C.H. v. C.W.C., 2016 HRTO 220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.H.

Applicant

-and-

C.W.C.

Respondent

DECISION

Adjudicator: Brian Cook

Date: February 19, 2016

Citation: 2016 HRTO 220

Indexed as: C.H. v. C.W.C.

APPEARANCES

C.H., Applicant

Hena Singh and Jonathan Pinkus, Counsel

C.W.C., Respondent

Michael Horvat, Counsel

INTRODUCTION

1This Application alleges a contravention of settlement contrary to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is a former employee of the respondent. The applicant filed an Application with the Tribunal under section 34 of the Code. A hearing was held at the Tribunal in respect of that Application and on the fifth day of the hearing, the parties agreed to settle the issues in dispute. Minutes of Settlement were signed on January 15, 2015. One of the terms of the Minutes was that that the respondent would provide “a positive Letter of Reference”. The issue in this Contravention of Settlement Application is whether the respondent complied with this term.

3The Application was heard on November 20, 2015 at an in-person hearing. The applicant appeared with counsel. The respondent’s regional director of human resources was present and the respondent was represented by counsel. I heard testimony from the applicant. The respondent did not call any witnesses.

The Minutes of Settlement

4The part of the Minutes of Settlement that is in contention reads as follows:

The Respondent will provide to the Applicant a positive Letter of Reference reflecting her former duties at the Respondent and positive comments regarding her discharge of duties in accordance with her annual reviews.

5Unfortunately, the parties did not take the time to draft the Letter of Reference at the time of the settlement.

6The respondent sent the applicant two letters pursuant to the Minutes. The respondent agrees that the first letter, sent on February 20, 2015 was a “letter of employment” and not a “positive letter of reference”. When this was brought to the attention of the respondent’s counsel, a second letter was sent on February 27, 2015. The respondent submits that the second letter was a “positive letter of reference” and satisfied its obligation under the Minutes. The applicant submits that it was not a positive letter of reference and was not in accordance with the agreement set out in the Minutes. The letter is reproduced later in this Decision.

The Legal Test

7Allegations that a settlement has been contravened are dealt with under section 45.9 of the Code, and the subsections relevant in this case are as follows:

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),…

(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.

8I adopt the legal framework for analysis of a Contravention of Settlement Application set out in Reyes v. Centric Health Corp., 2014 HRTO 931, one of the cases referred to by the respondent’s counsel, which I summarize as follows:

1. The applicant has the onus to prove that the settlement has been contravened.

2. Minutes of Settlement are a legal contract between the parties. Interpretation of the contract is based on the words used in the Minutes. Evidence about the intentions of the parties and what they thought the language meant should be considered only if the words of the Minutes are ambiguous.

3. Even if the words of the Minutes are clear and not ambiguous, regard may be had to the context or factual matrix underlying the negotiation of the contract.

9In addition, as noted in Bunn v. Chiang, 2014 HRTO 1071, at paragraph 27, a Contravention of Settlement Application is not intended to be a continuation of the original Application that was settled. The sole issue is whether or the minutes of settlement have been contravened. The Tribunal does not typically look at the original Application or hear evidence about it in the Contravention of Settlement Application, and I have not done so in this case.

Different Types of Letters

10As discussed at the hearing, there are different types of letters that an employer may provide to an employee at the end of the employment relationship. The first is a “letter of employment” which is typically a neutral statement of the term of employment and the job duties without comment on the employee’s performance of the duties. In this case, the respondent indicated that its usual practice is to provide only a letter of employment. If an employee wishes a reference, this may be provided by an individual, but is not usually provided by the employer itself. The applicant's counsel confirmed that this accords with her experience in employment cases and that this is the sort of letter usually negotiated for as part of minutes of settlement in a case like this. However, she noted that in this case, an important part of the settlement for the applicant was that the letter was to be a positive letter of reference, and not an employment letter.

