HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Saunders
Applicant
-and-
Toronto Standard Condominium Corp. No. 1571
Respondent
decision
Adjudicator: Faisal Bhabha
Indexed as: Saunders v. Toronto Standard Condominium Corp. No. 1571
Appearances
Christopher Saunders, Applicant ) Robert Saunders, Representative
Toronto Standard Condominium ) Maria Dimakas, Counsel
Corporation No. 1571, Respondent )
BACKGROUND
1The applicant filed an Application for Contravention of Settlement (Form 18) on October 20, 2009, under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant signed an agreement that settled an Application alleging discrimination in housing on the basis of disability. The respondent is the condominium corporation that owns the building where the applicant lives. The parties signed a Memorandum of Settlement (“MOS”) on July 17, 2009, resolving the underlying Application, and the Tribunal finally disposed of the matter.
2A hearing into the alleged breach of settlement was held on September 28, 2010. The Tribunal heard evidence from three witnesses: the applicant; Robert Saunders, the applicant’s brother; and Peter Francis McLean, the building manager.
3The Tribunal directed the parties to make written submissions outlining their arguments, to be filed by October 8, 2010, and October 14, 2010, respectively.
4The relevant clauses of the Minutes of Settlement are paragraphs 4, 5, 6, 7 and 9, as follows:
The Respondent agrees to investigate whether the stairs in the entry to the rooftop terrace are in compliance with the Building Code Act, and if they are not, to change them in compliance with the Building Code Act by no later than September 18, 2009.
The Respondent agrees to explore the feasibility of installing an automatic door opening device in the entry to the rooftop terrace, and if it is feasible, to install it by no later than September 18, 2009, subject to the availability of parts by that date. If it is not feasible, the Respondent agrees to provide the applicant with documentary and/or other evidence of the lack of feasibility by the same date.
The Respondent agrees to create and adopt a written policy on accommodating persons with disabilities, which includes but is not limited to setting out the process for dealing with requests for accommodation, by no later than September 18, 2009. A copy of the policy shall be provided to the applicant, and made available to other residents, by no later than September 18, 2009.
The Respondent agrees to hire a consultant with expertise in human rights to provide training to its board of directors on its obligations under the Human Rights Code, with a focus on accommodating persons with disabilities, by no later than September 18, 2009. The Respondent agrees to provide the Applicant with a letter signed by the consultant, which confirms that the training took place and the names of the persons in attendance, by no later than September 18, 2009.
The parties agree that these Minutes of Settlement are confidential as between them and will not be disclosed to any third party save as may be required by law or in order to implement the terms of the settlement contained herein. It is understood that the parties may disclose the terms herein to their immediate family members, legal and/or financial advisors.
5The issues for me to decide are as follows:
Did the respondent breach clause 4 of the MOS by failing to modify the stairs to the rooftop terrace by the agreed deadline and in a manner that complies with the Building Code?
Did the respondent breach clause 5 of the MOS by failing to properly investigate the feasibility of installing an automatic door opener in the entry to the rooftop terrace, and/or by failing to provide the applicant with documentary evidence of the lack of feasibility by the stipulated deadline?
Did the respondent breach clause 6 of the MOS by failing to adopt a written policy on accommodating persons with disabilities by the agreed deadline, and/or by failing to provide a copy of the policy to the applicant by the agreed deadline?
Did the respondent breach clause 7 of the MOS by failing to provide written confirmation of the completion of human rights training to the applicant by the deadline?
Did the respondent breach clause 9 of the MOS by failing to maintain the confidentiality of the MOS?
What is the appropriate remedy for any breaches?
RELEVANT LAW
6The following Code provisions are relevant to resolving the issues in this case:
45.9(1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.
(3) 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),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contraventions, within six months after the last contravention in the series.
(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
(8) 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.
POSITION OF THE PARTIES
7There is little disagreement as to the facts. The respondent’s counsel confirmed at the outset of the hearing that her client concedes two breaches of the MOS. The first is with respect to the modifications to the stairs to the rooftop terrace, pursuant to clause 4. The work was completed in January 2010, approximately four months late. The respondent maintained that the modifications were in accordance with the Building Code Act. The applicant did not contest this assertion.
8The second breach is with respect to communication under clauses 5, 6 and 7. The respondent admitted that it did not provide the applicant with written confirmation of the completion of a feasibility study, the adoption of a disability accommodation policy or of completion of human rights training by the respective deadlines, though it asserted that all measures were in fact completed within the required timeframe.
