Vijayakumaran v. Holiday Inn Express, 2016 HRTO 124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Swarna Vijayakumaran Applicant

-and-

InnVest Hotels GP Ltd. o/a Holiday Inn Express Toronto Downtown Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: January 27, 2016 Citation: 2016 HRTO 124 Indexed as: Vijayakumaran v. Holiday Inn Express

APPEARANCES

Swarna Vijayakumaran, Applicant Self-represented

InnVest Hotels GP Ltd. o/a Holiday Inn Express Toronto Downtown, Respondent Samantha Crumb, Counsel

1The applicant filed this Application on August 6, 2015 under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging the respondent contravened Minutes of Settlement arising out of the applicant’s previous Application.

2A teleconference call was held on January 21, 2016 to hear the parties’ oral submissions with respect to the contravention of settlement allegation.

3The applicant had been employed by the respondent as a laundry attendant. In November 2013, the applicant commenced an Application at the Tribunal in relation to the respondent’s alleged failure to accommodate her disability. At the time, the applicant remained an employee of the respondent but had been off on an unpaid medical leave of absence since May 2013.

4At the hearing on February 12, 2015, which the applicant attended with her counsel, the parties engaged in mediation and resolved the Application by way of Minutes of Settlement dated February 12, 2015.

5The Minutes of Settlement provided that the respondent would pay for the applicant to attend physiotherapy to address the functional limitations relating to her disability for a period of eight weeks. At the conclusion of these sessions, the Applicant would be assessed by an agreed upon physiotherapist to determine whether she could perform the essential duties of the two available positions for which the applicant was qualified: room attendant and laundry attendant. The parties expressly agreed to be bound by the determination of the physiotherapist.

6The Minutes of Settlement provided that in the event the physiotherapist concluded that the Applicant could not perform the essential duties of the positions, the applicant would submit her resignation to the respondent and the respondent would pay to the applicant general damages in the amount as set out in the Minutes of Settlement, less the amounts paid to the physiotherapist on account of the assessments performed.

7The physiotherapist ultimately concluded that that the applicant could not perform the essential duties of the positions given her functional limitations resulting from her disabilities. However, following receipt of the physiotherapist’s reports the applicant refused to resign. She claims that the reports are inaccurate in that she is capable of performing the essential duties of the positions.

8At the hearing the applicant indicated that she did sign the Minutes of Settlement and that she had counsel at the time of doing so. She said it was a mistake and that she should never have signed the Minutes of Settlement. While a specific remedy sought by the applicant is not expressly stated in her Application, presumably, she wants her job back and is willing to forgo the payment of general damages. The issue on a contravention of settlement application is whether the respondent has breached the settlement. Absent allegations of duress, misrepresentation or fraud, however, the issue is not whether the parties should be bound by the settlement. In this case it is clear the applicant is bound by the settlement but simply does not want to agree to its terms anymore. While the applicant may be disappointed by the results in the physiotherapist’s reports, the parties agreed in the Minutes of Settlement to be bound by the physiotherapist’s assessments.

9The applicant has not made any allegation that the respondent has breached the terms of the settlement and it is clear that the respondent has not contravened the Minutes of Settlement. Since the respondent has not brought a breach of settlement application I will not comment on whether, by not resigning, the applicant is in contravention of the agreement.

10I find that there has not been a contravention of the Minutes of Settlement by the respondent.

11The Contravention of Settlement Application is dismissed.