Birmann v. Honeywell, 2013 HRTO 254

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eric Birmann Applicant

-and-

Honeywell Limited and Karine Laverdiere Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: February 12, 2013 Citation: 2013 HRTO 254 Indexed as: Birmann v. Honeywell

APPEARANCES

Eric Birmann, Applicant Self-represented

Honeywell Limited and Karine Laverdiere, Respondents Sven Poysa, Counsel

Introduction

1The applicant alleges that the respondent breached Minutes of Settlement in contravention of s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2Under the Minutes of Settlement, the respondents agreed to mail a cheque to the applicant within 21 days of the date of the Minutes of Settlement – that is, by August 13, 2012. On August 13, 2012, the applicant e-mailed the personal respondent to advise that he had not yet received the settlement funds and to ask about the status of the payment. When he received no reply from the personal respondent, he filed this Application the following day.

3The respondents' counsel e-mailed the Tribunal on August 14, 2012 to advise that the applicant's cheque was processed on August 9, 2012 but may not have been properly sent out for mailing due to an administrative error. The respondents' counsel advised that the respondents remedied the situation as soon as they became aware of it. According to the respondents' counsel, the respondents sent the applicant the funds by same-day courier on August 14, 2012. The applicant confirmed that he received the funds by courier. He was unsure of the date but stated that it would have been between August 14-16, 2012.

4By Case Assessment Direction dated August 16, 2012, the Tribunal noted that it has held in several cases that a minor delay in the delivery of funds, rectified when the matter is brought to the respondent's attention, does not lead to a remedy for a breach of settlement. The Tribunal scheduled a teleconference hearing in which the parties could made oral submissions with respect to the applicant's contravention of settlement allegation.

5In the hearing, the applicant submitted that the respondents disregarded the Minutes of Settlement and showed casual indifference to the Tribunal's processes. He stated that when he did not receive the funds by August 13, 2012, he was concerned that something had changed with respect to the settlement. This concern was only exacerbated when the respondents did not initially respond to his communications with them on August 13, 2012. The applicant argued that it should not be relevant that the delay in his receiving the funds was short -- that is, between one and three days. The applicant drew an analogy to a breach of the confidentiality provision in the Minutes of Settlement. He submitted that, he would have been in breach of that provision if he had disclosed the contents of the settlement to one person or to several people. The applicant argued that it is imperative that the Tribunal not permit large corporations to consider themselves immune from the Code and the Tribunal's processes. As a remedy, the applicant requested an award of damages equal to 50% of the settlement.

6The respondents submitted the Application is frivolous, vexatious and an abuse of process. They deny that there was a material breach of the Minutes of Settlement. They submit that the Minutes of Settlement only required that the settlement funds be "mailed" by August 13, 2012. Accordingly, they submit that, even under the terms of the settlement, the applicant might only have received the funds several days later. Therefore, at the time the applicant filed this Application on August 14, 2012, he could not know whether the settlement had been breached since he did not know whether the respondents had mailed the cheque out the previous day. Further, the respondents submit that, having received the funds by same-day courier, the applicant was in a better position that he was entitled to be under the settlement agreement. They note that the applicant might only have received the funds several days later if the respondents had mailed them by August 13, 2012, in full compliance with the Minutes of Settlement. For these reasons, the respondents submit that the applicant did not, and could not, have suffered any damages in the circumstances of this case.

analysis

7Section 45.9(8) of the Code sets out the Tribunal's power to remedy contraventions of settlements. It states that the Tribunal may make "any order that it considers appropriate to remedy the contravention." As noted in Matos v. Transplay, 2010 HRTO 2527 at para. 17, "the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention." See also Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867, and Francis v. Toronto Police Services Board, 2011 HRTO 2018.

8In a series of cases, the Tribunal has held that a minor delay in the delivery of funds, rectified when the matter is brought to the respondent's attention, does not lead to a remedy for breach of settlement. See, for example, Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618; Adorgloh v. Sentrex Communications, 2010 HRTO 2524; and Wilson v. Work Able Centres, 2012 HRTO 795.

9In the present case, the respondents fulfilled their obligations under the Minutes of Settlement. Upon being alerted to the missed payment deadline, the respondents promptly undertook to remedy the mistake by sending a cheque out immediately. The applicant received the cheque by courier either one day, or at most two or three days, after the latest date on which it was to be mailed.

10In this case, it is unnecessary to decide whether the requirement that the cheque be "mailed" to the applicant by August 13, 2012 required that it be sent by that date or received by that date. It is not disputed that the delay in the applicant's receipt of the cheque was at most three days, and was likely only one day. While I appreciate that the applicant was concerned and worried when he had not received the cheque by August 13, 2012, he did receive it either the following day or at most a few days later.

11As noted by the applicant, the Tribunal in Xitimul v. Marriott Hotels of Canada, did order the respondents to pay a small sum for their breach of settlement. However I find that the facts of this case are distinguishable from Xitimul. In Xitimul, the applicant was put to the inconvenience of having to return cheques to the respondents after they had improperly deducted tax from the settlement funds. In any event, I prefer the analysis consistently applied in the cases cited above which declined to award a remedy in cases where there is minor delay in the delivery of funds which is rectified when the matter is brought to the respondent's attention. Applying this analysis, I find that the relatively minor delay in this case amounted to a minor breach of the Minutes of Settlement. While the Tribunal seeks to ensure that parties comply with the Code and the Tribunal's processes, I am not satisfied that a remedial order is appropriate in these circumstances.