Archer v. Dobson, 2014 HRTO 1810

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Archer

Applicant

-and-

Alec Dobson

Respondent

DECISION

Adjudicator: Dawn J. Kershaw
Date: December 19, 2014
Citation: 2014 HRTO 1810
Indexed as: Archer v. Dobson

APPEARANCES

Donna Archer, Applicant Wade Poziomka, Counsel

Alec Dobson, Respondent Self-represented

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 Minutes of Settlement reached between the parties.

2The parties attended a hearing, gave evidence and made submissions.

background

3On September 16, 2013, the applicant and respondent entered into Minutes of Settlement at a mediation. The respondent agreed to pay the applicant $4000 in general damages within 15 days of receiving an executed copy of the Minutes of Settlement, the Full and Final Release and the Form 25 Settlement.

4The respondent alleges he agreed to pay $4000 because his employer, who acted as his paralegal at the mediation, agreed to pay $3000 of the $4000 owing.

5On or about October 17, 2013, the respondent’s employer sent the applicant a cheque for $1000. On November 6, 2013, counsel e-mailed the respondent’s employer confirming receipt of $1000 but inquiring when the balance would be received.

6Counsel also wrote to the respondent on October 22, 2013, to confirm a telephone discussion in which the respondent promised to advise him when the applicant would receive the balance of the settlement funds.

7On November 11, 2013, counsel faxed the respondent and advised he must provide the balance of the settlement funds by no later than 5 p.m. on November 12, 2013, failing which the applicant would commence an Application for Contravention of Settlement.

8On November 18, 2013 the respondent’s employer telephoned counsel and advised he no longer employed the respondent. He advised counsel he would pay the remaining $3000 (although he did not acknowledge an obligation to do so), but needed another week to get the funds.

9Counsel called the respondent’s now former employer on November 28, 2013 and e-mailed him on December 13, 2013.

10Counsel unsuccessfully tried to call the respondent on December 23, 2013. In researching his possible whereabouts, he discovered the respondent was a disbarred lawyer.

11Counsel spoke to the respondent’s former employer about this on February 12, 2014. The respondent’s former employer advised counsel the respondent resigned his employment rather than be terminated. The respondent’s former employer apparently again stated he would pay the remaining $3000. He e-mailed counsel a copy of the respondent’s resignation letter containing the respondent’s contact information.

12Counsel sent the respondent the Application for Contravention of Settlement on February 20, 2014. On February 21, 2014, the respondent e-mailed counsel and stated he was appalled at how his former employer had dealt with finalizing the settlement, which he stated involved him paying $1000 and his former employer paying $3000.

13The respondent stated he was abruptly terminated by his former employer in October, 2014 [sic] but reiterated to his former employer before leaving that his former employer was to pay the applicant the remaining $3000. Since then, the respondent heard nothing until he received the Application for Contravention of Settlement on February 20, 2014. He advised that if he had the funds he would pay the $3000 himself.

14Counsel e-mailed the respondent on February 23, 2014 and acknowledged receipt of the respondent’s e-mail and advised the respondent he was proceeding against him (and his former employer) on the basis that the Minutes of Settlement stated he was responsible for paying the $4000. He encouraged the respondent to contact his former employer and work things out with him.

preliminary issues

Dismissal of Application against One Respondent

15The applicant initially commenced this Contravention of Settlement Application against the respondent and another respondent (not the respondent’s former employer), but the applicant and the remaining respondent agreed that the Application should be dismissed as against the other respondent as it complied with the Minutes of Settlement. The other respondent is removed as a party and the title of proceedings amended to show only the remaining respondent.

Respondent’s Request to Add a Party

16The respondent requested at the outset of the hearing that the Tribunal add his former employer as a party to the application pursuant to ss. 45.9(6) of the Code so the Tribunal could make an order against him in the contravention of settlement application. Counsel objected to the request. Subsections 45.9(6) and (8) state:

(6) Subject to the Tribunal rules, the parties to an application under subsection (3) are the following:

1. The parties to the settlement.

2. Any other person or the Commission, if they are added as a party by the Tribunal.

(8) 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.

17Subsection 45.9(3) states:

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).

18Because the applicant did not wish an adjournment to consider this issue, I provided the parties with the cases that have considered this issue. The parties reviewed these and then made oral submissions. I made an oral ruling at the hearing that the respondent’s former employer would not be added as a party to the Application, and my reasons follow.

