HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Anderson
Applicant
-and-
Gordon Stapley
Respondent
DECISION
Adjudicator: Brian Cook
Indexed as: Anderson v. Gordon Stapley
APPEARANCES
Heather Anderson, Applicant
Self-represented
Gordon Stapley, Respondent
Self-represented
Introduction
1This is an Application under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent contravened the terms of a settlement of an Application that was agreed to in writing and signed by the parties at a mediation session held at the Tribunal.
2The applicant and the respondent were co-workers. In the original Application, the applicant alleged that the respondent had sexually harassed her at work. The employer was not named as a party to the Application. The original Application was filed in August 2012. The Tribunal scheduled a mediation session on March 4, 2013. Both parties attended the mediation. The mediation resulted in a settlement. The parties signed Minutes of Settlement and a Tribunal Form 25.
3In the Minutes of Settlement, the respondent agreed to pay the applicant a set amount as general damages, in five installments beginning on March 30, 2013. The Minutes of Settlement do not specify what dates the remaining four installments were to be paid.
4The respondent also agreed to make arrangements with his employer to have these payments sent to the applicant directly through the employer’s payroll system. He was to advise the applicant when these arrangements had been made.
5The Minutes of Settlement provided that in the event that the payments could not be made in this way, the respondent would provide post-dated certified cheques to the applicant on March 28, 2013. The Minutes of Settlement do not specify what dates would be on the post-dated cheques.
6The Minutes of Settlement included a confidentiality provision which reads as follows:
The Applicant and the Respondent agree to maintain confidentiality of the terms of these Minutes of Settlement, and shall not discuss or disclose the terms of settlement with anyone other than employees [of the employer] necessary to implement [payments through the employer’s payroll system], immediate family members, legal advisors or as required by law.
7The Minutes of Settlement were signed by the parties on March 4, 2013.
8On March 19, 2013, the applicant filed a Contravention of Settlement Application. The applicant alleged that the respondent had disclosed the terms of the settlement to people at work in contravention of the confidentiality provision of the settlement. She alleged that this had occurred on March 5, 2013, and that she heard from many co-workers that the respondent had been discussing the terms of the settlement.
9The respondent filed a Response to the Contravention of Settlement Application. He said that he had disclosed the terms of the settlement but only to one person. He indicated that he “accidentally under stress and emotion let it slip”.
10On April 8, 2013, the applicant filed a second Contravention of Settlement Application. The applicant alleged that the respondent had not made arrangements with the respondent’s payroll department and that she had not received any monies or certified cheques.
11The respondent did not file a Response (Tribunal form 19) to the second Contravention of Settlement.
12In a Case Assessment Direction dated May 10, 2013, the Tribunal directed a telephone conference call hearing to deal with the Contravention of Settlement Applications. The hearing was held on September 30, 2013. Both parties participated.
The Contravention of Settlement Hearing
13At the hearing, the respondent confirmed that he did tell another co-worker about the results of the mediation, including the terms of the settlement. He said, however, that he did not tell anyone else.
14When the applicant complained to the employer about the fact that the respondent had talked to another co-worker and had breached the confidentiality provision of the Minutes of Settlement, the employer conducted an investigation. The respondent said that he was required by the employer to take a two-week vacation while the investigation was concluded.
15The applicant’s employment was a contract for a maternity leave position that ended on March 30, 2013, a few weeks after the March 4, 2013 mediation. Following the two-week vacation period, the employer required the respondent to stay off work for one more week, which coincided with the last week of the applicant's contract. The respondent indicated that he was at home without pay for that week. The applicant indicated that the employer told her that this was happening so that she could conclude her employment without having to encounter the respondent.
16The applicant stated that earlier in the contract period the employer offered her a position that would start on April 1, at the end of the contract. She declined the offer because it would have required her to work in direct proximity with the respondent. As a result, she was unemployed at the end of March when the contract ended. She said that she did not get a new job until approximately the beginning of May.
17At the hearing, the respondent confirmed that he had not paid the applicant any of the settlement money. The respondent explained that the main reason for this was that he was very taken back during the mediation session when he was presented with an offer to settle that included money. In the original Application, the applicant had not asked for money, but only that the respondent leave her alone. He said that during the mediation he was told that he would be required to pay some money in order to settle the Application. He said that the mediator told him that if the case did not settle and if it went to a hearing, there was a good chance that the Tribunal would find that he had infringed the applicant's Code-protected rights and that he might be ordered to pay monetary compensation to the applicant that would likely be higher than the amounts discussed in mediation. The respondent does not allege that the mediator gave him legal advice or told him how much he should agree to pay in mediation. However, he says he felt like he was “painted into a corner” and felt that he was being pressured to agree to pay money. On reflection after the mediation, he felt this was unfair and that he should not have been required to pay money. The respondent did, however, agree that he had signed Minutes of Settlement that said he would pay the applicant money.
