Fakira v. London Roof Truss, 2011 HRTO 365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wazim Fakira Applicant

-and-

London Roof Truss Inc. Respondent

DECISION

Adjudicator: Jay Sengupta Date: February 18, 2011 Citation: 2011 HRTO 365 Indexed as: Fakira v. London Roof Truss

APPEARANCES

Wazim Fakira, Applicant ) Trevor Garner, Representative London Roof Truss Inc., Respondent ) Elizabeth Trainor, Counsel

1This is an Application filed by the applicant under section s. 45.9(7) 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 respondent, London Roof Truss Inc.. The applicant alleges that the respondent failed to fulfill a term in the settlement, specifically to pay him an agreed upon lump sum amount by August 15, 2009.

2The respondent does not dispute that it failed to pay a lump sum amount agreed to under the Minutes of Settlement. It alleges that the applicant breached his obligation under the settlement to maintain confidentiality and argues that his breach constituted a repudiation of the contract and relieved the respondent of its obligation to pay the lump sum amount agreed to under the Minutes of Settlement.

3The Minutes of Settlement contain the following language in paragraphs 3 and 4 with respect to the confidentiality provisions:

The parties agree to forever maintain the strict confidentiality of the terms and conditions of these Minutes of Settlement, with the exception that the Applicant may disclose them to his mother, who shall be similarly obligated, and his legal and financial advisors, and the Respondent may disclose them as necessary to implement the terms. This means that the Applicant will never disclose directly or indirectly, the fact of the Minutes of Settlement nor the terms and conditions of the Minutes of Settlement to any person or organization, except his mother, or his lawyers or financial providers for the purpose of obtaining advice or as required by law.

The Applicant agrees that paragraph 3 above is a fundamental term and condition of these Minutes of Settlement. The Applicant further agrees that nothing in these Minutes of Settlement reduces and/or otherwise negatively affects the remedies available at law to the Corporate Respondent in the event that the Applicant breaches the confidentiality provisions in paragraph 3 above, including, but not limited to, civil action by the Corporate Respondent against the Applicant to recover the lump sum amounts in paragraph 1 and 2, together with any other damages or costs assessed by the courts.

4Section 45.9(3) and (8) of the Code read as follows:

(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.

5I heard evidence from the applicant on his own behalf. Sam Rattazzi, president and part owner of the company, and Jason Mitchell, an occasional employee of the corporate respondent, gave evidence on behalf of the respondent.

6A 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.

7Sam Rattazzi gave evidence that after the mediation held in London, Ontario on August 5, 2009, he was approached by his employee, Jason Mitchell, who asked him what had happened at the session. He says he told Jason Mitchell he could not talk about it because it was confidential. On Monday or Tuesday of the following week Jason Mitchell approached him again and told him that he was surprised that “Waz”(the applicant) was still calling him. He reports that Jason Mitchell told him that the applicant told him (Mitchell) that he would not be getting any money because the applicant had received a lot less money than he was expecting. Sam Rattazzi testified that he contacted his lawyer upon hearing this information from Jason Mitchell and decided that this constituted a breach which relieved the company of its obligation to pay an agreed upon amount of money.

8Jason Mitchell gave evidence that he worked with the applicant at London Roof Truss Inc. until the applicant was fired. He says that he was asked by the applicant to give evidence on his behalf. He indicates that he was also asked by the respondent to give evidence on its behalf and had agreed to testify for both parties.

9Jason Mitchell says he was promised money for his testimony by the applicant. He understood that the applicant would pay him 5 to 10 thousand dollars if he gave evidence that a supervisor employed by the respondent company called the applicant a racially charged name. He says that he refused to lie for the applicant but that the applicant continued to press him to attend the mediation with him and continued to offer him money to pay off his debts despite his many refusals.