9The respondent submitted that there is no basis for an award of damages for these two “minor” breaches because the applicant has failed to establish any actual harm, damage, injury or prejudice.
10In the light of the respondent’s admissions, I will restrict my analysis of the admitted breaches to the issue of remedy. A summary of the remaining outstanding issues follows.
11Regarding the alleged breach of clause 5, the applicant maintained that the respondent failed to “properly” investigate the feasibility of installing power door access to the rooftop terrace. The basis is that the respondent hired a custom door and lock company to undertake the feasibility assessment, as opposed to an engineering firm.
12The respondent argued, first, that the MOS did not require a feasibility study by an engineering firm, and second, that the nature of the investigation did not need an engineer’s report. Moreover, the respondent highlighted the applicant’s concession that it is in fact not feasible to install an automated door opener at the entrance to the rooftop terrace.
13Regarding clause 6, the respondent’s position was that the disability accommodation policy was in fact adopted on September 10, 2009, prior to the September 18, 2009 deadline, despite delay in communicating this fact to the applicant within the required timeframe. There is no documentary evidence in support of this alleged fact, and the respondent’s only witness, Mr. McLean, was unable to recall with any degree of detail the circumstances and timing of the adoption of the policy. He stated that it likely would have been adopted by email and ratified at the next meeting of the Board of Directors. He stated that it was likely done prior to the deadline, but he could not remember for certain.
14The applicant disputed the respondent’s position and sought to rely on an invoice from respondent’s counsel, dated November 2, 2009, detailing the following professional services: “Review application by C. Saunders, prepare accommodation policy and prepare responding materials for filing.” The applicant noted that the timing and content of this bill make dubious the respondent’s claim to have completed the policy on September 10, 2009. The applicant’s theory is that the respondent only drafted the policy after the present Application was filed, on October 20, 2009. The applicant sought to admit the solicitor’s invoice, dated November 2, 2009, as evidence in support of his theory.
15The respondent objected to the admissibility of the solicitor’s invoice on the basis that the applicant did not produce the document until the hearing and did not provide the respondent with any opportunity to produce additional responding documents. According to the Tribunal file, on September 2, 2010, the applicant properly delivered to the respondent and filed with the Tribunal a number of documents, including a personally prepared summary of invoices from counsel to the respondent. One of the entries on the summary states: “Human Rights Tribunal Proceedings for the Period March, 2009 to June 30, 2010”. While the applicant’s summary was properly produced in advance of the hearing, the specific invoices referenced in the summary were not.
16Regarding clause 9, the applicant argued that the respondent breached the confidentiality clause of the MOS when it issued a notice on July 21, 2009 to all residents, as well as posted in common areas of the building, advising that bicycle racks on the front, north-facing side of the building would be removed. The notice referenced an “accommodation and accessibility” matter involving legal consultations. The applicant submitted that these facts contained enough factual specificity, in terms of the racks’ location and the accommodation reference, to create the impression that he was responsible for the removal of the bicycle racks. The applicant testified that while he suffered no direct consequences, he felt unfairly stigmatized by the notice.
17The respondent argued that the notice was carefully prepared in consultation with counsel. It emphasized that the notice did not disclose the fact of the MOS, its terms, any proceeding or negotiation, and neither identified the applicant nor disclosed information that could appear to identify the applicant. The respondent argued that it was necessary to issue the notice to implement the terms of the MOS because the racks had been an issue within the resident community well prior to the settlement. In other words, even if it were a breach of confidentiality, it was argued, the notice falls into the express exception contained in the MOS:
The parties agree that the these Minutes of Settlement are confidential as between them and will not be disclosed to any third party save as may be required by law or in order to implement the terms of the settlement contained herein. [emphasis added]
ANALYSIS AND FINDINGS
18Clause 5 of the MOS requires that the respondent “explore the feasibility of installing an automatic door opening device in the entry to the rooftop terrace”. This is a broad provision that does not define what is required by “exploring”. In the absence of specific language, the respondent need only show that it complied with the plain meaning of the terms. I have no difficulty accepting that the respondent fulfilled the undertaking when it hired a custom door and locks specialist to obtain an opinion. The applicant conceded the feasibility point, so there is no dispute as to the accuracy of the opinion given by the respondent’s door and locks contractor.
19The parties agreed that the only way to make the installation of automatic door openers feasible would be to carry out structural renovations to the building. It is clear that the applicant wanted a more comprehensive study than was agreed to, which would examine the feasibility of structural changes. However, structural changes were not negotiated in the MOS and the respondent did not specifically agree to canvass such options.
