the destruction of the applicant's records. The term clearly states that the respondent sees no obstacle to the destruction of the applicant's fingerprints and photograph, in accordance with the practice prescribed by law. The term also clearly states that the applicant recognizes that jurisdiction over this issue rests with the RCMP, and not with any of the respondents. It also appears from the submissions of the respondent and the documents provided that the respondent requested that the RCMP destroy the applicant's records, but that the RCMP was not prepared to do so at the time. In my view, the respondent's actions have been consistent with the second term of the Minutes of Settlement at issue in this Application, and there has been no contravention of this term.

23The Application is dismissed.