Juan Reyes v. Centric Health Corporation, 2014 HRTO 931

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juan Reyes

Applicant

-and-

Centric Health Corporation

Respondent

A N D B E T W E E N:

Juan Reyes

Applicant

-and-

Centric Health Corporation

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 24, 2014

Citation: 2014 HRTO 931

Indexed as: Reyes v. Centric Health Corporation

APPEARANCES

Juan Reyes, Applicant

Self-represented

Centric Health Corporation, Respondent

Saba Zia, Counsel

Introduction

1The purpose of this Decision is to decide whether the respondent contravened the settlement of a human rights Application.

BACKGROUND

2On June 28, 2010, the applicant began working for the respondent. On April 13, 2011, the respondent terminated his employment.

3Following the termination, the applicant filed an Application with the Ontario Labour Relations Board (“OLRB”) under the Employment Standards Act, 2000, S.O. 2000, c. 41, and an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), which alleged, among other things, that the respondent had discriminated against him.

4On November 7, 2013, the parties signed Minutes of Settlement in which they agreed to a full and final settlement of the Applications before the OLRB and this Tribunal.

5On November 27, 2013, and January 2, 2014, the applicant filed two Applications for Contravention of Settlement with the Tribunal, which alleged that the respondent had contravened two clauses of the Minutes of Settlement. Specifically, he alleged that the respondent contravened clause 15, which required the respondent to send him a cheque within a specific time line, and clause 13, which required the respondent to provide him with a letter summarizing his job duties.

6On December 11, 2013, and January 16, 2014, the respondent filed Responses, which admitted that it had contravened clause 15, but denied that it had contravened clause 13.

7The hearing of the merits of the Applications for Contravention of Settlement took place on April 11, 2014.

ANALYSIS

Applicable Law

8Section 45.9 of the Code provides that (1) if a settlement of an application made under s. 34 of the Code is agreed to in writing and signed by the parties, the settlement is binding on the parties, and (2) a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order to remedy the contravention.

9The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.

Did the respondent contravene the settlement of the human rights Application?

10Minutes of Settlement are contracts, and, as such, the same principles of contract interpretation apply. See Precision Remodeling Ltd. v. Soskin, 2008 CanLII 31411 (ON SC) at para. 27. The primary goal of contractual interpretation is to give effect to the intentions of the parties. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888 at p. 901.

11The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, and it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. See Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at paras. 54, 55 and 58.

12As the Ontario Court of Appeal explained in Dumbrell v. The Regional Group of Companies Inc., 85 OR (3d) 616, 2007 ONCA 59 at para. 50:

In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it a moment's thought until it became a problem: see Kim Lewison, The Interpretation of Contracts, 3rd ed. (London: Sweet & Maxwell, 2004) at 18-31.

13Regardless of ambiguity, however, courts may have regard to the context or the factual matrix in order to determine the intent of the parties and the scope of their understanding (i.e. contracts are to be interpreted with regard to objective evidence of the context or factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties). See Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at paras. 33-34.

14This Tribunal has adopted the above approach in the context of the settlement of human rights disputes. See Thornton v. Toronto Police Services Board, 2012 HRTO 2412 at paras. 13-14; Ihasz v. Ontario (Revenue), 2011 HRTO 1991 at para. 21; and Moncur v. Beach Grove Golf and Country Club, 2014 HRTO 764 at paras. 18-22.

Preliminary Issue

15In his first Contravention of Settlement Application (No. 2013-16166-S), the applicant named Dr. Robert Grisdale as an individual respondent. However, he did not allege that Dr. Grisdale contravened the Minutes of Settlement, or present any evidence to that effect. As such, I have removed Dr. Grisdale as a respondent and amended the title of proceeding accordingly.

Clause 15

16The applicant’s first allegation is that the respondent contravened clause 15 of the Minutes of Settlement, which required the respondent to send him a cheque within a specific time line. Clause 15 is linked to clauses 1-3 and 16. These clauses read as follows:

1. The Employer shall pay [monetary amount] as general damages in full and final satisfaction of all obligations of the Employer to Mr. Reyes.

2. Before the Employer pays the amount set out in Section1 herein, Mr. Reyes shall sign and return the Full and Final Release attached as Schedule “A” to these Minutes of Settlement.

