The HRTO Reminds us that Steps to Enforce Terms of Settlement Require Timely Action

November 24, 2020

Schweizer v. The Corporation of the Town of Whitchurch-Stouffville (“Schweizer v. Whitchurch-Stouffville”), provides procedural reminders with respect to the enforcement of settlements entered into in matters before the Human Rights Tribunal (“HRTO”) of Ontario.

The applicant, a former employee of the respondent, alleged discrimination with respect to her employment.  The parties entered into Minutes of Settlement on August 28, 2016, which contained a confidentiality provision (the “Minutes”).

In the summer of 2018, the applicant was advised by the respondent that the former mayor had disclosed confidential information about the applicant’s employment and the settlement.

In the fall of 2018, the respondent obtained an interim order from the Superior Court prohibiting the former mayor from disclosing information about current or former employees.  The former mayor breached the interim order, which led to contempt proceedings being brought by the respondent in the spring of 2019.  Although the Court found the elements of contempt had been proven against the mayor, it exercised its discretion not to make a finding of contempt.

On June 27, 2019, after attending the contempt hearing, the applicant filed an Application for Contravention of Settlement (the “Application”) pursuant to section 45.9(3) of the Human Rights Code (the “Code”).  The Code requires a party to bring such an application within six (6) months after the contravention or the last occurrence where there is a string of contraventions.

The applicant claimed that she did not fully appreciate the extent of the breach by the mayor until she attended the contempt hearing.  The Tribunal held otherwise.  The HRTO found that even though the applicant was not aware of the specifics of the information that was disclosed by the mayor, as of the summer of 2018, she had sufficient information from the respondent to know that a contravention had in fact occurred.

In reaching its conclusion, the Tribunal noted that in order to satisfy the test that a delay was incurred in good faith, the applicant had to provide a reasonable explanation as to why she did not pursue her Code rights in a timely manner.   The onus on the applicant is a high standard to provide a reasonable explanation for delay and must show more than simply an absence of bad faith.  Furthermore, the HRTO “held that an applicant cannot delay making an application in order to gather evidence that confirms their suspicions or buttresses their case.”

Schweizer v. Whitchurch-Stouffville is a reminder that enforcement of settlement terms requires immediate action on the part of the aggrieved party and that the standard for overcoming any delay in so doing is high, even where not all of the material facts regarding the breach are known.

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