Crozier v. Genivar Inc., 2013 HRTO 643

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joan Crozier

Applicant

-and-

Genivar Inc. and Brian Jagger

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: April 17, 2013

Citation: 2013 HRTO 643

Indexed as: Crozier v. Genivar Inc.

APPEARANCES

Joan Crozier, Applicant

Tom Crozier, representative

Genivar Inc. and Brian Jagger, Respondents

Harold Rolph, Counsel

INTRODUCTION

1This is an Application under s.45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that the corporate respondent contravened the settlement of her human rights Application by failing to send a cheque to the applicant in the manner or within the time frame specified in October 2010 Minutes of Settlement between them. Specifically, the applicant alleges that the corporate respondent breached a term in the Minutes of Settlement requiring it to “mail” a cheque to the applicant’s home address by November 5, 2010. The applicant also alleges that the corporate respondent contravened the confidentiality provision in the Minutes of Settlement.

2A hearing was held by way of teleconference on September 7, 2012, at which the parties were given an opportunity to make oral submissions with respect to the Application.

3For the reasons that follow, I find that the corporate respondent, Genivar Inc., contravened one of the terms of the October 18, 2010 Minutes of Settlement it entered into with the applicant in settlement of her 2009 human rights Application. I also make an order for interest to remedy the contravention.

BACKGROUND

4On April 22, 2009, the applicant filed an Application with the Tribunal alleging that the respondents had infringed her rights under the Code.

5That Application was settled by the parties at mediation on October 18, 2010. Among other things, the parties’ written settlement agreement contained the following term:

The corporate respondent shall pay the Applicant [a specific amount] as general damages. A cheque shall be mailed to the Applicant’s home address no later than November 5, 2010.

6There is no dispute that the applicant did not receive a cheque from the corporate respondent by November 5, 2010. However, the corporate respondent submits that it complied with its obligation under the Minutes of Settlement by couriering a cheque for the correct amount to the applicant’s home address on or about October 25, 2010. In support of its position, the corporate respondent has provided a copy of a cheque made payable to the applicant, dated October 22, 2010; a copy of an October 25, 2010 Bill of Lading from Purolator Courier; and one page of a Purolator Courier invoice billing the corporate respondent for a delivery to the applicant.

7The corporate respondent acknowledges that, as it did not require signature proof of delivery, it is not able to prove that the package was delivered to the applicant. However, the corporate respondent submits that the package was never returned to it. It maintains that it does not know what became of the applicant’s cheque.

8For her part, the applicant maintains that she never received any courier or other delivery from the corporate respondent in October or November 2010. The applicant submits that there were three deaths in her family within a very short period of time in the fall of 2010 and between that and the demands of the holiday season, the applicant did not even realize that she had not received the required payment from the corporate respondent until she received a letter from the Tribunal in February 2011, stating that the Tribunal was closing its file on the applicant’s 2009 human rights Application on the basis that it had been settled.

9At that point, the applicant submits that she contacted the Tribunal to say that she had not received the settlement monies that were owing to her. The applicant submits that when she asked the Tribunal what she could do about the fact that she had not received payment from the respondent, she was advised that she could file a Contravention of Settlement Application. The applicant proceeded to file this Application on April 19, 2011. Before she did so, the applicant submits that she contacted Canada Post’s undeliverable mail depot to see if there was any mail from the corporate respondent there. There was not. The applicant did not contact the corporate respondent directly to inquire about the missing payment before filing this Application.

10The corporate respondent submits that it first learned that the applicant had not received the cheque that it couriered to her in October 2010 when the applicant served it with this Application. The corporate respondent acknowledges that it was aware that the cheque to the applicant had never been cashed. In fact, the corporate respondent submits that it was in the process of attempting to contact the applicant about replacing the uncashed cheque (which the corporate respondent submits would have become stale-dated on or around April 22, 2011) around the time it received this Application.