19Unlike in cases such as Mishich v. Loans Till Payday Inc., 2013 HRTO 991 and Matthews v. Dicken’s Burlington Inc., 2013 HRTO 1233 where it was the applicant who sought to add an additional respondent because the respondent who signed the Minutes of Settlement could not meet its obligations under them, it is the respondent who now seeks to add a party who was not a signatory to the Minutes of Settlement, although the distinction is immaterial.

20First, the respondent did not give the proposed respondent notice of his intention to add him as a party to this Application. However, I find even if he had, my decision would not change.

21The Tribunal in Mishich, at para. 26, sets out the questions to be considered when adding a respondent. In my view, these apply whether it is the applicant or respondent who seeks to add a party:

1. Are there allegations made that could support a finding that the proposed respondent acted in a manner inconsistent with the terms of settlement?

2. Is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

22Even if I assume the first criterion is satisfied, I must determine if there is a compelling reason to include the proposed respondent, which includes considering whether the non-party to the Minutes of Settlement should share or assume responsibility for a contravention of the Minutes of Settlement. At para. 27 of Mischich, the Tribunal stated:

[…] the fact that the party to the settlement is unable to meet its obligations under the settlement will in my view generally not be a compelling reason to require a stranger to the settlement to remedy any contravention, absent a compelling reason for holding such a stranger responsible for the contravention.

23While the respondent’s former employer may not be a stranger to this settlement in the strict sense of the word, there still must be a compelling reason to add him (see: Matthews, at para. 20). In this case, the respondent’s former employer was not a party to the original Application or a signatory to the Minutes of Settlement, and any agreement the respondent may have had with him to pay part of the settlement amount was an agreement made outside the purview of the Minutes of Settlement.

24Even though the respondent’s former employer apparently told counsel he would pay the $3000, he acknowledged no obligation to do so, and the motivation for his statement is unknown and is not sufficient in my view to support a finding he should be added as a party.

25I find no compelling reason to add the respondent’s former employer as a party to this Application.

26I turn now to the contravention of settlement issue.

Contravention of Settlement

Applicant’s Evidence

27The applicant adopted her witness statement that adopted the facts in her Application, and gave additional oral evidence, which was unrefuted by the respondent.

28The applicant testified she agreed to Minutes of Settlement because she wanted the matter over and done with. She has anxiety and did not wish to have a hearing. She was not physically or emotionally well and wanted to “cool things down” and begin healing.

29After the settlement, she thought everything would be over. She focused on getting the funds in 15 days, but 15 days turned into months. She testified she felt like she fell off a cliff because she did not know what would happen next. She was fearful her name would become public in the Application for Contravention of Settlement and that future employers may find it.

30When the respondent failed to pay the outstanding amount, the applicant encountered financial issues and could not afford a Christmas turkey or pay her bills, which she described as “pathetic”. She received collection notices from her utilities provider and was concerned her utilities would be shut off. She worried about finances constantly. The financial issues also stressed the applicant’s husband out, and made him sick.

31On December 17, 2013, two months after the parties entered into the Minutes of Settlement, the applicant had to attend hospital for stress and mental health-related issues. She was vomiting and unable to hold down food or medication. Her doctor increased her anxiety medications.

32Upon returning home, at times the applicant had to have a personal support worker (“PSW”) stay with her to keep her on an even keel. The applicant’s husband worried she would do something to herself, which affected his job.

33After the contravention of the settlement, the applicant and her husband had marital problems. She picked fights with her husband and blamed him even though it was not his fault. She thought they would need to discuss their future although he attended the hearing with her.

34The applicant continues to feel more anxious and panicky and have increased pain. She cannot eat or sleep well and has withdrawn from family and others.

Parties’ submissions

35Counsel reviewed several contravention of settlement cases including Medeiros v. Cambridge Canvas Centre, 2011 HRTO 1519 in which the Tribunal ordered payment of $1500 damages for a failure to pay a $5000 settlement; Schenk v. Nixon, 2011 HRTO 1312 in which the Tribunal ordered payment of $1000 for failure to pay a $25,000 settlement; Weitzmann v. Burns, 2011 HRTO 818 in which the Tribunal ordered payment of $500 for failure to pay a $1,500 settlement due to dire financial circumstances; Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867 in which the applicant mistakenly paid $37,000 11 days late and the Tribunal ordered payment of an additional $150. Counsel noted the range of additional damages ordered is between $150 and $1500.

