Pasimanik v. Central Epicure Food Products, 2009 HRTO 1727

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexander Pasimanik

Applicant

-and-

Central Epicure Food Products Ltd.

Respondent

DECISION

Adjudicator: Mary Truemner

Date: October 20, 2009

Citation: 2009 HRTO 1727

Indexed As: Pasimanik v. Central Epicure Food Products ______________________________________________________________________

AppearanceS BY

Alexander Pasimanik, Applicant ) Irina Trunov, Representative

Central Epicure Food Products Ltd., Respondent ) Jane Sirdevan, Counsel

INTRODUCTION

1The applicant, Alexander Pasimanik, filed an Application on September 18, 2008, alleging that the respondent, Central Epicure Food Products Ltd., contravened a Settlement it entered into with the Ontario Human Rights Commission and the applicant on March 12, 2008. All but one of the terms in the Minutes of Settlement were fulfilled by late Spring in 2008.

2The alleged breach is with respect to the term of the Minutes of Settlement which reads, “The Corporate Respondent has written a Letter of Reference on behalf of the complainant.” No further details about the contents or delivery date for the Letter of Reference are included in the Minutes of Settlement, and no draft of the Letter of Reference is attached to the Minutes of Settlement. At the time of filing his Application alleging a breach of the Settlement, the applicant had not received a Letter of Reference from the respondent, although the other terms of the Minutes of Settlement had been fulfilled.

3The respondent’s president, Harry Nadler, provided a Letter of Reference to the applicant after the applicant filed this Application, but it contained spelling mistakes, and the respondent subsequently provided a corrected version dated September 18, 2008. It states the following:

Alex Pasimanik was hired as a driver June of 2000. He was a competent driver. At some time in 2003 he indicated that he would like to work in the plant, and was being trained in the production area. He was learning how to cut fish and operate various production machines. He sustained a work related injury and was off work from August 11, 2004 to October 4, 2004. After returning from his injury he continued in this role. He sustained another injury and had been off work from September 1, 2005 to the present time.

4The applicant’s position is that the Letter of Reference’s delivery was too late, and its contents are too inaccurate to constitute compliance with the Settlement. The applicant also submits that the Letter of Reference’s contents are so uncomplimentary that they would prevent the applicant from becoming employed, and therefore contravene the Settlement.

Summary of Evidence

Time of Delivery of the Letter of Reference

5Prior to the Summer of 2008, the Commission sent the applicant a package, including a cheque and documents, thus fulfilling all the terms of the Minutes of Settlement except the term requiring the respondent to provide a Letter of Reference. The applicant believed that the Letter of Reference would soon be arriving. The applicant’s wife testified that she was unable to reach a staff member at the Commission about the missing Letter of Reference until September 2008. She learned that the Commission staff member was trying to reach Harry Nadler on the phone to find out why the respondent had not yet provided the Letter of Reference. She testified that the Commission staff member referred to an e-mail from Mr. Nadler on approximately September 15 or 16, 2008. The e-mail stated that he was not sure if the respondent still needed to write a reference letter.

6Harry Nadler testified that after a meeting with the applicant and his wife at the Commission, he dealt only with a Commission staff member in continuing negotiations by telephone. He agreed with the Commission to provide a Letter of Assurance to the Commission and a Letter of Regret to the applicant. They discussed providing the applicant with a Letter of Reference, but Mr. Nadler told the Commission staff member that he did not think it would be helpful to the applicant. The Commission staff member suggested that he write something short and simple, including anything good that the applicant did, but that there was never a discussion beyond that about the contents of the Letter of Reference. Before writing the letter, Mr. Nadler received a letter from the Commission dated June 27, 2008. It stated that the Commission had approved the Minutes of Settlement, and that the Commission was closing its file because the matter had been concluded to the satisfaction of all parties. Mr. Nadler testified that he thought the matter was over because the file was closed at the Commission, and he forgot about the outstanding Letter of Reference until September 2008 when he was telephoned by the Commission staff member. He then sent the Letter of Reference to the Commission by e-mail on September 19, 2008 and a hard copy on company letterhead by mail to the Commission soon after, but by that time, the applicant had filed his Application at the Tribunal.