11The second type of letter is a “letter of reference”. While there may not be a precise definition of what this means, it seems to me that it would generally be understood as a letter from the employer that says something about the employee personally, usually referring to the performance of duties. As noted above, when an individual agrees to be a “reference” for someone, it is generally understood between the individuals that, if contacted, the person providing the reference would provide an honest but positive impression of the person. In the same way, a “letter of reference” would be expected to provide accurate but positive information about the employee.

12A third type of letter is a “letter of recommendation”. It is intended to be provided to a prospective employer and would typically include reasons why the prospective employer should hire the individual.

13As noted, in this case, the parties agree that the first letter that the respondent provided was a “letter of employment”. It provided a neutral statement of the applicant's job duties.

14The respondent asserts that the second letter was a positive letter of reference as required by the Minutes. The applicant asserts that it was another letter of employment and not a positive letter of reference.

15After the applicant received the second letter, she composed a draft letter she felt was consistent with the Minutes and which her counsel sent to the respondent on March 11. 2015.

16The applicant testified that the language of this letter mostly comes from the two performance reviews that she had. The majority of the language is found in the performance reviews, although the applicant did combine comments from the two reviews and put them together to form coherent sentences. She added additional information about accomplishments after the second performance review. This letter has the flavour of a “letter of recommendation” and indeed it states that the writer recommends the applicant as a prospective employee. The applicant testified that she did not compose this letter with the idea that the respondent would necessarily adopt it in its entirety, but rather to show the sort of language she anticipated should be in the letter.

17The record shows that counsel for the applicant and the respondent exchanged emails about this letter. The respondent’s counsel advised he would respond further but by April 22, 2015, the applicant had not received further information, and filed this Application.

Evidence

18As noted above, while evidence of the subjective intention of the parties is not admissible, evidence about the context or factual matrix underlying the negotiation of the contract may be considered. In this regard, the applicant testified that the provision of a positive letter of reference was an important part of the settlement to her. She testified that there was extensive negotiation of this part of the settlement and about the specific language that was to go in the Minutes. This evidence was not disputed or contradicted by the respondent and I accept the applicant's evidence on this point.

19The applicant testified that the lack of a positive letter of reference from the respondent has been a problem in regard to her job search. Her employment with the respondent represents a good part of her employment history and the part of her employment history where she had management experience. The applicant testified that she has not used the second letter because it is inaccurate with respect to her start date, indicating that she started in May 2006, when in fact she started in November 2008. The applicant agreed with the respondent’s counsel that this error was not identified to the respondent following her receipt of the first letter or after the second letter and was only specifically identified in the Contravention of Settlement Application, although the applicant used the correct dates in the draft letter that she prepared.

20The applicant testified that she has secured some employment but for the most part this has been contract or temporary work only.

21The applicant clarified that in this Application she is not claiming any economic loss as a result of the alleged contravention of settlement. She does, however, assert that she experienced injury to dignity, feelings, and self-respect as a result of the contravention, and seeks monetary compensation for that harm.

22The applicant testified that the positive letter of reference was an important part of the settlement with the respondent. She said it was important to her to receive a positive reference letter and not just a letter of employment because she anticipated that the letter would be important in her search for comparable employment.

23The applicant testified that she has experienced emotional upset because the respondent failed to provide the positive letter of reference it agreed to provide. She said that the respondent’s position and action regarding the letter of reference felt to her like a continuation of the issues that gave rise to the original Application. She said that she has received some counseling in respect of those issues and suggested that she has had additional counseling as a result of the respondent’s failure to provide the letter of reference. No medical evidence was presented by the applicant. The applicant agreed that it is difficult to differentiate emotional upset about the contravention of settlement issue as opposed to issues that may have underlain the original Application. Nevertheless, she was clear that she feels that she experienced injury to dignity, feelings, and self-respect as a direct result of the contravention.

