Wilson v. Ontario (Community Safety and Correctional Services), 2016 HRTO 990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Wilson

Applicant

-and-

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

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: July 27, 2016

Citation: 2016 HRTO 990

Indexed as: Wilson v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Robert Wilson, Applicant

Randy Simpraga, Representative

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

Lorenzo Policelli, Counsel

1The applicant filed a Contravention of Settlement Application in which he alleged that the respondent breached a settlement in contravention of s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The parties have been engaged in a dispute over the accommodation of the applicant's disability-related restrictions. The dispute is ongoing, as the applicant has recently provided the respondent with updated medical information relating to his disability. His union also has filed additional grievances on his behalf and he filed a separate application with this Tribunal on the same date that he filed this breach of settlement Application.

3This Decision deals solely with the applicant's allegation that the respondent breached a settlement entered into by the parties in June 2015. Among other things, the applicant alleged that the respondent failed to assign him certain scheduled General Duties Officer ("GDO") duties agreed to in the settlement entered into by the parties.

4At the hearing, I heard testimony from the applicant and Sergeant Christina Tobias, Staff Services Manager at the South West Detention Center, who testified on behalf of the respondent.

5For the reasons that follow, I find that the respondent breached the settlement entered into in this case by failing to assign the applicant scheduled escort and search duties.

Factual background

6The applicant has an injury which requires him to take breaks to stand and walk around periodically during the day. On June 16, 2015, the parties entered into a Memorandum of Settlement ("settlement") to settle a grievance filed by the applicant's union as well as an application filed with the Tribunal. The only substantive clause in the settlement states:

The Employer agrees to amend the grievor's accommodation as follows:

• Placement in Central Control with scheduled GDO duties which would include the following: perimeter checks, searching various areas, escorting professional visitors and his own meal breaks.

7I note that the settlement does not address the frequency with which the applicant would be assigned the above GDO duties.

8Following the signing of the settlement, the respondent amended the applicant's accommodation plan. The relevant part of the plan states as follows:

Rob agrees to the accommodation plan as written and will notify any issues or concerns to the Staff Sergeant and, when on duty, the Staff Services Manager. In addition to regularly scheduled break periods, Rob will be relieved about 1100 hours for 30 minutes by a GDO to conduct the daily perimeter check and again about 1400 hours for 30 minutes to complete MSA checks. Whenever possible Rob will be relieved by a GDO to escort professional visitors in the institution. Rob can also conduct routine searches of un-occupied areas. If Rob requires relief outside of his scheduled breaks and periods of work outside the central control module he will contact the Staff Sergeant.

0700 - shift change

0900 - first break

1100 - 1130-working break to complete perimeter check

1230 - lunch break

1400 - 1430-working break to complete MSA checks

1630 - dinner break

1900 - shift change

Bi-weekly reviews will be scheduled to review the accommodation and discuss any issues and proposed options. Updated Medical information is anticipated to be submitted by end of wk (by July 5).

9Both the applicant and Sergeant Tobias signed the accommodation plan on June 29, 2015.

10The applicant testified that he was placed within Central Control as required under the settlement. He regularly performs perimeter checks during the morning working break provided for in the accommodation plan. He initially performed the scheduled MSA (gas mask) checks but these checks were eventually taken away. Instead of performing these checks during his afternoon working break, the applicant uses the time to go for a walk and get some exercise. The applicant was not scheduled to perform any searching duties following the settlement. The applicant was also not scheduled to perform escort duties. He was only asked to escort professional visitors twice. According to the applicant, this is despite the fact that escorts for professional visitors are needed approximately twice per hour. As well, these escorting duties were not scheduled but instead occurred on an ad hoc basis. According to the applicant, other General Duty Officers tend to perform escorting duties rather than assigning the applicant to perform them. The applicant testified that, in general, his accommodation was unstructured and there were too many people telling him what to do.

