Matos v. Transplay, 2010 HRTO 2527

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Matos

Applicant

-and-

Transplay Inc. and Erik Kikuchi

Respondents

decision

Adjudicator: Faisal Bhabha

Date: December 22, 2010

Citation: 2010 HRTO 2527

Indexed as: Matos v. Transplay

Appearances

Sandra Matos, Applicant ) Self-represented

Transplay Inc. and Erik Kikuchi, )

Respondents ) Hugh Scher, Counsel

BACKGROUND

1The applicant filed an Application for Contravention of Settlement (Form 18) on October 9, 2009 under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was a party to an agreement that settled an Application alleging sex discrimination and sexual harassment in employment. The parties signed a Memorandum of Settlement (MOS) on August 27, 2009 resolving the underlying Application, and the Tribunal finally disposed of the matter.

2A hearing into the alleged breach of settlement was held on November 9, 2010.

3There was no disagreement between the parties that the terms of settlement were, at the time of hearing, fulfilled. The parties agreed that the MOS was breached in two respects. The only issue for me to decide, therefore, is whether to make an order pursuant to section 45.9(8).

RELEVANT LAW

4The 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.

(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.

FACTS AND ARGUMENT

5The relevant clauses of the MOS are paragraphs 1 and 5, as follows:

1. The Respondent Erik Kikuchi shall pay the Applicant $2500 as general damages. Payment shall be made by direct transfer into the Applicant’s bank account by Erik Kikuchi. The Applicant will provide Erik Kikuchi with the necessary banking information in order for the transfer to be made. Erik Kikuchi agrees to make the payment of $2500 in two instalments:

• $1000 within eight days of the Applicant providing her banking information;

• $1500 by October 1, 2009.

5. Erik Kikuchi agrees to provide to the Applicant a written letter of apology, to be mailed no later than the date the first payment is made above, which includes an acknowledgement that he made an unwelcome request to her.

6The parties agreed that the first instalment was paid as per the agreement. Regarding the second instalment, on October 1, 2009, the personal respondent sent the applicant an email that stated: “Sorry I don’t have the money right now. I expect a cheque in the next 8 days. At that time I will send your money to you. Oct 9th.” The parties agreed that the respondent made the second payment in full on October 9, 2009, as promised.

7Regarding the apology, the parties agreed that they spoke on the phone, during which the respondent verbally apologized for the incident. The verbal apology was followed by a written apology, the content of which the applicant found unsatisfactory. The respondent prepared a second written apology, which provided in part:

This letter is to express my sincere apology for my past requests that were both disrespectful and should have never come to light. Emails were never intended to either make you upset, angry or hurt. It was a selfish act on my part and I wish someday you will forgive and move on and enjoy your bright future ahead.

8The applicant took the position that the respondent’s tone in emails and in his first written apology was mocking and disrespectful. The respondent agreed that the first letter was unsatisfactory, but pointed to the fact that the applicant had expressed satisfaction after the verbal apology, and that any uncertainty as to the respondent’s sincerity was remedied in the second written apology letter, which he prepared promptly upon the applicant’s request.

9The applicant testified that her feelings of self-respect and dignity were damaged as a result of the respondent’s failure to provide a satisfactory apology letter the first time. She levelled additional, unrelated accusations at the respondent, and expressed regret that she had agreed to a mediated settlement in the first place. She stated that she felt further victimized by the settlement process, rather than made whole.

10The respondent submitted that there is no basis for an award of damages for the “minor” breach, being an 8-day delay in making payment, with notice to the applicant. Further, the respondent argued that the documents speak for themselves as to the applicant’s claim that the respondent “just doesn’t care” and that he was deliberately mocking her in his tone.

DECISION

11Section 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.

12I find that while there was a breach of the MOS, the circumstances of this case do not give rise to a remedial order pursuant to section 45.9(8).

13Although the respondent breached the MOS by delivering the second payment instalment to the applicant 8 days late, it is significant that on October 1, 2009 he gave notice to the applicant of the anticipated delay, and then fulfilled his promise to deliver the cheque by October 9, 2009. The applicant was not put in a position of being ignored. While she may have felt insulted by the respondent’s delay, from an objective perspective, he offered a reasonable explanation of cash-flow problems and the need for a brief extension of time.

14As a general practice, parties should not make legally binding promises that they are unable to fulfil. However, not all breaches of legally binding promises will necessary attract an order under section 45.9(8).

15With respect to the allegations concerning the apology and the respondent’s tone in communications with the applicant, I am not convinced that the events surrounding the apology amounted to a breach of settlement. The MOS did not stipulate the specific terms or content of the apology, beyond that it would include an “acknowledgement” of an “unwelcome request”. It is also significant that prior to the first “unsatisfactory” apology letter, the parties spoke on the phone and by all accounts, the applicant was satisfied with the verbal apology provided to her. She confirmed this in a subsequent email that was referred to at the hearing and may have even waived the contracted requirement of a written apology. Regardless, all agreed that the second written apology was satisfactory.

16As for the respondent’s tone in communications with the applicant, this question is beyond the bounds of a contravention of settlement application, unless the terms of settlement provide specifically for communications protocols and there are allegations of identifiable breaches. Here, the applicant’s subjective feeling that the respondent was “mocking” her in his post-settlement communications is not obvious on an objective view of the facts. More importantly, however, because this allegation is not connected in any way to an alleged breach of a term of settlement, it is unnecessary for me to consider.

17I am not convinced on the facts of this case that any harm arose from the 8-day delay in payment, which is the only breach of settlement that I have found. Because the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention, and because I have found no harm in this case, it is therefore not appropriate to make an order.