Banaag v. Mondelez Canada Inc., 2014 HRTO 851

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mario Banaag

Applicant

-and-

Mondelez Canada Inc.

Respondent

DECISION

Adjudicator: Brian Cook

Date: June 10, 2014

Citation: 2014 HRTO 851

Indexed as: Banaag v. Mondelez Canada Inc.

APPEARANCES

Mario Banaag, Applicant

Self-represented

Mondelez Canada Inc., Respondent

Michael Horvat, Counsel

Introduction

1This is a Contravention of Settlement Application filed under s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). 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. The applicant alleges that as a result of the delay, he was almost evicted from his apartment and suffered significant personal embarrassment when he was unable to repay loans made to him by friends on the date he had said he would be able to make payment.

2The Application was scheduled for a telephone conference call hearing on February 3, 2014. Following that hearing, the Tribunal issued Interim Decision 2014 HRTO 179. It directed that a half-day in-person hearing be scheduled. That hearing was held on April 15, 2014.

3I heard evidence from the applicant and from Lorraine Sixto, who is the respondent’s Human Resources Manager.

Background

4The October 24, 2013 Minutes of Settlement settled an Application to the Tribunal alleging discrimination in employment because of disability. As a result of the Settlement, the applicant's employment with the respondent was terminated. The Minutes included a release which provided in part:

The Employee hereby forever releases and discharges the Employer from any further claims arising from the Employee’s employment and/or the cessation of employment.

5The Minutes provided for three payments to be made by the respondents. These were as follows:

1. An amount representing severance 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.

2. An amount to be paid in respect of legal fees. The date by which this payment was to be made was not specified.

3. 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.

6The present Application relates to the severance payment.

7The Minutes of Settlement were signed on October 24, 2013. Two weeks from that date was November 7. The severance payment was not made until November 19, or 12 days following the date specified in the Minutes of Settlement. The amount in respect of general damages was paid by cheque issued to the applicant’s counsel on November 15 and the applicant received the money on November 19. The amount in respect of legal fees was paid on December 12.

8The applicant interpreted the Minutes of Settlement to mean that the severance payment was due on November 6 and not November 7. As noted in Interim Decision 2014 HRTO 179, in fact the two-week period ended on November 7.

9The respondents do not dispute that the severance payment was not made by November 7, 2013. The respondents state, however, that the reason for the delay was that the agreement between the parties was effectively amended after the Minutes of Settlement were signed.

10For the purposes of this Contravention of Settlement Application, I must determine whether the Minutes of Settlement were in fact amended and, if amended, what was agreed to by the parties. If the evidence supports the conclusion that the Minutes of Settlement were amended to extend the date by which payment was to be made, then the Contravention of Settlement Application must be dismissed. There is conflicting evidence on this issue, which I address below.

Evidence

11The parties agree that on October 30, 2013, six days after the Minutes of Settlement were signed, the applicant called Ms. Sixto, the respondent’s Human Resources Manager, to ask about payment of medical invoices. The invoices were for completion of disability insurance forms and were in the amount of approximately $175. The applicant was entitled to reimbursement for these amounts as an employee. The applicant told Ms. Sixto that he had forgotten about the invoices at the time of the mediation when the Minutes of Settlement were signed but wanted to be paid. There is no dispute that Ms. Sixto told the applicant that the invoices could be paid.

12Ms. Sixto testified that the invoices were paid through the respondent’s payroll system. She testified that they could only be paid if the applicant was still on the payroll. She testified that she informed the applicant on October 30, 2013, that the invoices could be paid, but that he would have to stay on the payroll until the payments had been processed. She testified that she advised the applicant that this would result in some delay in the processing of the severance payment because the severance payment could only be processed when the applicant was no longer on the payroll. She testified that the applicant indicated that he understood.

13The applicant testified that Ms. Sixto only told him that the invoices would be paid if he brought them in, and that she did not say that there would be any delay in processing the severance payment. He testified that she told him not to worry and that the severance payment would be electronically transferred to his bank account as specified in the Minutes of Settlement.

14October 30, 2013, the date of this telephone conversation, was a Wednesday. The parties agree that during the conversation, the applicant asked if he could bring the invoices in on the following Saturday. They also agree that Ms. Sixto advised that this would not work and that she suggested he come earlier.

15The applicant testified that he had appointments on October 31 and November 1, and could therefore not bring the invoices to the respondent on those days. However, he could not recall what the appointments were for.

16The parties agree that after October 30, 2013, the applicant appeared at the work place on two occasions. The first occasion was on either November 5 or 6. They agree that the second occasion was on November 7.

