HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Complainant
-and-
571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac
Tavern, Vladimir (a.k.a. Walter) Perin Sr., and Walter Perin Jr.
Respondents
A N D B E T W E E N:
Martha Glover
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac
Tavern, Vladimir (a.k.a. Walter) Perin Sr., and Walter Perin Jr.
Respondents
decision
Adjudicator: Ian Anderson
Indexed as: Glover v. 571566 Ontario Inc.
APPEARANCES BY
Martha Glover, Complainant ) Geri Sanson, Counsel
Ontario Human Rights Commission ) Cathy Pike, Counsel
571566 Ontario Inc. o/a Cadillac Tavern, )
1528433 Ontario Ltd. c.o.b. Cadillac Tavern, ) No one appearing
Vladimir (a.k.a. Walter) Perin Sr., )
and Walter Perin Jr., Respondents )
1This decision relates to an allegation that there has been a contravention of a settlement of a complaint filed under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The settlement was reached on or about March 1, 2006. The Code was substantially amended effective June 30, 2008. In what follows, “old section” will be a reference to a section as it read prior to June 30, 2008.
BACKGROUND
2On October 9, 2001, Martha Glover filed a complaint with the Ontario Human Rights Commission (the “original complaint”) against 571566 Ontario Inc. o/a Cadillac Tavern, Mr. Vladimir (a.k.a. Walter) Perin Sr. and Mr. Walter Perin Jr. alleging discrimination in employment because of sex, sexual harassment and reprisal contrary to the Code. The Commission referred the original complaint to the Tribunal. Ms. Glover, the Commission and the respondents to the original complaint entered into Minutes of Settlement and a Release on or about March 1, 2006. Ms. Glover and the Commission assert that the respondents to the original complaint defaulted on some of their obligations pursuant to the Minutes of Settlement.
3Tribunal File No. HR-1207-06 is a complaint initiated pursuant to old section 32(2) of the Code by the Ontario Human Rights Commission (the “Commission’s complaint”) with respect to the alleged breach of the Minutes of Settlement. It seeks certain orders in relation to the alleged breach of the Minutes of Settlement. It names the Commission as complainant and 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. as responding parties (collectively, the “Respondents”). Ms. Glover was not named as a party. It was referred to the Tribunal by the Commission on December 1, 2006 pursuant to old section 36(1) of the Code.
4Tribunal File No. HR-1331-07 relates to a complaint filed with the Commission by Ms. Glover (“Ms. Glover’s complaint”) on or about October 30, 2006 pursuant to old section 32(1). In her complaint to the Commission, Ms. Glover named the Commission itself and Hart Schwartz, who was at the material times the Director of Legal Services of the Commission, as respondents, in addition to 571566 Ontario Inc. o/a Cadillac Tavern, 1528433 Ontario Ltd. c.o.b. Cadillac Tavern, Mr. Vladimir (aka Walter) Perin Sr. and Mr. Walter Perin Jr. Ms. Glover’s complaint sought remedies against the Commission and Mr. Schwartz and certain additional remedies against the Respondents, in particular that the allegations in her original complaint be heard and determined as a consequence of the Respondents’ breach of the settlement of the original complaint.
5On July 24, 2007, the Commission exercised its discretion pursuant to old section 36 with respect to Ms. Glover’s complaint against the Respondents. The Commission decided that there was no basis under the Code to cancel the Memorandum of Settlement and Release and litigate the original complaint. Accordingly, the Commission concluded that there was no basis to refer that portion of Ms. Glover’s complaint against the Respondents to the Tribunal. With respect to the remainder of Ms. Glover’s complaint against the Respondents, the Commission decided to refer the subject-matter of the complaint which relied upon old section 43 of the Code to the Tribunal. By the same decision, the Commission also exercised its discretion under old section 34(1)(b) and (c) of the Code not to deal with Ms. Glover’s complaint against Mr. Schwartz and the Commission as respondents. Ms. Glover applied for reconsideration of both aspects of the Commission’s decision which were not favourable to her. Pursuant to old section 37, by decision dated January 30, 2008, the Commission decided to uphold its original decisions with respect to both of these aspects of Ms. Glover’s complaint.
6The proceedings before this Tribunal have been characterized by the pursuit of various collateral issues, some of dubious merit, by Ms. Glover or the Commission and Mr. Schwartz resulting in no fewer than 12 interim decisions, and numerous other “Case Assessment Directions” or letters issued by the Registrar on the direction of the Tribunal. The Respondents, for the most part, took no role in these disputes.
7Ms. Glover, Mr. Schwartz and the Commission concluded an agreement of which the Tribunal was advised by letter dated January 15, 2010. Pursuant to that agreement, by decision dated January 19, 2010, 2010 HRTO 121 the Tribunal ordered that Ms. Glover’s allegations against Mr. Schwartz were withdrawn and that Ms. Glover’s request to add Mr. Schwartz and the Commission as responding parties was dismissed. The result of this was that a number of issues raised by Ms. Glover were no longer relevant: see decision dated February 22, 2010, 2010 HRTO 397. As a result of that decision, the outstanding issues were:
a. The issues referred by the Commission which are the subject of Tribunal File No. HR-1207-06; and
b. Ms. Glover’s request that the allegations in her original complaint be heard and determined in these proceedings as a consequence of the Respondents’ breach of the settlement of the original complaint.
8A hearing was held on August 18, 2010 for the purposes of receiving submissions on the outstanding issues. Although notice of the date, time and place of the hearing was sent to the last known addresses of the Respondents, they did not attend. (Information provided to the Tribunal suggests Walter Perin Sr. now lives in Alberta, the corporate Respondents are bankrupt and that “Cadillac Tavern” has been boarded up.) In the result, the evidence of Ms. Glover and the Commission was uncontested by the Respondents.
9At the hearing, Ms. Glover no longer sought to have her original complaint heard and determined as a consequence of the Respondents’ breach. (I pause here to note that Ms. Glover’s prior insistence on this was at the heart of her dispute with the Commission and Mr. Schwartz.) She did, however, seek to rely on the events giving rise to her original complaint in a manner more fully discussed in the body of this decision.
