Lambert v. Silver Dental Centre, 2015 HRTO 979

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lloyd Lambert

Applicant

-and-

Silver Dental Centre and Simi Silver

Respondents

DECISION

Adjudicator: David Muir Date: July 23, 2015 Citation: 2015 HRTO 979 Indexed as: Lambert v. Silver Dental Centre

APPEARANCES

Lloyd Lambert, Applicant

Self-represented

Silver Dental Centre and Simi Silver, Respondents

No one appearing

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 breach of settlement.

2There appear to be three issues in dispute in this Application. The applicant alleges that he has not paid the settlement monies contemplated by the Minutes of Settlement (MOS). He also alleges that the respondents failed to develop a policy or protocol contemplated by the MOS and that the personal respondent has not taken the training agreed to in the MOS.

3A hearing was held by telephone conference call on July 9, 2015 at 1:30 p.m. The respondents did not appear at the time scheduled for the conference call. In accordance with Tribunal practice, I waited for 30 minutes before proceeding. At 2:00 p.m. the respondents were still not in attendance. The Notice of Hearing was sent to the parties at addresses provided by the parties and nothing was returned as undeliverable. There is no indication that the respondents did not receive proper Notice of this hearing. Being satisfied that they had received proper notice, the hearing proceeded in the absence of the respondents.

4The material provisions of the MOS are set out here.

Within 60 days of the date of these Minutes of Settlement the Respondents undertake to develop an office protocol for assessing risk of transmission of HIV and Hepatitis C that is consistent with the Canadian Aids Society's publication entitled HIV Transmission: Guidelines for Assessing Risk (5^th edition). The Respondents undertake to forward a copy of the protocol to the Applicant within 60 days of the date of these Minutes of Settlement, and undertake to the review of the protocol with all employees of the corporate respondent.

Dr. Silver undertakes to complete the online learning module entitled Human Rights 101 that is offered by the Ontario Human Rights Commission at www.ohrc.ca by not later than January 30, 0215.

The respondent will pay to the applicant the sum of $1,000 (one thousand dollars) in four equal monthly installments as monetary compensation in the nature of general damages. The first cheque will be mailed to the applicant at (his address) by December 1, 2014. The remaining cheques will be mailed to the applicant by the first day of the following successive three months.

5At the hearing I clarified what it was that the applicant was claiming. He indicated that to the extent he can verify compliance with the MOS the respondents have failed to comply with each of these provisions. He has received none of the cheques he was promised. He has not been provided with a copy of the protocol provided for and so far as he knows the Dr. Silver has not taken the online learning module.

6As indicated the respondents did not attend the hearing but in their materials they appear to concede that they did not develop the protocol contemplated by the MOS because of the death of two close family members of the personal respondent. The respondents also appear to suggest that they provided the settlement monies to the applicant at the mediation. The applicant denies this and points out that if that were the case, why would the MOS include provision for the payment of this amount by four monthly installments. I have considered the respondent’s materials in coming to the conclusion I have reached.

7The applicant also advised that he has had some assistance from the Human Rights Legal Support Centre (HRLSC) which attempted to resolve this issue on his behalf. According to the applicant, the respondents agreed to a further payment schedule. However, the date for the applicant’s receipt of the first installment passed several weeks ago and so far as the applicant is aware the respondents have made no contact with him or the HRLSC.

Decision

8For the reasons that follow, the Application is allowed in large part.

9The Code provides the following statutory framework for this Application:

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.

(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.

10It is clear on the basis of the materials filed and the applicant’s submissions that the respondents have largely failed to implement the terms of the MOS, as agreed in November 2014. As such, there is a clear breach of this settlement. Moreover the breach appears to be substantial in that two of the substantive provisions of the MOS have not been implemented by the respondents. That is, I find that the respondent has failed to make the payments required under the settlement and has failed to develop an office protocol for assessing risk of transmission of HIV and Hepatitis C and provide same to the applicant.

11As regards, the assertion of the applicant that Dr. Silver has failed to take the human rights training required by the MOS, there is no evidence one way or the other on this point and accordingly I can make no finding on this point.

12The applicant sought the following relief:

a. An Order that the respondents pay to the applicant the sum of $1,000 representing the amount agreed to in the MOS in one installment within 30 days of the date of the Tribunal’s Decision;

b. An Order that the respondents comply with the other terms of the MOS;

c. Pre-judgement interest on the agreed sum of $1,000 from December 1, 2014;

d. Damages of $500 for each of three alleged breaches of the MOS;

e. Post-judgement interest on any of these amounts that remain unpaid, in accordance with the Court of Justice Act, from 30 days after the Decision.

13The applicant did not explain his reasons for the relief he is seeking although for the most part the reasons for his requests are apparent. The only exception to this is the request for damages for the two individual breaches of the MOS that I have found occurred. The applicant provided no authority for the proposition that he is entitled to damages for the mere breach of a provision of an agreed settlement term.

14On this point, I note that the language of section of s.45.9(8) is different than the general remedial language for an alleged breach of the Code, contained in s. 45(2)(1) in that 45.9(8) does not include any reference to damages for injury to dignity, feelings and self-respect. This absence is meaningful and in my view, largely confines the damages that can be awarded for a breach of settlement to those which might be awarded for breach of contract although, a contract of a particular kind and in entered into in a particular context. See Glover v. 571566 Ontario Inc., 2014 HRTO 1563. I understand that there have been Tribunal decisions in which different approaches have been taken but those cases do not appear to have considered the different language of these sections and have in effect ordered damages as if it was an order pursuant to section 45(2)(1).

15The applicant also did not explain how he has suffered any damages as a consequence of the breach other than not being in receipt of the monies he was entitled to begin receiving in December 2014. However, in my view, this loss is adequately compensated by the payment of interest on the amounts that should have been paid beginning in December 2014. The applicant was clearly displeased by the complete failure of the respondents to comply with their agreement and the fact that they did not attend the hearing only added to that dismay. Otherwise, there is no indication of any actual damage having been suffered by the applicant consequent to the breach of this settlement.

Order

16The Tribunal orders as follows:

a. The respondents will pay to the applicant, within 30 days of the date of this Decision the sum of $1000 representing the amount the applicant should have received in the four month period commencing December 1, 2014;

b. The respondent will also pay to the applicant interest of 1.3% calculated on the entire sum of $1,000 from February 1, 2015 roughly the mid-point of the original payment schedule;

c. Within 60 days of the date of this Decision, the respondents develop an office protocol for assessing risk of transmission of HIV and Hepatitis C that is consistent with the Canadian Aids Society's publication entitled HIV Transmission: Guidelines for Assessing Risk (5^th edition). The Respondents will also forward a copy of the protocol to the applicant, within 60 days of the date of this Decision, and will review of the protocol with all employees of the corporate respondent forthwith on it being developed;

d. The respondents will pay to the applicant post-judgement interest in accordance with the Courts of Justice Act R.S.O 1990 c. C 43. on any accumulate principal and interest from the date that is 30 days after the date of this Decision.