Tsonis v. 407 ETR Concession Co. Ltd., 2016 HRTO 262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Tsonis Applicant

-and-

407 ETR Concession Co. Ltd. Respondent

DECISION

Adjudicator: Jay Sengupta Date: February 25, 2016 Citation: 2016 HRTO 262 Indexed as: Tsonis v. 407 ETR Concession Co. Ltd.

APPEARANCES

Nancy Tsonis, Applicant Jo-Ann Seamon, Counsel

407 ETR Concession Co. Ltd., Respondent Michael Horvat, Counsel

Introduction

1This Application, filed pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges a contravention by the respondent of terms of a settlement of a Tribunal Application entered into by the parties.

2Specifically, the applicant alleges that the respondent breached paragraph 6 of the minutes of settlement by failing to provide her with a “letter of reference” as agreed and, instead, provided her with an “employment verification letter” that did not include the language and content agreed to in the minutes of settlement. She alleges she only used the letter on one occasion and was unable to use it in her job search efforts.

3The applicant seeks an order requiring the respondent to provide her with a letter that satisfies the requirements contained in paragraph 6 of the minutes and a monetary remedy in the amount of $3,000.00 for harm related to the breach.

4The respondent denies it breached paragraph 6 of the minutes. It argues that an “employee verification letter” is a “letter of reference” and that the letter it provided, within the timeline allowed, was sufficient to satisfy the requirements in the minutes.

5In the alternative, it argues that if the letter it provided is found to be in breach of the term in the minutes, the breach is de minimus and the applicant has not established that any harm resulted to her from the breach. As a result, the respondent argues that while a redrafting of the letter may be appropriate remedy if a breach is established, this is not an appropriate case for a monetary award.

6A teleconference hearing was held on November 27, 2015. For the reasons that follow, the Application is granted.

the law

7The relevant sections of the Code are reproduced below:

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.

(2) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the Tribunal may, on the joint motion of the parties, make an order requiring compliance with the settlement or any part of the settlement.

(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.

decision

8The parties to this Contravention of Settlement Application entered into Minutes of Settlement on January 19, 2015, to resolve an Application before this Tribunal. Among other terms such as a confidentiality provision and a release, the respondent agreed to pay the applicant a sum of money and provide her with a “letter of reference” within 30 days of the signing of the minutes. It is this final term, contained in paragraph 6 of the minutes, reproduced in full below, that the respondent is alleged to have breached:

The Respondent will provide to the Applicant a Letter of Reference on its letterhead, reflecting her dates of employment, her former job titles and duties and the fact that in the course of her employment at the Respondent she has been recognized as Employee of the month, achieved World Class Call status, and has received customer commendation for her helpfulness and patience. The Letter of Reference shall be signed by Linda Iacovou and will be mailed to the Applicant at the above-noted address within 30 days of these Minutes of Settlement. The parties agree that should any potential future employer of the Applicant contact the Respondent, they shall be referred to Linda Iacovou who will say nothing further than or inconsistent with the terms of the Letter of Reference.

9The parties agree that on January 22, 2015, the respondent provided the applicant with a letter. The reference line of the letter read “Employee Verification Letter”. It described her job titles and duties, mentioned that she had been employee of the month on occasion and achieved “world class call status” and, instead of using the words “commendation” described her as receiving “customer compliments”. The letter was silent on the applicant’s helpfulness and patience.

10Linda Iacovou took the position that while letters of reference and employee verification letters could be slightly different, she generally sees them as one and the same. She provided no satisfactory explanation for having described the letter as the “slightly different” employee verification letter when the language in the minutes required a “Letter of Reference” be provided. She also provided no satisfactory explanation for changing the language from “commendation” to “compliment” and for neglecting to include the attributes and characteristics for which the applicant apparently received said commendations.

11I find, therefore, that the letter, although provided in a timely way, was less than the applicant had bargained for and agreed to accept. It was less than what the respondent had agreed to provide. As such, the applicant has established that there was a breach of a term in the Minutes of Settlement.

remedy

12Subsections 45.9(1), (3) (8) of the Code provide:

(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.

13With respect to the remedial provision in subsection 45.9(8), previous cases have held that the Tribunal has the authority to award both specific performance of the outstanding terms and other orders, including an award of monetary compensation. See Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, Schenk v. Nixon, 2011 HRTO 1312, Weitzmann v. Burns, 2011 HRTO 818, and Salimi v. Toronto Community Housing Corporation, 2013 HRTO 66.

14In Saunders, above, the Tribunal enumerated a number of considerations one might take into account in determining what remedy is appropriate, including whether the breach was fundamental (or, alternatively, de minimus), what terms remained outstanding and what, if any, loss was experienced by the applicant as a result of the breach.

15With respect to these considerations, in my view, the respondent’s breach was fundamental, and not de minimus, as the respondent suggests, in that it unilaterally altered the agreed-upon title, language and content of a letter of reference that it agreed to provide to the applicant in binding minutes of settlement. The applicant still does not have the agreed-upon letter. The letter, in the form provided, has not been as useful to the applicant in assisting her in her search for employment as the one she had agreed to accept as part of the Minutes of Settlement and she has been hampered and frustrated as a result.

16The respondent is directed to provide a redrafted letter with the agreed-upon title, language and content in paragraph 6 of the Minutes of Settlement within 30 days of the date of this decision.

17The respondent referred me to the Tribunal’s decision in Reyes v. Centric Health Corporation, 2014 HRTO 931 (“Reyes”). It argued that, in the event a breach of the Code is established, while a redrafting of the letter may be an appropriate remedy in this case, as in the Reyes decision, no monetary compensation is warranted.

18I disagree. In Reyes, there was no timeline or deadline by which a letter of confirmation of employment was to have been provided. In this case, there was a deadline for a letter of reference to be provided. That letter of reference with an agreed-upon title, language and content is still outstanding, given the deficiencies in the letter that was sent on January 22, 2015. The resulting harm to the applicant is a factor in determining the appropriate remedy.

19The infringement of the Code in the present case is both objectively and subjectively on the less serious end of the spectrum. The applicant has presented evidence that she did not use the letter as it did not assist her in the same way that the letter she had bargained for would have. Accordingly, she was forced to apply for work without the letter of reference and this negatively impacted her job search and caused her frustration and distress.

20In light of the above, I award $1,000.00 in compensation for the harm arising from the respondent’s breach, to be paid within 30 days of the date of this decision.

order

21I make the following orders:

1. Within 30 days of the date of this Decision, the respondent shall send the applicant a letter that complies with the requirements of paragraph 6 of the Minutes of Settlement entered into by the parties on January 19, 2015;

2. Within 30 days of the date of this Decision, the respondent shall pay to the applicant $1,000.00 as compensation for the harm arising from the breach, inclusive of pre-judgment interest; 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 calculated at 3% in accordance with the Courts of Justice Act.