ANALYSIS

24As noted, the Minutes required the respondent to “provide to the Applicant a positive Letter of Reference reflecting her former duties at the Respondent and positive comments regarding her discharge of duties in accordance with her annual reviews.”

25This is what the letter of February 27, 2015 (the second letter) said:

This letter is to confirm that [the applicant] was employed with [the respondent] as a Pharmacy Manager from May 2006 to January 2014.

As the Pharmacy Manager, [the applicant] oversaw and directed the Pharmacy’s operations including the scheduling, development, counselling and training of department employees. [The applicant] acted as the Designated Pharmacy Manager and her responsibilities included providing direct patient care and ensuring legislative compliance pertaining to the practice of Pharmacy. She was required to ensure proper department record keeping, supply, inventory and product storage procedures and standards were met.

During her period of employment [the applicant] made contributions to the Pharmacy department and had positive annual performance appraisals.

In January 2014 [the applicant] left [the respondent] to pursue other opportunities.

26This letter provides the dates of the applicant's employment (incorrectly) and provides information about her job duties as Pharmacy Manager. It does not say anything about how she performed those duties or even confirm that she performed them adequately. Even the statement that she “made contributions to the Pharmacy department” does not say whether those contributions were positive contributions.

27The letter does state that the applicant had positive annual performance appraisals. I agree with the respondent that it might be inferred from this that the applicant performed the described job duties in an adequate fashion. The question then becomes whether this statement is sufficient to satisfy the language of the Minutes.

28The applicant submits that it is not sufficient. In her view the letter was to incorporate positive statements from her performance reviews. I do not agree that the respondent was required to do that by the language of the Minutes. The obligation was to provide positive comments “in accordance with her annual reviews”. This language is somewhat vague but in my view means that the comments had to be consistent with her performance reviews but did not have to directly reflect or quote from the performance reviews.

29While the Minutes did not specify what exactly the letter was to say, the language of this aspect of the Minutes is relatively specific. The Letter of Reference was to be “positive” and was to include “positive comments regarding her discharge of duties in accordance with her annual reviews.”

30In my view, the February 27 letter is essentially neutral in tone. As noted above, it primarily sets out the applicant’s job duties and does so in neutral terms. The only comment that I can see in the letter that is clearly positive is the one reference to positive annual performance appraisals.

31The Minutes required that the letter include positive comments. In my view, this meant that it was to include more than one positive comment. I find that the letter produced includes only one positive comment. I also find that it does not adequately provide positive comments on the manner that the applicant performed her job duties. I therefore conclude that the respondent contravened the Minutes of Settlement in respect of the undertaking to provide a positive letter of reference.

32I am also satisfied that obtaining a positive letter of reference was an important consideration for the applicant in the settlement. In particular, I accept the applicant’s evidence that the settlement process included negotiation about this term. I find that the respondent knew, or ought to have known, that the applicant expected a positive letter of reference and that a failure to fulfill that part of the settlement would result in injury to the applicant’s dignity, feelings and self-respect.

33The applicant testified that she experienced some emotional upset and reaction to the fact that the respondent did not provide a positive letter of reference, although she agreed it was difficult for her to separate out the injury to dignity, feelings, and self-respect that she experienced as a result of the contravention as opposed to the allegations that formed the basis of the original Application.

34The applicant suggested that although she is not claiming monetary compensation for lost wages, she has nevertheless experienced actual loss because she has been unable to use the letter because it is not accurate and that this has hampered her ability to find secure employment.

35On this point, I note that the letter was not inaccurate with respect to the applicant’s job duties. The problem in this respect was that it was neutral rather than positive. There is no reason why the applicant could not have used the letter in her search for employment on the basis of the description of her job duties. The inaccuracy in the letter was that the date of her employment start was wrong. This inaccuracy was not identified in the communication from the applicant to the respondent after the first letter. It was not identified after the second letter until this Contravention of Settlement Application was filed. To the extent that the incorrect date limited the applicant’s ability to use the letter, this is something that could have been corrected and likely would have been corrected if the applicant had identified the inaccuracy. I therefore find that the applicant is not entitled to any remedy because of the inaccuracy with respect to the date of hire. However, for the reasons set out below, I find that she is entitled to monetary compensation for injury to dignity, feelings, and self-respect that she suffered as a result of the failure to provide her with a positive letter of reference.