36He cited Matos v. Transplay, 2010 HRTO 2527 for the proposition that the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention and for that reason the same principles should apply in a contravention application that applies in a Human Rights application.

37Counsel submitted in one of his cases, Bailey v. Rock With Us Marble & Granite, 2013 HRTO 1510, he made submissions based on the Matos principle that the applicant had increased legal fees, but the Tribunal missed the point when she awarded an additional $1000 for failure to pay a $7000 settlement, noting that she had no jurisdiction to award legal costs. He submitted his request was not for legal fees but for a remedy of the harm caused to the applicant by having to bring a contravention of settlement application.

38Counsel further submitted that applicants settle for various reasons, including vulnerability, the possibility of having to relive the events and the length of time to get to a hearing.

39In this case, the applicant wanted the case over and to do so she sacrificed her right to have a hearing. She settled for reasons that included: needing funds and thinking she would have them in 15 days; mental and physical health reasons; and concern about a public decision.

40The applicant opted for certainty and counted on the Tribunal to protect her in the event of a contravention. Counsel submitted the applicant has discovered the Tribunal’s protections are flawed.

41In counsel’s view, the Tribunal has paid only lip service to the concept of making the applicant whole. In his view, there is no foundation for the low awards in contravention applications. He submitted the applicant has endured two violations of her rights, and the second piggy-backs the first.

42Counsel submitted applicants should be confident the Tribunal will adequately deal with the harm caused by contraventions. If applicants cannot count on the Tribunal to enforce settlements, it will have a future chilling effect.

43The respondent indicated he was reluctant to make submissions in the circumstances. The respondent acknowledged feeling badly for the applicant and her family. He submitted his former employer was the real culprit and should have been present at the hearing. Four months was wasted because his former employer did not advise the respondent that applicant’s counsel had contacted him about the failure to pay. The respondent submitted he did not act dishonourably.

44The respondent has financial difficulties and is unemployed. He practised law for 25 years and lost his licence 6 years ago. He has no assets and lives in an apartment.

45With respect to damages, the respondent submitted there was no medical evidence to connect the damages to the contravention. Counsel countered that it is a relevant factor if the financial impact of a contravention worsens mental health.

46The applicant is seeking an award of $10,000 and an award of interest on the outstanding amount was appropriate. The respondent submitted an award of 30% of his outstanding liability and interest was appropriate.

decision

47There was no dispute there was a contravention of settlement.

48I accept the applicant’s evidence that the contravention adversely affected her finances and marriage, which in turn increased her anxiety and mental health issues. Although she did not submit medical documentation to support her evidence, and she admitted her anxiety pre-dated the contravention, it still was clear the contravention was very difficult for her and her family and exacerbated her pre-existing condition.

49In addition, the applicant’s desire to avoid a hearing and a public decision was dashed.

50The respondent offered no excuses except that he thought his former employer would pay the outstanding $3000. He voiced his concern for the applicant and her family. I accept that the respondent has financial problems and no assets.

51Counsel’s submission is that the Tribunal’s awards for contraventions of settlement historically are too low. However, even if I agreed, I find this is not an appropriate case in which to award damages that are out of line with the case law to date, given the respondent acted without malice and clearly believed his employer was responsible for paying the outstanding settlement amount.

52I accept the respondent’s submission he would pay the applicant if he could afford to do so. I note he not only is contrite, but is aware of the impact on the applicant and her family. Having said that, the applicant has suffered considerably.

53In these circumstances, $1000 is an appropriate award for the applicant as monetary compensation for the harm caused to her as a result of the respondent’s breach. This amount is somewhat higher than the 30% award suggested by the respondent because of the impact on the applicant’s mental health, the fact she had to testify and there now is a public decision with her name on it, all of which increases her anxiety.

54In order to make the applicant whole, I also award the sum of $3000 which is the sum the applicant has not received from the respondent.

order

55In light of the above, the Application for Contravention of Settlement is granted and I make the following order:

a. Within 30 days of the date of this Decision, the respondent shall pay the applicant $4,000 along with pre-judgment interest on the amount, from October 5, 2013, to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43;

b. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.