10The settlement in this case took the form of a “Memorandum of Settlement and Release” as amended by a document setting out various “Riders” to that Memorandum. The parties to the Memorandum were Ms. Glover (referred to as the “Complainant” in the Memorandum); 571566 Ontario Inc., Walter Perin, Sr. and Walter Perin, Jr. (the “Respondents”); and the Ontario Human Rights Commission (the “Commission”). The Memorandum as amended reads as follows:
MEMORANDUM OF SETTLEMENT AND RELEASE
WHEREAS the Complainant has filed TSAE-4XFQC7 with the Commission;
AND WHEREAS the Commission referred the subject-matter of the Complaint to the Human Rights Tribunal of Ontario pursuant to section 36(1) of the Human Rights Code;
AND WHEREAS the Tribunal has appointed a panel to hold a hearing with respect to the Complaint and assigned it Tribunal File No.: HR-0910-05;
AND WHEREAS the parties wish to resolve this matter without a hearing;
NOW THEREFORE, the parties agree to settle this matter as follows:
The Respondents agree to pay to the Complainant pursuant to the schedule in paragraph 2 the sum of $20,000.00 (twenty thousand dollars) as general damages and the parties agree and understand that this sum will not be subject to any taxation.
On or before March 3, 2006 the Respondents will provide to the Commission a certified cheque in the sum of $5,000.00 payable to Sanson and Hart “IN TRUST” to be held in escrow by the Commission and on receipt of the executed copies of the Memorandum of Settlement from the Respondents and the Complainant will release the cheque forthwith to Sanson and Hart. On or before March 24, 2006, the Respondents will provide to the Commission a certified cheque in the sum of $7,500.00 (seven thousand five hundred dollars) payable to Sanson and Hart and delivered forthwith to Sanson and Hart. On or before March 31, 2006, the Respondents will provide to the Commission a certified cheque in the sum of $7,500.00 (seven thousand five hundred dollars) payable to Sanson and Hart and delivered forthwith to Sanson and Hart.
That the Corporate Respondents will maintain notices, provided by the Commission, prominently within its place(s) of business indicating that the Respondents observe and uphold the Human Rights Code. (Attached as Appendix 1)
That the Personal Respondents, Valdimir (Walter) Perin Sr. and Walter Perin Jr., attend a training program, at their own expense, designed to assist employers in identifying and addressing instances of discrimination on the basis of sex and sexual harassment, facilitated by an expert on anti-discrimination principles within 90 days of the endorsement of this memorandum. The respondents [sic] agree to inform the Commission of the identity of the trainer and the date on which the training was completed.
That within 60 days of completion of the training in paragraph 4, the Respondents establish a comprehensive written anti-discrimination and anti-harassment policy (the "Policy") for employees that conforms to the requirements of the Code. The Policy should address, among other things, a sexual harassment policy, and include an internal complaints process and specific notification that complaints arising under the Policy can be taken to the Commission within six months of the last alleged incident of discrimination or harassment, whether or not the internal complaint procedure is used.
The Respondents agree that if they are contacted by a potential employer concerning the employment at the Cadillac Tavern of the Complainant they will provide the dates of her employment and a description of her duties and will refrain from saying any [sic] negative about the Complainant’s work performance.
It is understood and agreed that, by entering into this Memorandum, the Respondents do not admit to any violation of the provisions of the Human Rights Code, nor admit to the allegations in the Complaint, nor does the Complainant retract any of her allegations against the Respondents.
The Complainant acknowledges that the payment of the sum listed in paragraph 1 above, is inclusive of and exhaustive of all possible entitlements relating to the subject matter of complaint number TSAE-4XFQC7, whether pursuant to the Human Rights Code, or any other statute of Ontario.
[There is no paragraph 9.]
The parties agree that the executed copy of the Memorandum of Settlement and the Order of the Tribunal will be held by the Commission for purposes of enforcement, pursuant to Section 43 of the Ontario Human Rights Code.
[Paragraph 11 was removed by the parties.]
The Complainant acknowledges by signing this Memorandum that she understands its terms and that she has had reasonable opportunity to obtain independent legal advice regarding the terms of this Memorandum. The Complainant confirms that this Memorandum contains the entire agreement and settlement between the parties, and that the payment listed in paragraph 1, above, is the sole consideration for the release described below.
In consideration of the payment in paragraph 1 above, the Complainant hereby releases and forever discharges the Respondents and successors, and each of its respective officers, directors, former employees, employees, and agents, from any and all actions, applications, causes of action, claims, complaints and proceedings of whatever kind for damages, indemnity, costs, benefits, compensation, reinstatement, or any other remedy which the Complainant or her heirs, administrators or assigns had, may now have, or may have in the future arising out of complaint No. TSAE-4XFQC7 and all allegations connected thereto.
The parties agree to execute and file with the Tribunal a “Form 3 - Confirmation of Full Settlement” and consent to an Order of the Board of the Tribunal disposing of the proceeding in accordance with the terms of this Memorandum.
This Memorandum may be executed in one or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
The parties agree to keep this Memorandum confidential and will not reveal the contents of it to any third party unless as required by law, or in order to implement the terms of settlement contained herein.
The parties agree that the Commission is not bound by paragraph 16.
11I find as facts, based upon the uncontested evidence presented, that the settlement was breached in the following respects:
a. Paragraph 1 was breached in that:
i. The second payment, in the amount of $7,500 and due on March 24, 2006, was not made until May 3, 2006.
ii. The third payment, in the amount of $7,500 and due on March 31, 2006, was not made until December 18, 2006.
b. Other paragraphs providing for what Ms. Glover and the Commission referred to as “public interest remedies” were breached in that the Respondents did not:
i. post the notices provided by the Commission as contemplated by paragraph 3 of the Settlement;
ii. attend an anti-discrimination training program at their own expense as contemplated by paragraph 4 of the Settlement; or
iii. establish an anti-discrimination and anti-harassment policy as contemplated by paragraph 5 of the Settlement.
12Ms. Glover gave evidence of an outrageous and sustained course of sexual harassment of her by Walter Perin Jr. and of reprisals when she complained at the hands of Walter Perin Jr. and Walter Perin Sr. I see no utility in setting out the details here. She also testified as to her reasons for entering into the settlement and of the effect on her of the failure of the Respondents to abide by the terms of the settlement. That evidence is discussed in greater detail below.
