Human Rights Tribunal of Ontario
Between:
David Bailey Applicant
-and-
Rock With Us Marble & Granite Respondent
Decision
Adjudicator: Jo-Anne Pickel Date: September 9, 2013 Citation: 2013 HRTO 1510 Indexed as: Bailey v. Rock With Us Marble & Granite
Appearances
David Bailey, Applicant
Wade Poziomka, Counsel
Introduction
1The applicant alleges that the respondent breached a settlement in contravention of s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondent did not file a Response to the Application. The Tribunal issued an Interim Decision, 2013 HRTO 783, on May 10, 2013, warning the respondent about the consequences of failing to file a Response. The Tribunal directed the respondent to file a Response within 14 days if it wished to participate in the proceeding.
3The respondent did not file a Response. By Interim Decision 2013 HRTO 783, issued June 17, 2013, the Tribunal held that the respondent was deemed to have accepted all of the allegations set out in the Application. It also held that the respondent was deemed to have waived all rights to notice or participation in the proceedings.
Facts
4Under the settlement dated June 29, 2012, the respondent agreed to pay the applicant $7000.00 in seven installments. It agreed to provide the applicant with post-dated cheques as follows:
a. $571.43 per month to the applicant for seven months starting August 1, 2012.
b. $428.57 per month to the applicant’s counsel for seven months starting August 1, 2012
5On August 3, 2012, the respondent sent three cheques to the applicant to cover the months of August, September and October, 2012. The respondent did not provide cheques for November and December, 2012 nor January and February, 2013 despite several requests from the applicant’s legal counsel between November 2012 and January 2013.
6The applicant filed this breach of settlement Application on February 19, 2013. As noted above, the respondent did not respond to the Application. On the same day as the Tribunal’s issued its first Interim Decision in this matter, the respondent provided cheques for the remaining monies owed to the applicant and his counsel ($2285.72 and $1714.28 respectively).
7On or around May 10, 2013, the applicant’s counsel deposited the cheques sent to his firm. There were no problems with these cheques.
8The applicant was on vacation when his cheques were delivered to him. He did not cash the cheques until he returned on July 23, 2013. Shortly after he cashed the cheques, the bank advised the applicant that there were insufficient funds in the respondent’s account to cover the cheques. The applicant was required to reimburse his bank for the amount of the cheques.
9By letter dated August 2, 2013, the applicant’s counsel advised the Tribunal of the problems with the cheques. He also copied counsel for the respondent on this letter.
Analysis
10Section 45.9(8) of the [Code](https://www.canlii.org/en/on/laws/stat/