Lachapelle v. Stargratt, 2013 HRTO 1232

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Lachapelle

Applicant

-and-

Paul Stargratt

Respondent

DECISION

Adjudicator: Ruth Carey

Date: July 15, 2013

Citation: 2013 HRTO 1232

Indexed as: Lachapelle v. Stargratt

APPEARANCES

Amanda Lachapelle, Applicant

Self-represented

Paul Stargratt, Respondent

No one appearing

INTRODUCTION

1On September 28, 2012, the applicant and respondent signed minutes of settlement with respect to Tribunal Application 2012-10828-I. The applicant filed an Application for Contravention of Settlement on November 15, 2012, pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondent breached the settlement agreement by failing to make any payments agreed to by the parties.

2On November 16, 2012, the Registrar wrote to the respondent directing him to file a Response to the Application no later than December 4, 2012. The respondent did not file a Response and the Tribunal’s correspondence was not returned.

3On March 4, 2013 the Tribunal issued a Case Assessment Direction (“CAD”) drawing the respondent’s attention to Rule 5.5 of the Tribunal’s Rules of Procedure which says:

5.5. Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

4The CAD also said (at para. 9):

If the respondent wishes to participate in the proceeding, the respondent shall file a Response (Form 19) with the Tribunal within 14 days of the date of this Case Assessment Direction. If a response is not received, the Tribunal may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.

5The CAD was sent to the respondent by regular mail and by courier but he did not respond. As directed in the CAD, the Tribunal scheduled a half-day hearing by conference call to hear the Application. The Notice of Hearing was mailed to both parties on April 17, 2013.

6The hearing took place by teleconference on July 9, 2013 at 9:30 a.m. Only the applicant participated. The hearing concluded at 10:00 a.m. at which point the respondent had not dialled in. The applicant testified that she had no knowledge that the respondent has moved. I am satisfied that the respondent received timely and proper notice of the Application and the hearing.

FINDINGS

7The September 28, 2012 settlement agreement says that the respondent shall pay to the applicant $5,600.00 as general damages in instalments of $800.00 per month, payable at the end of the month for seven months starting October 31, 2012. It also says that payments are to be made by way of money order mailed to the applicant’s home address.

8The applicant testified that none of the required payments were made. Her mailing address has not changed. She has had no contact with the respondent since the settlement agreement was signed. I am satisfied that the respondent contravened the settlement and the Application was made within six months of the contravention.

9The settlement agreement contained a number of other clauses including a general confidentiality clause. The applicant testified that she has not breached any of the terms of the settlement and she has no knowledge that the respondent has contravened any term other than the one involving payment.

REMEDY

10Section 45.9(8) of the Code says that if “the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.”

11As the respondent’s contravention has deprived the applicant of the funds she is entitled to under the settlement agreement, it is appropriate to require the respondent to pay to the applicant the $5,600.00 he agreed to pay.

12The Application did not claim additional damages arising from the contravention of the settlement agreement in the Application. During the hearing I explained to the applicant that she could ask for such damages, but she declined to do so. In the circumstances, I will not order an amount for damages arising from the contravention.

13I believe it is appropriate to award the applicant pre-judgment interest on each payment that was due under the settlement agreement for the period starting the day following the date of the missed payment, calculated in accordance with s. 128 of the Courts of Justice Act.

14In Impact Interiors Inc. v. Ontario (Human Rights Commission), [1998] O.J. No. 2908, 1998 CanLII 17685, the Court of Appeal affirmed that pre-judgment interest on compensatory awards is available as a remedy under what was then s. 41(1)(b) of the Code. That section of the Code has been replaced by subsequent amendments, but like s. 45.9(8) it did not specifically mention interest. The Divisional Court in Quereshi v. Ontario (Human Rights Commission), [2006] O.J. No. 1782, 2006 CanLII 63686, confirmed that pre-judgment interest should be calculated in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43. The Tribunal has awarded pre-judgment interest in a number of cases involving contravention of a settlement agreement, including: Malabre v. LMC Endocrinology Centres (Toronto) Ltd., 2013 HRTO 385; Ahearn v. North Hill Dental Center, 2012 HRTO 2166; Medeiros v. Cambridge Canvas Centre, 2011 HRTO 1519; Fakira v. London Roof Truss, 2011 HRTO 365; and Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.

15Section 128(1) of the Courts of Justice Act says:

128.(1) A person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.

16The cause of action in this instance is the Application for Contravention of Settlement which the applicant was entitled to file on November 1, 2012, the day following the first missed payment of $800.00 under the settlement agreement. In Lowndes v. Summit Ford Sales Ltd., [2006] O.J. No. 13, 2006 CanLII 14, the Ontario Court of Appeal states that where multiple payments are due over time, pre-judgment interest should only be payable on the shortfall. Here this means that pre-judgment interest is payable on the first $800.00 due for the period November 1, 2012 to the date of Decision; for the second $800.00 due for the period starting December 1, 2012; for the third $800.00 due for the period starting January 1, 2013, and so on until the date of the seventh payment. Mathematically, this is the equivalent of awarding pre-judgment interest on the entire amount of $5,600.00 from the mid-point between the first and last payment’s due dates.

17As a result of all of the above, the respondent shall be required to pay to the applicant pre-judgment interest on the entire amount of $5,600.00 for the period starting March 1, 2013 to the date of this decision calculated in accordance with s. 128 of the Courts of Justice Act.

18The respondent shall also be required to pay post-interest judgment as of the date of this Decision.

19With respect to post-judgment interest, s. 129(1) of the Courts of Justice Act says:

129.(1) Money owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment interest rate, calculated from the date of the order.

20Section 130(1) of the Courts of Justice Act says that where it considers it just to do so, the court may decline to award interest, vary the interest amount, or change the period it will run. Section 130(2) lists factors that the court shall take into account when exercising its discretion under s. 130(1) including: the circumstances of the case; and any other relevant consideration.

21The relevant circumstances here are that following the signing of the settlement agreement, the respondent made no payments to the applicant and he did not contact her to explain his circumstances or offer reasons for non-payment. The respondent has not communicated with the Tribunal or the applicant with respect to this Application in any way. In these circumstances, it serves no remedial purpose to give the respondent additional time to pay the principle owing, or to delay the running of post-judgment interest.

DECISION

22The Tribunal makes the following order:

a. The Application for Contravention of Settlement is granted;

b. The respondent shall immediately pay to the applicant $5,600.00;

c. The respondent shall also pay to the applicant pre-judgment interest on the full amount due under paragraph b. above, for the period March 1, 2013 to the date of this Decision calculated pursuant to s. 128 of the Courts of Justice Act; and

d. The respondent shall also pay to the applicant post-judgment interest from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.