13Dr. Sandy Welsh was qualified as an expert witness in gender and workplace issues with a particular focus on workplace harassment and violence, including sexual harassment. Dr. Welsh’s evidence was well summarized in a statement filed in advance of the hearing:
For many women who experience sexual harassment in the workplace, the experience of filing a formal complaint tends to negatively affect women’s physical and psychological health, family and social support relationships, and financial stability (Carr, Huntley, MacQuarrie and Welsh 2004). Based on focus groups and interviews with women in Ontario, the majority of women in the study who filed some type of formal complaint of sexual harassment stated the reporting experience was as bad as, or sometimes worse, than the experience of the harassment (Carr et al 2004). The length of time from filing the complaint to resolution of the complaint brings an added layer of stress above and beyond the experience of harassment (Welsh and Gruber 1999). Reporting, especially to a legal forum outside of the workplace, tends to be time-consuming and costly. Delays in these proceedings add to the cumulative cost of the harassment experience. Additional costs of reporting may occur in the legal proceeding itself, especially in more “litigious” forums (e.g. employment litigation) where emotional damage must be established through a forensic medical examination and where the complainant’s sexual history is not shielded. Critiquing the US legal process for establishing damages, the leading US expert in sexual harassment has warned that “the present process of damages determination in sexual harassment litigation is deeply flawed, costing the plaintiff far more in anguish and humiliation than it ever awards in damages” (Fitzgerald 2003). Overall, there are costs to reporting sexual harassment above and beyond the negative effects of the sexual harassment experience.
14By way of remedy for the Respondents’ breach of the Memorandum of Settlement, Ms. Glover sought:
a. “General damages” and damages for “mental anguish” in the amount of $25,000.
b. The “replacement value” of the “public interest remedies”. Ms. Glover based this on the cost to the Respondents of attending an anti-discrimination training program and establishing an anti-discrimination and anti-harassment policy. She filed estimates from three recognized experts in this work, which ranged from $6,600 to $20,000.
c. Legal costs in the amount of $41,776.10. In the event that the Tribunal was not prepared to award legal costs, then Ms. Glover stated she was seeking an increase in the general damages.
15The Commission sought general damages payable to Ms. Glover in the amount of $5,000 to compensate her for the frustration and hurt which she experienced when the Respondents did not comply with the “public interest” provisions of the Memorandum of Settlement. The Commission took the position that the Tribunal has no power to award legal costs and that Ms. Glover’s alternative request that the Tribunal increase the general damages was an impermissible attempt to obtain legal costs by another name.
16Subsequent to the hearing, the Tribunal invited submissions from the parties on a December 20, 2010 decision of the Tribunal (differently constituted), which considered for the first time an application under the current Code alleging a breach of settlement: Saunders v. Toronto Standard Condominium Corporation Corp. No. 1571, 2010 HRTO 2516. That process was completed on March 7, 2011.
ANALYSIS AND DECISION
17At the outset I note that if the corporate respondents are bankrupt, these proceedings are stayed as against them: R. v. Fitzgibbon, 1990 CanLII 102 (SCC), [1990] 1 S.C.R. 1005, at para. 22. Ms. Glover, however, also seeks an order against the individual respondents. Accordingly, this decision should be read as applying to the individual respondents and, if they are not bankrupt, to the corporate respondents as well.
18As noted, the Code was substantially amended on June 30, 2008. New section 55(2) of the Code makes new Part IV of the Code applicable to these complaints (see the decision dated September 15, 2009 in relation to this matter, 2009 HRTO 1497). Section 45.9 of Part IV provides in part as follows:
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.
(6) Subject to the Tribunal rules, the parties to an application under subsection (3) are the following:
The parties to the settlement.
Any other person or the Commission, if they are added as a party by the Tribunal.
(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.
19There is no dispute in this case that the settlement was contravened. The issue is one of remedy.
20In Saunders, at paras. 37 to 39, the Tribunal noted that, unlike the old Code, a contravention of a settlement under the new Code does not constitute a contravention of the Code itself, rather it is in essence a breach of contract:
It 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 (ON H.R.T.), 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.
Settlements 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.
In 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.
I agree with Saunders that settlements are in essence contracts between parties. In my view, however, and as developed further below, whether the contract is “private, confidential and without-prejudice” depends on the specific terms of the settlement in question.
21Ms. Glover asserts that notwithstanding the language in the new Code and the decision in Saunders, it remains open to the Tribunal to find that a breach of a settlement in and of itself constitutes a “violation of the Code”. She asserts: “Any application to the Tribunal, if found to [be] valid by the Tribunal, constitutes a violation of the Code.” Ms. Glover argues that “the Tribunal has stated that there is an intrinsic value to the loss of a right under the Code and an assumption of general damages payable for the breach of the Code.” She also asserts that: “Additional damages should flow arising from the impact of the breach of the Code on the Applicant.”
22With respect, this argument confuses several issues.
23These applications were commenced as complaints referred to the Tribunal under old section 36. New section 55(2) provides:
On and after the effective date, the new Part IV applies to a complaint described in subsection (1) as though it were an application made to the Tribunal under that Part and the Tribunal shall deal with the complaint in accordance with the new Part IV.
Part IV contains both section 34 and section 45.9.
24Section 34 permits a person who believes his/her rights under Part I of the Code (i.e. the right not to be subject to discrimination) have been infringed to apply to the Tribunal for an order under section 45.2. It is the right not to be subject to discrimination afforded by Part I of the Code which has an intrinsic value, the breach of which presumptively attracts an award of general damages: see ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008), 295 D.L.R. (4th) 425, at para. 148.
25The release contained in paragraph 13 of the Memorandum of Settlement, however, precludes the treatment of these complaints as applications under section 34. Further, the Code provides that an application alleging contravention of a settlement is brought under section 45.9(3) of the Code seeking an order under section 45.9(8). On such an application, the issue is not whether there has been a contravention of rights afforded by Part I of the Code. Rather, the issue is whether there has been a contravention of the settlement and what remedy to grant for any such contravention.
26In general, settlements arise in the context of a disputed claim that there has been a violation of the Code. A settlement does not involve a determination by the Tribunal that there has been an infringement of a right under Part I of the Code. Nor, for the most part, will a settlement contain an admission by the respondent that there has been such a breach. More commonly, as in this case, the settlement will include a statement that the respondent does not admit that there has been a violation of the Code. A contravention of a settlement does not, therefore, generally constitute a breach of the right not to be discriminated against afforded by Part I of the Code.