11The applicant has advanced many concerns with his accommodation that extend beyond the actual settlement entered into in June 2015. He testified about additional GDO duties that could have been assigned to him beyond those referred to in the settlement. Also, in his Application and at the hearing, he indicated that his disability would permit him to work in the secure portion of the jail. In addition, he testified that the respondent failed to carry out the bi-weekly reviews referred to in the amended accommodation plan. Finally, at various times, the applicant and his union representative raised concerns that the applicant was not provided with the additional relief he required over and above the working breaks set out in the accommodation plan. None of these issues were addressed in the June 2015 settlement.

12Sergeant Tobias testified that she prepared the applicant's amended accommodation plan following the settlement. According to Sergeant Tobias, the respondent had sought additional medical information from the applicant to support his view that he was medically able to have contact with inmates. She testified that the GDO duties assigned to the applicant were duties that would not involve inmate contact. Sergeant Tobias testified that the south west detention center does not schedule visits by professionals and therefore, in her view, the escorting duties for these visitors could not be scheduled. It is for this reason that Sergeant Tobias drafted the accommodation plan to state that "whenever possible" the applicant would be relieved by a GDO to escort professional visitors in the institution. Sergeant Tobias indicated that she did not believe it was possible to schedule the duties referred to in the settlement except for the perimeter checks and the meal breaks. She indicated that the applicant's assignment to check MSA masks had to be discontinued because the task was transferred to a different section of the jail.

13Sergeant Tobias testified that she believed that the applicant's amended accommodation plan complied with the settlement because it referred to all of the items agreed to in the settlement. She stated that that the applicant always received his scheduled working breaks, whether he was assigned GDO duties to perform during these working breaks or not. The applicant did not dispute that he has been provided with the working breaks set out in the amended accommodation plan.

14Sergeant Tobias testified that she was aware that the applicant was unhappy with the accommodation plan, but she stated that she required further medical evidence before granting the further accommodations sought by the applicant. Finally, Sergeant Tobias indicated that she informed all staff sergeants of the applicant's accommodations and they are expected to follow any orders that come through the chain of command. In one of the e-mails she sent to various staff sergeants, Sergeant Tobias indicated that the applicant was to get two working breaks per day, one to do perimeter checks and one to do MSA checks. She also advised them that the applicant could also be relieved to do escort and search duties. This e-mail was consistent with the applicant's amended accommodation plan in which escort and search duties were not formally scheduled.

analysis

15The issue I must decide is whether the respondent breached the settlement agreed to in June 2015. The issue before me is not whether the parties could have agreed to something different in the settlement or whether the accommodations actually provided to the applicant met his medical restrictions. In addition, the issue before me is not whether further accommodations might be required in light of the recent medical information that has been provided by the applicant to the respondent.

16The issue before me is solely whether the respondent breached the clause set out at para. 6 above which I reproduce here again for ease of reference:

The Employer agrees to amend the grievor's accommodation as follows:

• Placement in Central Control with scheduled GDO duties which would include the following: perimeter checks, searching various areas, escorting professional visitors and his own meal breaks.

17In my view, the wording of this provision is clear and unambiguous. It required the respondent to do the following:

a. place the applicant in Central Control

b. provide the applicant with scheduled GDO duties which included the following:

i. perimeter checks

ii. searching various areas

iii. escorting professional visitors; and

iv. his own meal breaks. [emphasis added]

18The use of the word "scheduled" indicates that the duties must be scheduled rather than left up to the discretion of the applicant's supervisors. The use of the term "and" indicates that the respondent agreed to assign the applicant all of the scheduled duties listed in the clause above. There is no dispute that the respondent satisfied items (a), (b)(i), and (b)(iv). The dispute in this case relates to items (b)(ii) and(b)(iii).

19Based on the applicant's evidence, which was uncontradicted on this point, the applicant has never been provided with scheduled searching duties. He has also not been provided with scheduled escorting duties. Sergeant Tobias testified that she did not believe that these duties could be scheduled. The fact that the respondent agreed to provide scheduled searching and escort duties suggests that the respondent considered that it was possible to and could have scheduled such duties when it signed the settlement. In any event, I am bound to interpret the actual wording of the settlement which I have found to be clear and unambiguous. According to this wording, the respondent undertook to provide "scheduled" GDO duties that included scheduled searching duties and scheduled escorting duties for professional visitors. Instead, the respondent amended the applicant's accommodation plan to say that he would be relieved by a GDO to escort professionals "whenever possible." The plan also stated that he "can also conduct" routine searches, without actually scheduling this duty. Based on the evidence, the applicant was only assigned escort duties twice on an ad hoc basis and he was never assigned to perform any searching duties.

