HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ja’fari Islamic Housing
Applicant
-and-
Nina Soroush
Respondent
DECISION
Adjudicator: Bruce Best
Date: October 14, 2016
Citation: 2016 HRTO 1337
Indexed as: Ja’fari Islamic Housing v. Soroush
APPEARANCES
Ja’fari Islamic Housing, Applicant
Iain Donnell, Counsel
Nina Soroush, Respondent
Self-represented
Introduction
1This Application was filed under s.45.9(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), alleging that the respondent has contravened a settlement entered into between the parties in a prior application brought to the Tribunal.
2The respondent, Ms. Soroush, is a tenant in a housing unit operated by the applicant, which is a not-for-profit housing corporation run by a volunteer board of directors (“the Housing Corporation”). Ms. Soroush had previously filed an application against the Housing Corporation with the Tribunal, alleging that she had been subject to harassment and discriminatory treatment by the property manager. The property manager was not personally a party to the prior application. That application was settled by Minutes of Settlement on November 12, 2015, and included the following terms:
The parties agree that communications will be respectful and should take the form of emails whenever possible. The parties agree to include in each written communication a very brief salutation and end each written communication with “Yours truly” followed by a signature, electric or otherwise. The other contents of the written communication must take the format of only numbered points so that each number contains only one question or request. . . .
The parties agree to maintain the strict confidentiality of the terms of these Minutes of Settlement, with the exception that the Applicant may disclose them to her son, doctors, legal and financial advisors, and the Respondent may disclose them as necessary to implement the terms. The parties also agree not to disparage one another in any format whatsoever which includes the making or publishing of written or oral statements or remarks.
3On November 26, 2015, two weeks after the settlement, Ms. Soroush sent a letter to the board of directors of the Housing Corporation. The letter was highly critical and disparaging of the property manager, including accusing the property manager of defaming tenants, being a bully and, repeatedly, calling her a liar. The letter stated in part that Ms. Soroush “realized more how [the property manager] is capable to go far with her absolute lies. How she can makes’ up stories from scratch. Obviously a normal mind can not make such shocking lies.” The letter asked the board to take action to address the property manager’s alleged misconduct. The criticism of the property manager in the letter was with respect to the issues and incidents which had specifically been raised in the previous application and resolved through the settlement.
4Following receipt of the letter, the Housing Corporation filed this Application on December 15, 2015 on the basis that Ms. Soroush was in contravention of paragraphs 3 and 6 of the Minutes of Settlement. The Housing Corporation claims it had incurred damages both for the legal costs associated with the filing of this Application, and for the “hurtful and unacceptable” remarks made about its property manager.
5In her Response, Ms. Soroush took the position that the November 26, 2015 letter was addressed to the board of the Housing Corporation, and was respectful towards the board, and as such was not in contravention of the Minutes.
6Ms. Soroush did, however, also send a letter to the Housing Corporation and the property manager apologizing for and retracting her letter of November 26, 2015. The apology letter stated:
The purpose of this letter is to formally apologize to Ja’fari Islamic Housing and to [property manager] in respect of any disrespectful comments contained in my letter dated November 26, 2015 addressed to the Ja’fari Islamic Housing board of directors.
In this regard, I understand and acknowledge that the allegations in my letter were settled at the Human Rights Tribunal. I further understand and acknowledge that a term and condition of the settlement was that Ja’fari Islamic Housing did not admit any liability and that the allegations of discrimination were not retracted by me.
I understand and acknowledge that a term and condition of the Minutes of Settlement was that the parties would be respectful towards each other, and I hereby promise to comply with the Minutes of Settlement.
Regards,
Nina Soroush
Analysis
7Sections 45.9(1), (3) and (8) of the Code read as follows:
Settlements
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.
Application where contravention
(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)
Order
(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.
8A settlement is a contract. The determination of liability under s. 45.9(8) should be based on contractual principles. See Saunders v. Toronto Standard Condominium Corporation Corp. No. 1571, 2010 HRTO 2516, at paras. 37-39. Similarly, the assessment of the appropriate remedy should also be guided by contractual principles. See Glover v. 571566 Ontario Inc., 2011 HRTO 1563 (“Glover”) at paras 35-45, and Keating v. 2229884 Ontario Inc., 2015 HRTO 1677 (“Keating”) at para 65.
9The primary goal of contract interpretation is to give effect to the intentions of the parties at the time the contract was entered into. See Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538, at para. 32. There appears to be little doubt that the intention of the parties in including paragraphs 3 and 6 in the settlement was to avoid communications such as the letter of November 26, 2015.
