Dongmei Ye v. Pestell Pet Products Inc., 2014 HRTO 156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dongmei Ye

Applicant

-and-

Pestell Pet Products Inc.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: February 3, 2014

Citation: 2014 HRTO 156

Indexed as: Ye v. Pestell Pet Products Inc.

APPEARANCES

Dongmei Ye, Applicant

Self-represented

Pestell Pet Products Inc., Respondent

No one appearing

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent contravened the terms of the settlement reached between the parties.

background

2On July 23, 2013, the applicant and respondent signed a “Minutes of Settlement and Full and Final Release” document containing the terms of settlement (the “Minutes of Settlement”). The applicant filed this Application on September 4, 2013 alleging that the respondents contravened paragraph 2 of the Minutes of Settlement.

3Paragraph 2 of the Minutes of Settlement states in part:

The Employer shall pay the Employee the sum of $6350.00, without deductions, on account of alleged general damages for the alleged breach of the Human Rights Code, in addition to the payment of one (1) week of termination pay already provided […] (emphasis added)

4The applicant agrees she received the full amount of general damages agreed to between the parties. The issue is whether the respondent’s deduction of $46.74 ($25.00 for cancelling a previous cheque and $21.74 for courier charges) from the one week of termination pay contravened the settlement reached between the parties.

5The hearing was conducted by teleconference on January 10, 2014. The applicant was in attendance but the respondent was not. The respondent filed a Response to the Application and I am satisfied that the respondent received notice of the hearing. In accordance with the Tribunal’s usual practice I waited for 30 minutes and then commenced the hearing. I heard from the applicant and at the conclusion of her submissions, I reserved my decision.

6On January 15, 2014 a representative from the respondent wrote to the Tribunal to advise that she had been unable to attend the teleconference hearing on January 10th due to unforeseen illness. She asked the Tribunal to reschedule the hearing.

7In response, I issued a Case Assessment Direction, dated January 21, 2014, directing the respondent to provide within 7 days more information with respect to why she was unable to attend the hearing and why she was unable to contact the Tribunal or have someone contact the Tribunal on her behalf earlier.. The respondent failed to do so, and the request to reconvene the hearing is refused.

evidence and law

8Respect 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. See, for example, Sugarman v. St. Lawrence College, 2012 HRTO 664, and Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.

9The question to be decided is whether payment of the “one week of termination pay” was a term of the July 23, 2013 settlement.

10In August, 2013, after the parties reached their settlement, the applicant requested another cheque for the one week of termination pay. The respondent issued a cheque, the third cheque issued for this purpose, but deducted the disputed cheque cancellation and courier charges.

11I asked the applicant about the fact that in the Minutes of Settlement she had signed, there appeared to be no dispute termination pay had been “already provided”. She submitted that the termination pay was not part of the mediation. I then asked her how I could find a contravention of the Minutes of Settlement if the termination pay was not part of the mediated settlement. The applicant could not explain this.

12In my view, the applicant has provided no evidence to support the termination pay being part of the settlement, and as such, I find no contravention of the settlement.