Kim v. 1743766 Ontario Inc., 2015 HRTO 685

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Savorn Kim Applicant

-and-

1743766 Ontario Inc. o/a Dental Marketers and Harold Meredith Respondents

DECISION

Adjudicator: Mark Hart Date: May 26, 2015 Citation: 2015 HRTO 685 Indexed as: Kim v. 1743766 Ontario Inc.

APPEARANCES

Savorn Kim, Applicant Jo-Ann Seamon, Counsel

1743766 Ontario Inc. o/a Dental Marketers and Harold Meredith, Respondent Self-represented

1This is a Contravention of Settlement Application dated October 29, 2014 pursuant to s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents breached the terms of Minutes of Settlement between the parties dated July 21, 2014.

2A teleconference hearing was held on April 24, 2015, and I heard oral submissions from all parties and have reviewed and considered the material filed for the purpose of the hearing.

3The Minutes of Settlement dated July 21, 2014 provide that the respondents shall pay to the applicant $11,000 as general damages under the Code in five equal instalments of $2,200 every 30 days, beginning 30 days from the date of the Minutes. Five post-dated cheques were to be delivered by courier to the applicant’s home address within 21 days of the signing of the Minutes. There is no dispute between the parties that the respondents failed to fulfil these requirements of the settlement.

4By letter dated September 2, 2014, the respondents were reminded of their indebtedness to the applicant and the requirement to pay the monies owing, and were asked to do this by September 17, 2014. The respondents failed to respond to this letter, and failed to provide any explanation for their failure to abide by the terms of the settlement.

5The respondents do not contest that the payments required under the Minutes of Settlement have not been made. The respondents state that they have no money to make the payments, as the company is $40,000 in arrears and owes the federal government $46,000. The respondents state that if they could have made the payments under the settlement, they would have.

6While I may sympathize with the financial difficulties being experienced by the respondents, at the same time the respondents entered into a binding agreement with the applicant requiring that certain payments be made in settlement of an outstanding human rights application. It is not open to the respondents to resile from their agreement to pay these amounts on the basis of any financial difficulties they may be experiencing.

7Accordingly, the applicant is entitled to an order requiring the respondents jointly and severally to pay the full amount owing under the Minutes of Settlement, together with pre-judgment interest from the mid-point of when the payments ought to have been made (or from October 19, 2014) at a pre-judgment interest rate of 1.3% per annum. The applicant is also entitled to post-judgment interest at the rate of 3% per annum on any amount that remains unpaid 30 days from the date of this Decision, to be calculated from the date of this Decision.

8The applicant also is entitled to compensation for the emotional impact on her of the respondents’ failure to abide by the terms of the settlement agreement, as part of this Tribunal’s authority “to make any order that it considers appropriate to remedy the contravention”: see s. 45.9(8). An applicant is entitled to rely upon a respondent’s agreement to settle a human rights application and comply with the agreed-upon terms of settlement. Cases before this Tribunal typically raise issues that go to the core of an applicant’s self-identity and feelings of self-worth, and the resolution of these issues is supposed to provide an applicant some relief and an ability to move forward with her or his life. However, the failure of a respondent to abide by the terms of settlement can serve to re-open wounds that the applicant had hoped to start healing by agreeing to the settlement.

9That is what has happened in this case. The applicant’s evidence is that the respondents’ breach of the settlement has had significant adverse financial and emotional consequences for her. She feels that she was taken advantage of by her former employer, by agreeing to a settlement that the respondents never intended to comply with. She states that this has negatively affected her feelings of dignity and self-worth.

10Awards of compensation for the emotional impact of a contravention of settlement typically have been in the range of $500 to $1,500: see Archer v. Dobson, 2014 HRTO 1810. In the instant case, the applicant has requested such compensation in the amount of $1,500. In my view, that is an appropriate amount to award, in light of not only the respondents’ failure to pay the amount owing but their failure to communicate with or respond to the applicant to explain their default.

ORDER

11For the foregoing reasons, I hereby make the following order:

a. The respondents are jointly and severally liable to pay to the applicant the sum of $11,000.00 together with pre-judgment interest in the amount of $83.42;

b. The respondents are jointly and severally liable to pay to the applicant the further sum of $1,500.00;

c. The respondents also are jointly and severally liable to pay to the applicant post-judgment interest at the rate of 3% per annum on any amount that remains unpaid 30 days from the date of this Decision, to be calculated from the date of this Decision.