Medeiros v. Cambridge Canvas Centre, 2011 HRTO 1519

Human Rights Tribunal of Ontario

B E T W E E N:

Vickie Medeiros Applicant

-and-

Cambridge Canvas Centre and Jeff Campbell Respondents

DECISION

Adjudicator: Jay Sengupta Date: August 15, 2011 Citation: 2011 HRTO 1519 Indexed as: Medeiros v. Cambridge Canvas Centre

APPEARANCES

Vickie Medeiros, Applicant ) Janina Fogels, Counsel Cambridge Canvas Centre and ) Cezanne Charlebois, Counsel Jeff Campbell, Respondents )

1This is an Application filed by the applicant, Vickie Medeiros, under section 45.9(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging breach of a settlement of a Tribunal Application by the respondents. The applicant alleges that the respondents failed to fulfill a term in the settlement, specifically to pay her $5,000 within 60 days of signing the Minutes of Settlement and to undertake human rights training within 90 days of the signing of the Minutes. She seeks to enforce the terms of the Minutes and further relief in the amount of $5,000 as monetary damages arising out of the breach.

2The respondents sought an extension of time to file their Response as the personal respondent indicated he was travelling internationally on business and unavailable to attend to it within the timelines provided. An extension of time was granted.

3The Response, when filed, indicated that the respondents did not dispute that they failed to pay the lump sum amount agreed to in paragraph 1 of the Minutes of Settlement. They alleged that the applicant breached her obligation under the settlement to maintain confidentiality and when they discovered her breach, they did not feel that they should be held to their obligation to pay or undergo training as agreed to under the Minutes of Settlement. No particulars were provided as to the specifics of the alleged confidentiality breach at the time the Response was filed.

4On the first hearing date scheduled, none of the parties were prepared to proceed and sought an adjournment of the hearing. The applicant sought an order relating to particulars of the breach alleged by the respondents in their Response, and the respondents, represented by the personal respondent, sought additional time to retain and instruct counsel.

5The hearing was adjourned and a peremptory hearing date was set. In advance of that hearing date, the respondents were directed to provide written particulars of the applicant’s alleged breach of confidentiality. The parties were also directed to disclose all arguably relevant documents to each other and to provide witness statements and copies of all documents they intended to rely upon at the hearing.

6During the hearing, at which the respondents were now represented by counsel, I heard evidence from the applicant on her own behalf, The personal respondent, Jeff Campbell (“Campbell”), Michael Suceska, sales manager for the respondent Cambridge Canvas Centre (the “company”) and Bonnie Wilhelm, a former co-worker of the applicant, gave evidence on behalf of the respondents.

DECISION

7Section 45.9(1) (3) and (8) of the Code sets out as follows:

(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.

8A resolution of the factual differences in this matter is central to my decision and requires a credibility assessment. In that exercise, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

9The relevant terms of the Minutes of Settlement signed by the parties on February 26, 2010, required that the respondent company pay $5,000 to the applicant within 60 days, that Jeff Campbell undergo training by a professional service with respect to the company’s obligations under the Code within 90 days, and included a clause indicating that the parties would maintain the strict confidentiality of the terms of the Minutes with limited exceptions. The applicant was permitted to disclose the terms to her mother, her boyfriend and her legal and financial advisors; the respondent company to its legal and financial advisors and Campbell to his immediate family and legal and financial advisors.

10It is not disputed that the respondent company failed to pay the applicant $5,000 within the 60 days agreed upon, or indeed, at any time since then. It is also not in dispute that respondent Campbell did not complete human rights training within 90 days of the signing of the Minutes of Settlement. In fact, he acknowledged that he had not undertaken human rights training as of the date of the hearing. Respondent Campbell did indicate that he had “spoken to some people about their obligations under the Code”, that there are some written policies about harassment in a filing cabinet and, finally, that some policy documents have been prepared for the company by counsel.

11Respondent Campbell indicates that the reason that he and the respondent company did not comply with their obligations under the Minutes is because he ran into a stranger outside the Beer Store on Thursday, April 22, 2010, four days before the payment was due to be delivered to the applicant. The stranger told him that he had heard Campbell had “been charged in a sexual harassment case and it was like for $50,000”. He did not know this person and did not ask any questions of him. He was unable to provide me with any information about the identity of this person or his connection to the applicant.