27Ms. Glover asserts that “there is nothing in the legislation or section 45.9(8) to suggest that settlements be treated simply as binding contracts between private parties, … or that any claim for compensation related to events prior to signing [the settlement] was ended by the settlement”.
28There is no merit whatsoever to this argument. Section 45.9(1) states that a settlement reduced to writing and signed by the parties is “binding on the parties”. Section 45.9(3) provides that a party who believes that a settlement has been contravened may apply to the Tribunal for an order under section 45.9(8). Section 45.9(8) provides:
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.
The Code clearly provides that settlements are binding on the parties thereto and that Tribunal’s role if there is a breach is to provide a remedy for the contravention of the settlement. This issue is not, therefore, whether the Code provides that “any claim for compensation related to events prior to signing [the settlement] was ended by the settlement”. Rather, the issue is whether the terms of a particular settlement provide for that result. Typically, as with the Memorandum of Settlement in this case, settlements do so provide.
29Ms. Glover argues that in any event the Memorandum of Settlement in this case is not a “private agreement”, as referenced in Saunders; rather it is a “public one” entered into by the Commission. Ms. Glover notes in this respect that the Commission specifically reserved the right to make the Memorandum of Settlement public. In my view, this is a distinction without a difference. The essential nature of a settlement is that it is an agreement between parties. At the time that Ms. Glover’s original complaint was settled, one of the parties was the Commission. The fact that the Commission, in furtherance of its statutory responsibilities to advance the public interest, insisted that it have the right to publicize the settlement, does not change the fact that the settlement is an agreement between parties. While confidentiality may be a common characteristic of settlement agreements, it is not a necessary one. Similarly, settlement agreements may or may not provide that some or all of their terms are “without prejudice”.
30Ms. Glover argues that upon a breach of the settlement, the expectation interests of the Applicant are relevant in assessing the appropriate remedy. She argues:
However, … the expectation interests should relate not only to the contractual aspects of the agreement itself, but also to the expectation interests held by the Applicant in agreeing to resolve the Application by way of a [settlement], rather than continuing further litigation.
… it is reasonable for an Applicant to expect compliance with any settlement and to objectively expect that the Respondents’ failure to fully comply with [a settlement] should inherently give rise to a re-ignition of the Applicant’s loss of dignity, self esteem, respect and human rights and re-trigger mental anguish that would not otherwise have occurred had the Respondents complied with the [settlement].
31The fundamental difficulty with this argument is that it relies upon a “re-ignition” of a claim which was fully and finally resolved by the settlement. I wish to be clear that it is not that I doubt the evidence of Ms. Glover. The conduct of Walter Perin Jr. which she described amounted to repeated and egregious sexual harassment; the described actions of Walter Perin Sr. and Walter Perin Jr. after she complained about the harassment amounted to clear reprisals. That this would give rise to the considerable distress she described is understandable. That Ms. Glover would think that she was entitled to substantial damages is also understandable. Had she continued with her original claim it may well be that the Tribunal would have reached the same conclusion, notwithstanding any positions taken by the Respondents. Given, however, the terms of the Memorandum of Settlement, this evidence is simply not relevant to the issue before me.
32I wish to emphasize that this conclusion arises not from the fact of a settlement agreement having been reached, but the specific terms of that agreement. The settlement could, for example, have provided in the event of default by the Respondents, liability on their part was admitted and Ms. Glover was free to pursue her claim for damages arising (see, by way of illustration, West v. Eisner, [1999] O.J. No. 4705 (O.S.C.J.)). It may be that the Respondents would not have been prepared to enter into such a settlement, choosing instead to litigate the issue of liability. In any event, the effect of Ms. Glover’s argument would be to provide for a result other than the one to which the parties agreed. The settlement to which the parties agreed does not permit for “re-ignition” of the original claim.
33I agree, however, that expectation interests may be a factor in determining the appropriate remedy for a breach of a settlement, and in an appropriate case that may include damages for mental distress. But they must be expectation interests arising from the settlement. In my view, consideration of this and other factors should be undertaken by the Tribunal having regard to the well developed canons of the common law of contract.
34As stated in Fit for Life, [2004] OLRB Rep. September/October 943 at paras. 31-32:
A settlement agreement is a form of contract. It is the essence of the law of contract to encourage parties to enter freely into agreements with respect to their obligations to each other by promoting the finality and certainty of those agreements. In general, each party is not only required to honour the commitments which they have made under a contract, but [also] to accept what they have agreed to receive from the other party as fully discharging the other party’s commitment under the contract. The remedy for a breach by one party is an order putting the other party in the same position that they would have been in had the first party done what they agreed to do. The law of contract provides exceptions from this strict result only when fairness requires it.
Two such exceptions are of interest here. They are the doctrines of rescission and repudiation. The terms have sometimes been used interchangeably, with confusing results. The distinction between the two was recently reviewed by the Supreme Court of Canada in Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423. The court adopted the following definition of rescission (at paragraph 39):
Where one party to a contract expresses by word or act in an unequivocal manner that by reason of fraud or essential error of a material kind inducing him to enter into the contract he has resolved to rescind it, and refuses to be bound by it, the expression of his election if justified by the facts, terminates the contract, puts the parties in status quo ante and restores things, as between them, to the position in which they stood before the contract was entered into.
The court contrasted this with repudiation, which occurs when one party, by words or conduct, demonstrates an intention not to perform the contract. The court noted (at paragraph 40):
Contrary to rescission, which allows the rescinding party to treat the contract as if it were void ab initio, the effect of a repudiation depends on the election made by the non-repudiating party. If that party treats the contract as still being in force and effect, the contract “remains in being for future on both sides. Each (party) has a right to sue for damages for past or future breaches”…. If, however, the non-repudiating party accepts the repudiation, the contract is terminated and the parties are discharged from future obligations. Rights and obligations that have already matured are not extinguished….
[Citations omitted.]
The court further amplified the distinction between rescission and repudiation by adopting the following passage (at paragraph 41):
The modern view is that when one party repudiates the contract and the other party accepts the repudiation the contract is at this point terminated or brought to an end. The contract is not, however, rescinded in the true legal sense, i.e. in the sense of being voided ab initio by some vitiating element. The parties are discharged of their prospective obligations under the contract as from the date of the termination but the prospective obligations embodied in the contract are relevant for the assessment of damages….
[Citations omitted.]