11On April 27, 2011, the same day she received the Contravention of Settlement Application from the applicant, Andrea MacKenzie of the corporate respondent’s Human Resources department emailed the applicant to say that she had recently learned that the October 22, 2010 cheque to the applicant had expired. Ms MacKenzie advised the applicant that the corporate respondent had re-issued a cheque to the applicant, but wished to confirm her home address, prior to sending it out. Ms MacKenzie asked the applicant to confirm her address and to indicate whether she would like the corporate respondent to send the replacement cheque to the applicant that day. The applicant did not respond to Ms MacKenzie’s April 27, 2011 email.

12The respondents delivered a copy of their Response to the Contravention of Settlement Application to the applicant by email on May 5, 2011. In the Response, the corporate respondent pleaded that, although it sent the required settlement funds to the applicant within the requisite time frame, the cheque had never been cashed. The respondent pleaded that it was “ready and willing” to complete the settlement by delivering the required settlement funds to the applicant, provided that there was a process by which it could confirm delivery of the cheque. In a May 5, 2011 email to the applicant enclosing the Response, counsel for the respondents advised the applicant, “If you contact me directly, I will make arrangements for Genivar’s settlement cheque to be delivered to you.” The applicant did not respond to respondent counsel’s May 5, 2011 email.

13During the hearing in this matter, the applicant explained that the reason that she did not respond to the corporate respondent’s April 27, 2011 request for confirmation of her home address or its counsel’s May 5, 2011 invitation for the applicant to contact him to arrange delivery of the settlement funds was because she felt that the corporate respondent was playing “childish games”.

14Specifically, the applicant points out that the Contravention of Settlement Application that she filed with the Tribunal and delivered to the respondent on April 27, 2011 had her address right on the first page, along with a notation that the best way to send information to her was by mail. Accordingly, the applicant submits that the corporate respondent did not really need her to confirm her home address on or after April 27, 2011. They already had it, she submits. It should be noted that the address provided by the applicant on her Contravention of Settlement Application is the same as the one to which the corporate respondent couriered a cheque in October 2010.

15The applicant also takes issue with a statement in Ms MacKenzie’s April 27, 2011 email that she had been unable to contact the applicant by telephone at either of two specific telephone numbers. The applicant points out that she provided her current telephone number on the first page of the Contravention of Settlement Application that she delivered to the respondents on April 27, 2011. Yet, this number was not one of the two numbers Ms MacKenzie claimed to have used when trying to reach the applicant. According to the applicant, the fact that Ms MacKenzie did not try to reach her at the telephone number provided on the Contravention of Settlement Application shows that the corporate respondent was merely engaging in a delay tactic and was not sincerely trying to confirm the applicant’s home address.

16Based on the above, the applicant submits that the corporate respondent had confirmation of her home address by no later than April 27, 2011 and no excuse for not promptly mailing her a cheque as required by the Minutes of Settlement. In support of her position, the applicant points out that the corporate respondent mailed documents relating to this proceeding to her at the address provided on the Contravention of Settlement Application, at the same time that it was claiming that it needed the applicant to confirm where to send her cheque.

17On August 19, 2011, the Tribunal issued a Case Assessment Direction directing, among other things, that the respondents confirm whether they had sent the required payment to the applicant and provide details of how such payment had been sent.

18On September 9, 2011, the corporate respondent replied that it had not re-sent the settlement funds to the applicant because the applicant had failed to respond to the respondent’s requests for her to confirm her address and/or to contact the respondent’s counsel to make delivery arrangements.

19A copy of the corporate respondent’s September 9, 2011 letter was sent to the applicant by the respondents. The applicant did not respond to it. Instead, the applicant wrote to the Tribunal on November 9, 2011, and December 14, 2011, reiterating that the respondents had failed due to “incompetence” to send payment that had been owing to her for more than one year and requesting an update on the status of her Application.

20On December 19, 2011, the Tribunal issued a further Case Assessment Direction directing, among other things, that, by January 2, 2012, the applicant provide an address to which a cheque could be couriered; and that the respondent courier a cheque to the applicant within 10 days of receiving confirmation of such address.

