Ahearn v. North Hill Dental Center, 2012 HRTO 2166

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fern Ahearn

Applicant

-and-

Dr. Sahar Rakshanfar Dentistry Professional Corporation c.o.b. North Hill Dental Center

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: November 19, 2012

Citation: 2012 HRTO 2166

Indexed as: Ahearn v. North Hill Dental Center

APPEARANCES

Fern Ahearn, Applicant

Self-represented

Dr. Sahar Rakshanfar Dentistry Professional Corporation c.o.b. North Hill Dental Center, Respondent

No one appearing

Introduction

1This is an Application filed 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. The applicant alleges that the respondent failed to fulfill a term in the settlement.

2After being ordered to do so, the respondent filed a Response to the Application in which it indicated that while it was its intention to honour the agreement, it believed the applicant had breached the non-disparagement clause contained in the Minutes and proposed that if the applicant agreed to participate in a “voluntary truth verification process” and the results satisfied the respondent, it would be prepared to resume payments of the monies owed under the Minutes of Settlement.

3At a hearing held on August 23, 2012, the applicant was present and ready to proceed. The respondent was not.

4The Notice of Confirmation of Hearing, dated January 26, 2012, was sent to the address provided to the Tribunal by the respondent and has not been returned as undeliverable. I am satisfied that the respondent had proper and timely notice of the proceedings. After allowing the respondent an extra half hour to arrive, the hearing proceeded in the absence of the respondent.

5As a preliminary matter, the correct name of the respondent was clarified and the style of cause amended accordingly from North Hill Dental Center to Dr. Sahar Rakshanfar Dentistry Professional Corporation c.o.b. North Hill Dental Center.

6For the reasons that follow, this Application is granted.

THE LAW

7Section 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.

8On September 7, 2011, the parties to the original Application met and entered into Minutes of Settlement. On the same date, the parties signed a Form 25. The Minutes of Settlement contained the following paragraphs:

1. The Respondent shall pay to the Applicant the all inclusive sum of $8000.00 in general damages as a full and final settlement arising out of the facts and issues raised in the Application.

2. The sum in paragraph 1 shall be paid in four monthly instalments of $2000.00 commencing October 1, 2011 (and paid on the first day of each month thereafter) and shall be given to the Applicant as post-dated cheques on or before September 30, 2011.

9In her Application, the applicant stated the following:

After much effort the Respondant made first settlement payment 3 weeks late. The second payment was to be paid on or November 1^st 2011 and after speaking to the respondant by telephone conversation she has made it clear she has no intention on making the payment. She informed me she has investigator looking into some alleged negative things being said about her or her office online and until they clear this situation she will not be paying me. Please refer to the emails that your office have been CC'd on from and to her General Manager who is also her common law partner. He had asked me to give him my banking information giving me the impression he will direct deposit the amount into my account. I never heard back from him after several attempts to reach him I had the Human Rights Legal Services send them a letter requesting payment. We are yet to hear back from them.

I wish at this point to have the full amount owed payed in full as the respondant has not given any reason to trust they will make payments.

10At the hearing, the applicant testified that no post-dated cheques were received on or before September 30, 2011, as agreed to in the Minutes of Settlement. After numerous attempts by her via email to enforce the terms of the Minutes as well as a phone call to the respondent’s solicitor, one cheque was sent by courier to the applicant at her workplace. The cheque was in the amount of $2000.00.

11As indicated above, under the terms of the Minutes of Settlement, the respondent was to pay a total amount of $8000.00 to the applicant, in 4 instalments of $2000.00 each. I have the uncontradicted evidence of the applicant that only the first payment was made, leaving $6000.00 unpaid. The respondent’s written Response outlines their position. The applicant provided evidence at the hearing denying any breach of the mutual non-disparagement clause contained in the Minutes of Settlement. The respondent is not entitled to set additional conditions, such as “passing” a lie detector test, as a prerequisite for it honouring commitments made in binding Minutes of Settlement.

12I find, therefore, that the applicant has established that the respondent breached a term of the Minutes of Settlement.

13Section 45.9(8) of the Code sets out the Tribunal’s power to remedy contraventions of settlements. The Tribunal may make “any order that it considers appropriate to remedy the contravention.”

14The applicant gave evidence that the results of the respondent’s breach were catastrophic for her. She says that she was counting on the settlement funds and had scheduled necessary surgery for December 19, 2011, because she thought the settlement funds would allow her to stay afloat financially while she was recuperating.

15As a result of the breach, she testified that she did not have those funds and suffered hardship. Specifically, she was evicted for non-payment of rent, had to move and still needs to pay her former landlord. In addition, other bills went unpaid. She could not honour financial arrangements she made and has suffered emotionally as well. She has been prescribed antidepressants that she cannot afford. Finally, her access to her children was limited because she says she does not have a car and could not afford to save money towards the purchase of a car while she was trying to recover from this episode.

16She seeks to be made whole and has asked for the rental amount that is still owing to her former landlord, specifically $2050.00, in addition to the settlement monies not paid.

17Although the applicant attributes many of the misfortunes she experienced in the period following the respondent’s breach to that event, she has not persuaded me that ordering payment of her rental arrears in addition to ordering the payment of the balance of the settlement funds is an appropriate remedy in this situation.

18I do, however, accept that she had relied on the payments that were to be made and that she experienced difficulties as a result of the respondent’s failure to honour the agreement entered into by the parties. Keeping in mind the remedial nature of the Code as well as the Tribunal’s interest in ensuring the finality of settlements, I am of the view that it is appropriate in the circumstances of this Application to award a further sum of $1000.00 to the applicant as monetary compensation for the harm caused to her as a result of the respondent’s breach of its obligation to pay the agreed-upon amount under the settlement.

ORDER

19In light of the above, the Application for breach of settlement is granted and I make the following order:

(a) Within seven days of the date of this Decision, the respondent, North Hill Dental Centre, will pay to the applicant the sum of $7000.00, which represents the amount outstanding from the agreed upon amount referred to in paragraphs 1 and 2 of the Minutes of Settlement, dated September 7, 2011 ($6000.00), and monetary compensation of $1000.00, along with pre-judgment interest on the total amount, from November 1, 2011, 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 seven days of the date of this Decision in accordance with the Courts of Justice Act.