10He says that he called the applicant on August 4, 2009 to find out if he still wanted him to come the next day, despite the request that he perjure himself. He says the applicant called him back at 1:30 in the morning. He was upset at being called so late and decided not to go. However, he spoke to Sam Rattazzi, the owner of the respondent company, on the next morning to ask if he should go. Sam Rattazzi told him his attendance was not necessary. As a result of this conversation, he decided he would not go to the mediation.

11Following the mediation, he says he was called by the applicant who berated him for not attending and was told that the applicant would not give him any money because the applicant had not even gotten half the money he was expecting. In his witness statements and during the testimony given at the hearing, Jason Mitchell mentioned a number of different amounts that he understood the applicant to have been expecting and he could not pinpoint the date on which this conversation took place, but mentioned the possibility that it could have been on the Friday or Saturday following the mediation.

12He says he later reported this conversation to his employer, Sam Rattazzi, who indicated that was a breach of the settlement and he then filled out some “paperwork” for Mr. Rattazzi.

13The applicant, for his part, denies much of what Jason Mitchell testified to at the hearing and in his witness statements. He denies having asked the witness to lie on his behalf. He says that he did ask him to attend the mediation but does not recall the date of that conversation. He denies having called him or spoken to him about the settlement or any of its terms. He indicates that following the mediation he was busy helping a friend and did not have the time or inclination to phone Jason Mitchell about the mediation, the Minutes of Settlement or the terms of settlement as he understood the confidentiality provisions and the consequences of breaching them.

14While Sam Rattazzi may well have relied on statements made by Jason Mitchell, having heard the evidence of the parties, I am unable to accept the version of events presented by the witness, Jason Mitchell, as credible for a number of reasons. Firstly, the evidence given at the hearing is inconsistent with the witness statements prepared in advance of the hearing into this matter.

15The first documents prepared are unclear as to the date on which the alleged confidentiality breach occurred and several different dates are offered despite the statement having been prepared shortly after the alleged breach. The evidence at the hearing was similarly vague. In addition, the written statements do not mention the conversation with the owner of the respondent company on the morning of the mediation and only reference the later conversation following the mediation. Finally, the amount of money the witness says the applicant told him he was expecting to get was different in the witness statements and the hearing. Although questioned at the hearing about the differences, the explanations provided by the witness were not sufficient to clarify the inconsistencies.

16The respondent has urged me to rely on the statement prepared on August 19, 2009, because of its proximity to the events in question. However, I am unable to ignore the discrepancies between that document and the evidence given during the hearing.

17Secondly, Mr. Mitchell’s evidence was that he was repeatedly being promised money in exchange for perjured testimony, which money he says he consistently refused. It is difficult to reconcile that evidence with his contention that, despite his repeated refusals, the applicant kept pressing him to attend and his own continuing interest in the outcome of the proceedings.

18I also find difficult to understand why he ultimately took his cue about whether he ought to attend the mediation with the applicant from the owner of the respondent company, a fact that was missing from his witness statements but emerged at the hearing.

19These factors, along with what appears to be an unusual degree of interest in proceedings in which he had no financial or other interest, evidenced by his request for an update from Sam Rattazzi, lead me to reject his evidence regarding the alleged confidentiality breach as unreliable and insufficient to support the respondent’s position that the applicant breached his confidentiality obligation, which then relieved it of its obligation to pay him the agreed upon sum of money.

20As a result, I find that the respondent London Roof Truss Inc. has breached the Minutes of Settlement.

21Although the applicant requested $10,000 as compensation in the Application for Contravention of Settlement, he did not provide any additional evidence concerning any impact the breach by the respondents may have had on him.

22In light of the above, the Application for Breach of Settlement is granted and I make the following order:

(a) Within 7 days of the date of this Decision, the respondent, London Roof Truss Inc., will pay to the applicant the agreed upon lump sum referenced in paragraph 1 of the Minutes of Settlement, dated August 5, 2009, along with pre-judgment interest on the amount, from August 15, 2009, to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43

(b) Post-judgment interest is payable on any amount not paid within 7 days of the date of this Decision in accordance with the Courts of Justice Act.