Harnum v. Ottawa (City), 2017 HRTO 1530

Human Rights Tribunal of Ontario

Between:

Jennifer Harnum Applicant

-and-

City of Ottawa Respondent

Decision

Adjudicator: Romona Gananathan Date: November 21, 2017 Citation: 2017 HRTO 1530 Indexed as: Harnum v. Ottawa (City)

Appearances

Jennifer Harnum, Applicant Self-represented

City of Ottawa, Respondent Alexandra Miculan, Counsel

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging that the respondent contravened the terms of the settlement reached between the parties.

2The Tribunal held a telephone conference hearing on October 19, 2017. I heard from the applicant and the respondent's By-Law and Regulatory Services Manager ("Manager").

Background

3On February 29, 2016, the parties signed Minutes of Settlement ("MOS").

4The applicant filed this Application on June 30, 2017, alleging the respondent failed to comply with paragraphs 1 and 2 of the MOS, which provide:

1. The Applicant shall be paid $2,500 as general damages, without statutory deductions.

2. The City of Ottawa commits to review By-Law and Regulatory Services' participation in the issuance of notices for parking infractions, including the use of accessible parking permits, and their prosecution under By-Law No. 2003-530 and related provisions of the Highway Traffic Act by an individual or individuals with knowledge of the Accessibility for Ontarians with Disabilities Act ("AODA") and the Code and whose role involves ensuring City compliance with the AODA and the Code to provide recommendations to removing any identified barriers to accessibility or discriminatory practices within 12 months of signing this agreement. The City agrees it shall address any barriers or discriminatory practices in a good faith manner.

5This Decision addresses the following:

1. Did the respondent contravene paragraph 1 of the MOS with respect to payment?
2. Did the respondent contravene paragraph 2 of the MOS with respect to the review. In particular, this decision will address (a) whether the review was conducted within the timelines set out in the MOS, (b) whether the review was conducted with the appropriately qualified person(s), (c) whether recommendations were made with respect to removing any identified barriers to accessibility or discriminatory practices, and (d) whether the City addressed any barriers or discriminatory practices in a good faith manner.

The Law

6Subsection 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).

7Subsection 8 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.

8The object of the Code is to remedy the breach and not punish or penalize the contravening party. As noted in Matos v. Transplay, 2010 HRTO 2527 at para. 17, "the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention." See also, Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867, and Francis v. Toronto Police Services Board, 2011 HRTO 2018.

9The applicant has the onus of proving a contravention. See, for example, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.

10Where 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.

Payment

Submissions

11The applicant confirmed that she had not received the payment set out in paragraph 1 of the MOS before filing this Contravention of Settlement Application. Although she conceded that she received a notice about registered mail shortly after filing this Application, she was not aware that this mail was from the respondent or that it contained the cheque. She was unable to attend at the post office to pick up the mail due to her medical condition and family status as she was confined to bed rest with a difficult pregnancy/delivery and had premature twins she was caring for at the same time as caring for her elderly parent (the accessible parking permit holder in her family). She felt the requirements for her to leave her home to pick up the cheque did not take into consideration her situation, and was a further indication of the respondent's disregard for persons with accommodation needs.

12In any event, the applicant argued that, when no time limit is set in the MOS, the principle of reasonableness applied and the delay was not reasonable. In this case, the cheque submitted into evidence by the respondent was dated June 29, 2017, which was approximately 16 months after the MOS was signed.

13The respondent submitted that the delay was due to staff turnover. While it regretted the delay, the respondent submitted that it made attempts to have the cheque delivered to the applicant's home address, and contacted the applicant by telephone without a response.

14The Tribunal confirmed that the applicant would be home on the day of the hearing and available to accept the cheque by courier. On the day after the hearing, the Tribunal received confirmation from the respondent that the settlement funds were couriered to the applicant and that she had received the cheque on October 19, 2017.

Findings

15As a result, I find that there is no need for an order with respect to the payment contemplated in the MOS. The delay was extensive but there were no timelines set out in the MOS. In my view, the applicant had a responsibility to follow up with the respondent when it attempted to contact her by telephone to arrange for the delivery of the payment.

The Review

Submissions

16The respondent submits that the review described in paragraph 2 of the MOS was completed in July 2017, with an explanation that the delay was due to significant organizational change including retirement of the Director of By-Law and Regulatory Services, the individual responsible for the policy review and implementation of recommended changes.

17The Manager testified that he became aware of the legal obligations under the MOS in June 2017 when the applicant filed her contravention of settlement application. He convened a meeting that lasted a few hours with the City's AODA specialist who has knowledge of the AODA and Code. The review was conducted at this meeting. The Manager and the AODA Specialist discussed the barriers faced by individuals with disabilities for parking infractions and how to engage those involved in the prosecution of these parking infractions.

18As a result of the review, the respondent developed a "standard operating procedure" on how to resolve this type of complaint. The respondent's 311 service is available to the general public to get information about public services. The respondent decided that if there was a call to 311 about a parking infraction from a disability permit holder, the call would be forwarded to a supervisor who would contact the individual and get a copy of the parking infraction notice and the disability permit. The supervisor would then make a decision if the ticket should be withdrawn.

