HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Weitzmann
Applicant
-and-
Jeffrey Burns
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Weitzmann v. Burns
APPEARANCES
Lisa Weitzmann, Applicant ) Self-represented )
Jeffrey Burns, Respondent ) Self-represented
1The applicant filed an Application for Contravention of Settlement (Form 18) (“the Application”) on October 19, 2009 pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. In the Application, the applicant alleges that the respondent has not complied with minutes of settlement dated July 23, 2009 of a human rights complaint (“the minutes of settlement”) which required the respondent to pay her $1,500 as settlement monies, in the amount of $100 per month commencing September 1, 2009 (“the settlement monies”).
2The respondent did not file a Response to the Application. The Tribunal issued an Interim Decision dated March 2, 2010, 2010 HRTO 467, stating that the Application filed with the Tribunal started a legal proceeding and warned the respondent about the consequences of failing to file a Response. The Tribunal directed the respondent to file a Response by March 12, 2010. The respondent submitted a handwritten document entitled “Submission” that the Tribunal received on March 8, 2010, setting out reasons why the settlement monies had not been paid.
3A Confirmation of Hearing Notice dated April 26, 2010 was sent by the Tribunal to the parties scheduling a hearing for August 30, 2010. On August 30, Tribunal staff learned from the respondent that he recently had his leg amputated, had been discharged from North York General Hospital and was recovering in a rehabilitation facility. The respondent advised that he was unable to attend the hearing scheduled for later that date. The Tribunal staff attempted to contact the applicant, but was advised that she had already left to attend the hearing.
4The applicant attended the August 30 hearing and was apprised of the facts set out above. The applicant indicated that she did not oppose an adjournment and the Tribunal stated that the hearing would be adjourned because of the respondent’s medical condition. The Tribunal advised that the hearing would be rescheduled with a new Confirmation of Hearing notice issued to the parties.
5The Tribunal issued a Case Assessment Direction dated August 31, 2010 confirming the adjournment of the hearing and issued a Confirmation of Rescheduled Hearing on October 26, 2010 scheduling the hearing for January 28, 2011.
6The hearing was held on January 28, 2011 and both parties attended. At the hearing the Tribunal stated that it would accept the respondent’s document entitled “Submissions” as his Response to Application for Contravention of Settlement (Form 19) (“the Response”). At the outset, the Tribunal identified that the only issue at the hearing was whether there was a breach of the minutes of settlement and what remedies flowed from the breach. The Tribunal pointedly stated that it did not have information about the original human rights complaint that resulted in the minutes of settlement or settlements reached with other parties who may be been party to the original human rights complaint.
7At the commencement of the hearing, the respondent admitted that he breached the minutes of settlement by failing to pay the applicant the settlement monies. The parties confirmed that, to date, none of the settlement monies have been paid.
The Minutes of Settlement
8The relevant portions of the minutes of settlement state:
WHEREAS
The Applicant filed a complaint dated July 12, 2007 (the “Complaint”) with the Commission, alleging a breach of the Human Rights Code by the personal respondent;
The Applicant abandoned the complaint and filed Application T-0298-08 with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53 of the Code (the “Application”) and
The parties to this agreement ….without further hearing by the Tribunal,
Therefore the parties agree to the full and final settlement of the Application as follows:
- The personal Respondent shall pay the Applicant $1500 (one thousand five hundred) as general damages. This amount shall be paid on the following terms: commencing Sept 1, 2009, and on the first day of each and every consecutive month thereafter until the full amount owing is paid, the personal Respondent shall mail a cheque for $100 (one hundred) to the Applicant at her home address.
The Response
9The Response filed by the respondent states, in part:
(1)The respondent has failed to comply with the terms ($1,000 [sic] Cdn payable at rate of $100 @ month) of the adjudicator’s order herein –
(2)The reasons for the non compliance are as follows –
(a)He has been deemed completely permanently disabled by the Ministry of Health of the Government (see attached documents)
(b)He receives [a specified amount per month] as a disability payment from the provincial ministry of health
(c) He has no other source of income other than a small charity grant from his church
(d)His chronic diabetic condition has amounted other complications rendered him effectively without sight
(3)He is willing to pay a smaller amount of damage over a longer period of time the court orders (i.e.) $40.00 @ mo. for 2 ½ years, or whatever
Conduct of the Parties During the Hearing
10During her submissions at the hearing, the applicant tried to introduce information about her working relationship with the respondent, the complaint that resulted in the minutes of settlement, the respondent’s background and a number of opinions she holds about the respondent. The respondent consistently and vigorously objected to this information being introduced claiming it was not relevant. I agreed and found that the information the applicant tried to adduce about the respondent is not relevant to the issue of whether or not the minutes of settlement were breached and what, if any, remedies flow from a breach. Accordingly, I do not give this information any weight.
11Similarly, the respondent attempted to introduce information and offer opinions about the applicant to which the applicant objected. I found that that the information the respondent tried to adduce about the applicant is not relevant to the issues in this proceeding and I do not give it any weight.
12Both parties during the hearing were disrespectful to each other and to the Tribunal, by making accusations about each other, shouting, and yelling at each other at the same time. They continued to exhibit this conduct despite the Tribunal directing the parties to address their points to the Tribunal, cease their behaviour and explaining that only one person could speak at a time and both parties would have an opportunity to speak. The parties’ rude and disrespectful conduct happened a number of times to the point that the Tribunal advised the parties that the proceeding would stop if their behaviour did not cease.