35In short, in the common law, in the absence of fraud or essential error, breach of a settlement agreement does not permit a party to “rescind” the agreement, i.e. treat it as if it had never existed. Rather, the remedy for contravention of a settlement is simply enforcement of the terms of the settlement. This, after all, is what the parties expected when they entered into the settlement. If the breach is “fundamental”, a party may either seek to enforce the settlement agreement or “repudiate” it. Repudiation of the agreement, however, does not extinguish rights or obligations which have matured under the settlement: it only extinguishes prospective obligations. Further, the terms of the settlement remain relevant for the purposes of assessment of damages in relation to any prospective obligations.
36In Fidler v. Sun Life Assurance Co. of Canada, [2006] 2. S.C.R. 3, at paragraph 55, the Supreme Court of Canada re-affirmed that Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145 establishes “the single and controlling test for compensatory damages in cases of breach of contract”. That test is that damages must be "such as may fairly and reasonably be considered either arising naturally ... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties”.
37The damages which can be said to be within the reasonable contemplation of the parties fall into two categories: those which it would be objectively reasonable to have expected, regardless of actual knowledge; and such additional damages as it would be objectively reasonable to expect would arise from special circumstances of which there is actual knowledge. The classic exposition is found in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd.; Coulson & Co., [1949] 2 K.B. 528, at pp. 539-40 (cited with approval in Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377):
(1) It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed …. This purpose, if relentlessly pursued, would provide him with a complete indemnity for all loss de facto resulting from a particular breach, however improbable, however unpredictable. This, in contract at least, is recognized as too harsh a rule. Hence,
(2) In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach.
(3) What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach.
(4) For this purpose, knowledge "possessed" is of two kinds; one imputed, the other actual. Everyone, as a reasonable person, is taken to know the "ordinary course of things" and consequently what loss is liable to result from a breach of contract in that ordinary course. …. But to this knowledge, which a contract-breaker is assumed to possess whether he actually possesses it or not, there may have to be added in a particular case knowledge which he actually possesses, of special circumstances outside the "ordinary course of things," of such a kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operation of the "second rule" so as to make additional loss also recoverable.
(5) In order to make the contract-breaker liable under either rule it is not necessary that he should actually have asked himself what loss is liable to result from a breach. …. It suffices that, if he had considered the question, he would as a reasonable man have concluded that the loss in question was liable to result ….
(6) Nor, finally, to make a particular loss recoverable, need it be proved that upon a given state of knowledge the defendant could, as a reasonable man, foresee that a breach must necessarily result in that loss. It is enough if he could foresee it was likely so to result. ….
[Citations omitted.]
38I note that in Fidler the Supreme Court of Canada held that damages for mental distress may be awarded for breach of contract on the basis of the application of the Hadley principle: see in particular paragraphs 44 to 49. The Court held that in order for such damages to be awarded the tribunal must be satisfied that:
(1) an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and
(2) the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.
Thus, it may be that in an appropriate case contravention of settlement could attract damages for mental distress. (For a case in which this was done, as a result of a breach of a confidentiality provision in a settlement of a defamation action, see: Gianopoulos v. Kranias, [2007] O.J. No. 1094 (O.S.C.J.).)
39I also note that in an appropriate case, contravention of a settlement could attract punitive damages: see Fidler at paragraphs 61 to 63. As Fidler makes clear, however, it is only the exceptional case that will attract such damages:
By their nature, contract breaches will sometimes give rise to censure. But to attract punitive damages, the impugned conduct must depart markedly from ordinary standards of decency -- the exceptional case that can be described as malicious, oppressive or high-handed and that offends the court's sense of decency…. The misconduct must be of a nature as to take it beyond the usual opprobrium that surrounds breaking a contract. …"punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment)". Criminal law and quasi-criminal regulatory schemes are recognized as the primary vehicles for punishment. It is important that punitive damages be resorted to only in exceptional cases, and with restraint.
[Citations omitted.]
40In my view, then, contractual principles provide an appropriate framework for analyzing contraventions of a settlement of an application or complaint under the Code. Of course, given the broad remedial powers of the Tribunal under the Code, those settlements may contain terms which might be unenforceable in ordinary contracts, for example a term calling for the reinstatement of an applicant to employment. Further, the authority conferred upon the Tribunal by section 45.9(8) upon determining that there has been a contravention of the settlement to “make any order that it considers appropriate to remedy the contravention” permits the Tribunal not only to give effect to such otherwise unenforceable contractual terms, but to make other orders consistent with the Code. It may be that this includes the power to make order against individuals who were not parties to the original settlement, but were added as parties to the application by the Tribunal pursuant to paragraph 2 of section 45.9(6) (an issue which I do not decide). In any case, however, the remedy being granted is in relation to the contravention of the settlement, which is a contract between the parties.
41Does the fact that a settlement is in relation to a complaint under the Code in and of itself constitute “special circumstances” so that it is objectively reasonable for respondents to expect to pay additional damages for the breach of that settlement? In my view, it does not. It is true that a settlement arises from a complaint that rights under the Code have been violated. A complaint that rights under the Code have been violated is not, however, the same as a concession by the respondents or finding by the Tribunal that there has been a violation. Further, settlements typically include an express statement by the respondent or respondents that they do not admit to any violation of the Code or to any of the applicant’s allegations. (The settlement in this case contains such a statement.) While it is certainly open to the parties to agree otherwise, breach of the settlement does not give rise to a presumption that an applicant’s rights under the Code were in fact violated, any more than it gives rise to a presumption that an applicant’s complaint was without merit, and settled by the respondents only because of its nuisance value.
42I note that in Saunders, the Tribunal stated at paras. 50-51:
While 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 CanLII 39605 (ON S.C.D.C.), (2008), 295 D.L.R. (4th) 425, 2008 CanLII 39605 (Ont. S.C.D.C.), at para. 152.
Respect 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.
I also note that other Tribunal decisions have made reference to Saunders, and in particular the principles stated at paragraph 51 of that decision, prior to awarding damages as a result of breach of settlement: see Weitzmann v. Burns, 2011 HRTO 818; Schenk v. Nixon, 2011 HRTO 1312.