21On January 2, 2012, the applicant emailed the Tribunal and the corporate respondent to ask, among other things, that the cheque be sent to her by registered mail instead of by courier. The reason for this was that the applicant would be away on business and therefore not available to accept a courier package. The applicant did not provide confirmation of her address in that email.

22Later that day, respondent counsel emailed the applicant asking her to confirm her home address. The applicant replied, also on January 2, 2012, “Please see the form Contravention of Settlement for complete home address details.”

23The respondent sent a cheque to the applicant for the requisite amount on January 6, 2012. In accordance with the applicant’s January 2, 2012 request, the cheque was sent by registered mail instead of by courier.

ANALYSIS AND DECISION

24The relevant provisions of the Code are s.45.9(3) and (8), which provide:

(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),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(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.

25In this case, there is no dispute that the applicant filed an Application under s.34 of the Code, which Application was settled by the parties pursuant to written and signed Minutes of Settlement dated October 18, 2010. Accordingly, pursuant to s.45.9 of the Code, the Tribunal has jurisdiction to determine whether the respondent contravened the settlement, and to determine the appropriate remedy for any such contravention.

Failure to Mail Cheque to the Applicant by November 5, 2010

26As noted above, the applicant contends that the corporate respondent contravened the Minutes of Settlement by failing to mail a cheque for the requisite amount to the applicant’s home address by November 5, 2010. The applicant asks that the Tribunal order the corporate respondent to pay her $8000.00 as general damages to remedy its “negligent acts”. In addition, she seeks “prejudgment interest” on the settlement funds from April 22, 2009, the date she filed her s.34 Application against the respondents, to November 5, 2010, the date on which the settlement funds were due; and post-judgment interest in respect of the period from November 5, 2010 to the date the applicant finally received the settlement funds in January 2012.

27The corporate respondent denies that it breached the October 2010 Minutes of Settlement. It argues that it substantially complied with the requirement that it mail a cheque to the applicant’s home address when it sent it to her by Purolator Courier. The respondent submits that courier and mail are functionally equivalent methods of delivery. If anything, the respondent submits that courier is generally regarded as a faster and more reliable method of delivery. In the alternative, the respondent submits that, if there was a breach of the Minutes of Settlement, it was at most a technical and de minimis breach for which no remedy should be awarded. In the further alternative, the respondent submits that the most the applicant could be entitled to is interest on the settlement funds from the date payment was due, November 5, 2010, to the date the applicant was invited to contact the corporate respondent to arrange delivery of the settlement funds, April 27, 2011.

28The applicant disputes any suggestion that sending the applicant’s cheque to her via courier substantially complied with the corporate respondent’s obligation to mail it to her home address. During the hearing, the applicant explained that there is no door-to-door mail delivery in her area. Instead, the applicant’s mail is delivered to secure community mail boxes located away from the applicant’s home. The applicant submits that, because mail is not delivered to her house, there is no mailbox at her house and therefore no secure place for a courier to have left a package in October or November 2010. The applicant submits that if the courier did leave a cheque on her porch somewhere on or around October 25, 2010, then someone might have taken it or it might have simply blown away. She submits that this would not have happened if the corporate respondent had mailed her a cheque as the parties had agreed in the October 2010 Minutes of Settlement. Had the corporate respondent done so, the applicant submits that her cheque would have been waiting for her in her locked mailbox or Canada Post would have kept it secure for her until she collected it.

29Having carefully considered the parties’ submissions, I agree with the applicant that the corporate respondent contravened the October 2010 Minutes of Settlement by failing to mail a cheque to the applicant by November 5, 2010.

30The October 2010 Minutes of Settlement are essentially a contract between the parties and a determination as to whether the corporate respondent contravened them therefore requires the Tribunal to apply contract law: Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516 at paras. 37-39. A fundamental principle of contract law is that, in determining the parties’ obligations under a written contract, effect ought to be given to clear and unambiguous language used by the parties to express the terms of their agreement. Sentry Metrics Inc. v. Robert Ernewein et al., 2013 ONSC 959.