17The parties agree that on the first occasion, the applicant met with Alexandra Harmer, who was at the time the Associate Human Resources Manager. The parties agree that the applicant presented the medical invoices and that Ms. Harmer told him that the actual receipts were required. The parties also agree that Ms. Harmer gave the applicant a document to sign. The document 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.

18The document is dated November 1, 2013. Ms. Sixto testified that she prepared the document after speaking to the applicant on October 30, and on the advice of counsel. She testified that she was concerned about any alteration to the terms agreed to in the Minutes of Settlement and wanted documentation to appropriately reflect any alteration or amendment.

19The applicant did not sign the document when Ms. Harmer presented it to him on the occasion when he brought the invoices. He testified that he did not sign because he was worried that the document might mean some delay in the payment.

20At the mediation on October 24, 2013, the applicant was represented by counsel. The applicant was asked whether he asked his lawyer about the November 1, 2013 document that Ms. Harmer gave to him. He testified that he could not remember.

21The November 1, 2013 document was signed by Ms. Harmer on November 6, 2013, and it was signed by the applicant on November 7, 2013. At that time, he also brought the required receipts.

22The applicant testified that Ms. Harmer assured him that the money would be in his bank account and that it was because of this assurance that he agreed to sign the document.

23The applicant testified that it was very important to him that he receive the severance payment by November 7 (or, as he originally thought, November 6). He was in rent arrears for rent that was due on October 1 and November 1. He had a history of late rent payments because he had been without income for a lengthy period. His landlord had on previous occasions filed an eviction Application with the Landlord and Tenant Board. The applicant had not been evicted on those occasions because he was able to resolve matters with his landlord. The applicant testified that after the Minutes of Settlement were signed on October 24, 2013, he assured his landlord that he would pay the rent owing no later than November 6 (based on the applicant’s calculation of the two-week period stated in the Minutes of Settlement). The landlord accepted this. However, when the applicant had not made payment, the landlord filed an eviction Application with the Landlord and Tenant Board on November 8, 2011. The applicant was required to appear at the Landlord and Tenant Board. An agreement was reached at that time and the applicant was not evicted. However, he was required to pay the Landlord and Tenant Board filing fee of $170.

24The applicant had also borrowed money from four friends. He testified that he owed one friend $2,000, a second friend $1,000 and two others amounts of $300 and $200. He testified that he told all four friends that he would be able to repay them on November 6 (again based on his calculation of the two-week period stated in the Minutes of Settlement). He testified that he went to the bank several times on November 6 and discovered that the money had not been deposited. He testified that he told his friends that he could not make the payment. He said that one of the four swore at him. He testified that his friends called him on November 7 but he did not answer the phone because he was embarrassed. The applicant testified that he experienced significant humiliation as a result of his failure to make the repayments by the date he had agreed to. He was unable to make the repayments until November 19, 2013, when he actually received the money.

25The applicant indicated that his reputation in his community suffered significantly as a result of his failure to make the repayment on November 6 as he had said he would.

26The applicant was asked if he told Ms. Sixto or Ms. Harmer about the situation with his landlord and his friends. He testified that he did not specifically mention these situations. He testified that he was clear that he needed the money and that he was assured by Ms. Harmer that the money would be deposited in his account and that he need not worry. During his submissions, he suggested that he had in fact told Ms. Harmer about the situation. However, since this submission was contrary to his earlier evidence, I cannot accept it and I find that the applicant did not tell the respondent about the situation with his landlord and his friends. The applicant was asked why Ms. Harmer would say this to him if she knew it was not true. He stated that he now believes that he was deliberately misled and that there may be discriminatory reasons for this, relating to his race.

27Ms. Sixto was asked to explain why the severance payment was not processed until November 19, 2013. She testified that the medical receipts had to be processed and the severance payment could only be processed after that. She testified that the respondent’s payroll system is outsourced and that for this reason, it always takes some time for payments to be processed.

Analysis and conclusions

28Section 45.9 of the Code provides:

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.

(2) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the Tribunal may, on the joint motion of the parties, make an order requiring compliance with the settlement or any part of the settlement.

(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.

(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.

29Minutes of Settlement that settle an Application is a legal contract between the parties. However, like any legal contract, the parties can agree to change the terms.

30The respondent submits that this is what happened here and that the amendment to the Minutes of Settlement was documented in the November 1, 2013 document signed by the applicant on November 7, 2013. The respondent notes that the amendment to the terms of the Minutes of Settlement was initiated by the applicant, when he asked for reimbursement of the medical receipts. The respondent submits that since the applicant had signed a full release, it had no legal obligation to pay the medical receipts. However, the respondent was prepared to pay them, although this would result in a delay in the severance payment. The respondent submits that the purpose of the November 1, 2013 document was to clarify that the two-week period by which the severance payment had to be made would start only on the day that the applicant provided the medical receipts. The applicant provided the receipts on November 7, so the respondent had until November 21 to make the payments and in fact made the payments by November 19.