18The respondent said that in addition to this, he did not feel able to confirm with the employer’s payroll department about the payroll deductions that had been agreed to at the mediation because he was sent home by the employer before he could do this. He said that the applicant then filed the first Contravention of Settlement Application regarding his breach of the confidentiality provision.
19The respondent says that he called the Tribunal to ask what to do and a staff person advised him to do nothing until the matter was dealt with by the Tribunal.
20The applicant agrees that she did not ask for monetary compensation when she filed the original Application in August 2012. She said that between that time and the mediation session in March 2013, she had been subjected to ongoing issues at work. In particular, she was the subject of gossip and rumours and hurtful comments by other co-workers arising out of the sexual harassment she had been subjected to by the respondent that was the subject of the original Application. As a result, she felt that a request for money at the time of the mediation was reasonable. She noted that she had agreed to the respondent’s request that the money be paid in installments because she had some compassion for his situation. She said that she understood that she might have been awarded a higher amount if the matter went to hearing but she really wanted to have the matter resolved.
21The applicant said that since the mediation, she has been forced to deal with the ongoing fallout from the respondent’s failure to adhere to the Minutes of Settlement. This started during the last month of her employment following the respondent’s breach of the confidentiality provision. She said that she was immediately subject to numerous unwelcome and unpleasant comments from other co-workers as well as being the subject of further rumours and gossip. She said that she does not believe that the respondent spoke to only one person about the terms of the settlement because others told her the respondent had disclosed details to them.
22The applicant said she has had ongoing contact with the employer’s payroll department which has been in contact with her on a monthly basis to see if there was a resolution to the payment issue. She also had to file two Contravention of Settlement Applications and attend the Contravention of Settlement hearing and had to use a vacation day for that purpose. The applicant also indicated that she made financial arrangements on the basis that she would be receiving the money agreed to in the Minutes of Settlement and that she experienced considerable inconvenience when she did not receive any of the money. She did not identify any specific financial cost associated with this inconvenience.
23The applicant stated that she is seeking an order that the respondent pay the amount he agreed to pay in the Minutes of Settlement. The applicant feels that the respondent was given the opportunity to pay the money in installments as he requested. Since he did not pay anything, she feels that he should now be ordered to pay the full amount. The applicant also feels that the respondent should pay interest on the unpaid amounts.
24In the first Contravention of Settlement Application, the applicant indicated that the Tribunal should also consider awarding additional compensation for the contravention. At the hearing, the applicant stated that she does believe that additional compensation is appropriate because of the contravention. She indicated that she had thought that it would be necessary to attend an in person hearing in order to claim additional compensation for the contraventions. She said that she would not want to attend an oral hearing as it would involve more time, she would have to continue to dwell on the unpleasant events giving rise to the original Application, and she would have to have interaction with the respondent. When she understood that additional compensation could be awarded as a result of the telephone conference call hearing, she stated that she does believe that additional compensation is warranted.
[Section 45.9](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.9_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
25Section 45.9 of the Code deals with settlements of Applications. The relevant portions 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)…
(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.
26In this case, an Application was filed under section 34, a settlement was agreed to in writing and signed by the parties. The respondent concedes that he contravened the confidentiality provision of the settlement although he says that this happened only once. There is no dispute that the respondent has not paid any of the money he agreed to pay.
The confidentiality provision
27Mediation can be an emotional experience, sometimes involving powerful emotions for the parties who are involved. It is understandable that a person might have a need to talk to someone about what happened, to help process the experience and the emotions associated with it. However, when the settlement includes an agreement that restricts what can be disclosed to others, any discussion with others must happen within the confines of what has been agreed to. In this case, the agreement was that the parties would not discuss or disclose the terms of settlement with anyone other than employees of the employer who had to know about the payroll deduction arrangements, immediate family members, legal advisors or as required by law.
28The respondent concedes that he contravened this agreement and he agrees that he should not have done that. While I understand that the respondent had a need to talk to someone about the process, this is not a sufficient defence to the contravention of the settlement that occurred in respect of the confidentiality agreement in this case.
29The applicant states that as a result of the contravention, she suffered further injury to her dignity, feelings and self-respect because she was subject to further gossip and rumours. The respondent does not dispute that there may have been gossip and rumours concerning the applicant. He does maintain that he only spoke directly about the terms of the settlement to one other person. He does not suggest that he has no responsibility if that person in turn communicated the information to others.
30I conclude that the respondent contravened the agreement to keep the terms of the settlement confidential and that the applicant experienced injury to dignity, feelings and self-respect as a result of that contravention.
Failure to pay money
31The respondent offers several explanations for why he did not pay the applicant any of the money that he agreed to pay.