31The wording of the Minutes of Settlement negotiated by the parties clearly and unambiguously required the respondent to “mail” the applicant’s cheque to her home address. In my view, the corporate respondent could have complied with this contractual obligation by sending the applicant’s cheque to her by either regular or registered mail. However, sending the monies to the applicant by courier did not comply with the terms of the Minutes of Settlement. Nor, in the circumstances of this case, can I agree with the corporate respondent that sending the applicant’s cheque to her by courier was functionally equivalent to mail delivery. The fact of the matter is that, in this case, couriering a cheque to the applicant instead of mailing it to her home address did not have the effect of substantially complying with the corporate respondent’s obligation to send payment to the applicant by November 5, 2010. On the contrary, the respondent’s unilateral, though perhaps well-intended, decision to send the applicant’s cheque to her by courier instead of by the method of delivery specified in the parties’ agreement resulted in the applicant being deprived of the monies to which she was entitled for a significant period of time. Accordingly, I find that the corporate respondent contravened the October 2010 Minutes of Settlement when it couriered a cheque to the applicant instead of mailing it to her home address.

32The more vexing issue in this case, in my view, lies in determining the appropriate remedy for the contravention.

33In most cases where one party has successfully delivered required settlement funds to the other party, but by other than the agreed upon method of delivery (i.e. courier instead of mail or vice versa), I expect that the Tribunal would be unwilling to order a remedy because of the technical, de minimis nature of such a breach. For example, although in Adorgloh v. Sentrex Communications, 2010 HRTO 2524, the Tribunal found that Minutes of Settlement were technically contravened where the respondent mailed settlement monies to the applicant three days later than agreed, it declined to order any remedy because the breach was de minimis. (See also Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618 at para. 9, in which the Tribunal declined to reconsider its decision dismissing a Contravention of Settlement Application as abandoned partly because the respondent’s eight-day delay in paying the settlement funds was “extremely minor”.)

34This case is somewhat different. As noted above, the corporate respondent’s failure to send the applicant’s monies to her by the method of delivery specified in the Minutes of Settlement resulted in the applicant not receiving the settlement monies owing to her until much later than November 5, 2010. Given that the corporate respondent’s actions had the effect – albeit unintended – of depriving the applicant of the monies to which she was entitled for a significant period of time, this is not properly regarded as a de minimis situation.

35Rather, the applicant is entitled to be compensated for her losses flowing from the corporate respondent’s contravention of the Minutes of Settlement. In my view, this is achieved by ordering the corporate respondent to pay the applicant interest on the settlement monies in respect of the period from November 5, 2010 to April 27, 2011. However, I do not think that it is appropriate to order the corporate respondent to compensate the applicant for any losses she may have incurred as a result of not having the settlement monies during the period from April 27, 2011 to January 2012.

36In this regard, I agree with the respondent that any losses the applicant may have sustained as a result of not being in possession of the settlement funds from April 27, 2011 onwards were largely due to the applicant’s own refusal to confirm her mailing address. This would have been a very simple thing for the applicant to have done in response to the corporate respondent’s April 27, 2011 or May 5, 2011 requests. This is evident from the one-line email the applicant ultimately sent to the respondent counsel on January 2, 2012 (only after being directed by the Tribunal to do so), confirming that the correct address was the one provided in her April 2011 Contravention of Settlement Application. If the applicant had confirmed her address to the corporate respondent when asked to do so in April or May 2011, she presumably would have received her money very promptly and capped any ongoing losses resulting from the failure to send her cheque by mail. (Alternatively, if the applicant had not received payment after confirming her address, then at that point, she would have had a claim for interest beyond April 27, 2011.) Given that the applicant had it in her power to obtain the settlement funds on or about April 27, 2011 by simply confirming her address, I do not find it appropriate to order the corporate respondent to compensate her for alleged losses incurred as a result of the fact that the applicant was not in possession of the settlement funds from April 27, 2011 to January 2012.

