HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Drake

Applicant

-and-

Aon Inc.

Respondent

DECISION

Adjudicator: David Muir

Date: April 28, 2014

Citation: 2014 HRTO 591

Indexed as: Drake v. Aon Inc. ______________________________________________________________________

APPEARANCES

Andrea Drake, Applicant

Ian A. Wilson, Counsel

Aon Inc., Respondent

Ian St. John, Counsel

1This is an Application filed pursuant to s. 45.9(3) of the Human Rights Code, alleging that the respondent contravened Minutes of Settlement that it entered into with the applicant in March 2013. A hearing was held on April 23, 2014 by telephone conference call. No evidence was called but the parties relied on a number of documents, including the settlement documents (MOS) and subsequent correspondence between the parties with respect to implementation of the settlement.

2The settlement contemplated the payment of a sum of money to the applicant directly characterized as general damages. It was also agreed that two further sums would be paid to two charities in the name of the applicant and her counsel respectively. It was contemplated by the parties that the charities would issue tax receipts in favour of the applicant and her counsel respectively but the MOS included a provision in which the parties acknowledged that the respondent could not guarantee that the charities would necessarily honour the parties’ intention. In fact one of the two charities took the position that Canada Revenue Agency rules prevented them from issuing a tax receipt in the name of applicant’s counsel. Despite efforts on the part of all involved the charity in question has apparently not changed its position. It is not clear whether a tax receipt has been issued by this charity in the respondent’s name or not.

3The dispute in this case relates in large part to delay in completing and implementing the settlement of the case. The MOS were executed on March 11, 29013. The following day the respondent delivered a Release to be executed by the applicant. The Release was not returned to the respondent until the end of May 2013 – some 11 weeks later. Although not expressly contemplated by the MOS, the respondent appears to have taken the position that their obligations under the MOS were only engaged by the execution of the Release. In any case assuming without deciding that this is the case, the payments contemplated by the MOS should have been made before the end of June 2013. In fact the payments to the charities in question were not made until mid-July 2013 and the applicant not made aware of this fact until mid-August 2013. The applicant has not yet been provided with an original tax receipt. A faxed copy has been provided but it appears that there is a stamp of some kind on the reverse of the original receipt – which may be important in confirming the validity of the receipt – which the applicant does not yet have for reasons which are not entirely clear. In this regard the respondent has undertaken to make its best efforts to procure a duplicate original receipt for the donation made in the applicant’s name.

4The payment of the monies in general damages to the applicant was not made for a further period of time despite several letters from counsel for the applicant. In particular, the applicant expressly adverted to the payment of the sum representing general damages in correspondence dated July 1 and 3 and August 9, 2013. This issue is also expressly referred to in the Application (Form 18) establishing this proceeding which was filed on September 11, 2013. The Response (Form 19) was filed on September 20, 2013, asserting that the MOS had been in substance complied with.

5On October 2, 2013, the Tribunal issued a Case Assessment Direction framing the issues in this Application. In it the Tribunal noted that despite the respondent’s position it did not appear that it had made the payment of monies as general damages to the applicant as required by the MOS.

6On October 4, 2013, the respondent attempted to deliver a cheque representing the funds payable directly to the applicant, neglecting to follow the applicant’s instructions in correspondence dated May 31, 2013 to deliver it to counsel as the applicant had moved. On October 15, 2013, the respondent sent the cheque to counsel for the applicant directly after failed attempts to deliver it to her former address.

Decision

7The Code provides the following statutory framework for this Application:

45.9(1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

(3) 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),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

(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.

8As indicated above the respondent has undertaken to take all reasonable steps to procure an original receipt with respect to the charitable donation in the applicant’s name. The respondent has also agreed to make enquiries with respect to the charitable donation made on behalf of applicant’s counsel and advise counsel if the respondent had taken the benefit of the donation. Other than confirming these undertakings the Tribunal will make no further directions with respect to this issues. I will consider whether or not the delay in implementing this aspect of the MOS resulted in any damages to the applicant.

9I find that the respondent has breached the MOS in the considerable delay that has occurred in implementing its terms. While I do not accept the applicant’s submission that the delay was “deliberate and tactical”, the fact is that for whatever reason the applicant was deprived of the benefits of the settlement for more than a de minimus period of time. In particular the failure of the respondent to make the payment directly to her as contemplated by the MOS until mid-October and only after this apparent failure was specifically pointed out by the Tribunal represents a more than technical breach of the settlement. From an applicant’s perspective the payment of these funds in a timely manner is typically of the essence of the settlement. Any failure to make such payments beyond a de minimus delay will normally be considered to be a breach of the MOS. I also consider that the ongoing inability of the respondent to provide an original tax receipt to the applicant to constitute a further breach although a much less significant one in the circumstances.

