HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alicide Mailloux
Applicant
-and-
Marian Villa, Mount Hope Centre for Long Term Care, St. Joseph’s Health Care London
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Mailloux v. Marian Villa, Mount Hope Centre for Long Term Care, St. Joseph’s Health Centre
APPEARANCES
Alicide Mailloux, Applicant
Christine Lundy, Paralegal
Marian Villa, Mount Hope Centre for Long Term Care, St. Joseph’s Health Care London, Respondent
Alexandre T. Mouret, Counsel
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 the respondent contravened the terms of the settlement reached between the parties.
2On March 22, 2014, the parties entered into Minutes of Settlement (“MOS”) that settled an Application in which the applicant disputed the respondent’s decision to prevent him from using his motorized wheelchair. The applicant alleges the respondent contravened a term of the MOS, as set out below.
3The parties attended an in-person hearing and made submissions. It quickly became apparent that the applicant has difficulties with memory. As such, before he completed his evidence, I asked the parties to consider having the respondents’ witnesses testify, after which the applicant could give additional evidence. I did this to try and assist the applicant’s memory about why he brought this Application, and in accordance with Rule 1.7(j) of the Tribunal’s Rules of Procedure, which states:
In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
[…] determine and direct the order in which evidence will be presented.
4The respondent agreed, with the proviso that I consider the weight I would give to the applicant’s evidence because he would testify after the respondent’s witnesses testified. I agreed this was appropriate. In the end, however, the contravention issue largely turns on an interpretation of the MOS, and the applicant’s evidence is ancillary to that issue, as set out below. The same does not hold true for the assessment of damages, which I have discussed below.
BACKGROUND
5As part of the MOS, the parties agreed the respondent would arrange for an independent wheelchair driving assessment of the applicant, subject to certain specified terms.
6The applicant alleges the respondent contravened clause 1(d) of the MOS, as follows:
The applicant is assured that, if he completes the [independent wheelchair driving] assessment [“assessment”] appropriately and it concludes that he is able to operate the power wheelchair [“wheelchair”] safely, his wheelchair will be returned to him within twenty-four hours.
7The applicant alleges his wheelchair was not returned to him within the stipulated twenty-four hours.
THE LAW
8Subsections 45.9(3) and (8) of the Code state, as follows:
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).
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. 2006, c. 30, s. 5.
evidence
9The applicant testified both that he got his wheelchair back within 24 hours of the assessment, and that he did not. Much of the applicant’s evidence pertained to his dissatisfaction with the wheelchair itself and the fact that he wants a new one. He could not explain his understanding of clause 1(d) of the MOS.
10The undisputed evidence is that Ms. Titus and Ms. Trenholm conducted the assessment on Wednesday, July 2, 2014 at a facility and on Friday, July 4, 2014 at the facility operated by the respondents where the applicant resides.
11On Monday, July 7, 2014, Ms. Trenholm and Ms. Titus completed the assessment report (“report”) that set out ratings in a chart form with respect to different tests the applicant was given, and which also set out in the comments section some difficulties the applicant encountered during the testing, but which did not conclude either that the applicant was safe or not safe to operate his motorized wheelchair. Ms. Trenholm e-mailed Ms. Gibson, who at the time was the vice-president of Complex, Specialty Aging and Rehabilitative Care at the respondent’s and was responsible for delivering care to the individuals in the clinical programs, to ask to whom she should send the report. Ms. Gibson replied she should send it to her and another person, which Ms. Trenholm did on July 8, 2014.
12Ms. Gibson was not concerned that the respondent already had exceeded the 24 hour time period stipulated in the MOS because in her view she needed a specific answer to the question of whether or not the applicant overall was safe to operate his motorized wheelchair before it was returned to him.
13Ms. Gibson testified her team was well aware it needed to inform her of the result of the assessment as soon as possible, and the report was fast-tracked. She asked that the report be given to her in the first place so the respondent could meet the 24 hour deadline. In her view, the assessors needed to do the two day assessment, have time to analyze the results and then provide the report. The report had to conclude that the applicant was safe to operate his motorized wheelchair before the respondent could return it to him.
14On Ms. Gibson’s interpretation, the assessment was not complete, as referred to in the MOS, until the analysis and report were done. She testified that the word “it” in clause 1(d) of the MOS (“if he completes the assessment appropriately and it concludes that he is able to operate the power wheelchair safely…” [emphasis added]) refers to the report, not to the assessment itself.
15Ms. Gibson testified it is unusual for an assessor to write a report on the day an assessment takes place, especially when there is complex information as in this case. Ms. Trenholm testified it is normal practice to do an assessment and then write a report. No one specifically told her they needed the report quickly, but she and Ms. Titus knew they wanted to get the report out in a timely manner. They finished the assessment on Friday and the report on Monday.
