HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mario Banaag
Applicant
-and-
Mondelez Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Banaag v. Mondelez Canada Inc.
APPEARANCES
Mario Banaag, Applicant
Self-represented
Mondelez Canada Inc., Respondent
Michael Horvath, Counsel
Introduction
1This is a Contravention of Settlement Application filed on November 12, 2013. The Application relates to Minutes of Settlement signed by the parties on October 24, 2013. The Applicant alleges that payments to be made by the respondent were not made within the timeframes specified in the Minutes of Settlement.
2The Minutes provided for three payments to be made by the respondents. These were as follows:
An amount in respect of the end of the applicant’s employment with the respondent “to be paid on or before two weeks from the date of signature” of the Minutes of Settlement.
An amount to be paid in respect of legal fees. The date by which this payment was to be made was not specified.
An amount in respect of General Damages to be paid “on or before four weeks from the date of the signature” of the Minutes of Settlement.
3A telephone conference call hearing was scheduled for February 3, 2014, to hear submissions about the Contravention of Settlement Application. The applicant and the respondent’s counsel participated.
4In the course of this hearing, it was determined that the legal fees had been paid. It was also confirmed that the amount paid in respect of general damages had also been paid and that it was paid within four weeks of the date of signature of the Minutes of Settlement. Finally, it was determined that the amount paid in respect of the end of the applicant’s employment was not paid within two weeks from the date of signature of the Minutes of Settlement. That amount was paid on November 19, 2013, which was over three weeks from the date of signature.
5There was some discussion about the date that the amount to be paid in respect of the end of the applicant’s payment was to be made in accordance with the Minutes of Settlement. The Minutes were signed on October 24, 2013. The applicant calculates that the date that is on or before two weeks from October 24, 2013, is November 6, 2013. This calculation assumes that October 24, 2013 is the first day.
6On this point, Rule 1.9 of the Tribunal’s Rules of Procedure provides:
Where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.
7When calculated using this form, the date by which the funds were due was November 7, 2013.
8Since the funds were not paid until November 19, 2013, it is clear that the funds were not paid on the date specified in the Minutes of Settlement.
9The respondent advised that the reason that the funds were not paid on time is that the parties effectively amended the Minutes of Settlement within the week following the signing of the Minutes.
10In particular, the applicant called the respondent with a request that certain medical expenses be covered under the respondent’s benefit plan. The respondent told the applicant that this could be done if he brought the receipts in but it would mean that he would have to remain on the payroll until the receipts were received. The applicant brought the receipts in on November 7, 2013 and at that time, he signed a new document that reads as follows:
Notwithstanding the terms of the Minutes of Settlement regarding the timing of the payment, the obligation to pay the settlement amounts shall not begin until the company receives the medical notes for which Mr. Banaag is requesting reimbursement under the terms of the Collective Agreement between the Company and UFCW Local 175.
11This document was not provided by the respondent with its Response to the Contravention of Settlement Application. During the telephone conference call hearing the applicant indicated that he did not recall the document. The hearing briefly adjourned and counsel for the respondent sent the document by email and the telephone conference call hearing resumed after the applicant had received it and reviewed it. He then agreed that he had signed the document. However, he alleged that the respondent had not explained what it meant, and in particular, did not explain that it meant that he would not receive the payments on time. He alleged that he was told that the payments were being arranged.
12The applicant explained that in November 2013 he was in arrears of his rent. He had shown his landlord the Minutes of Settlement, and the landlord agreed not to take any action about the arrears. However, when the applicant had not received any funds by November 7, 2013, the landlord started a proceeding at the Landlord and Tenant Board. This was eventually resolved when the applicant did receive the funds. However, he incurred some costs in respect of the Landlord and Tenant Board proceeding. The applicant also indicated that at the time he also owed money to some friends. They too were advised that the applicant would be receiving money by November 7. When the money was not received, the applicant was personally embarrassed.
13At the telephone conference call hearing, counsel for the respondent submitted that the Contravention of Settlement Application should be dismissed on the grounds that the Minutes of Settlement were amended by the parties after the Minutes of Settlement were signed and that as a result, the respondent was not obliged to make the payment by November 7, as stipulated by the Minutes of Settlement, but only had to make the payment by November 21, 2013, which was two weeks after the amendment document was signed.
Conclusions
14I have determined that, at this time, the Contravention of Settlement Application cannot be dismissed on the grounds advanced by the respondent.
15The respondent asserts that the document signed by the applicant on November 7, 2013 provided that the date for the payment of the funds in respect of the end of the applicant’s employment was amended from November 7 to November 21, 2013. However, while this may have been the respondent’s intent when it drafted the document, this is not what the November 7 document says. It provided that “the obligation to pay the settlement amounts shall not begin until the company receives the medical notes”. The medical notes were received on November 7, 2013. On the face of the November 7, 2013 document, it appears the respondent was obliged to make the payment by November 7.
16It is possible that the November 7, 2013 document needs to be interpreted on the basis of verbal representations that were made about it between the parties. However, this would require testimony from the parties concerned.
17If there was a contravention of the settlement, then it would be necessary to determine what harm this caused the applicant. While he provided some information about this, to rely on this information as a basis for any damages would require that the applicant provide sworn testimony with an opportunity given to the respondent to cross-examine the applicant.
18For these reasons, the Tribunal will schedule a half-day in person hearing to hear evidence and submissions regarding the Contravention of Settlement Application.
19I am willing to assist the parties in settlement discussions if the parties would like such assistance. This could be done in advance of the hearing if both parties advise the Tribunal Registrar that they would like assistance with settlement discussions. In that case, I would contact the parties separately by telephone. In accordance with the Tribunal’s Mediation-Adjudication rules, found at Rule 15A of the Tribunal’s Rules of Procedure, if I provided such assistance, and if the discussions did not lead to settlement, I would still continue to adjudicate the Application.
DIRECTION
20The Tribunal will schedule a half-day in-person hearing.
21No more than 21 days before the hearing, the parties shall deliver to each other and the Tribunal any documents they wish to rely on at the hearing, together with a brief summary of the expected testimony of any witness.
22The parties may advise the Registrar if they would like assistance with settlement discussions.
Dated at Toronto, this 6th day of February, 2014.
“Signed by”
Brian Cook
Vice-chair