Diane Malabre v. LMC Endocrinology Centres (Toronto) Ltd., 2013 HRTO 385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Malabre

Applicant

-and-

LMC Endocrinology Centres (Toronto) Ltd.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: March 6, 2013

Citation: 2013 HRTO 385

Indexed as: Malabre v. LMC Endocrinology Centres (Toronto) Ltd.

APPEARANCES

Diane Malabre, Applicant

Cecil Norman, Representative

LMC Endocrinology Centres (Toronto) Ltd., Respondent

Ronnie Aronson, Representative

1The applicant filed an Application for Contravention of Settlement (Form 18) (“the Application”) on April 10, 2012, pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. In the Application, the applicant alleged that the respondent had not complied with minutes of settlement dated February 7, 2012 regarding Tribunal Application 2011-04420-I (“the minutes”) which required the respondent to pay her an agreed-upon amount as settlement monies within 21 days of the date of the minutes, i.e., February 28, 2012 (“the settlement funds”).

2The respondent filed a letter, dated April 24, 2012, in response to the Application. In the letter, the respondent indicated that it was unable to pay the settlement funds because its bank account had been frozen by Revenue Canada.

3The hearing of this matter took place on October 22, 2012. The facts are not in dispute. Dr. Aronson, appearing on behalf of the respondent, indicated that the respondent stopped operating in the spring of 2011 and he acknowledged that the respondent had not paid the settlement funds and was in breach of the minutes. Dr. Aronson submitted that the respondent would honour its commitment under the minutes when it is able to do so.

4In these circumstances, the only issue is the appropriate remedy for the breach of settlement. The applicant submitted that she seeks only the amount owed to her, pursuant to the settlement and no other remedy. The respondent relied upon the Tribunal’s decision in Glover v. 571566 Ontario Inc., 2011 HRTO 1563, and submitted that the minutes were a contract; therefore, the appropriate remedy should be founded on contract law principles.

Analysis and Decision

5The respondent’s sole obligation under the minutes was to pay the settlement funds by a certain date. The respondent acknowledges that, to date, it has not done so. While the respondent has stated that it is willing to make payment once it is able to (if ever), the applicant is entitled to an order requiring the respondent to honour its commitment under the minutes. The applicant does not seek additional damages because of the respondent’s breach and there is no evidence before me that would allow me to award general damages. I agree with the respondent, however, that it is appropriate to apply contract law principles in this case. As noted in Glover, the remedy for breach of contract will generally be the enforcement of the contract and damages arising from the breach or damages that may reasonably have been contemplated by the parties (see paragraphs 35 and 36). Here, as in Glover, supra, the respondent’s obligation was to pay settlement fund within a certain time period, thus incorporating into the settlement a time value regarding those payments. Accordingly, it would be reasonable for the respondent to foresee that the applicant would suffer losses because she did not have use of the settlement funds when payment was due until the time that it is paid. In these circumstances, payment of interest on the outstanding settlement funds appropriately remedies the delay that the applicant has experienced in receiving the settlement funds.

Order

6The Tribunal orders as follows:

• The respondent shall immediately pay the settlement funds pursuant to the minutes;

• The respondent shall pay pre-judgment interest on this amount from February 28, 2012 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43; and,

• In the event that the respondent fails to make the payment described above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 the Courts of Justice Act, R.S.O 1990, c. C.43.