Nedschati v. 1557859 Ontario Inc., 2014 HRTO 597

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdulbaqi Nedschati

Applicant

-and-

1557859 Ontario Inc. o/a Wally’s Family Restaurant,

Dina Wei, David Wei, and Lihong Hou

Respondents

DECISION

Adjudicator: David Muir

Date: April 29, 2014

Citation: 2014 HRTO 597

Indexed as: Nedschati v. 1557859 Ontario Inc.

APPEARANCES

Abdulbaqi Nedschati, Applicant

Krishna Kaur Badrinarayan, Representative

1557859 Ontario Inc. o/a Wally’s Family Restaurant, Dina Wei, David Wei, and Lihong Hou, Respondents

U-Sheak Koroma, Representative

1This is an Application filed pursuant to section 45.9(3) of the Ontario Human Rights Code, R.S.O. 1990 c. H.19 as amended (the “Code”). A hearing was held by telephone conference call on April 24, 2014. Both parties were represented. Neither party indicated that they intended to call evidence as required by the Case Assessment Direction issued to them on November 21, 2013.

2The Application is allowed. The Minutes of Settlement (“MOS”) executed by the applicant on March 1 and the respondent on March 4, 2013 contemplated the payment of a sum of money to the applicant in five monthly installments with the final payment required on July 15, 2013. The June 15 installment was not received until June 23, 2013 and the final payment due on July 15, was not received until December 2013 after this Application was filed.

3The respondent concedes that it breached the MOS in not making two payments in a timely manner. It pleads that it fell on hard times but no evidence was offered to support such a claim. Assuming without deciding that a claim of financial hardship alone is sufficient to relieve a party of its contractual obligations there is as I indicated no evidence of the extent of this hardship or why it would have prevented the respondent from making the payments required, particularly the final payment in a timely way.

REMEDY

4My remedial authority is provided for in section 45.9(8) which provides as follows:

(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.

5The applicant sought pre-judgement interest on the amount due on July 15, 2013 ($1,000) from that date to the date the cheque was issued, December 16, 2013. The applicant also sought $5,000 in damages. The applicant submitted that the failure of the respondent to make this final payment caused him stress and anxiety, including difficulties in his family life. He also argued that the failure to make this final payment contributed to his family losing their house. I note here that no evidence was tendered to support these claims.

6The respondent argued that the damages sought were unreasonable given the circumstances. The respondent proposed that a reasonable remedy would be the interest on the amount unpaid from July 15, to December 16, 2013.

7The applicant’s remedial request given the quantum of the final installment is not reasonable. In my view it is appropriate to award the sum of $1000 inclusive of interest as damages for the acknowledged breach of the MOS. The applicant did not press the point of the failure to make the fourth payment in an entirely timely manner and I have not considered it in assessing damages.

8In coming to this conclusion I considered the quantum in issue and the fact that it was the final of five equal installments. On the other hand there is the fact that the applicant was required to incur further legal expenses in seeking enforcement of the MOS including bringing this Application. I have also considered that there would likely have been some level of anxiety on the applicant’s part in not knowing for a period of time whether the respondent would comply with the terms of the MOS and make the final installment. However it is also important to note that I have no evidence from the applicant on this point and the amount attributable to these intangibles is not significant I have also considered the fact that the respondent had the benefit of the final installment for a period of 5 months and the applicant did not.

9The Tribunal makes the following Orders:

a. The respondent will pay to the applicant through counsel in trust $1000 in monetary compensation (inclusive of interest) for breach of the MOS. This payment will be delivered to the applicant’s representative within 30 days of the date of this Decision.

b. 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.