Bunn v. Chiang, 2014 HRTO 1071

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Bunn

Applicant

-and-

Jack Chiang

Respondent

DECISION

Adjudicator: Alison Renton Date: July 22, 2014 Citation: 2014 HRTO 1071 Indexed as: Bunn v. Chiang

APPEARANCES

Melissa Bunn, Applicant Nathanael Best and Alushe Stafa, Representative

Jack Chiang, Respondent Paul J. Martin, Counsel

1This is an Application filed on August 22, 2013 alleging breach of settlement contrary to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) (“the breach Application”).

PROCEDURAL BACKGROUND

2The respondent filed a Response, denying the allegations, and filed a Request for Summary Hearing (“the request”). The applicant did not file a Response to a Request for Order During Proceedings in response to the respondent’s request.

3A Registrar’s letter was issued to the parties by the Tribunal on December 6, 2013. The Tribunal denied the request and stated it would give the parties an opportunity to make oral submissions addressing the Application in a teleconference hearing. It directed the parties to file any documentation upon which they intended to rely, witness lists and detailed summary of their expected testimony, no later than 21 days before the scheduled hearing date. The Tribunal issued a Notice of Hearing on December 18, 2013, scheduling the teleconference call for February 19, 2014 (“the teleconference”).

4The respondent filed a factum and book of authorities prior to the teleconference. The applicant did not file any materials.

5On February 4, 2014, the applicant’s representative sought an adjournment of the teleconference due to “unforeseen circumstances”, and represented that she had spoken with the respondent’s counsel who had consented to the adjournment request. The Tribunal requested that additional particulars be provided by February 13, 2014 regarding this claim, noting its policy on adjournments, before deciding the adjournment request. The applicant’s representative did not communicate with the Tribunal until February 18, 2014, the day before the teleconference call.

6A new representative, although at the same firm, wrote to the Tribunal mid-afternoon on February 18, 2014 providing new information about the adjournment request. He stated that in the past few weeks, the firm had 2 paralegals resign, he was recently hired, and the senior paralegal, after whom the firm is named, suffered the loss of his wife and was taking time off to grieve. The office was operating with half of its previous staff. After receiving this, the Tribunal then requested the respondent’s position on the adjournment request.

7The respondent’s counsel wrote advising that he had last spoken with the new representative, Mr. Best, more than two weeks previously and had consented to the adjournment request at that time. However, when the applicant’s representative did not respond to the Tribunal’s request for further information, the respondent’s counsel assumed that the teleconference call was still proceeding, and he prepared for the call with his client incurring costs that could not be recovered. Accordingly, the respondent no longer consented to the adjournment request.

8The Tribunal communicated with the parties to advise that the teleconference call would proceed as scheduled and the adjournment request would be addressed at the beginning of the call.

9At the beginning of the conference call, I addressed the applicant’s adjournment request with the parties and heard their submissions. Mr. Best advised that although another representative, Ms. Alushe Stafa, had more knowledge of the file than he, he was prepared to proceed. The Tribunal asked if an opportunity to file further submissions subsequent to the teleconference call would address the adjournment request, to which he responded that would be acceptable. The teleconference call then proceeded, with the Tribunal hearing the parties’ submissions on the breach Application. The Tribunal permitted the applicant to file additional submissions following the hearing, and gave the respondent an opportunity to respond, in writing, to the applicant’s additional submissions.

10Both parties filed additional submissions following the teleconference call.

THE APPLICANT’S POSITION

11The applicant had filed a section 34 Application against the respondent which was resolved when the parties entered into written Minutes of Settlement (“the Minutes”) at a mediation. The applicant signed the Minutes on April 25, 2013.

12The applicant alleges that paragraph 6 of the Minutes was breached by the respondent. Paragraph 6 states:

The Respondent agrees to provide the Applicant with a factual confirmation of employment letter which will indicate the term of employment, job title and duties performed [“the letter”].

