HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Petra Pipiska
Applicant
-and-
Superior Workforce Solutions, Corp.
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Pipiska v. Superior Workforce Solutions, Corp.
APPEARANCES
Petra Pipiska, Applicant
Self-represented
Superior Workforce Solutions, Corp., Respondent
Monty Verlint, Counsel
1This is a Contravention of Settlement Application filed on January 17, 2014, alleging a breach of a settlement entered into by the parties on July 8, 2013, pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The parties entered into a settlement under the Tribunal’s process on July 8, 2013. At issue in this matter are para. 1 of the Minutes of Settlement, whereby the respondent was to pay the applicant a specified sum within 30 days, and para. 2 of the Minutes of Settlement, whereby the respondent was to provide the applicant with a letter of reference.
3By Case Assessment Direction dated February 12, 2014, the Tribunal directed that a half-day hearing by teleconference be held to assess the merits of the Application. The teleconference hearing was held on July 14, 2014, at which I heard the parties’ oral submissions.
4With regard to para. 1 of the Minutes of Settlement, it appears that, despite the applicant’s correct address being set out in the Minutes of Settlement, the cheque initially was sent to an incorrect address. This was discovered after the applicant inquired by e-mail about the cheque on July 23, 2013. Following the applicant’s inquiry, the cheque was re-sent to the correct address the following day. However, the cheque itself still set out an incorrect address for the applicant, which caused difficulties for her when she attempted to cash the cheque at a bank on August 8, 2013. The applicant contacted respondent counsel on that day to request a copy of the Minutes of Settlement in order to allow the bank to verify where the funds were coming from and why the address on the cheque did not match her actual home address. Respondent counsel provided the requested documentation to the applicant within a very short time, and the applicant was able to cash the cheque.
5The question for me is whether any of this gives rise to a breach of para. 1 of the Minutes of Settlement. In my view, it does not. The amount owing to the applicant was delivered to her within 30 days as required by the settlement. While I appreciate that some delay was caused by the cheque initially being sent to the incorrect address and that further difficulty was caused by the incorrect address being on the cheque itself, in my view these difficulties do not rise to the level of a breach of the settlement.
6With regard to para. 2 of the Minutes of Settlement, there is no dispute between the parties that the required letter of reference was not provided to the applicant until after the Contravention of Settlement Application was filed. The letter of reference was provided to the applicant on January 24, 2014, and conforms to the requirements of para. 2 of the Minutes of Settlement.
7The respondent takes the position that, as no deadline for providing the letter of reference is set out in the Minutes of Settlement, it cannot be found to have been in breach of the settlement. The respondent relies upon this Tribunal’s decision in Pasimanik v. Central Epicure Food Products, 2009 HRTO 1727. In my view, the Pasimanik decision is distinguishable on its facts. In that case, a settlement had been reached between the parties in the previous human rights process whereby complaints were filed with the Ontario Human Rights Commission. In that case, the respondent had signed the settlement on May 12, 2008, and the settlement was approved by the Commission sometime around June 27, 2008. While the settlement stated that the respondent “has written a letter of reference on behalf of the complainant”, in fact this had not been done and a letter of reference was not delivered to the complainant until September 2008. In these specific circumstances, and in the absence of any language in the settlement agreement indicating that the letter of reference would be delivered at an earlier time, the Tribunal found that the delivery of the letter of reference in September 2008 was not a breach of the settlement.
8It is indeed unfortunate that the Minutes of Settlement in this case did not include a specific timeline for delivery of the letter of reference. Typically in settlements entered into in the Tribunal’s mediation process, the time for delivery of a letter of reference is stated to be the same time as for delivery of any settlement funds. However, in the absence of any specific timeline for delivery of a letter of reference, it is my view that it nonetheless is an implied term of any settlement agreement that a letter of reference will be delivered to the applicant within a reasonable time period, with the reasonableness of the time period for delivery of the letter of reference to be assessed in light of the timeline for delivery of any settlement funds. If I were to accept the respondent’s argument, it would mean that in the absence of any specific timeline in the settlement for delivery of a letter of reference, the respondent could provide the letter at any time, even three, four or five years later, and still not be in breach of the settlement. In my view, such a result would not be reasonable and would not accord with the purpose for which letters of reference are negotiated, which is to provide assistance to applicants in securing new employment.
9In the instant case, the letter of reference was only delivered to the applicant on January 24, 2014, over six months after the settlement had been agreed to, and only after the applicant had filed her Contravention of Settlement Application. In my view, this does not comply with the implied term of the settlement that the letter of reference ought to have been delivered to the applicant within a reasonable time, considering the 30-day timeline for delivery of the settlement funds. Accordingly, I find the respondent to have been in breach of para. 2 of the Minutes of Settlement.
10Having said that, this Tribunal has a broad discretion pursuant to s. 45.9(10) of the Code to “make any order that it considers appropriate to remedy the contravention”. In the instant case, the contravention already has been remedied by the respondent providing the letter of reference to the applicant. In her oral submissions before me, the applicant requested $10,000 in compensation for the respondent’s breach of settlement. While in some circumstances, a significant award of compensation may constitute an appropriate measure to remedy a settlement breach, in my view no such award is warranted in the instant case. I say this for the following reasons: 1) there is no indication in the material before me that the failure to provide the letter of reference at an earlier time was deliberate, but rather it appears to have been the result of inadvertence; 2) while the applicant followed up with respondent counsel about the settlement cheque in the weeks following the settlement, and while respondent counsel was timely in his responses and assistance to the applicant, the applicant never raised any issue about the letter of reference at any time prior to filing her Contravention of Settlement Application; 3) if the applicant had raised the issue of the letter of reference at an earlier time, there is every reason to believe that it would have been provided to her and there would have been no need for her to file the Contravention of Settlement Application; 4) the applicant did not identify any specific impact on her as a result of not receiving the letter of reference at an earlier time; and 5) in my view, this was an inadvertent breach of the settlement which could have been remedied by the applicant on her own in short order. For all of these reasons, I exercise my discretion to decline to award any remedy to the applicant.
ORDER
11For the foregoing reasons, I hereby make the following order:
a. I find that the respondent was in breach of para. 2 of the Minutes of Settlement by failing to deliver a letter of reference to the applicant within a reasonable period of time; and
b. I exercise my discretion to decline to award any remedy to the applicant arising from this breach.
Dated at Toronto, this 7th day of October, 2014.
“Signed by”
Mark Hart
Vice-chair