HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Merg Kong
Applicant
-and-
Toronto Standard Condominium Corporation (TSCC) No. 1959 and Del Property Management Inc.
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Kong v. Toronto Standard Condominium Corporation No. 1959
APPEARANCES
Merg Kong, Applicant
Self-represented
Toronto Standard Condominium Corporation No. 1959 and Del Property Management Inc., Respondents
Bradley Chaplick, Counsel
Introduction
1This Application for Contravention of Settlement (Form 18), filed under section 45.9(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondents breached a settlement entered into by the parties with respect to a previous Application to the Tribunal.
2The settlement in question was entered into on August 31, 2011 and contained the following language in paragraphs 2, 3, 5 and 6:
The Respondents agree to caulk and seal the outside of the window of Suite 353, the applicant’s unit, (the “Unit”) within 90 days of the date of these Minutes of Settlement, upon 48 hours prior written notice to the Applicant.
The Respondents agree to pay the costs of physical repairs and other changes the applicant wishes to make to improve the air quality in the Unit up to a total of $3500.00 upon submission of receipts by the Applicant to the Toronto Standard Condominium Corporation No. 1959’s property management office. The Applicant will affect these changes and submit all receipts within 6 months of the date of these Minutes of Settlement.
The Applicant maintains her full rights under the Condominium Act 1998, including her right to file a motion in support of a smoke-free environment for the condominium to be considered at the Annual General Meeting of the Toronto Standard Condominium Corporation no. 1959.
The Applicant fully and finally releases the Respondents from any future or existing claim, action or proceeding of any kind arising out of or in any way relating ot the events set out in the Application including as a result of smoke or any similar airborne contaminant entering the Applicants Unit, or otherwise affecting the Applicant’s use or enjoyment of the Unit.
3In her Application for contravention of settlement, the applicant alleges that the breach of the settlement took place on October 6, 2011. However, in the body of her Application documents she states the following:
The exterior windows were supposed to be caulked and sealed by the Corporation/board, and this was done October 6, 2011. However, this has not resolved the issue given the damage that was done back on January 27, 2011 by the superintendent to my living room window where there is a permanent gap to the exterior of the building envelope, the second hand smoke is still entering through this gap.
4Although not included in the Application as part of the alleged breach, at the hearing, the applicant indicated that she has submitted receipts for work completed in accordance with paragraph 3 of the Minutes of Settlement and has not been reimbursed by the respondents.
5While the respondents argue that there is no timeline for payment specified in the Minutes of Settlement, only a deadline for submission of the receipts by the applicant, the Tribunal notes that a significant amount of time has passed since submission of the receipts by the applicant.
6In addition, while there is no timeline specified, reasonable and good faith compliance with the Minutes of Settlement would suggest the payment not be withheld. I note further that in Sugarman v. St. Lawrence College, 2012 HRTO 664, the Tribunal held as follows in interpreting a term in Minutes of Settlement where no specific date was specified:
It is true that there is no deadline by which the Code posters were to [be] posted; however, that does not, in my view, mean that the respondent could indefinitely hold off on its obligations to post the Code posters. Instead, in my view, the language of paragraph 3 imports a standard of reasonableness into it.
7In order to avoid further disputes with respect to the August 31, 2011 Minutes of Settlement, the respondents should ensure that they are in immediate compliance with any and all outstanding obligations under the Minutes, such as reimbursement for receipts presented pursuant to paragraph 3 (see above).
8The Tribunal in Brown v. Primary Response Inc., 2012 HRTO 424, held as follows in paragraph 12 of that decision:
The Tribunal cannot construe the written provisions of a settlement to include the oral conditions as alleged by the applicant. As stated in Ihasz v. Ontario (Revenue), 2011 HRTO 1991, a party’s beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement, constitute extrinsic evidence which, in accordance with the parol evidence rule, cannot be considered when interpreting the meaning of the words of the contract. The Tribunal cannot inject the parties’ alleged verbal assurances and understandings into the written word of the agreement.
9The respondent argues and I accept that parties to a settlement cannot impute additional terms or conditions into a written settlement and that in this case the applicant appears to be conflating a term requiring the respondents to caulk and seal the exterior of her windows with a guarantee that her “issue” would be “resolved” and the presence of all second hand smoke from her condominium unit would be eliminated. There is no such assurance or guarantee contained in the Minutes of Settlement of August 31, 2011. There is also no agreement in the Minutes of Settlement to replace a window allegedly damaged several months prior to the mediated settlement.
10Accordingly, the Application for Contravention of Settlement is dismissed.
Dated at Toronto, this 24th day of April, 2013.
“Signed by”
Jay Sengupta
Vice-chair