REMEDY

36Under section 45.9(8) of the Code, if the Tribunal determines that a party has contravened a settlement, the Tribunal may “make any order that it considers appropriate to remedy the contravention.”

37The obvious order is that the respondent must provide the applicant with a positive letter of reference that includes positive comments regarding her discharge of duties in accordance with her annual reviews.

38The problem is how to ensure that this is accomplished without the need for further litigation. It is possible to imagine that there could be further disputes between the parties as to whether the letter produced to comply with the Tribunal’s order does in fact comply.

39In my view, in the circumstances of this case, the most just and expeditious approach is as follows.

40By March 4, 2016, the respondent shall advise the applicant whether it is prepared to sign the letter the applicant sent to the respondent on March 11. 2015. If the respondent disagrees with that letter, by March 4, 2016, it shall provide the applicant with a version of the letter that it does agree with. That version must be a positive letter of reference that includes positive comments regarding her discharge of duties in accordance with her annual reviews.

41I remain seized of this matter. If either party believes that the issue of the letter has not been resolved, the party may request that the hearing be reconvened. In that event, a telephone conference call hearing will be scheduled to see if the issue can be settled between the parties or to issue further directions as appropriate. Any request for a reconvened hearing must be received by the Registrar no later than April 1, 2016. If nothing has been heard from the parties by that date, the Tribunal will close the file.

Monetary Compensation

42The applicant submits that she should be awarded monetary compensation for the contravention of settlement. The applicant is not seeking monetary compensation for any loss of earnings. However, she submits that she is entitled to damages for the injury to dignity, feelings, and self-respect that she experienced because of the contravention of the settlement.

43Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, (“Saunders”) was an early case that considered whether monetary compensation is appropriate when there has been a breach of a settlement. In that case, there was a delay before the respondent to the original Application implemented things it had agreed to do in the Minutes of Settlement. Saunders found that monetary compensation was appropriate and applied considerations that the Tribunal typically applies when awarding monetary damages in cases where the Tribunal has found discrimination contrary to the Code.

44In Glover v. 571566 Ontario Inc., 2011 HRTO 1563, it was clarified that in most cases, any monetary compensation for a contravention of a settlement cannot be based on the allegations that gave rise to the original Application because typically, when reaching a settlement, the respondent has not accepted that the allegations are true. In the absence of an adjudicated decision finding that the original allegations are true, the allegations continue to be only allegations. Glover also clarified that Minutes of Settlement that settle an Application are essentially a contract between the parties. Glover proposes that as such, common law principles regarding breach of contract are the appropriate considerations when determining damages for a contravention of settlement. As a result, according to Glover, a contravention of settlement does not necessarily, in itself, result in monetary compensation. However, monetary compensation for mental distress may be appropriate in some circumstances. As stated by the Supreme Court of Canada in Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 SCR 3, 2006 (“Fidler”):

We conclude that damages for mental distress for breach of contract may, in appropriate cases, be awarded as an application of the principle in Hadley v. Baxendale: see Vorvis. The court should ask “what did the contract promise?” and provide compensation for those promises. The aim of compensatory damages is to restore the wronged party to the position he or she would have been in had the contract not been broken. As the Privy Council stated in Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301, at p. 307: “the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed”. The measure of these damages is, of course, subject to remoteness principles. There is no reason why this should not include damages for mental distress, where such damages were in the reasonable contemplation of the parties at the time the contract was made. This conclusion follows from the basic principle of compensatory contractual damages: that the parties are to be restored to the position they contracted for, whether tangible or intangible. The law’s task is simply to provide the benefits contracted for, whatever their nature, if they were in the reasonable contemplation of the parties.