32First, he says that he felt pressured during the mediation and felt later that he should not have agreed to pay the money. If an agreement is reached under “duress” it can be found to be not binding. However, the test for duress is high. This was discussed in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655:
A contract is enforceable because it represents the voluntary agreement of the parties to it. Where “duress” is put forward as the basis for vitiating a settlement agreement, the party claiming distress is really stating that he or she entered the agreement against his or her own free will, and that the contract does not represent a voluntary agreement. Black’s Law Dictionary, 8th ed. (St. Paul, MN: Thomson West, 1999), gives the following as one of the definitions of “duress”:
Broadly, a threat of harm made to compel a person to do something against his or her will or judgment, especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.
“Economic duress” is also specifically defined in Black’s, not in terms of a party’s financial circumstances per se, but the threat of financial harm:
The Ontario Court of Appeal described the elements of economic duress in a recent case, Taber v. Paris Boutique & Bridal Inc. (Paris Boutique), 2010 ONCA 157 at pars. 8-9:
There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.
However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept. See: Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA), 63 O.R. (2nd) 545 (Ont. C.A.), at para. 89.
33There is no indication in this case that the respondent signed the Minutes of Settlement under duress as that term applies to a written settlement. On the basis of the respondent's allegations, there is no suggestion that the tribunal mediator pressured the respondent to settle, purported to give him legal advice, or in any way coerced him.
34An important purpose of mediation at the tribunal is to allow the parties to explore the strengths and weaknesses of their respective cases with the assistance of a tribunal vice-chair or member, to consider the range of possible outcomes if the matter does not settle and proceeds to hearing, and to make informed decisions about settlement options. It appears that this is what occurred in this case.
35It appears that in this case the respondent had second thoughts about the settlement. This is not a reason to repudiate the agreement.
36The respondent argues that he could not give the consent that was required to the payroll department to permit the payroll deductions because he was sent home by the employer on a forced two-week vacation. I do not see why the fact that the respondent was at home on a vacation would prevent him from authorizing the payroll deductions. Moreover, the Minutes of Settlement were clear that if the payroll deduction was not possible, the respondent would make the payments directly and that he would give the applicant post-dated certified cheques by March 28, 2013.
37It appears that the respondent did email and call the Tribunal to seek direction about what to do after he received the second Contravention Application. He claims that he was told that he should hold off on any payments until the matter was dealt with by a Tribunal adjudicator. The email record does not support that the applicant was in fact given this advice. It rather indicates that the respondent was told that the Tribunal cannot respond to an email from one party unless it is copied to the other party. However, the respondent has forwarded an email that is addressed to the Tribunal Registrar and that appears to have been copied to the applicant in which he states that he was told that by an unidentified Tribunal staff member that the employer should hold off on any deductions pending a decision by a Tribunal adjudicator. This email is dated April 10, 2013, and is time dated after the earlier emails directing him to copy all emails to the applicant. It did not include the Tribunal file number.
38Assuming that the respondent was in fact given the information that he claims he was given by the Tribunal staff person, by April 10, 2013, the applicant had already contravened the agreement to start making installment payments to the applicant, either through the employer’s payroll system or in certified cheques. In addition, the respondent does not suggest that the Tribunal staff person indicated that he was relieved of the obligation to make the payments.
39As noted, the Minutes of Settlement referred to five installments beginning on March 30, 2013, but did not specify what dates the remaining four installments would be paid. However, it appears that it was understood that the payments would be monthly installments. At the hearing the respondent did not contest that it was understood that the installments would be regular and that the intention at the mediation was that the full amount would have been paid at least by now.
40I am satisfied that the respondent contravened the agreement to pay the applicant the money that he had agreed to pay.
Remedy
41As noted earlier, under section 45.9(8) of the Code, if the Tribunal determines that a party who signed an agreement contravened the settlement, “the Tribunal may make any order that it considers appropriate to remedy the contravention.”
42Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, was an early case dealing with a contravention of a settlement. In that case the Tribunal adjudicator noted that a settlement that is agreed to in writing is a contract between the parties. He concluded that the following questions were relevant to the determination of remedy once it has been determined that a contravention occurred:
What is the nature of the breach – does it go to the heart of the MOS [Minutes of Settlement]?
Does anything need to be done to fulfil the terms of the MOS? If so,what?
Were the applicant’s contractual expectations adversely affected?
Did the applicant suffer any quantifiable harm or material loss as a result of the breach?
Did the applicant suffer any harm to dignity, feelings or self-respect as a result of the breach?
43In the case before me, the respondent has not fulfilled the terms of the Minutes of Settlement. To fulfill the terms of the Minutes of Settlement the respondent must pay the amount he originally agreed to pay. The settlement included a provision to allow the respondent to make the payments by installment. The respondent did not make any payments. While the settlement did not specify the dates the payments were to be made, the respondent does not dispute that he understood that if he had made the payments, the full amount would have been paid by now. I therefore find that it is appropriate to order the respondent to make payment within thirty days of the date of this Decision.
