Perera v. Canada Bread Company Limited, 2013 HRTO 563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wasantha Perera

Applicant

-and-

Canada Bread Company Limited and Cathy Martin

Respondents

DECISION

Adjudicator: Paul Aterman

Date: April 5, 2013

Citation: 2013 HRTO 563

Indexed as: Perera v. Canada Bread Company Limited

APPEARANCES

Wasantha Perera, Applicant

Thushara Kadutipige, Representative

Canada Bread Company Limited and Cathy Martin, Respondents

Paul Young, Counsel

background

1The applicant filed this Application on September 6, 2012, under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging the respondents contravened Minutes of Settlement that resolved an earlier Application brought by the applicant.

2A teleconference hearing of the Application was heard on April 5, 2013. An interpreter was available to assist the applicant if he needed interpretation from English into Sinhala.

3The relevant facts are as follows:

• The applicant’s earlier Application was settled at a mediation on July 26, 2012. The respondents agreed to pay the applicant a sum of money and to provide him with a letter of employment within 30 days of the date of settlement.

• The respondents maintain that they complied with the terms of settlement. The applicant claims not to have received the cheque or employment letter within the prescribed timeframe.

• On September 6, 2012 the applicant filed this Application, alleging a failure of the respondents to respect the settlement timelines, and requesting that the Tribunal “reopen the file, in order to find new settlement”.

• The respondents filed their Response on September 24, claiming to have mailed the cheque and letter in time, confirming that the cheque had not been cashed and undertaking to cancel the first cheque and reissue it, along with a new copy of the employment letter.

• The applicant acknowledged receiving the cheque and letter on September 26, but refused to accept them and returned them to the respondents on October 4.

submissions

4The applicant’s position is that the failure of the respondents to send the cheque and letter in time has the effect of voiding the settlement. The remedy that the applicant seeks is that the Tribunal should impose new terms of settlement on the respondents.

5The respondents’ position is that they complied with the terms of settlement, but that if the Tribunal should find otherwise, it should decline to make any changes to the terms because the respondents have been and remain willing to abide by them. They sent the cheque and letter on September 25, although it was returned, and indicate their willingness to again send them to the applicant.

analysis

6The only disputed fact is whether the respondents sent the original cheque and letter within the time frame prescribed by the Minutes of Settlement. The respondents claim to have done so, but did not provide evidence that the cheque was issued within the time frame. They have provided evidence of the September 25 cheque having been issued. I would expect the corporate respondent to keep records of its payments. For this reason I find it is more likely than not that the cheque and letter were not issued in time.

7However, there is also no evidence that the applicant raised this issue with the respondents before filing this Application, and it is clear that the respondents moved immediately to address the issue. I am satisfied that the respondents are not seeking to avoid their obligations.

8Section 45.9(8) of the Code sets out the Tribunal’s power to remedy contraventions of settlements and states that the Tribunal may make “any order that it considers appropriate to remedy the contravention.” The object of the Code is to remedy the breach and not punish or penalize the contravening party. 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.”

9The harm to the applicant arising from any delay in receiving the cheque is a relatively minor inconvenience, as the cheque and letter were sent on September 25. Despite this remedy of the breach, the applicant returned the cheque and now seeks to rewrite the terms of what he agreed to at the mediation. Given the respondents’ immediate rectification of the breach, I conclude it is not appropriate to award a remedy for contravention of the Minutes of Settlement beyond the terms of the original agreement of July 26, 2012.

ORDER

10In accordance with the terms of the Minutes of Settlement, the respondents shall courier a cheque, payable to the applicant, in the amount agreed to, as well as a letter of employment, to the applicant’s last known address within 30 days of this Decision.