16Ms. Gibson did not ask Ms. Trenholm to inform her of her preliminary conclusions immediately upon completion of the assessment instead of waiting for a report, but agrees she reluctantly could have done so. Ms. Trenholm testified that if someone had asked her on July 2 or 4, 2014 whether the applicant could operate his wheelchair safely, she would have told them that on those two dates he did so in a safe manner.
17When Ms. Gibson received the report, it did not tell her if the applicant was safe to operate the wheelchair. There were indications he still was encountering some difficulties. She did not know if these disqualified the applicant from operating his wheelchair so she called Ms. Trenholm on July 8, 2014 for clarification.
18Ms. Trenholm and Ms. Gibson met on July 9, 2014, and Ms. Trenholm provided Ms. Gibson with an Addendum to her report, which states:
[…] the client [the applicant] was safe driving his power wheelchair.
19Ms. Trenholm testified the report includes the July 9, 2014 Addendum she wrote in response to Ms. Gibson’s request for clarification.
20The applicant received his wheelchair back on July 10, 2014.
21Ms. Gibson knew the MOS was a contract, and the contract terms were fulfilled because until she got the report and Addendum, she did not have the required information. Once she read the Addendum, the applicant had to sign policies with respect to safe driving, which he did on July 10, 2014. The respondent did not take steps to have the applicant sign the policies in advance because they were doing things in a linear fashion.
SUBMISSIONS
22The parties disagree with respect to what “it” refers to in clause 1(d) of the MOS. The respondent submits that “it” refers to a written report that tells Ms. Gibson that the applicant is safe to operate his wheelchair, which she received on July 9, 2014, and which included the addendum for which she asked. The applicant takes the position that “it” refers to the assessment itself, not the report.
23The applicant argues that because Ms. Trenholm testified that if she had been asked on July 4, 2014 if the applicant was safe to operate his wheelchair, she would have said “yes”, the applicant’s wheelchair should have been returned to him on July 5, 2014 given a plain reading of clause 1(d) of the MOS. The respondent disagrees, arguing there was no requirement in the MOS for the respondent to solicit an oral report from the assessors, and such a term should not now be read into the MOS. The respondent takes the position that it would have been inappropriate for it to contact the independent assessors to solicit an oral report unless the applicant agreed it could do so.
24The applicant argues that in setting up the assessment, Ms. Gibson should have ensured the results of the assessment were given to her in a timely manner that would have allowed the respondent to comply with the 24 hour requirement.
25The respondent submits that Ms. Trenholm followed her normal practice by doing her assessment and then writing her report. Given that her Addendum was sent on July 9, 2014 and the applicant had his wheelchair back on July 10, 2014, there was no contravention.
26The applicant takes issue with the respondent’s position that the applicant could not have his wheelchair back before he signed the policies on July 10, 2014 because the respondent did not have to wait until then to have the applicant sign them.
27The respondent submits the applicant gave no evidence of a contravention, and the only evidence he did give was contradictory. He gave no evidence of what he thought the MOS meant or what he understood the process of the assessment would be.
analysis and findings
28The fundamental principles of contract interpretation apply to the interpretation of MOS. These are as follows:
a. The intention of the parties is to be discerned from the words of the contract;
b. In interpreting a contract, one should not generally have reference to extrinsic evidence […];
c. A contract should be read as a whole, and specific words and phrases should be read in the context of the whole agreement;
d. An interpretation that gives meaning and effect to all words is to be preferred; and
e. Specific terms should be taken to modify general terms.
See Canadian Contract Interpretation Law, 2d ed., Geoff Hall, (LexisNexis Canada, 2012) at pp. 15-21.
29While the respondent submits that there was no evidence from the applicant in this case, that does not determine the matter, in light of the Tribunal’s statement in Ihasz v. Ontario (Revenue), 2011 HRTO 1991 (para. 21):
A party’s beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement, constitute extrinsic evidence which, in accordance with the parole evidence rule, cannot be considered when interpreting the meaning of the words of the contract. Thus, in the absence of exceptional circumstances, I cannot impute the applicant’s intentions and beliefs into the written word of the agreement […]
30I must interpret the Minutes of Settlement drafted by the parties by applying principles of interpretation and avoiding making assumptions or inferences about what each party may have meant when entering into the settlement (see, e.g.: Reyns v. Timmins (City), 2014 HRTO 466).
31In my view, the interpretation that best fits with the plain meaning of the Minutes of Settlement, reading the document as a whole, in its context, and without reading in terms, favours the applicant.