Remedy

10The applicant seeks $4,500 in damages for what she characterizes as a fundamental breach of the MOS. She relies on the fact that the delays and confusion in implementing the settlement have caused her stress and anxiety. She also claims that it has resulted in her incurring further legal expenses to enforce what is a modest settlement. She also relies on the fact that she still does not have an original copy of the one tax receipt and did not receive the funds payable directly to her until mid-October 2013 at least 4.5 months after they should have been in her hands.

11The applicant made further submissions with respect to her suspicions that the delays and confusion in this case were tactical – in effect an effort to punish the applicant for her having dragged the respondent through the Tribunal process. The applicant submitted as well that any damage award should be sufficient to discourage respondents from engaging in such tactics. It was argued that given the modest sums involved in many of these cases counsel are discouraged from taking on human rights cases because of these kinds of tactics.

12The applicant relied on the Tribunal’s Decision Saunders v. Toronto Standard Condominium Corp No. 1571, 2010 HRTO 2516, in particular the factors the Tribunal considered in determining the appropriate remedy (at paragraph 40):

• What is the nature of the breach – does it go to the heart of the MOS?

• Does anything need to be done to fulfil the terms of the MOS? If so, what?

• Were the applicant’s contractual expectations adversely affected?

• Did the applicant suffer any quantifiable harm or material loss as a result of the breach?

• Did the applicant suffer any harm to dignity, feelings or self-respect as a result of the breach?

13In my view the factors elaborated in Saunders, with the exception of the final one, are appropriate ones in determining the appropriate penalty. I am not certain that the final factor, as it expressly imports into section 45.9 a remedial authority granted in 45.2(1) for a violation of the Code, is appropriate. I do acknowledge and I think it appropriate to consider the context in which these settlements are made and the attendant anxiety and distress that can result when their terms are not implemented appropriately. In my view this is also a factor that can be compensated in damages for a breach of settlement.

14In considering the appropriate remedy in this case I do not accept the submission of the applicant that the respondent’s approach in this dispute was tactical. There is really no evidence that it was and some indication that it was not. I note in this regard that the respondent by its counsel provided a Release to the applicant the day following the MOS were executed. Although they might not have been entitled to await the executed Release before beginning to implement the MOS, the applicant did not forcefully press the point at the time and was content to await implementation following her providing the Release.

15Nor do I accept the applicant’s argument that the breach here was a fundamental one in the sense generally understood in contract law. The fact is the applicant was paid, albeit after a considerable delay. That said the delays and confusion in implementing the MOS subsequently has resulted in the applicant being without the benefit of the central feature of the MOS for her until after October 15, 2013, four and one half months after she should have received these monies. As well, while the charitable payments were made with only a slight delay, the applicant herself was not made aware that they had been made until August 9, 2013. In addition she remains not entirely certain that she will receive the benefit of the charitable donation because she has still not received an original of the tax receipt issued in her name.

16More tangibly she has been required to incur further legal expenses in seeking to enforce the MOS including bringing this Application. Counsel advised that he has spent likely 6 hours in dealing with the MOS, not including the time spent at this hearing. Litigation is always stressful for those involved and further litigation after what the applicant would have reasonably believed to have been the end of it can reasonably be inferred to have been somewhat stressful for her.

17Considering all of these factors I find that the appropriate compensation for these breaches of the MOS is $2,500. In determining this amount I have considered the fact that the applicant was required to incur further legal expenses in seeking enforcement, including bringing this Application. I have also considered that there would likely have been some level of anxiety on her part in not knowing for a period of time whether the respondent would in fact honour the terms of the MOS and as indicated she had to commence further proceedings to enforce the MOS. Although it is also important to note that as I had no evidence from the applicant on this point and the amount attributable to this intangible is minimal. I have also considered the fact that the respondent had the benefit of that part of the settlement of most direct benefit to the applicant and she did not for at least 4.5 months.

Orders

18The Tribunal makes the following Orders:

a. The respondent will make best efforts to procure for the applicant an original or duplicate original tax receipt for the funds payable by it on the applicant’s behalf and deliver it to her counsel no later than 30 days from the date of this Decision

b. The respondent will make inquiries and advise applicant’s counsel within 30 days of the date of this Decision whether or not it has taken the benefit of the donation made on behalf of counsel for the applicant.

c. The respondent will pay to the applicant through counsel in trust $2,500 in monetary compensation (inclusive of interest) for breach of the MOS.

d. The respondent will pay to the applicant post-judgement interest on any accumulate principal and interest from the date that is 30 days after the date of this Decision.

Dated at Toronto, this 28th day of April, 2014.