Daniela Florencia v. A.C.E. Daycare Inc. (Concord) and Sofia Rom, 2013 HRTO 1238

Human Rights Tribunal of Ontario

B E T W E E N:

Daniela Florencia

Applicant

-and-

A.C.E. Daycare Inc. (Concord) and Sofia Rom

Respondents

DECISION

Adjudicator: Brian Cook

Date: July 16, 2013

Citation: 2013 HRTO 1238

Indexed as: Florencia v. A.C.E. Daycare Inc. (Concord)

APPEARANCES

Daniela Florencia, Applicant

Self-represented

A.C.E. Daycare Inc. (Concord) and Sofia Rom, Respondents

Allan Freedman, Counsel

Introduction

1This is a Contravention of Settlement Application filed under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Contravention of Settlement Application (“the Contravention Application”) alleges that the respondents contravened Minutes of Settlement signed by the parties in settlement of an Application filed with the Tribunal. The Minutes of Settlement provided that the applicant would be paid a specified amount by certified cheque. The cheque was not certified and the applicant alleges that the failure to have the cheque certified contravened the Minutes of Settlement.

Background

3The original Application was settled between the parties privately and prior to a scheduled mediation session at the Tribunal. The Minutes of Settlement were signed by the applicant on March 27, 2013 and by the respondents on March 29, 2013. The Minutes of Settlement provided that the payment to the applicant would be “delivered to the Applicant no later than March 28, 2013.”

4The parties verbally agreed that the applicant would pick up the cheque on March 29, 2013, from Mr. Freedman’s office after the Minutes of Settlement were signed by the respondents and after the applicant provided other documents she was required to provide as part of the settlement. In the Contravention Application, the applicant alleges that she agreed to this only “under duress”.

5There is no dispute that the cheque that the applicant picked up on March 29, 2013, was not certified.

6There is also no dispute that the applicant nevertheless cashed the cheque on March 29. However, the applicant alleges that this was only accomplished after she spent quite a bit of time on March 29 speaking with different banks to ensure that the funds were available.

7The Contravention Application does not allege any other contravention of the Minutes of Settlement.

Conclusions

8The relevant parts of Section 45.9 of the Code are as follows:

45.9 (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),

(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.

9In this case, it is apparent that the settlement reached between the parties was reached under some time constraints. Although the Minutes provided that the funds would be payable by March 28, the Minutes were not signed by the respondents until March 29. As counsel for the respondents notes, technically, the Minutes of Settlement should have been changed to reflect the fact that they could not be adhered to. He notes that this would have resulted in further delay. Mr. Freedman notes that another feature of the Minutes of Settlement was that the money would be paid to the applicant virtually immediately. Minutes of Settlement more commonly allow a period of weeks for any money to be paid. Mr. Freedman asserts that the fact that the cheque was available virtually immediately accounts for the fact that it was not certified. He further asserts that the applicant's then representative did not contact him to let him know there were any difficulties with the cheque. The applicant does not dispute this but says that her representative had to contact the personal respondent during the course of the day on March 29.

10The fact that the cheque was not certified means that the Minutes of Settlement were not strictly adhered to. To the extent that the cheque was not certified means that the respondents contravened the settlement, there does not appear to be anything that the Tribunal could do under section 45.9 to remedy such a contravention. Section 45.9(8) provides 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.”

11Although the applicant did not get a certified cheque, she was able to cash the cheque that she did receive. There would be no point in ordering the respondent to issue a certified cheque now because the applicant has already received the money in question.

12The consequence of the contravention of the settlement in this case appear to me to be limited to time the applicant spent on March 29, 2013 to ensure that the cheque could be cashed. The cheque was in fact cashed on the same day and the cheque cleared. In these circumstances, I find that no order is necessary to remedy any contravention that resulted from the failure to certify the cheque.

ORDER

13I find that to the extent the Minutes of Settlement were contravened because the cheque payable to the applicant as part of the Settlement was not certified, no order is necessary to remedy the contravention.