45In Fidler, the Court upheld compensation for the mental distress caused by the contravention of the contract. The contract was a disability insurance contract and the Court found that it would have been within the reasonable contemplation of the parties at the time the contract was made that mental distress would likely flow from a failure to pay the required benefits. The Court overturned an additional punitive damages award, finding that the circumstances of the case did not warrant punitive damages.

46In Glover, the member agreed that in some circumstances, a contravention of settlement could attract damages for mental distress (see paragraphs 43-44) but concluded that they were not warranted based on the facts in the particular case. Similarly, in Keating v. 2229884 Ontario Inc., 2015 HRTO 1677, a recent case, the Vice-chair followed Glover in finding that compensation is not appropriate only because there was a contravention of a settlement, but considered whether the circumstances of the case warranted compensation for additional compensation because of the emotional impact on the applicant, and found that sufficient evidence had not been provided (paragraph 83).

47In a number of other cases, additional compensation has been awarded for harm resulting from the contravention of settlement. (see, for example, Archer v. Dobson, 2014 HRTO 1810, Weitzmann v. Burns, 2011 HRTO 818, Anderson v. Gordon Stapley, 2013 HRTO 1784, Shenk v. Nixon, 2011 HRTO 1312, Bailey v. Rock With Us Marble & Granite 2013 HRTO 1510, and Il Gabbiano Ristorante/1196811 Ontario Ltd. v. Artan Mucollari, 2014 HRTO 1482. The range of damages for contravention of settlement in these cases was generally $500 - $1,000.

48It is clear that section 45.9 of the Code gives the Tribunal discretion to “make any order that it considers appropriate to remedy the contravention.” The Tribunal has held however that the exercise of this discretion is properly guided by the common law principles relative to contract law. In my view, this means, that in appropriate circumstances, compensation is payable for mental distress or harm arising out of the contravention of the settlement. The mental distress or harm may take the form of injury to dignity, feelings and self-respect and may be compensated as such.

49In this case, I find that the application of these principles to this case mean that the applicant must establish:

1. At the time of the settlement, it was reasonably foreseeable that harm, emotional damage or injury to dignity, feelings and self-respect would arise if a term of terms of the settlement were breached.

2. That harm, emotional damage, or injury to dignity, feelings and self-respect did in fact arise as a result of the contravention.

50In this case, I have found that the positive letter of reference was an important aspect of the settlement for the applicant.

51I have found that the respondent knew, or ought to have known, that the applicant expected a positive letter of reference and that a failure to fulfill that part of the settlement would result in injury to the applicant’s dignity, feelings and self-respect.

52On the basis of the evidence on this point provided by the applicant, it appears that for her, the injury to dignity, feelings, and self-respect that she experienced as a result of the contravention is difficult to separate from such feelings that she has in regard to the allegations that gave rise to the original Application. The applicant is not entitled to compensation for those feelings. However, she is entitled to compensation for injury to dignity, feelings, and self-respect that result from the contravention. I accept that the applicant has experienced injury to dignity, feelings, and self-respect as a result of the contravention. I conclude that the applicant is entitled to monetary compensation in the amount of $1,000 for this.

Request for Anonymity

53At the hearing, the applicant asked that the decision be anonymized to protect her identity.

54The applicant testified that at the mediation that led to the Minutes of Settlement, the fact that the matter would be settled without a public decision was an important factor that contributed to her willingness to settle with the respondent instead of pursuing her rights at a hearing. The applicant submitted that it is not fair that she should now lose that anonymity because she was forced to pursue this present Contravention of Settlement Application in order to have the respondent agree to do all of the things it agreed to do as part of the settlement.

55The respondent did not oppose the request for anonymity, but proposed that if the applicant’s identify was anonymized so should the respondent’s identity.