3. Mr. Reyes hereby agrees to the immediate withdrawal of his Application to the Human Rights Tribunal of Ontario, being Tribunal File No. 2011-09431-I, without any cost or liability to the Employer, and undertakes to immediately file a Form 25 with the Human Rights of Tribunal of Ontario advising of this settlement and withdrawal of such Application.

4. The Employer shall make payment of the amount in section 1 to Mr. Reyes within fourteen (14) days of receiving an executed copy of these Minutes of Settlement, the attached Full and Final Release and confirmation that Mr. Reyes has filed a Form 25 with the Human Rights Tribunal of Ontario in connection with his Application, being Tribunal file No. 2011-09431-I, and has advised the Tribunal of this settlement and withdrawal of such Application.

5. The Employer shall make payment of the amount in section 1 to Mr. Reyes by cheque couriered to the address provided [by] Mr. Reyes on November 7, 2013 as follows: [applicant’s home address and telephone number]….

17On November 7, 2013, the parties signed the Minutes of Settlement, and the applicant signed the Full and Final Release. The parties also signed a Form 25, which confirmed that the parties had entered into the Minutes of Settlement to resolve the human rights Application, and consented to this Tribunal finally disposing of the Application and closing the file. The applicant then sent the Form 25 by email to the Tribunal, and requested that the Tribunal confirm that it had accepted the settlement.

18On November 12, 2013, the Tribunal sent the parties an email, which confirmed that it had received the Form 25, and stated that the human rights Application was finally disposed of, and the file was closed. The applicant then sent an email to the respondent, which stated that it had now received the required confirmation from the Tribunal.

19Pursuant to the Minutes of Settlement, the respondent was required to courier a cheque to the applicant’s home address by no later than November 26, 2013. The respondent failed to do so.

20On November 27, 2013, the applicant sent an email to the Tribunal and the OLRB, which complained that the respondent had contravened the settlement. The email was copied to the respondent.

21On November 29, 2013, the respondent’s Human Resources (“HR”) Manager sent the applicant an email, which apologized for the delay and stated that a cheque would be sent to him by same-day courier. The HR Manager couriered the cheque and the applicant received it later that day.

22The respondent admits, and I find, that it contravened clause 15 of the Minutes of Settlement by couriering the cheque to the applicant three days late. The main issue to be decided is whether the Tribunal should make an order to remedy the contravention.

23Section 45.9(8) of the Code provides that if the Tribunal determines that a party has contravened a settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention. The Tribunal has held that the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention. See Matos v. Transplay, 2010 HRTO 2527 at para. 17.

24In his submissions, the applicant stated that he is entitled to a remedy because, as a result of the delay in receiving the cheque, he had to pay more interest to the bank with respect to his financial obligations; he experienced pain and suffering; and he was unable to look for a new job and lost two days of Employment Insurance benefits because he was preparing for this hearing.

25In its submissions, the respondent stated that the applicant is not entitled to a remedy because the contravention of the settlement was minor, and there is no evidence that the applicant has suffered any actual harm or prejudice as a result of the short delay in providing the cheque to him.

26In my view, it is not appropriate to make an order to remedy the contravention of the settlement. The Tribunal has held that a minor delay in the delivery of funds, which is rectified when the matter is brought to the respondent’s attention, does not lead to a remedy for contravention of settlement. See, for example, Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618; Adorgloh v. Sentrex Communications, 2010 HRTO 2524; Wilson v. Work Able Centres, 2012 HRTO 795; and Birmann v. Honeywell, 2013 HRTO 254. In the case at hand, the delay was minor (three days), and upon being notified that it had missed the payment deadline, the respondent promptly apologized to the applicant and undertook to remedy the situation by couriering the cheque to him immediately.

27Furthermore, I am not satisfied that the applicant experienced any actual harm as a result of the contravention. I accept that the delay frustrated and upset him, but there is no evidence that he experienced any significant pain and suffering. He also did not present any evidence to support his claim that had to pay further interest to the bank with respect to his financial obligations.

28Finally, although I appreciate that the applicant incurred costs preparing for the hearing (as did the respondent), the Tribunal has no authority to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.

Clause 13

29The applicant’s second allegation is that the respondent contravened clause 13 of the Minutes of Settlement, which required the respondent to provide him with a letter summarizing his job duties. Clause 13 reads as follows:

13. The Employer shall provide Mr. Reyes with a letter verifying the dates of his employment with the Employer, [a] summary of his job duties as stated in his job description, and [the] reason for termination of employment being shortage of work. Oral references will be consistent with this letter.

