Francis v. Toronto Police Services Board, 2011 HRTO 2018

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Desmond Francis

Applicant

-and-

Toronto Police Services Board, Glenn Jones and

Adrian Pillach (Formerly Szablowski)

Respondents

DECISION

Adjudicator: Alan G. Smith

Date: November 8, 2011

Citation: 2011 HRTO 2018

Indexed as: Francis v. Toronto Police Services Board

WRITTEN AND ORAL SUBMISSIONS BY:

Desmond Anthony Francis, Applicant ) Self-represented

Toronto Police Services Board, Glenn Jones, ) Dave Gurlay, Representative

and Adrian Pillach (formerly Szablowski) ) Kevin McGivney and

Respondents ) Rebecca Bush, Counsel

BACKGROUND

1The applicant filed this Application on April 19, 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 March 17, 2010, the respondents agreed to pay the applicant $1,000 within four weeks of the date of settlement. The applicant alleges that the respondents violated this aspect of the agreement when they failed to pay him in full by the April 14, 2010 deadline.

3The respondents filed a Response on January 28, 2011, seeking to have the settlement enforced and asking the Tribunal to dismiss the application.

4On July 11, 2011, the Tribunal issued a Case Assessment Direction scheduling a teleconference hearing into this matter.

5A teleconference call was held before me on October 19, 2011. The parties each made oral submissions with respect to the contravention of settlement allegation.

FACTS

6The applicant did not dispute the respondent’s version of the facts:

a) The Minutes of Settlement dated March 17, 2011, provided that the settlement funds would be forwarded to the applicant by April 14, 2010;

b) Rebecca Bush, counsel for the individual respondents, was unexpectedly away on medical leave for a period of four weeks during the month of April 2010;

c) Due to the fact that Ms. Bush was away from the office, the settlement funds were, through inadvertence, not immediately forwarded to the applicant;

d) On April 22, 2010, Ms. Bush’s assistant, Ms. Anna Lee, received the applicant’s Application for Contravention of Settlement;

e) On April 22, 2010, Ms. Lee telephoned the applicant and advised him that Ms. Bush was ill and away from the office and offered to immediately forward the settlement funds to him. Mr. Francis declined the offer and advised Ms. Lee to retain the settlement funds.

f) On April 23, 2010, Mr. Kevin McGivney, Ms. Bush’s colleague, wrote to Mr. Francis again explaining the circumstances surrounding the delay in delivering the settlement funds and again offering to conclude the settlement.

SUBMISSIONS

7In their written submissions the respondents make three essential arguments:

a) The breach was trivial insofar as the applicant was advised within approximately one week of the initial deadline that the cheque was available, but he declined to receive it;

b) The breach should be excused because it was caused by inadvertence on the part of counsel for the respondent due to counsel for the respondent being absent from work on medical leave; and

c) The applicant was made aware that the settlement funds were available by way of a letter to him from respondent counsel dated April 23, 2011. In response to the letter the applicant declined to have the funds delivered to him. Hence the applicant was not prejudiced by the brief delay in his receipt of the funds.

8In oral submissions the respondents made an additional submission that, even if the breach can be seen as more than trivial, it still does not constitute a “fundamental breach” of the Minutes of Settlement and hence should not prevent the enforcement of the agreement.

9In oral submissions the applicant alleges that that he was upset and frustrated by not receiving the funds by the April 14, 2010, deadline. By way of redress the applicant seeks to have the settlement agreement entirely rescinded and a fresh round of mediation scheduled by the Tribunal.

10During the hearing I asked the applicant if he was requesting any alternative remedies. He advised that, “nothing else is required”.

11In support of his request the applicant advised that he felt that the original mediation had been conducted “in bad faith”, but declined to elaborate further.

12Subsequent to the hearing the applicant submitted further written submissions in support of his contention that the mediation of March 17, 2010, was conducted in “bad faith”:

a) That Ms. Bush lied about the whereabouts of the personal respondents when questioned as to why they were not in attendance at the mediation;

b) That the mediation proceeded in two separate rooms because the respondents refused to be in the same room as the applicant; and,

c) That a new settlement term was agreed to by the parties at the end of the mediation process, “indemnifying the officers and forever expunging my right to pursue the matter by further means, legally or otherwise…”;

ANALYSIS

13Section 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.” The object of the Code is therefore 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.” See also the resent Tribunal decision, Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867.

14In 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 missed payment deadline, the respondents promptly undertook to remedy the mistake by sending a cheque out immediately. The fact that the applicant chose to refuse that offer does not change the fact that the delay in receiving the settlement funds would have amounted to, at most, ten days.

15I am not convinced that the applicant suffered harm beyond minor inconvenience and upset. 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. I therefore reject the applicant’s submission that the settlement should be rescinded and note that he made no other requests with regard to remedy for the breach.

16In Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618 the Tribunal, in a Reconsideration Decision, considered the amount of damages, if any, to be awarded to an applicant for an eight-day delay in receiving a payment pursuant to Minutes of Settlement. In that case, there was no evidence that the applicant raised the matter with the respondents prior to filing an application and the matter was rectified as soon as that Application was filed. In dismissing the Request for Reconsideration, the Tribunal noted at paragraph 9:

In view of the minor nature of any breach of the agreement on the applicant’s version of the facts, these are not circumstances in which proceeding with the Application could override the public interest in the finality of decisions. It is a general legal principle that ‘the law does not concern itself with trifles’ (‘de minimus non curat lex’): see, for example, Ontario v. Canadian Pacific, [1952] 2 S.C.R. 1031 at para. 65. In the circumstances, where there is an extremely minor alleged breach of settlement and notice was sent to the applicant in the manner he requested but he failed to respond, there is no reason to grant this Request for Reconsideration.

17Similarly on point is 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. See also, Matos, supra, where the Tribunal also declined to award the applicant any remedy for a delayed payment of eight days.

18I find that the applicant’s submissions with regard to the “bad faith” nature of the March 17, 2011, mediation are not relevant to the breach of settlement issue which is before me.

19In sum, the minor delay in this case amounted to a trivial breach of the Minutes of Settlement. Therefore it is not appropriate to award a remedy for contravention of the Minutes of Settlement beyond the terms of the original agreement of March 17, 2010.

ORDER

20The Respondents shall courier a cheque, payable to the applicant, in the amount of $1,000 to the applicant’s last known address within thirty days of this Decision.