10The settlement was between Ms. Soroush and the Housing Corporation; the property manager was not a party, nor was she mentioned in the non-disparagement clause, which stated that “[t]he parties also agree not to disparage one another” [emphasis added]. The applicant, however, did not dispute that the intention of paragraph 6 included that she not disparage the property manager or other employees, and that they in turn would not disparage her. She argued, rather, that the agreement not to disparage each other in para. 6 only applied to statements made to outside third parties and not to statements made to each other, given that it was in the paragraph relating to confidentiality.
11I do not accept this argument. Given that there is an ongoing relationship, given the objective of respectful communication, and given that disrespectful communication between Ms. Soroush and the property manager was a central issue that gave rise to the previous application, the provision in paragraph 6 to not disparage each other was clearly intended to apply to communication between the applicant and employees of the Housing Corporation as well as communications with outside third parties.
12The minutes clearly indicated an intention that the parties agreed to respectful communication with each other. In my view, the letter of November 26, 2015 was inconsistent with that intention.
13Based on the above, I find that by sending the letter of November 26, 2015 to the Board, Ms. Soroush has contravened the Minutes of Settlement.
Remedy
14As noted above, the determination of an appropriate remedy under s.45.9(8) should be based on contractual principles. Glover, at paras. 36-37, stated as follows:
In Fidler v. Sun Life Assurance Co. of Canada, [2006] 2. S.C.R. 3, at paragraph 55, the Supreme Court of Canada re-affirmed that Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145 establishes “the single and controlling test for compensatory damages in cases of breach of contract”. That test is that damages must be "such as may fairly and reasonably be considered either arising naturally ... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties”.
The damages which can be said to be within the reasonable contemplation of the parties fall into two categories: those which it would be objectively reasonable to have expected, regardless of actual knowledge; and such additional damages as it would be objectively reasonable to expect would arise from special circumstances of which there is actual knowledge.
15The Housing Corporation claims damages arising from the breach in the amount of $2,500. The primary basis for this claim is that as a result of Ms. Soroush’ breach, it had to incur further legal costs associated with the filing of this Application. The Housing Corporation acknowledged that she had apologized and retracted her letter, but noted that the apology had only come after it had taken action. There does not appear to be any concern that Ms. Soroush will further engage in inappropriate communications, and the Housing Corporation is not seeking any non-monetary remedy to ensure ongoing compliance with the terms of the settlement.
16Ms. Soroush argues that the letter was sent in a moment of extreme stress and emotional turmoil, and that she was upset by some of the communications she received from the Housing Corporation after the settlement (though she is not alleging such communication was in breach of the Minutes). She also takes the position that she did not intend to be disrespectful of the Housing Corporation, and now has a better understanding of how to address any problems that may arise. She submitted that if the Tribunal orders any remedy, it should be minimal.
Decision on Remedy
17The Housing Corporation has based its claim for damages on the fact that it was required to incur legal costs in order to ensure compliance with the settlement. The Tribunal’s case law is clear, however, that the Tribunal has no jurisdiction to award legal costs, whether in an application under s. 34 or an application for a contravention of settlement under s.45.9. See Harvey v. Newtek Automotive Distribution Inc., 2013 HRTO 677 at para. 9.
18One of the objectives of the settlement was to ensure respectful communication, and I have found the letter of November 26, 2015 was in contravention of the relevant provisions. I accept that the Housing Corporation had a legitimate expectation in agreeing to the settlement that communication such as the letter would not occur and there is a cost, if not easily quantifiable in dollars, associated with the breach. It was objectively reasonably foreseeable that the Housing Corporation would suffer some damages from the failure to abide by this covenant. Such communication can create strife within an organization and difficulties with staff, and affect the reasonable enjoyment of the premises by staff, tenants and management.
19Ms. Soroush has, however, retracted the letter and apologized. The disparaging comments were also not made directly to or even intended to be seen by the property manager, but were rather made to the board. They were similar to comments or opinions which Ms. Soroush had already expressed in the prior application, and it does not appear that there were any further or new allegations beyond those that had been previously raised. The main issue with the letter was that the concern about disrespectful communication was not being honoured.
20In the circumstances, I find that $250.00 is an appropriate remedy given the nature of the breach, the minimal harm to the Housing Corporation, and the fact that Ms. Soroush has apologized and retracted the letter. Though the breach was not de minimis or trivial, it was not significant enough to justify the remedy sought by the Housing Corporation.
21The above award may be set off from any amount still owing to Ms. Soroush under the Minutes of Settlement.
Order
22The Application is granted.
23Ms. Soroush shall pay to the Housing Corporation $250.00 for contravention of the Minutes of Settlement.
24The Housing Corporation may set off this award from any amount still owing to Ms. Soroush under the Minutes of Settlement.
Dated at Toronto, this 14th day of October, 2016.
“Signed By”
Bruce Best
Vice-chair