19The respondent also developed a "knowledge based article" to inform 311 operators and city staff to refer these calls to the supervisor. The respondent then communicated to the applicant, by a letter dated August 1, 2017, that the by-law review was complete.

20The applicant argued that there is a clear breach of paragraph 2 of the MOS, because the respondent acknowledges it did not meet the 12-month deadline within which it was required to complete the review. She contends that the file clearly went missing and nothing was done for 16 months until the City received notice of her contravention of settlement application.

21While she accepts that a turnover in staff at the City may have resulted in delay, she felt the evidence filed by the respondent suggests a "slap dash" attempt to conduct the review quickly which did not take into account the good will or intent behind the settlement agreement signed by former City staff to conduct a more comprehensive review of the barriers faced by accessible parking permit holders.

22For example, the applicant submits that the single page of handwritten notes submitted with some parts of the page redacted suggests a brief meeting. The notes simply state "human rights complaint" and comprise one paragraph of handwritten notes indicating:

barrier/that 128(4) requires caregiver to come in to office/Troy disagreed because R8 says only present not attend. Immediately create an SOP for tickets that are issued to people with disabilities to explain 128(4).

23The applicant also argued that the City failed to show whether someone who met the knowledge requirements set out in paragraph 2 of the MOS was involved in the review. For example, an email submitted by the respondent shows an electronic signature indicating that the person that participated in the review was the "Accessibility Specialist". However, the respondent did not provide confirmation of the Accessibility Specialist's training or expertise with respect to the AODA or Code.

24The applicant also argued that the City has not made good faith attempts to address any barriers. For example, although the knowledge-based article purportedly informed 311 operators to refer inquiries to supervisors, the parking infraction notices still indicate that persons are to attend in person if they are disputing the parking infraction, and there have been no attempts made by the City to inform disability permit holders that they can call 311 if they are unable to attend in person to dispute the ticket.

Analysis and Findings

a. Timeliness

25There is a clear technical breach with respect to the timeliness of the review described in paragraph 2 of the MOS. The review was to be completed within 12 months, and was completed nearly 17 months after the MOS was signed. While senior staff turnover may have been a factor, the City is a large public service organization that potentially has other staff resources who could have fulfilled the City's legal obligations under the MOS in a timely manner. It is clear that when the Contravention of Settlement Application was filed on June 2, 2017, the City was able to conduct a review within two months, and this suggests that the City should have had no difficulty completing the review within the 12 months set out in the MOS.

b. Involvement of individuals with knowledge of the AODA and Code

26The MOS requires that the review be conducted by a person with "knowledge" of the AODA and Code. Although the AODA specialist's signature does not confirm her training, the Tribunal accepts that the person likely had "knowledge" of the AODA given her job title. The Manager testified that he had received training on the AODA and Code as part of his role, and that the individuals involved in the review had specialized training and knowledge of the AODA and Code. For these reasons, I am satisfied that the knowledge requirements as stated in the MOS were fulfilled.

27As to the comprehensiveness of the review, it is clear that the review was conducted over the course of one meeting involving no more than a few City staff. However, the language of the MOS does not provide for a "comprehensive" review, despite the applicant's expectations. Given the applicant was a sophisticated litigant with legal training, it was open to her to insist on such language in the MOS if she wished to ensure that the respondent conduct a more comprehensive review. Based on the language of the MOS, I am satisfied that the review was sufficient for the purpose of meeting the legal requirements of the MOS.

c. Recommendations to remove identified barriers

28The applicant submits that that "removing any identified barriers to accessibility or discriminatory practices" would involve a more comprehensive range of recommendations for implementation. I find that those involved in the review did make some recommendations with respect to training for 311 operators in dealing with public inquiries from individuals with disability permits who receive parking infraction tickets. Again, given the language of paragraph 2 of the MOS does not specify the extent or scope of the recommendations, I find that the respondent's recommendations, discussed above, meet the requirements of the MOS.

d. Addressing any barriers or discriminatory practices in a "good faith" manner

29The applicant argued that City failed to address any barriers or discriminatory practices in a good faith manner. She contends that while training has been provided to 311 operators, the individuals that actually receive the parking infractions are still notified on the back of the tickets to attend in person if they wish to dispute the ticket.

30The Manager testified that the City has no authority to change the information on the back of the ticket. He indicates that the City implemented the recommendations of the review in good faith, by providing training to 311 operators and City staff on how to respond to complaints from disability permit holders and establishing an alternative process for these complaints.

31Based on the language of the MOS, I find that the City has met the good faith requirements to addressing any barriers as set out in paragraph 2 of the MOS.

Order

32I find that the respondent breached the MOS with respect to the timing and implementation of the review contemplated in paragraph 2 of the MOS, and with respect to the timing of payment described in paragraph 1 of the MOS.

33However, the respondent has complied with the MOS upon being notified of this application. Therefore the Tribunal makes no order with respect to remedy.