HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pascal Adorgloh
Applicant
-and-
Sentrex Communications Inc.
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Adorgloh v. Sentrex Communications
APPEARANCES
Pascal Adorglah, Applicant ) Self-represented )
Sentrex Communications Inc., Respondent ) Peter Nicoletti, ) Representative
[1] The applicant filed an Application for Contravention of Settlement (Form 18) (“the Application”) on March 1, 2010 pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. In the Application, the applicant alleged that the respondent had not complied with minutes of settlement dated January 19, 2010 of a Tribunal Application (“the minutes of settlement”) which required the respondent to pay him an agreed upon amount as settlement monies by February 15, 2010 (“the settlement monies”).
[2] The respondent filed a Response to an Application for Contravention of Settlement (Form 19) (“the Response”) stating that the settlement monies had been issued and mailed to the applicant. The respondent also sent the Tribunal a copy of the cancelled cheque dated February 9, 2010 in the amount of the settlement monies which appeared to have been cashed on April 13, 2010.
[3] The Tribunal contacted the applicant, who advised that he wished to continue the Application on the basis that the alleged late payment of the settlement monies.
[4] A Case Assessment Direction was issued dated April 27, 2010 scheduling a one hour conference call hearing to hear submissions on the merits of the Application. At para. 4, the Tribunal stated:
It appears to me, without deciding the issue, that any damages for any delay of less than two months, given the amount in question …, would be minimal, assuming there is justification for awarding them.
[5] A conference call hearing was held on November 2, 2010 and when the applicant failed to participate, the Tribunal issued a Decision dated November 2, 2010 (2010 HRTO 2185) dismissing the Application.
[6] On November 16, 2010, the applicant filed a Request for Reconsideration noting that he had written to the Tribunal on October 15, 2010, requesting that the November 2 conference call be rescheduled. The Tribunal issued a Reconsideration Decision, 2010 HRTO 2289, reconsidering its November 2 Decision and ordering that a new conference call hearing to determine the merits of the Application be scheduled. The Tribunal noted at para. 3 of the Reconsideration Decision:
It appears that as a result of an administrative error, the applicant’s request was not dealt with and was not placed in the Tribunal’s file. The Tribunal apologizes to the parties for the error and the inconvenience caused.
[7] A second conference call hearing was held on December 8, 2010. Both parties participated.
The Applicant’s Submissions
[8] Paragraph 1 of the minutes of settlement states:
The Respondent shall pay the Applicant [a specified amount] as general damages. A cheque in that amount shall be mailed to the Applicant’s home address by no later than February 15, 2010.
[9] The applicant confirmed that he received the settlement monies by cheque dated February 9, 2010 before he filed his Application and that he cashed the cheque on April 13, 2010. The applicant asserts that the payment was not mailed by February 15, 2010 and that, accordingly, the respondent breached the minutes of settlement. He stated that previous correspondence from the respondent had been sent to him by registered mail or personally delivered.
[10] The applicant described in detail his impression that by the late payment the respondent was trying to humiliate, disrespect and intimidate him and this constituted a form of racial profiling. The applicant stated that he experienced medical problems as a result of the breach including high blood pressure. The applicant seeks $10,000 as general damages for the breach of the minutes of settlement.
[11] During the conference call hearing the applicant stated that he had an envelope from the respondent in which the settlement monies was sent that was dated stamped February 18, 2010. The applicant had not disclosed this prior to the December 8 conference call date and I allowed him an opportunity to send a copy to the Tribunal and the respondent and provide submissions on this point. I also allowed the respondent a period of time to file any submissions in response to the applicant’s points.
[12] The applicant sent a fax dated December 8 to the Tribunal and the respondent with a copy of the envelope and submissions including a description of the impact the breach of settlement had and continues to have on him, including medical impact.
The Respondent’s Submissions
[13] The respondent is puzzled why the Application was filed as the settlement monies had been sent to and cashed by the applicant. The cheque was signed on February 9 and given to an administrative person to put in the mail and it was mailed. The respondent submitted, during the conference call hearing, that the payment was not late and there was no breach of the minutes of settlement.
[14] If there was a breach of settlement, the respondent submits that the payment was late by a very short period of time and that it was late because of the mail service. The respondent had full intentions to comply with the minutes of settlement, did not intend to disgrace or humiliate the applicant, have no hard feeling towards the applicant, and apologize if the settlement monies were late. The respondent offered to pay interest for the late payment, which offer was not accepted by the applicant.
[15] After receipt of the applicant’s December 8 fax, the respondent sent the Tribunal a letter dated December 10, 2010 apologizing for the late delivery of the settlement monies and submitting that there was no intent to inconvience the applicant. The respondent wrote that he would be “happy to send another cheque for any interest incurred during this time”.
Analysis
[16] Subsections 45.9(1), (3) and (8) of the Code provide:
(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).
(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.
[17] In this case, I find that there was a settlement as evidenced by the minutes of settlement which, pursuant to paragraph 1, required the respondent to mail the settlement monies by February 15, 2010. I accept the applicant’s assertion that the settlement monies were mailed after February 15, 2010, as evidenced by the envelope which shows a date stamp as February 18, 2010 and accordingly, the settlement monies were mailed three days after the specified date in the minutes of settlement. I also accept the applicant’s submission that he had received the settlement monies before he filed his Application on March 1, 2010, although I cannot conclude when the payment was received.
[18] In Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618, the Tribunal, in a Reconsideration Decision, considered the amount of damages, if any, to be awarded to an applicant for an eight-day delay in receiving a payment pursuant to Minutes of Settlement. In that case, there was no evidence that the applicant raised the matter with the respondents prior to filing an application and the matter was rectified as soon as that Application was filed. In dismissing the Request for Reconsideration, the Tribunal noted at paragraph 9:
In view of the minor nature of any breach of the agreement on the applicant’s version of the facts, these are not circumstances in which proceeding with the Application could override the public interest in the finality of decisions. It is a general legal principle that ‘the law does not concern itself with trifles’ (‘de minimus non curat lex’): see, for example, Ontario v. Canadian Pacific, [1952] 2 S.C.R. 1031 at para. 65. In the circumstances, where there is an extremely minor alleged breach of settlement and notice was sent to the applicant in the manner he requested but he failed to respond, there is no reason to grant this Request for Reconsideration.
[19] On the facts of this case, I have determined that it is not appropriate to award a remedy for contravention of the minutes of settlement. The only breach of settlement is that the settlement monies were mailed three days late. The minor dely in this case amounted to a de minimus breach of the minutes of settlement. Therefore, on the facts of this case, I have determined that it is not appropriate to award a remedy for contravention of the minutes of settlement.
Dated at Toronto, this 22nd day of December, 2010.
“Signed By”
Alison Renton
Vice-chair