44The applicant has identified damages that have arisen from the contravention of the settlement. She states that she experienced injury to dignity feelings and self-respect as a result of the breach of the confidentiality provision because she was subject to gossip and rumours and that she experienced inconvenience and injury to dignity, feelings and self-respect as a result of the respondent’s failure to pay any of the money he had agreed to pay.
45I am satisfied that the applicant is entitled to additional financial compensation for the injury to dignity, feelings and self-respect that the applicant has experienced as a result of the contraventions of the settlement.
46The Tribunal has awarded between $500 and $1,000 in comparable situations, for example in Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939 Weitzmann v. Burns, 2011 HRTO 818.
47In this case, I conclude that compensation in the amount of $750 is appropriate to compensate the applicant for the injury to dignity, feelings and self-respect she experienced as a result of the contraventions of the settlement by the respondent.
Interest
48The applicant asked for an order directing the respondent to pay interest on the unpaid money. This is a reasonable request because it is a manner in which the applicant could be put in the position that she would have been if she had received the money in a timely fashion. The Tribunal has typically ordered the payment of pre-judgement interest in cases where a respondent has failed to pay amounts agreed to in a settlement. In those cases, the Tribunal has generally awarded interest based on the pre-judgment interest rate referred to in section 128 of the Courts of Justice Act, RSO 1990, c C.43.
49The Tribunal’s authority to award interest comes from section 17(2) of the Statutory Powers Procedure Act R.S.O. 1990, Chapter S.22:
17.(2) A tribunal that makes an order for the payment of money shall set out in the order the principal sum, and if interest is payable, the rate of interest and the date from which it is to be calculated.
50While the Courts of Justice Act (CJA) may be a useful reference for setting an interest rate in some cases, it is not a necessary reference for setting an interest rate in a case decided by this Tribunal because the CJA expressly applies to proceedings in courts and does not expressly apply to proceedings before administrative justice tribunals like the HRTO. It is also not a very accessible reference for establishing interest. The Courts of Justice Act does not actually say what the interest rate shall be. To determine the interest rate under section 128 of the CJA it is necessary to find the results of the process described in section 127(2) of that Act:
127(2)After the first day of the last month of each quarter, a person designated by the Deputy Attorney General shall forthwith,
(a)determine the prejudgment and post-judgment interest rate for the next quarter; and
(b)publish in the prescribed manner a table showing the rate determined under clause (a) for the next quarter and the rates determined under clause (a) or under a predecessor of that clause for all the previous quarters during the preceding 10 years.
51The table referred to is available on the website of the Ministry of the Attorney General of Ontario. However, a self-represented person might experience some difficulty determining how to obtain the information. The table indicates that for some time the rate for pre-judgement interest has been 1.3% and the rate for post-judgement interest has been 3%.
52If the money awarded in a judgement under the CJA is for “non-pecuniary loss” (which would generally include general damages) a different interest rate may apply. According to section 53.10 of the Rules of Civil Procedure:
53.10 The prejudgment interest rate on damages for non-pecuniary loss in an action for personal injury is 5 per cent per year.
53In the circumstances of this case I have decided to not order pre-judgment interest. The reasons for this include the following:
The calculation of the interest owing in this case would be complex because the payments were to be made in instalments. If interest is payable in such circumstances, it is generally calculated from the date of the various instalments.
Since the dates of the instalments were not specified in the Minutes of Settlement, it is not possible to determine, on the face of the Minutes, what dates the interest would be calculated from.
Even if it were possible to calculate the interest, the pre-judgement interest rate specified by the Courts of Justice Act is quite low and the amount of interest would not be a significant dollar amount.
54However, I do find it appropriate to award post-judgement interest in the event that the respondent fails to pay the applicant subsequent to this Decision. Pursuant to section 17(2) of the Statutory Powers Procedure Act, and having regard to section 53.10 of the Rules of Civil Procedure, I order the respondent to pay interest to the applicant at the rate of 5% per year on any amount of the total award that is unpaid by November 30, 2013.
55The applicant may wish to contact the Human Rights Legal Support Centre for legal advice in the event that there are continuing problems concerning the enforcement of this order.
ORDER
56The respondent is ordered to pay the applicant the amount originally agreed to in the minutes of settlement plus $750 for injury to dignity, feelings and self-respect to the applicant arising out of respondent’s contravention of the settlement.
57The respondent is ordered to pay interest at the rate of 5% on any amount that is unpaid as of November 30, 2013. The interest will be paid monthly and calculated at the rate of 5% per year.
Dated at Toronto, this 23rd day of October, 2013.
“Signed By”
Brian Cook
Vice-chair