Il Gabbiano Ristorante/1196811 Ontario Ltd. v. Artan Mucollari, 2014 HRTO 1482

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Il Gabbiano Ristorante/1196811 Ontario Ltd. Applicant

-and-

Artan Mucollari Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: October 6, 2014 Citation: 2014 HRTO 1482 Indexed as: Il Gabbiano Ristorante/1196811 Ontario Ltd. v. Artan Mucollari

APPEARANCES

Il Gabbiano Ristorante/1196811 Ontario Ltd., Applicant Self-represented

Artan Mucollari, Respondent No one appearing

Introduction

1The purpose of this decision is to decide whether the respondent (i.e. the former employee) contravened the settlement of a human rights Application.

2The hearing with respect to the Application for Contravention of Settlement took place by telephone conference on September 20, 2014. The respondent failed to call into the telephone conference call.

BACKGROUND

3The respondent brought an application to the Ontario Labour Relations Board (OLRB) seeking a review of the decision of the Employment Standards Officer with respect to the respondent’s claim for overtime pay and reprisal arising out of his employment with the applicant.

4The matter was heard by the OLRB on November 22, 2012.

5On March 25, 2013 the parties entered into a Memorandum of Agreement to settle the respondent’s human rights application wherein the respondent alleged discrimination in employment by the applicant.

6On April 15, 2013, the OLRB released its decision with respect to the November 22, 2012 hearing wherein the OLRB allowed the respondent’s application and ordered the applicant to pay the respondent termination pay and an award for reprisal.

7On June 1, 2013 the OLRB received correspondence from the applicant with an appended copy of the Memorandum of Agreement. The applicant wrote that it was his understanding that the respondent had “settled and released” him from all claims arising out of his employment with the applicant as a result of the settlement reached at the Ontario Human Rights Tribunal. In stating this the applicant was relying on paragraph 4 of the Memorandum of Settlement which reads:

The Applicant agrees that all matters arising out of his employment with the Respondent is settled and releases the Respondent, its agents, subsidiaries, employees and family from any and all claims and liability arising out of his employment with the Respondent. The Applicant further releases the Respondent from any and all new claims under the Employment Standards Act, Ontario Labour Relations Board, Human Rights Tribunal of Ontario and common law.

8The OLRB treated the applicant’s correspondence as a request for reconsideration of its April 15, 2013 decision.

9On November 18, 2013 the OLRB issued its reconsideration decision wherein the request for reconsideration was denied. In its decision, the OLRB stated:

In this case the Memorandum of Settlement dated April 15, 2013 does not withdraw the application before the Ontario Labour Relations Board which had been heard on November 22, 2012 and in which a decision was pending. The settlement dealt with different issues than those before the Board. The Board’s decision of June 19, 2031 awarded termination pay and damages for a reprisal under the ESA.

The Issue

10In failing to withdraw the application before the OLRB, did the respondent contravene the Memorandum of Settlement in light of the fact that the applicant became liable for termination pay and a damage award for reprisal notwithstanding the terms of the Memorandum of Settlement in which the respondent released the applicant “from any and all claims and liability arising out of his employment” with the applicant?

ANALYSIS

11Section 45.9(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) states that a settlement reduced to writing and signed by the parties is “binding on the parties”. Section 45.9(3) provides that a party who believes that a settlement has been contravened may apply to the Tribunal for an order under section 45.9(8). That section provides:

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.

12The Code clearly provides that settlements are binding on the parties thereto and that the Tribunal’s role if there is a breach is to provide a remedy for the contravention of the settlement.

13A Memorandum of Settlement is a contract and as such the principles of contract interpretation apply. See Precision Remodeling Ltd. V. Soskin, 2008 CanLII 31411 (ON SC) at para. 27. The primary goal of contractual interpretation is to give effect to the intentions of the parties. See Consolidated-Bathurst Export Ltd. V. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC). The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, and it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. See Eli Lilly & Co. v. Novophram Ltd. 1998 CanLII 791 (SCC).

14In my view, the Memorandum of Settlement is, on its face, clear and unambiguous. The respondent “agrees that all matters arising out of his employment with the [applicant] is settled and releases the [applicant] … from any and all claims and liability arising out of his employment with the [applicant].” Clearly the matter before the OLRB was a claim arising out of the respondent’s employment with the applicant. It is reasonable to assume that the parties were aware that this particular claim was outstanding at the time they entered into the Memorandum of Settlement. Had they intended to exclude this claim from the release they would have crafted the appropriate language to do so. Instead the parties agreed that “all matters” were settled and the respondent released the applicant from “all claims”. It might have been preferable to have indicated in the Memorandum of Settlement that the respondent would withdraw the application before the OLRB, but the failure to do so, in my view, does not detract from what I see as the clear and unambiguous language in the Memorandum.

15I find that the respondent contravened the Memorandum of Settlement when he failed to withdraw the application before the OLRB following the execution of the Memorandum of Settlement in which he released the applicant from all claims arising from his employment with the applicant.

REMEDY

16As the Tribunal stated in Saunders v. Toronto Standard Condominium Corp. 2010 HRTO 2516:

Respect for terms of settlement is not only a legally binding contractual obligation, it also promotes essential Code values. A contravention of settlement can undermine the administration of justice by discrediting the human rights system and generating wrong disincentives to negotiation. The uncertainty created by a contravention of settlement potentially undermines the substantive and procedural provisions of the Code. An award of monetary compensation can help reflect both the private and public importance of complying with settlement terms.

17In its decision of April 15, 2013, the OLRB ordered the applicant to pay forthwith to the Director of Employment Standards in trust for the benefit of the respondent the sum of $5,951.26. In the circumstances of this case and, considering my analysis of the issue, I find that it is appropriate to order that the respondent immediately pay to the applicant the sum of $5,951.26.

18The applicant stated that he had expected that the Application was resolved and that he was released from all claims arising out of the respondent’s employment with the applicant when he entered into the Memorandum of Settlement and paid to the respondent the monetary amount agreed to in the Memorandum of Settlement. Instead he had to expend more time and effort to enforce the Memorandum of Settlement. He indicated that he felt frustrated and upset by the respondent’s disregard of the terms of the Memorandum of Settlement.

19I find it appropriate to award a further sum of $1,000.00 to the applicant as monetary compensation for the harm caused as a result of the respondent’s breach of settlement. This amount is consistent with monetary compensation awarded in other cases. See for example Shenk v. Nixon, 2011 HRTO 1312 and Bailey v. Rock With Us Marble & Granite 2013 HRTO 1510.

ORDER

20In light of the above, the Application for Contravention of Settlement is granted. The respondent shall immediately pay the following amounts to the applicant by certified cheque or money order:

a. $5,951.26 as noted above;

b. $1,000.00 in monetary compensation arising out of the breach of settlement; and,

c. Post-judgment interest at the rate of 3% from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.