56In support of this, the respondent noted that although it is a large corporation, it does not employ large numbers of pharmacy managers and that unless the respondent were anonymized, the applicant would not be fully anonymized. The applicant agreed that naming the respondent could make it easier for someone to also identify the applicant and supported anonymization of the respondent.

57Rule 3.11 of the Tribunal’s Rules of Procedure provides that “the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.”

58The Tribunal’s Practice Direction on Anonymization of HRTO Decisions provides that, except when the applicant is a child, requests for anonymization will be granted only in exceptional circumstances. The Practice Direction states in part:

While all requests for anonymization are considered on a case-by-case basis, the HRTO's general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

59The Practice Direction goes on to reference to C.M. v. York Region District School Board, 2009 HRTO 735, and provides the following quote from that Decision:

An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. ...it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

60The most common reason for anonymization is when the decision discloses highly sensitive or personal information about a person.

61In this case, the decision does not involve highly sensitive or personal information. Instead, the applicant argues that anonymity was an important part of her consideration at the time of the settlement discussions; she knew that if she reached a settlement with the respondent instead of pursuing her case to a full hearing, there would be no public record of the Application. She argues that she should not lose that advantage because she had to bring the present Application to get the settlement fully enforced.

62The respondent called no evidence at the hearing and so I did not hear evidence from the respondent on this point. However, counsel indicated that this was a consideration for the respondent at the time of settlement. I note that the applicant's request arose only at the end of the hearing and that the respondent might have elected to call evidence had it been aware that this issue was going to come up.

63In my experience as a mediator at the Tribunal, the fact that there will be no public record of the Application is typically a factor that respondents consider when deciding to settle an Application. I note that in this case, as in most cases involving employment, the settlement did have a provision requiring the settlement to remain confidential, which is evidence of an intention that there not be a public record regarding it.

64In the circumstances of this case, I find that it is appropriate to anonymize this Decision. I find that the fact that there would not be a public record of the original Application was an important consideration for both parties when they entered into the settlement of the original Application. I accept that although not specifically identified in the Minutes of Settlement, an implicit term of the settlement was that the dispute would be kept between the parties without a public record.

65Having found a contravention of the settlement reached by the parties, my task is to make an order that I consider appropriate to remedy the contravention. In my view, in this case, it is appropriate that the remedy with regard to the aspect of the settlement that was contravened should as much as possible respect and maintain the other aspects of the settlement, including the understanding of the parties that the settlement would mean that there would be no public record of the Application. This is consistent with the common law principle that the primary objective in remedying a breach of contract is to put the party in the position she would have been in but for the breach.

66In addition, I note that the value of the positive letter of reference that the applicant is entitled to receive could be diminished if this decision is not anonymized.

67For these reasons, the request that decision be anonymized with the use of the initials of the parties rather than their names is granted.

DECISION

68The Contravention of Settlement Application is allowed. The respondent did not provide the applicant with a positive letter of reference that includes positive comments regarding her discharge of duties in accordance with her annual reviews, as it had agreed to do in the settlement.

69The applicant is entitled to monetary compensation in the amount of $1,000 as general damages for injury to dignity feelings and self-respect arising out of the respondent’s failure to provide a positive letter of reference in the manner it agreed to. Post-judgement interest at the rate of established by the Courts of Justice Act is payable on any amount of this award that is not paid by March 4, 2016.

70The respondent shall provide a positive letter of reference that includes positive comments regarding her discharge of duties in accordance with her annual reviews. The process for this aspect of the remedy is set out above. I remain seized of this matter to the extent set out above.

71This Decision is anonymized.

Dated at Toronto, this 19th day of February, 2016.

“Signed by”

Brian Cook

Vice-chair

CORRECTION

The Decision released on February 19, 2016 incorrectly referenced the date in which parties must advise the Tribunal of a need to reconvene the hearing. This error has been corrected.