20Based on the above, I am bound by the wording the parties used in the settlement and I find that the respondent has breached the settlement. In my view, this is the case even if the respondent did provide the applicant with two working breaks during the day; the respondent did not fully comply with the settlement as written.

21I also find that the fact that the applicant agreed to the amended accommodation plan is not relevant in the circumstances of this case. The Code makes settlements arrived at in applications filed under the Code binding on the parties. I am not persuaded that the applicant waived his right to bring a breach of settlement application under the Code by agreeing to the accommodation plan. Even though the plan did not formally provide for scheduled escorting and search duties, it could have been implemented in such a way as to provide such duties at a frequency that, in substance, amounted to scheduled duties. I do not find that the applicant waived his right to allege a breach of settlement when this did not occur.

remedy

22As noted earlier, under section 45.9(8) of the Code, if the Tribunal determines that a party who signed an agreement contravened the settlement, "the Tribunal may make any order that it considers appropriate to remedy the contravention." The applicant stated that he would leave it to the Tribunal to determine the appropriate remedy in this case.

23As noted at the outset of this Decision, the accommodation issue between the parties was ongoing at the time of the hearing. In particular, the applicant had just provided the respondent with updated medical information and the parties remained involved in litigation over the accommodation issue. In this context, it is possible that an order to comply with the June 2015 settlement may be moot by the time this Decision is released. However, it is not certain that this is the case. Therefore, I order that the respondent comply with the settlement entered into in June 2015 by providing the applicant with scheduled escorting duties for professional visitors and scheduled search duties.

24The Tribunal has held that applicants are not entitled to compensation simply because a settlement has been breached. However, in some cases, they may be entitled to monetary compensation for any mental distress or harm arising out of the contravention of a settlement. See, for example, C.H. v. C.W.C., 2016 HRTO 220 and 2117392 Ontario Inc. v. Herrera-Quispe, 2016 HRTO 619.

25The respondent relied upon the Tribunal's decision in Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, to submit that no monetary compensation is appropriate in this case, as any breaches of the settlement did not go to the core of the settlement. In particular, the respondent emphasized that the applicant had agreed to the amended accommodation plan and also that he did receive two working breaks to permit him to be mobile, even if he was not assigned escorting and search duties to do during these breaks.

26The applicant provided evidence about the impact he said the breach had on him. He stated that, when he signed the settlement, he believed that the matter would be over. He said he felt discouraged, neglected, and unwanted as a result of the respondent's actions. I note that the applicant claimed in his Application, and at the hearing, that the respondent had breached the settlement by not assigning him other GDO duties beyond those referred to in the settlement. He is also involved in an ongoing dispute with the respondent over whether he requires different accommodations beyond those agreed to in the settlement and also whether he is able to have contact with inmates. I am not convinced that the impact he described at the hearing related specifically to the breach of the settlement in this case – that is, the respondent's failure to provide him with scheduled escort and searching duties. As noted by the respondent, the applicant did receive the working breaks he was entitled to under the amended accommodation plan. The only breach in this case was that the respondent did not assign him scheduled escort and searching duties during these breaks.

27In the circumstances of this case, I am not persuaded that a monetary remedy is appropriate.

style of cause

28The style of cause is amended to reflect the proper naming of the organizational respondent as Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services. In addition, the personal respondent named by the applicant is removed as she was not a party to the settlement in this case. See 45.9(6) of the Code.

Order

29In light of the above, the Application for Contravention of Settlement is granted. The respondent shall immediately comply with the settlement entered into in June 2015 by providing the applicant with scheduled escorting duties for professional visitors and scheduled search duties.