31As noted in Interim Decision 2014 HRTO 179, it is not clear that the November 1, 2013 document actually extended the deadline in the manner suggested by the respondent. 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 1, 2013 document, the respondent may have been obliged to make the payment by November 7.

32However, as also noted in the Interim Decision, the verbal representations that were made about the November 1, 2013 document may also be a relevant consideration with respect to whether the Minutes of Settlement were amended. The evidence of the applicant and the respondent on this point differs. The respondent’s evidence is that payment of the medical receipts necessarily involved a delay in the severance payment. The medical receipts could only be paid if the applicant was still on the payroll. He could not be on the payroll after the severance payment was made. Ms. Sixto testified that she explained this to the applicant during her telephone conversation with him on October 30, 2013. She testified that she believes that Ms. Harmer also explained this to the applicant.

33The applicant testified that the respondent did not tell him that there would be any delay in processing the payment and to the contrary, assured him that the payment would be made on time.

34On this issue, I accept that Ms. Sixto told the applicant that paying the medical receipts would result in a delay in the severance payment. Ms. Sixto’s evidence on this point was clear and unambiguous and is supported by the fact that she drafted the November 1 document.

35I cannot accept the applicant’s evidence that the respondent told him that there would be no delay in processing the payment. The applicant testified that when he was presented with the November 1 document he refused to sign precisely because he was worried that it meant that there would be a delay in the payment. I am troubled by the applicant’s inability to recall whether he talked to his lawyer about the document. I do not understand why the applicant cannot remember this and this raises a question about the reliability of the applicant’s evidence that the respondent told him there would be no delay.

36The other reason that I cannot accept the applicant’s evidence that the respondents told him that there would be no delay in the payment is that it does not make sense that the respondent would say this when it was clear that there would be a delay because of the need to process the medical receipts before the severance payment could be processed. Since the respondents knew that paying the medical receipts would result in a delay in the severance payment it does not, in my view, make sense that they would tell the applicant that there would not be a delay. The applicant's theory, advanced at the hearing but not in the Contravention of Settlement Application, is that he was lied to as a form of discrimination based on race. Apart from the applicant’s assertion, there is no evidence to support such an allegation. Moreover, since the applicant did not tell the respondent about his situation, I do not see how the respondent could have understood the harm that would result to the applicant in misleading him about the payment.

37It does seem possible that the applicant did not understand the information that was provided to him by the respondent, or that he did not understand the document that he signed and its implications to him for payment. Or, because of the commitments that he had made to his landlord and friends, he did not want to understand. However, as noted, it does seem that he understood that there was at least the potential for a delayed payment, which is the reason he did not initially sign the November 1 document. As well, the applicant's evidence is not that the respondent did not say anything about a delay, which might have led him to believe that the money was still going to be available by November 7. His evidence is that the respondent told him that there would be no delay. As noted, this makes no sense since the respondent knew very well that there would be a delay.

38In assessing all of the evidence before me, I conclude that the respondents did not mislead the applicant about the fact that his request to have his medical bills paid would result in a delay of the severance payment he was entitled to under the Minutes of Settlement. I accept that the respondent told the applicant that there would be a delay in processing the severance payment. I also accept that the applicant may not have clearly understood what he was told. However, on his evidence, he himself was concerned that there could be a delay, which is why he did not initially sign the November 1 document. In my view, this means that the Minutes of Settlement were amended after they were signed and that there was no contravention of the settlement.

39Even if I am wrong about this and the Minutes of Settlement were not legally amended, there would be no basis to award the applicant compensation for any contravention. This is because the events that led to the applicant receiving the severance payment later than stated in the Minutes of Settlement were initiated entirely by the applicant.

40The respondent was not required to agree to pay these receipts because the applicant had signed a full release. It did however, agree to cover the receipts but a necessary consequence was the delay. For the reasons stated, I do not accept that the respondent deliberately lied or made misrepresentations to the applicant and told him that there would be no delay. I also find that the applicant did not tell the respondent of the reasons why it was important for him to receive the payment when he thought it was going to be paid. The respondents acted in good faith and believed that the fact that paying the medical bills had been communicated to the applicant. In these circumstances, even if the Minutes of Settlement were not legally amended, there would be no basis to award damages to the applicant.

Decision

41The Contravention of Settlement Application is dismissed.