32The applicant was to submit to an independent wheelchair driving assessment of the respondent’s choosing. The MOS state that he is to get his wheelchair back within 24 hours once he “completes the assessment appropriately and it concludes that he is able to operate his wheelchair safely.”
33The MOS did not stipulate a requirement for a report, whether oral or written. In my view, to read into the MOS a requirement for a written report would be to read in terms to the MOS that are not there. In addition, although Ms. Trenholm’s evidence was that, if anyone had asked at the conclusion of the assessment, she would have said the applicant drove safely “on those two dates”, she subsequently wrote a report and then an addenda, without receiving any other information than what she had at the conclusion of the assessment, that concluded more generally that the applicant was safe to operate his wheelchair. As such, I find that as of July 4, 2015, the applicant clearly completed the assessment appropriately and it was concluded that he was able to operate his wheelchair safely.
34To comply with the MOS, the respondent should have returned the applicant’s wheelchair to him on July 5, 2014.
remedy
35While I determined the applicant’s memory issues were not germane to whether or not I could establish whether or not there was a contravention of the MOS, the same does not hold true for the remedy. The applicant’s evidence of the impact of the contravention is key to determining the appropriate remedy. In my view, subsection 45.9(8) of the Code gives the Tribunal broad power to remedy contraventions of settlements, in that it may make “any order that it considers appropriate to remedy the contravention.” As noted in Matos v. Transplay, 2010 HRTO 2527 at para. 17, “the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention.” See also Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867; Francis v. Toronto Police Services Board, 2011 HRTO 2018 and Vashishtha v. AA Cars @ Truck Rentals, 2014 HRTO 865.
36The applicant did testify that the motorized wheelchair is easier, and he has trouble getting the manual wheelchair through doorways. He also stated that while he took the manual wheelchair outside, it was not as easy as taking the motorized one. He further testified it was not as easy to get to the Wellness Centre in the manual wheelchair. None of this evidence pertained specifically to how the contravention of the MOS affected the applicant, but instead pertained to how the applicant felt at the hearing when he again was using a manual wheelchair.
37When asked what he wanted from this Application, the applicant stated he just wanted a regular wheelchair to take him from one place to another.
38The applicant’s representative submits this contravention is unique and deserves a unique response given that the applicant’s motorized wheelchair was not just a means of transportation, but it enabled the applicant to do things he could not otherwise. She made further submissions that were not evidence before me, that each day the applicant was not able to move around with the freedom given by the motorized wheelchair was a day of frustration and anxiety for him and that it was exhausting for the applicant to move around in his manual wheelchair.
39She further submits that depriving the applicant’s freedom of movement should not be compared to cases in which applicants were deprived of settlement monies for a short period of time, and in which damages for the contravention were low.
40Finally, she states this was not a minor inconvenience for the applicant, but instead prolonged his dependency on others to manoeuvre his manual wheelchair. It further was a source of distress because the applicant was dealing with the people upon whom he also depended for his care, security and sustenance.
41Given the uniqueness of the situation, the applicant’s representative submits the award for the contravention should be $5000.
42The respondent submits any contravention was minimal and that remedies in such cases vary from nothing to $1500.
43In considering the impact on the applicant, the applicant’s representative attempted in her closing to give evidence of the impact on the applicant, but as indicated this evidence was not before me. It is true that the applicant was not able to tell me how this impacted him at the time, but it is equally true that it is not unreasonable to conclude that the evidence the applicant gave at the hearing with respect to the impact on him of having to use a manual wheelchair rather than his motorized one on the day of the hearing would differ much, if at all, from the impact on him at the relevant time.
44The manual wheelchair is harder to manoeuvre through doors. It is easier to get to the Wellness Centre in the motorized wheelchair. It is more difficult to go outside in his manual wheelchair.
45In my view, the contravention in this case is minimal in the sense that the applicant got his motorized wheelchair back five days later than he might have expected it. In concluding that the impact was minimal in that sense, I am not in any way derogating from the fact that the applicant’s mobility was slowed for that additional period of time.
46In reviewing the case law submitted by the parties, the case of Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516 (“Saunders”) is most similar to this case, particularly since both cases involve issues pertaining to where the applicants reside. In Saunders, one of the contraventions was that the respondent exceeded by four months the time limit to modify stairs. The Tribunal awarded the applicant $1000, finding that the contraventions were not fundamental to the MOS, and that the four month delay was minor.
47In this case, the delay was five days and there were no other contraventions. I find it appropriate to award the applicant $500.
ORDER
48The 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 $500 along with pre-judgment interest on the amount, from July 4, 2013 to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43; and
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.
Dated at Toronto, this 5th day of September, 2015.
“Signed By”
Dawn J. Kershaw
Vice-chair