43With respect, I have some difficulty with this analysis. I agree that it is not necessary for a breach to be wilful or in bad faith to attract damages. I also agree that additional damages may be payable if the breach is wilful or in bad faith. The reference to ADGA Group Consultants Inc. is, however, in my view not helpful. ADGA Group Consultants Inc. was concerned with the power of the Tribunal to award general damages to compensate for the loss of the right to be free from discrimination and the experience of victimization as a result. It was not concerned with breach of a settlement in which the parties agreed to leave in dispute the question of whether the applicant had in fact experienced a loss of the right to be free from discrimination and victimization.
44To the extent that paragraphs 50 and 51 of Saunders suggest that contravention per se should give rise to an award of monetary compensation, I respectfully disagree. Indeed, subsequent decisions of the Tribunal have declined to order damages even upon a finding that a settlement has been contravened. See Matos v. Transplay, 2010 HRTO 2527, and Adorgloh v. Sentrex Communications, 2010 HRTO 2524. Certainty of outcome is fundamentally important to virtually all settlements. The settlement agreement enables the parties to expressly set out their expectations in this regard. If the parties wished to assign damages to an act of contravention, it was open to them to do so. Given the earlier reference in Saunders to ADGA Group Consultants Inc., it bears emphasizing that ADGA Group Consultants Inc. was concerned with contravention of rights, which by definition, can only be held by applicants. By contrast, both applicants and respondents are capable of contravening settlements. While Saunders, Weitzmann and Schenk were all cases in which the respondent was in breach of the settlement, there are many ways in which an applicant might also breach a settlement, for example: breach confidentiality provisions; failure to sign a release; failure to discontinue other proceedings against a respondent; failure to return property to the respondent; etc.
45A settlement of proceedings before the Tribunal in which liability is denied is no different than the settlement of any other legal proceeding. I know of no practice or principle of law that suggests that, as a matter of course, general damages should attend the breach of a settlement. The possibility that a party might otherwise obtain general damages for contravention per se removes the elements of certainty and finality required for successful negotiation of settlements and invites litigation in which a party will seek a benefit which they did not obtain through negotiation. In my view, it is such a result which would “undermine the administration of justice by discrediting the human rights system” and generate “wrong disincentives to negotiation”.
46I turn now to apply these principles to the case at hand.
Remedy for Breach of Settlement Provisions Providing for Monetary Compensation to Ms. Glover
47Paragraph 1 of the settlement provided for the payment of $20,000 to Ms. Glover in accordance with a schedule established in paragraph 2. Paragraph 2 provided that three payments were to be made by specified dates. The first payment, in the amount of $5,000, was made on schedule. The other payments were made, but were delayed. Specifically:
i. The second payment, in the amount of $7,500 and due on March 24, 2006, was not made until May 3, 2006.
ii. The third payment, in the amount of $7,500 and due on March 31, 2006, was not made until December 18, 2006.
48It is clear that the Respondents contravened their obligation to pay the amounts owing when they were due. It is far from clear to me that such a contravention can be considered a fundamental breach justifying repudiation of the settlement by Ms. Glover. Even if it were, repudiation of the settlement would only serve to relieve the parties of prospective obligations. The Respondents have no prospective obligations with respect to this obligation to pay. Nor did Ms. Glover have any prospective obligations to the Respondents from which she sought relief on the basis of the Respondents’ repudiation of the contract. The issue, therefore, is simply what damages are payable by the Respondents to Ms. Glover for the fact that the second and third payments were late.
49Applying the first part of the test in Hadley v. Baxendale, I note that the requirement in the settlement that amounts be paid by a certain date incorporates into the settlement a time value in relation to those payments. In my view, it would be objectively reasonable for the Respondents to foresee that Ms. Glover would suffer losses from being out of the use of the money that she was owed from the time when it was due until the time that it was paid. The appropriate measure of damages is interest for the periods of delay associated with the payment of these amounts.
50The second and third payments were both due in March, 2006. The rate of pre-judgement interest applicable to these delayed payments, calculated in accordance with the Courts of Justice Act, is 3.3%. The second payment of $7,500 was approximately 5 weeks late. I calculate the interest owing on this amount as $24 (to the nearest dollar). The third payment of $7,500 was approximately 37 weeks late. I calculate the interest owing on this amount as $176 (to the nearest dollar). The Respondents, accordingly, are ordered to pay Ms. Glover an additional $200.
51To the extent that Ms. Glover asserted that there were special circumstances in relation to the settlement which might justify additional damages, the focus of her argument was on the public interest provisions of the settlement. Accordingly, I address her arguments with respect to special circumstances under that heading.
Remedy for Breach of Other Provisions of the Settlement
52As noted, the settlement also provided for the following “public interest remedies”:
That the Corporate Respondents will maintain notices, provided by the Commission, prominently within its place(s) of business indicating that the Respondents observe and uphold the Human Rights Code. (Attached as Appendix 1)
That the Personal Respondents, Valdimir (Walter) Perin Sr. and Walter Perin Jr., attend a training program, at their own expense, designed to assist employers in identifying and addressing instances of discrimination on the basis of sex and sexual harassment, facilitated by an expert on anti-discrimination principles within 90 days of the endorsement of this memorandum. The respondents agree to inform the Commission of the identity of the trainer and the date on which the training was completed.
That within 60 days of completion of the training in paragraph 4, the Respondents establish a comprehensive written anti-discrimination and anti-harassment policy (the "Policy") for employees that conforms to the requirements of the Code. The Policy should address, among other things, a sexual harassment policy, and include an internal complaints process and specific notification that complaints arising under the Policy can be taken to the Commission within six months of the last alleged incident of discrimination or harassment, whether or not the internal complaint procedure is used.
53The Respondents did none of these things.
54It is not clear when these obligations matured and in particular whether they should be considered prospective obligations of which there has been a fundamental breach justifying repudiation. If not, the ordinary remedy would simply be an order for the enforcement of these obligations. Assuming that these obligations are prospective and that there has been a fundamental breach, the question is whether the appropriate remedy remains an order for specific performance or whether some other remedy is appropriate.
55Ms. Glover and the Commission both took the position that the appropriate remedy was an award of damages to Ms. Glover.
56The focus of the evidence of Ms. Glover and Dr. Welsh was on the impact of participation in the human rights process upon complainants. Ms. Glover testified as to the profound effect on her of all of the proceedings in relation to her complaint. Dr. Welsh testified that for the victim, the processes of reporting and the subsequent litigation are experienced as part of the sexual harassment. The additional impact can be profound.
