Jadranka Grubac v. Sheraton Hamilton Hotel, 2012 HRTO 1457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jadranka Grubac

Applicant

-and-

Sheraton Hamilton Hotel (Starwood Hotels & Resorts)

Respondent

DECISION

Adjudicator: Mark Handelman

Date: July 25, 2012

Citation: 2012 HRTO 1457

Indexed as: Grubac v. Sheraton Hamilton Hotel

APPEARANCES

Jadranka Grubac, Applicant ) Self-represented

Sheraton Hamilton Hotel (Starwood Hotels & Resorts), Respondent ) Donna D’Andrea, Counsel

BACKGROUND

1The applicant filed this Application on December 21, 2011, under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging the respondent contravened Minutes of Settlement arising out of the applicant’s previous Application to the Tribunal.

2The applicant submits that, according to the Minutes of Settlement, executed on December 20, 2008, the respondent agreed “not to participate in the Complainant’s WSIB appeal, unless required by the WSIB to attend.”

3The respondent filed a Response on March 12, 2012, asking the Tribunal to dismiss the Application.

4On March 27, 2012, the Tribunal issued a Case Assessment Direction scheduling a teleconference hearing into this matter. The hearing was held before me on July 9, 2012. The parties each made oral submissions with respect to the contravention of settlement allegation.

FACTS

5The relevant facts were not in issue:

a) The Minutes of Settlement dated December 20, 2008 contain a provision that the respondent agreed “not to participate in the Complainant’s WSIB appeal, unless required by the WSIB to attend.” [Although WSIB is named in the Minutes of Settlement, material before me identifies the relevant agency as the Workplace Safety and Insurance Appeals Tribunal (WSIAT) ].

b) At some point—the date is not clear from the materials filed—the respondent’s consultant completed one of the Forms WSIAT requires to process an appeal. In doing so, the applicant alleges the respondent breached the terms of the Minutes of Settlement.

c) By letter dated November 10, 2011, and couriered to the consultant retained by the respondent and to the applicant’s representative, WSIAT requested the applicant’s representative to complete the applicant’s “Confirmation of Appeal.” That letter also confirmed that the respondent’s consultant had completed and filed a “Confirmation of Appeal for Employers.”

d) The applicant filed this Application on December 21, 2011.

e) On or about January 9, 2012, the respondent wrote to the WSIAT to withdraw from the applicant’s appeal. WSIAT confirmed receipt of this letter and amended its records accordingly.

f) In an email to the applicant dated December 30, 2011, a representative of the respondent apologized “for the confusion relating to your previous agreement with the Sheraton Hamilton.” The email explained that the Hamilton Sheraton was sold in 2008 and “most of the files/documentation has been destroyed and/or lost. I was unaware of your previous agreement when I was asked to move forward with participating in your WSIB claim.”

g) The applicant seeks, as a remedy for this breach of settlement, a reopening of her initial Application to this Tribunal.

SUBMISSIONS

6The applicant alleges that completing the Employer’s Confirmation of Appeal and sending it to WSIAT was a breach of the Minutes of Settlement entitling her to reopen her Application.

7In oral submissions during the teleconference hearing, the applicant submitted that she suffered emotional distress as a result of the original discrimination and the reopening of the respondent’s WSIAT appeal. She submitted that, as a result, she suffered a severe personal crisis in June 2012. She did not produce any medical reports in support of this allegation. She disputed the respondent’s claim that relevant documents were destroyed or lost, and alleged that representatives of the respondent knew what was going on. She also noted that the withdrawal of the WSIAT appeal was not immediate.

8Respondent’s counsel submitted that completing the Employer’s Confirmation of Appeal for WSIAT was not participating in the WSIAT application and therefore there was no breach of the Minutes of Settlement. In the alternative, counsel submitted that if there was a breach, it was “de minimus,” that there was no harm to the applicant and therefore no need for a remedial order.

ANALYSIS

Was There a Breach of the Minutes of Settlement?

10Section 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, Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867, and Francis v. Toronto Police Services Board, 2011 HRTO 2018.

11In the present case, it was open to the respondent’s consultant, had he known of the Minutes of Settlement provision, to write WSIAT and advise that the respondent was taking no part in the appeal. In my view, that would not have been a “participation” in it.

12However, filing the “Confirmation of Appeal” form was “participation” in the matter: it was a step WSIAT required to move the appeal forward and I do not take so narrow a view of the intent or meaning of the provision in the Minutes of Settlement as to interpret it to mean that the respondent’s agents had to actually show up for a Hearing in order to breach the term. I therefore find that the respondent breached the relevant term of the Minutes of Settlement, that it would not participate in the applicant’s WSIAT appeal.

What is the Appropriate Remedy?

13While the applicant disputed the respondent’s assertion that records relevant to the issues raised in the initial application to this Tribunal were lost, nothing turns on that, given I have found that the respondent breached the terms of the Minutes of Settlement.

14There was no evidence that the applicant raised the matter with the respondent prior to commencing this Application. While the applicant submits that the respondent did not remedy the breach immediately, in my view they did so at least promptly, particularly given that these events took place during the holiday season. I find as fact that the respondent became aware of the breach when it received this Application, on or about December 21, 2011. The apology email was sent to the applicant some 10 days later and the respondent wrote to the WSIAT to end their involvement on January 9, 2012.

15I am not convinced on a balance of probabilities that the applicant suffered harm beyond upset and minor inconvenience. While she was clearly upset during the hearing, her submissions ascribed that to the entirety of her circumstances: her initial injury, her application to this Tribunal and the need to go through the WSIAT appeals process, the fact that she remained unemployed and some personal matters she mentioned in her submissions. I think her severe personal crisis of June 2012, first referred to during the teleconference, was also a consequence of all she has endured. Absent some evidence of causal relationship between the breach of the Minutes of Settlement and the crisis, the temporal distance from the former to the latter mitigates against making an award to compensate her. While I accept her evidence that the event took place, I cannot, in law absent clearer evidence than provided, ascribe it sufficiently to the breach of the Minutes of Settlement to award compensation for this event.

16In Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618, the Tribunal 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 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.

17While I appreciate the applicant was upset and disturbed by the respondent’s actions, the breach of the agreement was remedied relatively quickly and with an apology for any distress caused. In these circumstances I am not satisfied that a remedial order for the breach is appropriate.

ORDER

18The Application is dismissed.