7The Minutes of Settlement were signed by the applicant on May 7, 2008, by the respondent on May 12, 2008, and subsequently by the Commission on some unknown date. The Commission released the executed Settlement to the respondent on June 27, 2008; therefore, the Settlement was fully executed on some date between May 7, 2008, and June 27, 2008. The Minutes of Settlement, however, state the following with respect to the Letter of Reference:

4. The Corporate Respondent has written a Letter of Reference on behalf of the complainant.

8This wording is unfortunate because, by the date it signed the Minutes of Settlement, the respondent had not written a Letter of Reference for the applicant (called the complainant in the process at the Commission). Similar wording in the past tense was used in the Minutes of Settlement to refer to a Letter of Assurance and a Letter of Apology, both of which were created and signed by the respondent after signing the Minutes of Settlement, but provided to the Commission before the Commission closed its file. Neither the Commission nor the applicant took any issue with this discrepancy with the Minutes of Settlement. Indeed, the applicant alleges that the contravention of the Settlement with respect to timing arises because the Letter of Reference was not included in the package enclosing the fully executed Settlement, cheque, Letter of Assurance and Letter of Apology sent by the Commission to him in June.

9While the respondent admits to not having already written the Letter of Reference at the time of signing the Minutes of Settlement, I am satisfied that all the parties understood that the respondent promised to provide the Letter in the future. Without any indication in the Minutes of Settlement, or any evidence that an oral agreement had been reached with respect to an earlier delivery date, I cannot find a contravention of the Minutes of Settlement simply because the Letter of Reference was delivered in September 2008, after the other documents had been delivered. There was no agreement that all the items contained in the terms of the Settlement were to be delivered together.

Contents of the Letter of Reference

10The applicant testified that he understood that a staff member at the Human Rights Commission was negotiating with the respondent about the contents of a Letter of Reference. He admitted that he did not participate in any discussion during settlement negotiations about what the Letter of Reference should say, but that he expected whatever was written would be both accurate and helpful.

11I am not convinced that there was any agreement between the parties with respect to the Letter of Reference’s content or degree to which it was to be “helpful” to the applicant. As it stands, it is a record of what the applicant did, and it states that he was a good driver. I understand the applicant’s criticism that the absence of praise about the applicant’s other duties is not helpful. Unfortunately, without any agreement or assurances ever having been made about the contents of the Letter of Reference, I cannot find that the lack of praise constitutes a contravention of the Settlement.

12With respect to the accuracy of the Letter of Reference, the applicant testified that it provides the wrong information about when he started working for the respondent. He testified that he began working for the respondent at the end of October 2000, not the date indicated in the Letter of Reference. Mr. Nadler testified that he included a start date that would have been provided by someone in his office, but that it might have been late October 2000, as the applicant testified. It is reasonable to assume that agreeing to provide a Letter of Reference implies agreeing to provide one which contains accurate information. In so far as the Letter of Reference provides the wrong date for the applicant’s commencement of employment, I find that there has been a contravention of the Settlement.

13The applicant also testified that the Letter fails to include a three-week period in 2007 when he co-operated with the Workplace Safety and Insurance Board, and worked with the respondent. While technically the applicant may have been employed by the respondent during that three-week period, I do not find that the absence of a reference to that time is significant.

14The applicant also testified that he had provided some supervisory services for the respondent, which should have been included in the letter. The applicant did not have any documentary evidence to support his assertion and the respondent denied that the applicant was ever a supervisor. As there was no agreement as to the contents of the letter, I find that the absence of any mention of a supervisory role in the Letter of Reference is not an omission which would constitute a contravention of the Settlement.

DECISION

15Given the lack of any evidence that the parties had agreed on the contents or delivery time of the Letter of Reference, I find that the only contravention of the Settlement is the respondent’s mistaken reference to the applicant’s commencement date. I am satisfied that the mistake was inadvertent. Given that there was no evidence that the mistake in the Letter of Reference has caused any prejudice to the applicant, I am not prepared to award any monetary damages. To remedy the contravention, I order the respondent to amend the Letter of Reference to state that the applicant was hired as a driver in October of 2000.