13The applicant submits that there was a 4 month delay between the date the Minutes were signed until late August 2013, when the letter was received. This delay was, she submits, unreasonable despite no deadline for its issuance being set out in the Minutes. Although it seems like a minor breach, the applicant was relying upon this letter to aid her search for employment and the lack of the letter hurt her chances and caused her great stress. At the time of the teleconference call, the applicant had not filed any evidence about her job search efforts or the stress she incurred as a result of the delay in receiving the letter.

14When the letter was received, it contained a number of formatting and spelling errors. Although these are the respondent’s errors, they reflect poorly on the applicant with prospective employers. Mr. Best did not know if the applicant had the letter at the time of filing the breach Application.

15On her breach Application, the applicant identified several remedies that she was seeking. This included $10,000 for “further loss of wages as she has been unable to obtain employment” and “damages in the sum of $20 000 for infrigement [sic] of agreement and emotional stress”. She submitted that the respondent’s conduct has been malicious and that he ought to have known that withholding the letter for as long as he did would cause her stress and inconvenience. She requests a revised letter that does not look as sloppy.

THE RESPONDENT’S POSITION

16The respondent filed a Response denying that the Minutes were breached. He submits that he complied with another term of the Minutes, within the time frame for that term which was set out in the Minutes, and that paragraph 6 did not contain a time frame. He provided a letter to the applicant which was mailed on August 20, 2013. In the alternative, he submits that if there was a breach, the breach was cured when it was delivered to the applicant and it was a de minimus breach of the Minutes. He submitted that the Tribunal has awarded low amounts, in the nature of $500 to $1000, where it finds that a de minimus breach has occurred.

17The respondent submits that the remedies claimed by the applicant are excessive and that there is no evidence to substantiate her claim of loss of wages or her claim that she suffered stress. Viewed objectively, the applicant has not proven that she suffered any losses. The respondent queries whether or not the applicant was seeking employment at this point, given that she had a baby in February 2013. Given the failure of the applicant to produce any evidence in support of her requested remedies, the Tribunal should draw an adverse inference against the applicant.

18The respondent provided a chronology of several requests that his counsel received from the applicant’s representative inquiring about the letter. These requests were sent by mail, which took a longer delivery time than faxing or calling. The initial request was received by counsel just before his wedding, following which he was on vacation for several weeks. There was no indication on the requests that the letter was required for an imminent job search. The letter was sent to the applicant’s representative before the Application was filed although perhaps it was not received until the Application was filed.

19The respondent also submits that the applicant’s representative never stated that the applicant intended to file an Application if the letter was not received by a specified date, a courtesy, the respondent submits, that one would expect to see when both parties are represented. When the respondent received the Application, his counsel called and then wrote to the applicant’s representative denying the breach but also asking what, if any, changes she wanted to have made to the letter. The applicant’s representative did not respond. The respondent asked that a copy of that letter, dated August 27, 2013, be filed after the teleconference call. The respondent submitted that it was prepared to issue a new letter with the spelling mistakes corrected.

20The respondent submits that the breach Application should be dismissed.

MATERIALS FILED SUBSEQUENT TO THE TELECONFERENCE CALL

21Following the teleconference, the respondent provided a copy of his counsel’s August 27, 2013 letter to the applicant’s representative.

22The applicant subsequently filed a written statement (“the written statement”), dated February 24, 2014, in which she describes the impact of her termination, the timing of that termination, her receipt of EI benefits, including pregnancy and parental benefits pertaining to the birth of her child in February 2013, her challenges in finding day care arrangements for her baby, her attempts to find employment, and the stress that her termination had upon she and her family. She also expresses dissatisfaction with the letter, noting that it was not a letter of reference.

23In the applicant’s representative’s letter enclosing the applicant’s written statement, she also says that a letter from the applicant’s therapist would be forthcoming. No such letter was subsequently filed with the Tribunal.

24The filing of the applicant’s written statement triggered a written response from the respondent. He objected to fresh evidence being submitted after the teleconference and submitted that it should be given no weight. Alternatively, he submitted that it does not support a finding that the respondent contravened the Minutes or that the applicant suffered any prejudice by any delay in receiving the letter. The applicant misstates what was supposed to be in the letter, and suggests instead that she was expecting a letter of reference, which was not what paragraph 6 of the Minutes required. The applicant is further attempting to re-open her original Application which, the respondent submits, amounts to an abuse of process.