37In coming to this conclusion, I am not entirely unsympathetic to the arguments advanced by the applicant in support of her claim for interest beyond April 27, 2011. In particular, I can understand why it would have been frustrating for the applicant to receive documents relating to this proceeding from the corporate respondent, via mail, at the same time that the corporate respondent was maintaining that it needed the applicant to confirm her address before it could send her a replacement cheque. On balance, however, for the reasons given above, I am not persuaded that it is appropriate to order the respondent to pay the applicant interest beyond April 27, 2011.

38Nor would it be appropriate to grant the applicant’s claim for interest on the settlement funds in respect of the period from April 22, 2009 (i.e. the date she filed her original s.34 Application against the respondents) to November 5, 2010. Generally speaking, a remedial order pursuant to s. 45.9(3) of the Code seeks to compensate the applicant for losses arising as a result of the contravention of settlement. In this case, there is no basis upon which I might conclude that the failure to send the applicant’s cheque to her by mail no later than November 5, 2010 caused the applicant to incur any losses from April 22, 2009 to November 5, 2010.

39Finally, I am not persuaded that there is a basis in this case to make an award of “general damages” to remedy the corporate respondent’s contravention of the Minutes of Settlement. In support of her claim for “general damages”, the applicant submits that the corporate respondent intentionally delayed sending her payment, thereby treating the applicant in a “spiteful and vindictive” manner. However, I cannot accept that submission. There is no basis in this case upon which I might conclude that the corporate respondent intended to cause the applicant any harm. The applicant also argues that an award of general damages is warranted because the corporate respondent’s actions prevented her from paying off a debt that she had in the spring of 2011. This also does not justify an award of general damages or additional compensation. First of all, for the reasons outlined above, the applicant bears responsibility for the fact that she was not in possession of the settlement funds for most of the spring of 2011. In any event, in my view, requiring the respondent pay interest on the settlement funds from November 5, 2010 to April 27, 2011 adequately remedies the delay the applicant experienced in receiving the settlement funds as a result of the respondent’s failure to mail her cheque and appropriately compensates the applicant for the losses she sustained as a result of the respondent’s actions.

Breach of Confidentiality

40As noted above, the applicant also argues that the corporate respondent contravened the confidentiality provision of the October 2010 Minutes of Settlement. Specifically, the applicant submits that the October 2010 cheque that was couriered to her and that has apparently gone missing might have fallen into some third party’s hands. By allowing this to happen, the applicant submits that the corporate respondent contravened the provision in the Minutes of Settlement requiring it to “maintain confidentiality of the terms of [the] Minutes of Settlement” and not to disclose the terms of settlement except to certain members of senior management or as required by law.

41I agree with the corporate respondent that there is no basis to find that it breached the confidentiality provision in the October 2010 settlement. First of all, there is no way to know what became of the October 2010 cheque to the applicant. Accordingly, there is no basis upon which to conclude that it fell into some third party’s hands. This is speculation on the applicant’s part. In any event, even if the cheque did inadvertently fall into some third party’s hands as a result of a courier delivery gone awry, in my view, that would not amount to “disclosure” of the terms of the settlement by the corporate respondent.

42The allegation that the corporate respondent breached the confidentiality provision of the October 18, 2010 Minutes of Settlement is dismissed accordingly.

ORDER

43The Tribunal makes the following order:

a. Within 30 days of the date of this Decision, the corporate respondent, Genivar Inc., will pay the applicant interest at the applicable pre-judgment interest rate in the Courts of Justice Act, R.S.O. c. C.43, (which is 1.3%), on the amount it was required to pay the applicant pursuant to the October 18, 2010 Minutes of Settlement in respect of the period from November 5, 2010 to April 27, 2011.

b. The corporate respondent will pay the applicant post-judgment interest at the applicable rate under the Courts of Justice Act (which is 3%) on any part of the above-ordered amount that remains unpaid 30 days after the date of this Decision.