20Clause 6 requires that the respondent “create and adopt a written policy on accommodating persons with disabilities… by no later than September 18, 2009.” The respondent’s evidence on whether this was achieved was not clear. The respondent’s only witness had no recollection of the details of the events and testified that he had not been provided with any documents to review before the hearing, had insufficient time to prepare and did not speak with a colleague who had direct information about these matters. The witness stated that he had come to the hearing “blind”, presumably meaning unprepared. In argument, counsel maintained that the policy was adopted on September 10, 2009. However, there is no evidence before the Tribunal to support this assertion.
21The applicant questioned the respondent’s credibility, relying on an opposed piece of evidence. The contested piece of evidence is a solicitor’s invoice that, in the applicant’s mind, establishes that the respondent failed to adopt the policy on time. Because of the lateness of the applicant’s production of the invoice, the respondent did not have an opportunity to review it or to call contrary evidence.
22Regardless of the admissibility of the evidence, the applicant has not proven that the respondent failed to comply with this term of the MOS. It is the applicant’s onus to establish that the respondent was late. It is not the respondent’s responsibility to prove that it was not late in implementing the terms. The inferences the applicant asks me to make, in the absence of corroborating direct evidence, and given the testimony of the respondent’s witness (which, though foggy, was, I believe, truthful), do not satisfy the necessary standard of proof.
23Finally, on the issue of confidentiality, I am not convinced that the respondent breached the MOS. The respondent needed, as a matter of implementation, to provide adequate notice to the residents of the building about a decision that would potentially affect their interests. I believe, on the evidence, that it did so while making appropriate efforts to conceal the fact of the Tribunal proceeding and the applicant’s identity. The notice does not mention or even suggest the existence of the MOS, let alone the content of its terms. I am persuaded that any inadvertent consequences of the notice (such as residents “reading between the lines” and speculating on the applicant’s involvement, about which there was no evidence in any event) did not amount to a violation of the MOS.
SUMMARY OF DECISION
24I have found that the respondent breached the MOS in two ways based on the respondent’s concessions. First, the respondent failed to give necessary notice of compliance to the applicant regarding: undertaking a roof access feasibility study; the completion of human rights training; and the adoption of a disability accommodation policy. Second, the respondent was four months late in completing the modifications to the rooftop stairs.
REMEDY
25Section 45.9(8) of the Code sets out the Tribunal’s power to remedy contraventions of settlements. The Tribunal may make “any order that it considers appropriate to remedy the contravention.” This broad discretion sets remedying harm as the driving consideration. Common law doctrines of remedial application are useful in applying section 45.9(8), given that the Tribunal’s jurisprudence on remedying breaches of settlements is still developing.
Applicant on Remedy
26The applicant seeks $50,000 in general damages for emotional distress. He also asks that the members of the board of directors of the respondent be ordered to undergo additional sensitivity training at their own expense. Until completion of the training, the applicant asks that the members be required to resign from their positions on the respondent board of directors and from any other condominium board seats.
27The applicant testified that the damage he suffered was, first, the harm to his dignity caused by feeling ignored by the respondent and, second, the fear of reprisal because he knew the settlement of his case would have implications for the entire condominium community.
28The applicant testified that he asked his brother Robert to email Mr. McLean to ask about compliance with the terms of settlement. Robert Saunders testified that he did in fact email Mr. McLean on the applicant’s behalf. After receiving no response, the applicant testified that he and Robert drafted an email to respondent counsel, which included a copy of the original email to Mr. McLean, and asked for a response. Their evidence was that they received an out-of-office reply from counsel, but never received a substantive response. In the meanwhile, Robert testified that he was in email contact with condo management about other matters and was getting responses. The applicant perceived the respondent’s behaviour to be deliberately ignoring him. He waited two weeks and then filed the Contravention of Settlement Application.
29The applicant testified that it was this perception of being deliberately ignored that affected his dignity and led him to file this Application. His evidence was that he had surgery in June 2009, which did not go well and led to two weeks’ hospitalization followed by a long, difficult recovery which ended only in January 2010. Thus, at the time, the applicant was in difficult personal circumstances related to his disability. His evidence was that the contraventions of settlement made his already fragile emotional condition worse.