30The applicant’s job description identified his position as “Intake Coordinator/QA Specialist”, and listed his job responsibilities in 11 bullet points. The first bullet point described the applicant’s general job responsibility, and the other 10 bullet points described his specific job responsibilities.

31On December 2, 2013, the respondent’s HR Manager emailed the applicant a verification of employment letter. On the same day, the applicant emailed the HR Manager a response, which stated that he would not accept the letter because it was not consistent with his job description. On the same day, the HR Manager emailed the applicant a reply, which stated that she would review the situation and make the necessary changes.

32On January 15, 2014, the respondent’s HR manager couriered a revised verification of employment letter to the applicant. The letter verified the applicant’s dates of employment with the respondent, and stated that the applicant’s employment was terminated because of a shortage of work. The letter listed the applicant’s job responsibilities in nine bullet points.

33There is a dispute between the parties as to whether the verification of employment letter summarizes the job duties set out in the applicant’s job description. The following two bullet points in the job description are at issue.

34The first bullet point describes the applicant’s general job responsibility as follows:

A central element of this role will be to constantly improve our internal medical competence toward becoming an industry leader in catastrophic and serious injury assessment.

35The seventh bullet point, which describes two specific job responsibilities, states:

Corrections of any errors that are identified, both within the reports and within tracking systems and documentation to ensure accurate working records for the staff.

36In his submissions, the applicant stated that the first bullet point is not summarized at all in the verification of employment letter. He stated that it should have been because his general job responsibility was very important. He also stated that the second specific job responsibility in the seventh bullet point (“documentation to ensure accurate working records for the staff”) is also not summarized in the letter.

37In its submissions, the respondent admitted that the first bullet point is not summarized in the verification letter. The respondent stated that it did not include it in the letter because it covers the general mandate of what the respondent does, and would have looked odd in the letter, and it was not a specific job responsibility. The respondent also stated that the second specific job responsibility in the seventh bullet point is, in fact, summarized in the third bullet point of the letter, which states:

Reviewing files in detail and creating a File Review Report based on medical documentation.

38In my view, to comply with the clause 13, the respondent should include a summary of the applicant’s general job responsibility in the verification of employment letter. I find that the first bullet point in the applicant’s job description described his general responsibility in furthering the mandate of the company. I agree with the applicant that this is important and should be summarized in the letter. I do not understand or accept the respondent’s argument that it would have looked odd to include it in the letter. I also do not accept the respondent’s argument that it did not have to include it because it was not a specific job responsibility. Clause 13 does not make a distinction between the applicant’s general job responsibility and his specific job responsibilities, or exclude his general job responsibility from inclusion in the letter.

39However, I am not prepared to find that the respondent contravened clause 13 by not including a summary of the applicant’s general job responsibility in the verification of employment letter because, unlike clause 15, which required the respondent to send him a cheque within a specific time line, clause 13 does not contain a time line or deadline for the respondent to provide him with a verification of employment letter.

40That said, to avoid a contravention and further litigation over this matter, I am simply going to direct the respondent to provide the applicant with a revised verification of employment letter, which includes a summary of the first bullet point of his job description. To avoid any further disputes over the letter, I am also going to direct the respondent to place the summary as the last sentence in the first paragraph of the letter.

41I am also not prepared to find that the respondent contravened clause 13 by failing to explicitly include the second specific job responsibility in the seventh bullet point in the verification of employment letter. Clause 13 required the respondent to include a summary of the applicant’s job duties as stated in his job description in the letter, not a word-for-word repetition, and I agree with the respondent that this responsibility can be seen to be incorporated in the the third bullet point of the letter. In my view, the applicant’s argument is essentially a quibble.

ORDER

42The Tribunal makes the following orders and directions:

1. The respondent contravened clause 15 of the Minutes of Settlement by couriering the cheque to the applicant three days late.

2. It is not appropriate to make an order to remedy the contravention of clause 15.

3. The respondent did not contravene clause 13 of the Minutes of Settlement.

4. To avoid a contravention of clause 13 and further litigation and disputes, the respondent is directed to provide the applicant with a revised verification of employment letter, which includes a summary of the first bullet point of his job description, and to place the summary as the last sentence in the first paragraph of the letter.