December 5, 2021
What happens if a party to a human rights settlement fails to perform the non-monetary terms of the settlement?
The was the question recently considered by the Ontario Human Rights Tribunal (HRTO).
It is very common, if not universal, for human rights settlements to contain non-monetary terms – things like posting notices of measures taken to assure future compliance, providing training, or developing policies, for example.
In Cater v. Gestion Claude L’Heureux Inc., o/a Canadian Tire 422 the parties settled at mediation. The agreement contained two clauses requiring the employer to hire an external human rights consultant with expertise on the Ontario Human Rights Code, first to provide training to management and second to prepare a human rights policy related to accommodation and addiction issues.
A consultant was hired. He supplied a half day seminar and a draft policy. The applicant went back to the tribunal, complaining that the consultant selected did not have the required expertise.
As with other tribunals and courts, HRTO recognizes the value of encouraging settlements. The object of the Code is to remedy the breach, not to punish the offender, and this principle also applies to enforcing settlements. Because the Code plays a role in promoting essential values, allowing settlements to be contravened without penalty would undermine this important public goal as in addition to any harm to the specific parties.
The Code provides mechanisms to return to the tribunal if there is an alleged contravention. The tribunal may “make any order that it considers appropriate” to remedy any contravention that is found.
That is a very open ended provision. The Cater case looks at what it means in practice. It is rare to have a case come before the Tribunal where the monetary settlement has been paid, so Carter is novel.
The remedy should focus first on the harm caused by the contravention of the settlement, not the original breach of the Code. This is not an opportunity for parties to re-argue their grievances.
In order to decide the issue, the tribunal said it had to decide what “expert” meant, in this particular context. But then it did not answer that question.
The consultant did have some experience as a lawyer and mediator working with the Code, but it predated significant changes to how human rights in Ontario are enforced (the experience was in 2008). His current practice focussed on organizational development and related topics. His presentation was extensive, but was not clear or accurate; it lacked understanding and sensitivity regarding the duty to accommodate and the unique needs of employees with addiction-related disabilities. The draft policy document also contained inaccurate and misleading statements.
Whatever the definition of “expert” is, he did not meet it.
The Tribunal also noted that the employer’s manager did not have enough expertise about the Code to evaluate what expertise was needed. She did not consult with the lawyer who represented them at the mediation. She did not consult the applicant’s lawyer.
The Tribunal was satisfied that the employer should have taken more steps to identify a qualified person.
The next issue though is what remedy was appropriate.
The employer had paid “damages” for “injury to dignity feelings and self-worth”. It thought that was enough to pay. More, it argued, would be punitive, not remedial.
The Tribunal recognized this concern, but some remedy was needed so others do not think settlement terms can be ignored. Also, the fact that the applicant had gone to the effort of the contravention complaint emphasized that she had suffered further injury in not having her expectations of compliance met.
In addition to more specific orders as to how to comply with the settlement, the employer was ordered to pay the applicant a further $2,500.00.
There are several things about this case suggests you might need the advice you can get at Weilers LLP:
- We can help you develop policies, and provide training, to avoid human rights violations in the first place.
- We can represent you at a mediation, to try to make sure that the terms of settlement are clear as to what is expected for compliance, to avoid a repeat performance.
- We have the local knowledge and experience in Thunder Bay, and northwestern Ontario, to assist you in hiring the appropriate experts or consultants, in human rights or other areas. As this case points out, trying to do yourself can be tricky.
At Weilers LLP we are good at getting clients out of trouble. We are even better at helping them stay out of trouble in the first place, and recognize that this is the most important service we can provide. Talk to us if you want to know more.