57I have no reason to doubt any of this evidence, and in any event it was undisputed before me. It may well be that these factors would have justified substantial general damages in the case of Ms. Glover had the matter been litigated to a conclusion; however, it was not. Rather, Ms. Glover entered into the settlement.
58In this particular case, Ms. Glover testified that the “public interest remedies” were very important to her. She did not want any other women employed by the Respondents to go through what she had gone through. Therefore, she wanted to force the Respondents to get training and adopt policies which would allow other women to enforce their rights.
59Ms. Glover argues that because the Respondents are no longer in business or have “fled” the jurisdiction, these “public interest remedies” are “nullified”. She states that in failing to comply with these obligations, the Respondents have demonstrated once again that they consider themselves above the law and caused her further harm. She seeks a remedy which will make it clear to them that they are not. She states that she gave up a lot when she accepted the initial settlement, in that the amount of that settlement was far less than the damages which she had sought. She argues that an order for specific performance is not appropriate because it would not bring her closure. Accordingly, she seeks additional monetary damages, not an order directing the Respondents to perform the “public interest remedies”. She estimates the value of these damages by reference to what it would have cost the Respondents to obtain the necessary training and create the policies contemplated by the “public interest remedies”.
60The major difficulty with this argument is that the settlement on its face quite clearly states that the only consideration for Ms. Glover entering into it was the payment of the monetary compensation to her. Of particular note are the following paragraphs:
The Complainant acknowledges that the payment of the sum listed in paragraph 1 above, is inclusive of and exhaustive of all possible entitlements relating to the subject matter of complaint number TSAE-4XFQC7, whether pursuant to the Human Rights Code, or any other statute of Ontario.
The Complainant acknowledges by signing this Memorandum that she understands its terms and that she has had reasonable opportunity to obtain independent legal advice regarding the terms of this Memorandum. The Complainant confirms that this Memorandum contains the entire agreement and settlement between the parties, and that the payment listed in paragraph 1, above, is the sole consideration for the release described below.
In consideration of the payment in paragraph 1 above, the Complainant hereby releases and forever discharges the Respondents and successors, and each of its respective officers, directors, former employees, employees, and agents, from any and all actions, applications, causes of action, claims, complaints and proceedings of whatever kind for damages, indemnity, costs, benefits, compensation, reinstatement, or any other remedy which the Complainant or her heirs, administrators or assigns had, may now have, or may have in the future arising out of complaint No. TSAE-4XFQC7 and all allegations connected thereto.
[Emphasis supplied.]
Given these terms, I fail to see how a reasonable person would have known at the time the Memorandum of Settlement was entered into that Ms. Glover had any interest in the “public interest remedies”. Further, it may be that such contractual provisions constitute an absolute bar to Ms. Glover relying upon special circumstances not set out in the contract. I do not, however, need to decide that issue.
61Assuming that Ms. Glover’s concerns could constitute special circumstances, there is no evidence that the Respondents were ever advised that this was part of Ms. Glover’s motivation for entering into the settlement. Rather, Ms. Glover’s evidence was that the settlement was drafted by Commission counsel of the time, and that she signed it in one room while the Respondents signed it in another. There is no evidence of any communication whatsoever between Ms. Glover and the Respondents as to their respective circumstances or motivations for entering into the settlement.
62For similar reasons, I see no basis for Ms. Glover’s claim for damages for mental anguish as a result of the Respondents breach of the Memorandum of Settlement. Applying the first part of the test in Fidler, set out above, there is simply no basis for concluding that the object of the contract, as it related to the “public interest remedies”, was to secure a psychological benefit for Ms. Glover that brings mental distress upon breach within the reasonable contemplation of the parties. While not argued before me, I would reach the same conclusion with respect to the object of the contract as it related to the payment of damages to Ms. Glover.
63The Commission, for its part, acknowledges that a breach of settlement no longer presumptively attracts an award of general damages. The Commission notes, however, that on a breach of settlement, section 45.9(8) authorizes the Tribunal to make “any order that it considers appropriate to remedy the contravention”. The Commission argues that in an appropriate case, this includes an award of general damages.
64The Commission argues that the failure of the Respondents to comply with the public interest remedies portions of the settlement constitutes a loss to the public. The Commission argues that on Ms. Glover’s evidence, she cared very much that the Respondents comply with the public interest remedies, and she was frustrated and hurt when the Respondents did not do so. The Commission argues that an award of $5,000 in general damages payable to Ms. Glover is appropriate for this loss.
65I am not persuaded by the Commission’s argument. I fail to see how a “loss to the public” gives rise to damages for Ms. Glover. Further, for the reasons stated above in relation to Ms. Glover’s arguments, it was not reasonably foreseeable at the time the Memorandum of Settlement was entered into that Ms. Glover would experience these losses as a result of the Respondents’ breach. Given the terms of the Memorandum of Settlement, a reasonable person would not have known that she had any interest in the “public interest remedies”; and there is no evidence that the Respondents had any actual knowledge that, notwithstanding the terms of the Memorandum of Settlement, she did have an interest in the “public interest remedies”.
66While I have adopted the parties’ usage of the term “public interest remedies”, there is a danger that this term obscures an important point. At the time Ms. Glover’s original complaint was settled, the Commission was a necessary party to all proceedings before the Tribunal, and indeed had carriage of the complaint: see old section 39(2). Further, in order for a settlement to be binding it had to be approved by the Commission: see old section 43. In approving a settlement, the Commission was required to consider the public interest. It was not unusual for the Commission to insist that settlements include provisions, commonly referred to as “public interest remedies”, such as requirements that the respondents post notices provided by the Commission, attend anti-discrimination training and establish an anti-discrimination and anti-harassment policy. Those are, of course, the specific obligations at issue here.
67The Commission is no longer a necessary party to applications to the Tribunal: see new section 34. Nor is there any longer a requirement that settlements be approved by the Commission in order to be binding. There is, however, nothing to prevent applicants from insisting that a settlement include a requirement that the respondents post notices provided by the Commission, attend anti-discrimination training or establish an anti-discrimination and anti-harassment policy. While there may continue to be a “public interest” element to such obligations, they are contractual commitments made by respondents to the applicants and are enforceable as such by applicants.