The Applicant’s Submissions
13The applicant confirmed that she had received neither the $100 per month as set out in the minutes of settlement nor the $40 per month as offered in the Response. She submitted that she was a two time cancer survivor, was off work for 4 months in 2010, and that the settlement monies would have helped her as she had to obtain loans during this period. She wants the issue to be resolved as quickly as possible because her complaint was filed in June 2007 and despite having a settlement in 2009 with the respondent, the settlement monies remain outstanding. She did not accept that the respondent’s medical condition released him from his obligation to pay the settlement monies and felt that he was using this as an excuse or delay tactic. The applicant seeks payment of the settlement monies in the form of post-dated cheques.
The Respondent’s Submissions
14The respondent submitted that he fully intended to pay the settlement monies to the applicant, but experienced some minor health issues which led to serious health issues which he attributed to the applicant’s conduct towards him. He stated that he would recognize the applicant as being a cancer survivor and would do what he could to accelerate the payment of the settlement monies to her. He would not want a situation where she could die with him still owing her estate. He initially stated that while he did not bring any cheques with him to the hearing, he could start to make the payment quickly. However, after hearing the applicant’s statement about his using his medical condition as a delay tactic, the respondent stated that he “withdrew” his offer to pay the settlement monies. It was unclear during the rest of the hearing if his agreement to make the payment was “back on the table”.
Further Submissions
15Subsequent to the hearing, the Tribunal issued a Case Assessment Direction (“CAD”) dated January 31, 2011 seeking the parties’ submissions on whether the Tribunal could order the respondent to pay monetary compensation to the applicant for breaching the minutes of settlement and what amount, if any, should be ordered. Both parties filed submissions addressing this point.
16The applicant seeks $500 as monetary compensation for the breach of the minutes of settlement in addition to the settlement monies because of the costs she has incurred to pursue the settlement. She notes that the respondent has admitted that the minutes of settlement have been breached, but, despite the passage of time, has done nothing to rectify the situation. She submits that her preference would be for the respondent to provide her with 16 post-dated cheques in the amount of $125 per cheque or, alternatively, 20 post-dated cheques in the amount of $100 per cheque.
17The respondent submits that he is permanently disabled and constantly in ill health. He remains unemployed and his daughter works while attending law school to support the household. Assessing interest will not achieve anything, and he requires time to pay.
Analysis
18Subsections 45.9(1), (3) and (8) of the Code provide:
(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).
(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.
19Section 53(6) of the Code provides that “The new Part IV [of the Code] applies to an application made under subsections (3) and (5)”. Accordingly, subsection 45.9 is applicable to this Application.
20In this case, I find that there was a settlement of an Application agreed to in writing and signed by the parties as evidenced by the minutes of settlement. In this respect the requirements of section 45.9(1) are met.
21Paragraph 1 of the settlement required the respondent to pay the settlement monies to the applicant in $100 per month increments starting September 2009. The respondent voluntarily admits he has not complied with his obligations to pay the applicant as he agreed to do. I find the respondent is therefore in breach of the settlement.
22The courts have long recognized a distinction between simple breaches of contract and fundamental breaches. See Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516 at para. 41. In the facts of this case, I find that the breach is a fundamental breach and, further, that the minutes of settlement remain unfulfilled.
23The applicant testified that the settlement monies would have been beneficial to her during the period of 2010 when she was off work and was required to obtain loans in order to support herself. I accept that she is looking for closure to a settlement that she believed she had in July 2009, and that its fundamental term still remaining outstanding.
24The respondent submits that his financial situation and health issues are contributing reasons as to why the settlement monies remain outstanding. In his Response, the respondent stated that he was willing to pay a lower amount over a longer period of time. He reiterated this point at the hearing, until it was “withdrawn”. In his submissions filed after the hearing, the respondent stated again that he needs time to pay.
25As of the date of this Decision, the settlement monies remain outstanding some 21 months after the minutes of settlement were entered into between the parties and some 5 months after the terms of settlement were to be fully implemented. Immediately after the minutes of settlement were entered into, the respondent failed to comply with its terms. While the respondent has previously stated that he is willing to make a lower payment to the applicant over a longer period of time to fulfill the terms of the settlement, he has taken no steps to make these payments. The respondent is therefore ordered to comply with the terms of the minutes of settlement immediately.
26Respect 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. See Saunders, supra, at para. 51.
27The question I must consider is whether, in addition to ordering compliance with the terms of the settlement, section 45.9(8) permits me to award damages as a remedy for the contravention. An award of damages in the appropriate case can help reflect both the private and public importance of complying with settlement terms.
28The language of the section permits “an order to remedy the contravention”. I am satisfied this provision is broad enough to permit me to order the respondent to pay interest on the unpaid amounts from the date they became owing. That ensures the applicant does not bear the financial cost of the contravention and the respondent does not benefit from the failure to comply with the terms of the settlement. It puts the parties in the position they would have been in had the respondent complied with his obligations.
29The applicant says she has also incurred other losses as a result of the respondent’s contravention of the settlement, including the emotional toll which the failure to complete the proceedings have had on her given her own health problems. I am satisfied these losses are real and are a direct result of the contravention of the settlement. Moreover, ignoring a binding agreement that a party has reached is a serious matter which warrants an award of damages in these circumstances.
30I find that it is appropriate to order that the respondent pay the applicant $500.00 as a remedy for the contravention of the settlement.
31The respondent is therefore ordered to pay to the applicant the following amounts within 30 days of the date of this Decision:
$1,500 to be paid as agreed in paragraph 1 of the Minutes of Settlement;
$500.00 as a remedy for for the contravention of settlement;
pre-judgement interest in accordance with the Courts of Justice Act, (which is 2%) on the above amounts from the date of the Minutes of Settlement to the date of this Decision;
Post-judgement interest in accordance with the Courts of Justice Act, (which is 3%) on any amount that is unpaid after 30 days of the date of this Decision.
Dated at Toronto, this 26th day of April, 2011.
”signed by”________________________
Alison Renton
Vice-chair