12Campbell submits that he was upset and told his employee Mike Suceska several days later on the Monday following the weekend. Mike Suceska confirmed that they had a conversation about the Beer Store stranger and said that his employer appeared upset, but could not provide any further relevant information.

13When respondent Campbell was asked why he had not contacted the applicant’s lawyer if he suspected a breach of the Minutes by the applicant or filed an Application to the Tribunal asserting the applicant had breached the Minutes of Settlement, he said that no one had explained to him what to do in the event of a breach and he was not professionally trained in these matters. He did acknowledge having signed the Form 25 attached to the Application and did not assert any incapacity with respect to his ability to understand the specific language in that document that indicates that an allegation of a breach may be the subject of a Tribunal Application.

14The other witness put forward by the respondents, Bonnie Wilhelm, confirmed that she and the applicant had both been employed by the respondent company. Although she provided copies of electronic Facebook communications, all of them are from 2009, in advance of the signing of the Minutes of Settlement, and as such, none of them disclose terms of the Minutes.

15Bonnie Wilhelm indicated that she also had a phone conversation with the applicant after the Facebook communications had ended. However, she stated that she did not receive any specific information from the applicant that the matter had been concluded or on what terms.

16The applicant gave evidence that she had not spoken to anyone other than those persons with whom she was permitted to speak regarding the settlement, in accordance with the terms of the Minutes.

17Having heard from the parties, I am not persuaded that the respondent Campbell’s account of his encounter with a stranger in a Beer Store parking lot is sufficient to conclude that the applicant breached her confidentiality obligations under the Minutes. Even if I accept Campbell’s evidence and that of the respondents’ witnesses fully, there is nothing in the conversation, as he reports it, that would justify his decision and that of the respondent company to resile from their obligations under the Minutes of Settlement. There is also nothing in Michael Suceska or Bonnie Wilhelm’s evidence to establish a breach of the Minutes of Settlement by the applicant.

18It appears that neither respondent Campbell nor the company had taken steps to comply with the terms of the Minutes requiring payment of money to the applicant or human rights training for Campbell until at least April 22, 2010.

19In contrast, I find the applicant provided credible and clear testimony about the circumstances surrounding the breach of the terms of settlement by the respondents. Although her attempts to disprove the allegations levelled at her about her alleged breach of confidentiality did not yield conclusive results, in my view, it is not her obligation to disprove the allegations. As the respondents raised the issue of breach as a reason for their breach, it was their burden to establish the applicant’s breach of settlement and they have failed to do so.

20As a result, I find that the respondents have breached the Minutes of Settlement.

21Section 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.” The applicant has requested that the settlement monies be ordered to be paid, that the training contemplated in the Minutes be ordered to be completed. In addition, the applicant requests a further $5,000 as monetary compensation arising out of the breach of settlement.

22In support of the request for monetary compensation arising out of the breach of settlement, the applicant gave evidence that she had expected that the Application was resolved when she entered into Minutes of Settlement. She testified that it has been upsetting to her that the respondents’ breach has prolonged matters. She finds this difficult as she relied on the closure she expected the settlement to bring and, instead, she feels that she has to continue to relive and remember the difficulties she experienced. I am satisfied that the applicant suffered continuing uncertainty, frustration and resulting harm as a result of the respondents’ breach.

23Keeping in mind the remedial nature of the Code as well as the Tribunal’s interest in ensuring the finality of settlements, I am of the view that it is appropriate in the circumstances of this Application to award a further sum of $1,500 to the applicant as monetary compensation for the harm caused to her as a result of the respondents’ breach of both their obligation to pay the agreed-upon amount under the settlement as well as their obligation to complete human rights training.

24In light of the above, the Application for Breach of Settlement is granted and I make the following order:

(a) Within 30 days of the date of this Decision, the respondents, Cambridge Canvas Centre and Jeff Campbell, will pay to the applicant $5,000 along with pre-judgment interest on the amount, from April 26, 2010, to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43

(b) Within 30 days of the date of this Decision, the respondents shall pay to the applicant $1,500 as monetary compensation.

(c) Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.

(d) Within 30 days of the date of this Decision, the respondents will undertake human rights training as agreed to under the Minutes of Settlement, dated February 26, 2010 and provide written confirmation of completion to counsel for the applicant.