Frank Fata v. Workplace Safety and Insurance Board, 2015 HRTO 1449

Human Rights Tribunal of Ontario

B E T W E E N:

Frank Fata

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 29, 2015

Citation: 2015 HRTO 1449

Indexed as: Fata v. Workplace Safety and Insurance Board

APPEARANCES

Frank Fata, Applicant

John Bartolomeo, Counsel

Workplace Safety and Insurance Board, Respondent

Eric Kupka, Counsel

1This is a Contravention of Settlement Application filed under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant and the respondent attended a hearing at the Tribunal on September 22, 2014 and March 9, 2015 for a previous Application. On the second day of the hearing, the parties settled that Application and signed Minutes of Settlement. In this Application, the applicant alleges that the respondent has contravened one of the articles of the Minutes. In accordance with the Tribunal’s usual procedure for hearing breach of settlement Applications, a teleconference hearing was convened to hear submissions. As discussed below, having heard the submissions of the parties, I now find that it is necessary to convene an in-person hearing to hear evidence from the parties.

Background

3The applicant is an injured worker. He receives a permanent disability award or a pension from the Workplace Safety and Insurance Board (WSIB) for injuries resulting from a work-related injury in 1985.

4At the time of the work-related injury, the applicant lived in the Toronto area and his treating physicians were also in Toronto. The applicant subsequently moved to Victoria Harbour. He continued to be treated in Toronto. This led to various issues about the applicant's entitlement to expenses for these medical treatments and to various decisions by WSIB decision-makers about the applicant's entitlement to expenses.

5The Minutes of Settlement provided for a “full and final settlement of the Application”. The Minutes provided for a payment of money by the respondent to the applicant as general damages. They included a number of provisions about what would happen when the applicant went for medical treatment from his family doctor and his psychiatrist, what would happen if the applicant needed to change physicians in the future, and an agreement that the applicant would try to schedule visits with the two doctors at the same time, and what would happen in regards to expenses if he was or was not able to do so.

6Paragraph 3 of the Minutes of Settlement reads as follows:

In the event the applicant has a medical visit with his psychiatrist, Dr. Robert Rehaluk, the Respondent will reimburse the applicant for one night’s hotel accommodation, mileage to and from the applicant’s home in Victoria Harbour and three meals (consisting of one each of breakfast, lunch and dinner) over the two day period.

7It is this provision that the applicant says has been contravened.

8The respondent does not dispute that it has not paid the applicant the expenses contemplated in the Minutes for all of the applicant's subsequent visits to Dr. Rehaluk. The respondent says that the reason for this is that it has determined that not all of the visits to Dr. Rehaluk were necessary as a result of the injury.

9The applicant submits that if the respondent believes that the visits to Dr. Rehaluk are not necessary for the injury, it can make the adjudicative decision that the costs of the medical treatment will not be paid by the WSIB. However, the applicant maintains that the respondent is obliged to pay the accommodation, meals, and mileage that it agreed to pay.

10Prior to the signing of the Minutes of Settlement in March 2015, the applicant had been going to his psychiatrist for treatment approximately once a month. According to the respondent, after the Minutes were signed, the applicant began to go for treatment on a more frequent basis.

11The respondent asserts that this demonstrated bad faith by the applicant. The respondent believes that the applicant must have known that the frequency of treatment would increase and that he should have disclosed this during the mediation session. The respondent claims that to the contrary, the applicant led the respondent to believe that the frequency of visits would decrease.

12The applicant denies making any bad faith representation and asserts that in any event, the Minutes of Settlement have to be interpreted on the basis of the language of the Minutes and that it is not appropriate to re-open the agreement based on allegations about the discussion leading up to the signing of the Minutes.

13The WSIB decision-makers determined that the applicant was not entitled to benefits for increased psychiatric treatment because they determined that the medical evidence did not show that there had been any change in the applicant’s compensable psychological condition and that the increased treatments were therefore not necessary as a result of the injury.

14The respondent suggests that the reference to the psychiatric treatments must be understood to mean treatments for the applicant's work-related and compensable injuries and that if the visits are not necessary for the injury, then the respondent should not have to pay.

15The applicant submits that the Minutes of Settlement do not provide that the respondent will pay expenses only for visits to Dr. Rehaluk that the respondent finds are necessary as a result of the injury.

Analysis

16Interpretation of a contract should only resort to evidence about the process leading up to the contract if the language of the contract is ambiguous. In Moncur v. Beach Grove Golf and Country Club, 2014 HRTO 764, the Tribunal said, at paragraph 19:

The 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 791 (SCC), 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at paras. 54, 55 and 58.

17However, in some cases, it is appropriate to consider the circumstances at the time a contract is agreed to. In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, the Supreme Court stated (at paragraphs 56-60):

I now turn to the role of the surrounding circumstances in contractual interpretation and the nature of the evidence that can be considered. The discussion here is limited to the common law approach to contractual interpretation; it does not seek to apply to or alter the law of contractual interpretation governed by the Civil Code of Québec.

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 1997 CanLII 4085 (BC CA), 101 B.C.A.C. 62).

The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.

The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise.

18In the present case, it appears to me that there is some ambiguity in the terms of the Minutes concerning the intended circumstances under which the respondent would pay the applicant’s expenses when he visited his psychiatrist.

19If the respondent can prove its allegation that the applicant misled the respondent during the mediation, this could be evidence of bad faith which could impact the validity of the Minutes.

20In these circumstances, I conclude that it is necessary to convene an in-person hearing to hear evidence about the circumstances surrounding the agreement about payment of expenses, including knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. It is also necessary to hear evidence regarding the respondent’s allegation of bad faith on the part of the applicant.

21The Registrar will schedule a one-day in-person hearing for this purpose. Any documents either party wishes to rely on must be delivered to the Tribunal and the other party at least 35 days before the hearing date.