68Thus, it is not the case that applicants can never get a remedy for a breach of settlement provisions requiring respondents to post notices provided by the Commission, attend anti-discrimination training, establish an anti-discrimination and anti-harassment policy or the like. Rather it is that the availability of a remedy and the nature of the remedy must be determined, in the first instance, by reference to the terms of the particular settlement in question. In this case, for the reasons stated, Ms. Glover is not entitled to a remedy for the breach of these provisions.
69The issue not directly addressed by the parties in their submissions is the remedy to which the Commission is entitled for the Respondents’ breach of these provisions.
70In my view, the presumptive remedy for breach of settlement is, upon request, an order for the enforcement of its unfulfilled terms. Not only is this consistent with the common law of contract, but it promotes certainty and finality in relation to settlements and removes, to the extent possible, costs associated with their enforcement. Unlike the terms of the settlement, such an order would be enforceable as if it were an order of the Superior Court: see section 19(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This includes proceedings for civil contempt for failure to comply with an order of the court.
71In its written submissions, the Commission stated that the Respondents’ breach “was not ‘fundamental’ and rescission is not an option”. As outlined above, if this is the case then the appropriate remedy is simply an order for the enforcement of the “public interest” provisions of the Memorandum of Settlement.
72It seems to me, however, that in this case the primary objective of the “public interest remedies” in relation to the specific business of Cadillac Tavern was to ensure that other workers would be aware of their Code rights, and that the business would have in place a policy for the enforcement of those rights of which the workers would be made aware. As Cadillac Tavern is not operating, it is not apparent to me that there is any human rights purpose to making an order for the enforcement of the “public interest remedies” as against the business of Cadillac Tavern, or the corporate entities through which it was carried out. Further, any request for such an order would also need to address two additional issues. First, only one of the corporate Respondents was a party to the original settlement. Thus, if an order is sought in relation to the second corporate Respondent (which is a party to these proceedings), submissions should be made as to the power of the Tribunal make such an order. Second, as noted earlier, it appears that both corporate Respondents are bankrupt. A request for an order against the corporate Respondents must, therefore also address both the factual question of whether one or both is in fact bankrupt and if so the power of the Tribunal to make an order against them notwithstanding the bankruptcy.
73Of course, none of these considerations applies to the individual Respondents, Vladamir (a.k.a. Walter) Perin Sr. and Walter Perin Jr. It seems to me that there continues to be some public interest in making an order requiring them to comply with paragraph 4 (i.e. undergo personal training) of the Memorandum of Settlement. Further, there also continues to be some public interest in making them comply with paragraph 5 (i.e. “establish a comprehensive written anti-discrimination and anti-harassment policy … for employees that conforms to the requirements of the Code”) should they now or in the future have other employees in any business. (Paragraph 3 of the Memorandum of Settlement, requiring the posting of the notices, was an obligation of the Corporate Respondents alone.)
74The Commission shall have ten days from the date of this decision to request an order for the specific enforcement of the unfulfilled “public interest remedies” terms of the Memorandum of Settlement. If such a request is made, the parties shall have ten days from the date of the request to file any submissions they may wish to make as to why the Tribunal should not then order the individual Respondents to comply with paragraphs 4 and 5 of the Memorandum of Settlement. In the event that any party files submissions, the other parties shall have five days to file any submissions in reply. In the absence of any submissions, an order for the enforcement of these “public interest” provisions of the Memorandum of Settlement shall issue, as it may after consideration of any submissions filed.
Costs
75Ms. Glover seeks her costs of these proceedings. She acknowledges that in MacDonald v. Downtown Health Club for Women, 2009 HRTO 1647, this Tribunal has held that, given the absence of a rule permitting it to do so, it has no authority to award costs. (See also: Dunn v. United Transportation Union, Local 104, 2008 HRTO 405; Ugbay v. Eston Manufacturing, 2009 HRTO 611; Facciolo v. 1383078 Ontario, 2010 HRTO 1686; Clennon v. Toronto East General Hospital, 2010 HRTO 506.) She argues, however, that section 23(1) of the Statutory Powers Procedure Act, which permits a tribunal to “make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes” provides the authority to award costs. She acknowledges that this argument was rejected in MacDonald, but argues that this authority was recognized by the Divisional Court in a case not before the Tribunal in MacDonald: Royal & Sun Alliance Insurance Co. of Canada v. Volfson, [2005] O.J. No. 4523, 2005 CanLII 38902 (O.S.C.J., Div. Ct.).
76This argument is not persuasive. Volfson concerned the jurisdiction of an Arbitrator of the Financial Services Commission to award costs against a representative who fraudulently commenced proceedings under the Insurance Act in the names of his clients. Section 282(11) of the Insurance Act gave the Arbitrator express jurisdiction to award costs against a party to the proceedings. The issue was whether section 23(1) of the Statutory Powers Procedure Act permitted the Arbitrator to treat a representative as a party when the representative “was acting on his own account or that of his company, fraudulently posing as a lawfully authorized agent”. The Divisional Court held that it did, noting: “If section 23(1) is to have any meaningful effect, it must be interpreted as enabling a tribunal to bring before it the person who has wrongfully engaged its process.” The specific authority to award costs, however, flowed not from section 23(1) of the Statutory Powers Procedure Act, but from section 282(11) of the Insurance Act. Neither the Code nor the Tribunal’s rules confer similar jurisdiction upon the Tribunal.
Order
77The Respondents are jointly and severally liable to pay Ms. Glover the following amounts:
a. $200 as damages;
b. Pre-judgement interest in accordance with the Courts of Justice Act from May 3, 2006 in relation to $24 of the damages and from December 18, 2006 in relation to the remaining $176 of the damages, in each case to the date of this decision;
c. Post-judgement interest in accordance with the Courts of Justice Act on any accumulated principal and interest from that date that is 30 days after this Decision.
78The Commission shall have ten days from the date of this decision to request an order for the specific enforcement of the unfulfilled “public interest remedies” of the Memorandum of Settlement. If such a request is made, the parties shall have ten days from the date of the request to file any submissions they may wish to make as to why the Tribunal should not then order the individual Respondents to comply with paragraphs 4 and 5 of the Memorandum of Settlement. In the event that any party files submissions, the other parties shall have five days to file any submissions in reply. In the absence of any submissions, an order for the enforcement of these “public interest” provisions of the Memorandum of Settlement shall issue, as it may after consideration of any submissions filed.
Dated at Toronto, this 19th day of August, 2011.
“Signed by”
Ian Anderson
Member