Jose Fuentes v. 1860335 Ontario Inc. o/a Century Fitness Gym, 2016 HRTO 226

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Fuentes

Applicant

-and-

1860335 Ontario Inc. o/a Century Fitness Gym

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: February 22, 2016

Citation: 2016 HRTO 226

Indexed as: Fuentes v. 1860335 Ontario Inc. o/a Century Fitness Gym

APPEARANCES

Jose Fuentes, Applicant

Self-represented

1860335 Ontario Inc. o/a Century Fitness Gym, Respondent

Neil Proctor, Representative

1The applicant filed an Application for Contravention of Settlement (Form 18) (“the Application”) on March 25, 2015 pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. In the Application, the applicant alleged that the respondent had not complied with minutes of settlement dated February 17, 2015 regarding Tribunal Application 2013-15673-I (“the minutes”) which required the respondent to pay him $2,000.00 in general damages by March 13, 2015, failing which the respondent was required to pay $4,000.00 within 90 days of the date of the minutes, i.e., February 28, 2012 (“the settlement funds”).

2The respondent filed a Response to an Application for Contravention of Settlement (Form 19) on July 7, 2015. The respondent stated that it “no longer trades” and has no assets to fund the settlement with the applicant.

3The hearing of this matter took place by teleconference on November 25, 2015. There is no dispute that the respondent did not pay the settlement funds to the applicant. The applicant submitted that the respondent remains in business and has assets that could be sold to meet its obligations to him. The applicant submitted that the respondent is simply attempting to avoid paying him. The respondent submitted that it ceased operations and that there is a different corporation with different ownership operating as Century Fitness at the respondent’s former location.

Analysis and Decision

4In these circumstances, the only issue is the appropriate remedy for the breach of settlement. The respondent’s sole obligation under the minutes was to pay the settlement funds by a certain date, which it has not done. While the respondent states that it has no assets to fund the settlement, the applicant is entitled to an order requiring the respondent to honour its commitment under the minutes. In the Application, the applicant requested that the Tribunal seize the respondent’s assets until it meets the terms of the settlement. Assuming the Tribunal has the authority to seize assets, which is by no means clear, the facts asserted do not in my view provide a proper basis for such a significant remedy. In my view, payment of interest on the outstanding settlement funds appropriately remedies the delay that the applicant has experienced in receiving the settlement funds.

Order

5The Tribunal orders as follows:

1. The respondent shall immediately pay the settlement funds pursuant to the minutes;

2. The respondent shall pay pre-judgment interest on this amount from March 13, 2015 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43.; and,

3. In the event that the respondent fails to make the payment described above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 the Courts of Justice Act, R.S.O 1990, c. C.43.

6The applicant may wish to contact the Human Rights Legal Support Centre http://www.hrlsc.on.ca/en/contact-hrlsc for advice regarding the enforcement of the Tribunal’s orders.