30An additional factor, according to the applicant, was the nature of the parties’ relationship, namely that the applicant resides in the building operated by the respondent. As a person with a disability, he was concerned about possible stigma and reprisals. He was feeling sensitive and vulnerable, and the respondent’s breaches heightened those feelings and undermined the comfort and finality that were to have been achieved with the settlement. Rather than resolving those difficult issues, the applicant asserted that the respondent’s failure to fully and properly implement the terms of settlement resurrected the negative feelings and hurt caused by events that led the applicant to commence proceedings in the first place.
31The applicant’s subjective feelings of hurt and insult are only one part of my analysis. The Tribunal has held, and I accept, that the applicant’s subjective experience must be assessed on an objective basis:
While general damages are designed to compensate for, among other things, humiliation, hurt feelings, loss of self-respect, dignity, self esteem and confidence, and the experience of victimization, relying solely on complainants’ descriptions of the degree of such losses is problematic in at least two respects. On the one hand, there is an obvious danger of the self-serving nature of such evidence. On the other hand, while two individuals may experience exactly the same degree of loss, one may be less willing, or able, to describe that loss in testimony. Thus, in my view, while the experience of such losses is subjective, the assessment of such losses must have a degree of objectivity to it.
See Pridham v. En-Plas Inc., 2007 HRTO 8, at para. 48.
32It is important to remember that, while the applicant’s feelings of hurt and insult arising from the underlying allegations of discrimination have arisen afresh in the aftermath of the respondent’s breaches, those factors are only relevant for understanding the context in which the settlement breach occurred, not as an independent basis for a remedy. Any claim for compensation related to the events prior to signing the MOS was ended by the settlement.
33Furthermore, much of the applicant’s evidence with respect to impact sprung from his perception and belief that the respondent had violated the confidentiality clause. His fear of third-party reprisal, stigma and isolation are examples of such claims. However, as I have not made a finding that the respondent breached the confidentiality clause, this evidence is not helpful.
Respondent on Remedy
34The respondent’s evidence challenged the applicant’s theory that he was being deliberately ignored. Mr. McLean testified that he responded to Robert Saunders’ email by telephone about a week later and left a voice mail that was never returned. In the message, he testified that he told the applicant about delays in implementing parts of the settlement. The applicant and his brother denied having received this voice mail.
35The respondent also took the position that any breach of the settlement did not result in any actual harm, prejudice, damage or loss to the applicant. Furthermore, the respondent opposed the request for additional training on the basis that it amounts to an effort to alter the terms of the MOS, which the respondent has already complied with, and to improperly impose personal liability on individual board members when they are not named as respondents in this matter.
36The respondent argued that, should the Tribunal find the applicant has suffered damages, it should be limited only to the direct costs associated with commencing the instant Application as a result of the respondent’s delay in providing confirmation of compliance by the stipulated deadline.
Analysis and Conclusion
37It is worth dealing with some basic principles about settlement breaches in the context of human rights litigation. First, there is a question as to whether a contravention of a settlement constitutes a contravention of the Code. Interpreting the old Code, the Tribunal has found that a breach of settlement amounts to a breach of the Code itself. See Seguin v. Ininew Friendship Centre, 2001 CanLII 26225 (HRTO). I do not find that analysis helpful given the changes to the Code and to human rights enforcement in particular. The Code no longer provides that an allegation of a breach of settlement constitutes a basis for an application to the Tribunal under section 34.
38Settlements concluded between parties to an Application are private, confidential and without-prejudice contracts. Whether the Tribunal facilitates these agreements through its mediation service, or the parties negotiate on their own, the Tribunal does not substantively review or approve the content of human rights settlements nor does it endorse the terms by way of Order. The parties’ agreement concludes the matter, and the Tribunal finally disposes of the Application upon confirmation of this fact alone.
39In the light of changes to the Code, it is necessary to examine the statutory language authorizing the Tribunal to make enforcement orders. Section 45.9(8) gives the broad power to make “any order that it considers appropriate to remedy the contravention.” There is no reason to limit the potential scope of this power. At minimum, it allows for consideration of any common law remedy, and may contemplate additional or innovative remedial action, subject to the circumstances of the case and the discretion and statutory authority of the Tribunal.
40For the purposes of this case, I find it appropriate to ask the following questions in order to determine the appropriate remedy:
What is the nature of the breach – does it go to the heart of the MOS?
Does anything need to be done to fulfil the terms of the MOS? If so, what?
Were the applicant’s contractual expectations adversely affected?
Did the applicant suffer any quantifiable harm or material loss as a result of the breach?
Did the applicant suffer any harm to dignity, feelings or self-respect as a result of the breach?