25I agree with the respondent that the applicant’s written statement is fresh evidence, and that it should have been filed before not after the teleconference call. Despite this, I have considered it and made findings on it, as set out below in the analysis section.

LAW

26The settlement and breach of settlement provisions of the Code are found at section 45.9. The relevant portions for the purposes of this Decision, are sections 45.9(1) and (3) which state:

(1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

(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.

ANALYSIS

27A breach of settlement application is not an opportunity for a party to re-litigate or resurrect his or her original section 34 application. See, Sugarman v. St. Lawrence College, 2012 HRTO 664 at para. 69 and Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516 at para. 37. The Tribunal does not look behind the minutes of settlement, which are required to be filed along with a breach of settlement application, such that the original allegations in the section 34 application are not considered. The issue solely before the Tribunal is whether or not the minutes of settlement have been violated.

28There is no specified time limit in the Minutes by which the respondent was required to comply with paragraph 6. In the absence of a specified time limit, a party cannot import one into the Minutes. See, Bazaes v. West Janitorial Inc., 2010 HRTO 2459 at para. 33 and Douglas v. Magick Woods Limited, 2009 ONCA 404 at para. 2. However, this does not mean that the respondent could indefinitely hold off its obligations under paragraph 6. Instead, in my view, the language of paragraph 6 imports a standard of reasonableness into it. See, Sugarman, above, at para. 78. The standard of reasonableness is going to depend on the specific facts of each breach of settlement application.

29I do not find that the Minutes were breached as a letter was provided. It is not a letter of reference, which the applicant seems to have expected as set out in her written statement, but that was not required. The letter sets out the applicant’s term of employment, job title, and duties performed as required by paragraph 6. It is on letterhead and signed by the respondent. The letter complied with the requirements of paragraph 6.

30The letter contains, from my review, three spelling mistakes, two of which involve doubling a consonant. The format of the letter is satisfactory. Any mistakes would, in my view, reflect more on the respondent than on the applicant and do not constitute a breach of the Minutes. The applicant did not raise any concerns with the wording of the letter until the teleconference, despite the invitation to do so as indicated in the respondent’s counsel’s August 27, 2013 letter to the applicant’s representative.

31It is true that the letter was delivered almost four months after the Minutes were entered. In some circumstances this may be unreasonable, but in the circumstances of this case, I do not find it unreasonable. While technically there was no requirement for the applicant to follow up with the respondent about the letter, some delay was attributable to the applicant representative’s correspondence to the respondent’s counsel, who is located in a different city, being issued by mail, rather than a more expeditious way of communication, some delay was attributable to the respondent’s counsel being on vacation after his wedding, and some delay was attributable to the respondent mailing original copies of the letter to his counsel.

32However, it does not appear that there was any imminent need for the letter. The applicant had a baby in February 2013 and there is no evidence to suggest that she was looking for employment before October 2013. In her written statement, she writes that her EI benefits ceased in October 2013, following which she had no income. She writes that she handed out several resumes, but was hesitant to do so because she does not have a reference from the respondent. She does not identify any dates on which these resumes were handed out. She does not assert that she looked for work prior to October 2013, and in any event, by late August 2013 she had received the letter. Her representative did not identify any date by which the letter was required in communications with the respondent’s counsel.

33The applicant also writes, “Dr. Chiang has not taken this whole situation seriously, on an emotional or professional level. As he has clearly proven by not providing me with the proper letter of employment, and in the timely order as well, as directed by the mediator”. It appears that the applicant is mistaken about what the Minutes require pertaining to the letter. As set out above, there is no time limit on when the letter was to be issued and paragraph 6 does not require the respondent to provide a letter of reference. As I stated above, the letter complies with paragraph 6.

34In light of my finding that the Minutes were not breached, I do not need to determine whether or not there was a de minimus breach.

35Accordingly, the breach Application is dismissed.