Carlos Xitimul v. Marriott Hotels of Canada and Masoud Rashidi, 2011 HRTO 1867

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carlos Xitimul

Applicant

-and-

Marriott Hotels of Canada and Masoud Rashidi

Respondents

decision

Adjudicator: Ena Chadha

Date: October 17, 2011

Citation: 2011 HRTO 1867

Indexed as: Xitimul v. Marriott Hotels of Canada

ORAL SUBMISSIONS BY

Carlos Xitimul, Applicant ) Self-represented

1The applicant filed this Application on June 11, 2010 under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging the respondents contravened Minutes of Settlement arising out of the applicant’s previous Application.

2The applicant submits that, according to the Minutes of Settlement, executed on May 11, 2010, the respondents agreed to pay the applicant $37,000 as general damages in the form of a cheque to be mailed to the Applicant’s home by May 31, 2010. The applicant alleges that the respondents violated this aspect of the agreement when it failed to pay him in full by the May 31, 2010 deadline.

3The respondents filed a Response on June 24, 2010, denying the allegations of a breach of settlement. The respondents allege that a timely payment was forwarded to the applicant; however, a second payment had to be reissued because the first payment erroneously deducted tax. The respondents submit that full and proper payment of the settlement monies was couriered out to the applicant on June 10, 2010.

4On November 4, 2010, the Tribunal issued a Case Assessment Direction scheduling a teleconference hearing into this matter. The Case Assessment Direction stated that the hearing was to determine the sole issue of whether or not there had been a breach of settlement.

5A teleconference call was held on September 9, 2011, to hear the parties’ oral submissions with respect to the contravention of settlement allegation. The Tribunal convened the conference call on September 9, 2011, at 1:30 p.m. as per the Notice of Conference Call. The applicant was present. The respondents were not in attendance and had not notified the Tribunal about their absence.

6The applicant submitted that, given the respondents’ failure to participate in the conference call, the Tribunal should accept all his allegations and award him a substantial remedy.

7The Tribunal recessed the conference call because it was uncertain whether the respondents received notice of the conference call and the Tribunal needed to confirm that proper notice had been provided. When the conference call was reconvened, the Tribunal advised the applicant that it appeared that the Notice of Conference Call was delivered to the facsimile telephone number provided by the applicant for the respondents and not the number noted on the respondents’ correspondence. As such, the Tribunal indicated that it would be appropriate to provide the respondents with notice at the facsimile number indicated on the respondents’ correspondence.

8The Tribunal inquired about the applicant’s availability in the upcoming months for another conference call; however, the applicant stated that he was unavailable because he would be out of the country from the end of September 2011 until May 2012. The applicant indicated that he wished to proceed and make his submissions. The applicant made brief remarks summarizing his allegations and indicated that, given his inability to reschedule the call due to his extended absence from the country, he accepted that the Tribunal could make its decision based on the materials in the file. The applicant indicated that he would provide the Tribunal with photocopies of the initial erroneous payment and the Tribunal directed that he provide a copy this correspondence to the respondents.

9On September 12, 2011, the Tribunal received copies of the applicant’s documents.

10On September 14, 2011, the Tribunal issued a Case Assessment Direction requiring the respondents to, within 10 days of the date of the Case Assessment Direction, file with the Tribunal and serve on the applicant written submissions with respect to the issue of breach of settlement. The respondents were also required to confirm their contact information. The Tribunal noted that if the respondents failed to respond as directed, the Tribunal may determine the allegations based on the written material in the file and may determine that the respondents have waived their right to further notice or participation in the proceeding.

11The respondents have not contacted or corresponded with the Tribunal and the timeline for doing so has elapsed.

SUMMARY OF FACTS

12The applicant alleges that the respondents breached Minutes of Settlement arising out of a previous Application (2009-03202-I) in failing to make proper payment of settlement monies. The applicant alleges that, in accordance with the Minutes of Settlement, dated May 11, 2010, the respondents were required to make settlement payment of $37,000 without any tax deduction by May 31, 2010.

13The applicant indicates that on June 1, 2010, he received two cheques from the respondents in the amounts of $21,724.64 and $4,818.66 and it was apparent, based on the information statement attached to the cheques, that the respondents had improperly deducted taxes from settlement amount. As a result, the applicant had his legal advisor contact the respondents. The applicant indicates that he was directed to return the two cheques, which he did on June 4, 2010. The applicant further indicates that he spoke to the organizational respondent’s human resources representative on June 7, 2010, who acknowledged and apologized for the error. The applicant alleges that, as of the morning of June 11, 2010, when he delivered the Application to the Tribunal’s office, the respondents had not made full payment. The applicant explains that, later the same day upon his return from filing the Application, he received the proper cheque from the respondents.