41The courts have long recognized a distinction between simple breaches of contract and fundamental breaches. For the purposes of analyzing a contravention of human rights settlement, it is helpful to take account of that distinction. The Supreme Court of Canada has noted, however, that determining whether a breach is simple or fundamental requires looking at the context of the contract, particularly the intent of the parties. See Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 47.
42In this case, I find that the breaches are not fundamental. They were not material or central to the core of the Agreement, nor did they substantially alter the implementation of the terms. The minor delays in this case amounted to a de minimus breach of the MOS.
43The second question is whether the MOS remain unfulfilled. In this case, there is no doubt the terms were fully implemented and the only fact at issue is the delay.
44Regarding the parties’ expectations, it is a basic principle of private law that the innocent party to a breach of contract is entitled to compensation for the loss of his or her expectation interest. The usual remedy for a loss of the expectation interest is monetary compensation to place the injured party in the position he or she would have been but for the breach. The fact that the breach was de minimus does not lead to a presumption of no adverse affect. However, the onus for establishing adverse effect in relation to an expectation interest rests with the party claiming it.
45The applicant testified that he agreed to terms of settlement based on an interest in bringing closure to the matter, and achieving specific and timely objectives, as captured in the terms of the MOS. While the respondent obtained a conclusion to the Tribunal proceedings and a full and final release, the applicant testified his expectations were dashed. He was unable to benefit from the certainty and closure for which he had contracted, and which the MOS were meant to create. I accept that, for the period of time during which the terms were not fulfilled and the applicant was without information, his perception of dashed expectations was reasonable. I find that the applicant had legitimate expectations that were adversely affected by the respondent’s breaches.
46The applicant did not establish any material losses caused by the breaches.
47The respondent fulfilled the core obligations under the MOS, including making a financial payment to the applicant on time. However, greater attention should have been expended to ensure compliance, given the intention of the parties and the nature of the relationship. The social area in this case is housing, meaning that the issues pertain to the applicant’s living environment. It is not unreasonable that the applicant, who is a person with visible disabilities who was largely house-bound during the relevant time, felt deeply and personally affected by the respondent’s failures to adhere fully to the terms of the settlement, even though the breaches were, objectively speaking, minor.
48The applicant did testify, and I accept as fact, that he felt insulted, ignored and insignificant as result of the respondent’s breaches. While the breaches were not wilful, they were more than inadvertent and could have been mitigated through better communication, if not avoided altogether.
49On the other hand, the four-month delay in completing the work on the rooftop terrace had less impact because the terrace was closed for much of the four-month period as it always is during winter. The applicant had no real expectation interest in using the terrace during that time. The other delays were minor.
50While a wilful or bad faith breach of settlement could increase damages, the absence of these features does not eliminate the basis for an award of monetary compensation. The courts have recognized that the Tribunal must ensure that the quantum of damages for Code breaches is not set too low, since doing so could trivialize the social importance of the Code: see ADGA Group Consultants Inc. v. Lane (2008), 295 D.L.R. (4th) 425, 2008 CanLII 39605 (Ont. S.C.D.C.), at para. 152.
51Respect for terms of settlement is not only a legally binding, contractual obligation, it also promotes essential Code values. A contravention of settlement can undermine the administration of justice by discrediting the human rights system and generating wrong disincentives to negotiation. The uncertainty created by a contravention of settlement potentially undermines the substantive and procedural provisions of the Code. An award of monetary compensation can help reflect both the private and public importance of complying with settlement terms.
52In the circumstances of this case, considering all of the evidence, and my analysis of the questions above, I find that an appropriate amount of monetary compensation is $1,000.
Future Compliance
53The Tribunal has an institutional interest in ensuring that settlements of Tribunal applications, reflected in the filing of a Form 25 “finally disposing” of the matter, are upheld. This is true whether settlements are achieved with the assistance of the Tribunal’s mediation service, or through direct negotiation between the parties.
54In this case, there is no basis for making the training orders the applicant requests. The evidence is clear that the respondent complied with its training undertaking and simply delayed in reporting the completion. In the circumstances, I am not persuaded that additional or repetitive training would be an effective remedy for the breach.
ORDER
55The respondent is ordered to pay to the applicant the following amounts within 30 days of this Decision:
$1,000 in monetary compensation for contravention of settlement;
Pre-judgment interest in accordance with the Courts of Justice Act, from September 18, 2009, to the date of this Decision.
Post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Decision.
Dated at Toronto, this 20th day of December, 2010.
“Signed by”
Faisal Bhabha
Vice-chair