14The applicant alleges that that he was upset and frustrated by the delay of 11 days. The applicant seeks compensation for the 11 days that the settlement monies were overdue and he asks that the respondents be ordered to pay 50% of the original settlement amount, without taxes, as “a penalty” for the respondents missing the May 31st deadline.

15Based on the respondents’ materials, it appears that, due to an administrative error, taxes were wrongly deducted from the initial payment issued to the applicant at the end of May 2010. Consequently, the settlement cheque had to be re-issued. The respondents allege that the Director of Human Resources contacted the applicant and personally apologized for the error and that the correct payment was couriered out to the applicant on June 10, 2010.

16The relevant paragraph of the Minutes of Settlement is as follows:

1. The employer shall pay the Applicant $37,000 as general damages for pain and suffering. A cheque shall be mailed to the Applicant’s home address by May 31, 2010.

ANALYSIS

17Section 45.9(8) of the Code sets out the Tribunal’s power to remedy contraventions of settlements and states that the Tribunal may make “any order that it considers appropriate to remedy the contravention.”

18I find that there was a settlement as evidenced by the Minutes of Settlement which, pursuant to paragraph 1, required the respondents to mail a settlement cheque to the applicant’s residence by May 31, 2010. I accept the applicant’s evidence that the settlement cheque did not arrive by that date. I find that, while there was a breach of the strict terms of the Minutes of Settlement, the circumstances of this case do not give rise to a remedial order of the magnitude sought by the applicant.

19Further, I reject the applicant’s submission that the respondents should be penalized for this contravention. The object of the Code is to remedy the breach and not punish or penalize the contravening party. As noted in Matos v. Transplay, 2010 HRTO 2527, at para. 17, “the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention.”

20The contraventions alleged by the applicant are: 1) the error in deducting taxes and 2) the 11-day delay in issuing the correct settlement funds. The applicant acknowledges that the respondents have already apologized for the former and, with respect to the latter, I find that the initial delay was merely a single day, not 11 days as alleged by the applicant. The respondents were required to mail a cheque to the applicant’s residence by Tuesday May 31, 2010. The applicant confirms that he received payment, albeit an incorrect amount, on Wednesday June 1, 2010. As such, the respondents were delayed in getting the initial funds to the applicant by one day. Upon being reminded that the settlement funds were general damages and thereby not subject to tax, the respondents recognized the error and apologized. It appears that the respondents issued the correct settlement funds and delivered the cheque to the applicant approximately four business days after notification of the error.

21I find this case is similar to Adorgloh v. Sentrex Communications, 2010 HRTO 2524, wherein the Tribunal refused to award any remedy to the applicant for the respondent’s short delay in making a settlement payment. The Tribunal held:

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 delay 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.

Similarly, in Matos, supra, the Tribunal also declined to award the applicant any remedy for a delayed payment of eight days. In both of these decisions, it appears that the fact that the respondents apologized was relevant.

22In the present case, there is no doubt that the respondents attempted to fulfill their obligations under the Minutes of Settlement. Upon being alerted to the erroneous tax deduction, the respondents both apologized and promptly undertook to remedy the mistake. It is noteworthy that the respondent’s representative issued this apology and assurance prior to the applicant filing his Application. In fact, the applicant received the correct settlement funds a few hours after delivering his Application to the Tribunal’s offices. As such, based on the applicant’s submissions and chronology of the events, I am not convinced that the applicant suffered harm beyond minor inconvenience and upset.

23In his oral submissions, the applicant emphasized his perspective that the respondents should be penalized, especially for failing to participate in the Tribunal’s conference call. While I agree that the respondents were required to communicate their intentions to the Tribunal as to whether or not they were going to participate in this proceeding, I do not find that this is a basis to bolster the applicant’s remedial entitlement. However, the respondents should be reminded that, as stated in Glover v. 571566 Ontario Inc. (Cadillac Tavern), 2006 HRTO 14, “[t]he Code is an important statutory enactment and its provisions and processes ought to be adhered to and respected.”

24In the circumstances of this case, I am of the view that it is appropriate to award the applicant a sum of $150.00 as monetary compensation for the frustration caused to him as a result of the respondents’ breach of their obligation to pay the applicant settlement monies by May 31, 2010, and for incorrectly deducting taxes.

CONCLUSION

25Accordingly, the Tribunal orders as follows:

• Within 30 days of the date of this Decision, the respondents shall pay to the applicant $150.00 as monetary compensation for the contravention of settlement.