A.B. v. Western University, 2016 HRTO 612

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Western University and Y.Z.

Respondents

DECISION

Adjudicator: Bruce Best Date: May 6, 2016 Citation: 2016 HRTO 612 Indexed as: A.B. v. Western University

APPEARANCES

A.B., Applicant Self-represented

Western University and Y.Z., Respondents Lisa Kwasek and Steve Jarret, Counsel

Introduction

1This Application alleges that the respondents have contravened a settlement entered into between the parties, contrary to s.45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A settlement was reached at the beginning of a hearing on March 26, 2015, with the assistance of the Tribunal through mediation/adjudication, and the parties entered into written minutes of settlement at that time. The hearing of the present Application was heard by teleconference on January 27, 2016.

3Due to technical issues, some of the documents filed by the parties were not before me at the hearing. I have, however, reviewed all the documents and have taken them into account in reaching my decisions, below.

4There are four issues raised by the applicant which are addressed in this decision:

• Issue 1: What remedy, if any, should flow from the respondents' acknowledged failure to comply with the timelines and delivery directions set out in the settlement?
• Issue 2: Have the respondents complied with the obligations under the settlement respecting human rights training? If not, what remedy is appropriate?
• Issue 3: As a result of information the applicant claims she only became aware of post-settlement, should the Tribunal order additional remedies beyond those agreed to in the Minutes of Settlement?
• Issue 4: Was the applicant coerced into agreeing to the settlement?

Overview of Law

5To put my analysis below in context, it is helpful to review the law on contravention of settlements. Section 45.9 provides 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.

6There is no dispute that this settlement falls under s.45.9(1) and (3); the previous application was made under s.34, was agreed to in writing, and was signed by the parties. It is, therefore, binding, and the present Application is properly before the Tribunal.

7Glover v. 571566 Ontario Inc., 2011 HRTO 1563 ("Glover"), held that in determining an appropriate remedy under the above section, the Tribunal should be guided by contractual principles, and that earlier case law under the pre-2008 version of the Code which considered a breach of settlement to be a breach of the Code were no longer applicable. See also Keating v. 2229884 Ontario Inc., 2015 HRTO 1677 ("Keating"). I agree with the approach in Glover and Keating that the analysis of liability and the assessment of appropriate remedy under s.45.9(8) should be based on contractual principles.

8Glover, at paras. 33-45, also provided a detailed analysis of what this means in practice. First, the factors the Tribunal generally applies in assessing damages under s.45.2(1) to compensate for injury to dignity, feelings and self-respect (as set out in the often-cited Tribunal decision of Arunachalam v. Best Buy, 2010 HRTO 1880 at paras 44-55) are not relevant to the assessment of damages for a contravention of settlement under s.45.9(8). Second, an award under s.45.9(8) is limited to compensation for the damages flowing from the breach of the settlement, and the details or allegations of the underlying claim are largely irrelevant. Third, unless the party can establish that the contravention amounts to a fundamental breach of the settlement, the settlement will not be set aside.

9With the above in mind, I turn to the specifics of this case.

Issue 1: Delay in satisfying settlement

10The settlement specifically provided that a cheque be sent to the applicant's home address within 30 days. The settlement also provided that the University would make certain changes to her transcripts and provide her with revised copies, in exchange for which she agreed not to apply for admission to the academic program in the future. The settlement further provided that the University would provide the applicant with a letter of support.

11The University acknowledges that it did not comply with the timelines in the settlement. The cheque and letter of support were delivered 58 days after the settlement, and the transcripts were sent 71 days after. The University further acknowledges that, though the settlement clearly provided that the cheque be sent to the applicant's home address, it was instead sent to the applicant's lawyer's office, which is in a different city.

12In her witness statement, which she adopted as her testimony at the hearing, the applicant claims that her mental health suffered as a result of the breach, in that she experienced anxiety feeling that the settlement had not in fact brought an end to the dispute, and that she may have to take further legal steps to obtain the relief she had negotiated.

13Though she did not provide any medical documentation that the contravention of settlement itself had caused or exacerbated her anxiety, she did note that the respondents were aware, from the pleadings and medical documentation exchanged in the underlying Application, of her mental health issues. The applicant argues that, given this knowledge, the respondents should have recognized that a failure to meet the terms of the settlement would cause her further distress.

14She further claims that she had to travel to collect the documents from her lawyer, which she claims caused her expense and inconvenience.

15The applicant asks for $1,000 in damages for the contravention of settlement.

16The respondents question the applicant's claim that she suffered anxiety as a result of the delay. They note that neither she nor her lawyer contacted them to inquire about compliance with the settlement after the due date. They further note that in fact the University realized of its own accord that it had failed to comply with the timelines, and that the breach was corrected as soon as it became aware of it.

17With respect to the claim that the delay in satisfying the requirements of the minutes caused her mental distress, the respondents note that the medical documentation relied on was the same documentation provided in the underlying Application. The respondents argue that her anxiety arises from the disputes which formed the basis of that Application, and that it is not appropriate to award any compensation for that in a contravention of settlement application.

18The respondents take the position that the delay was de minimis, and should not attract any damage award, or that if damages are appropriate, the amount sought is grossly disproportionate to the harm suffered.

Decision on Delay in Satisfying Settlement

19In some cases involving a short delay in payment of money, the Tribunal has held that the damages flowing from the breach were de minimis and no remedy was appropriate. See Adorgloh v. Sentrex Communications, 2010 HRTO 2524, where the only contravention found was that the payment was made 3 days late. However, in other cases the Tribunal has awarded damages beyond interest where the breach caused inconvenience beyond the delay. See, for example Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867 at para. 22, where the respondent was one day late in providing a payment, but the payment improperly made deductions, which required the applicant to have to pursue the matter to correct the amount. The Tribunal ordered payment of $150 to compensate for the "minor inconvenience and upset" to the applicant.

20I accept the applicant's evidence that she did in fact suffer an increase in her anxiety as a result of the respondents' failure to comply with the timelines in the settlement. The Tribunal has recognized that the emotional impact of a failure to comply with the negotiated terms of a settlement may also justify an order for damages. In Kim v. 1743766 Ontario Inc., 2015 HRTO 685, the Tribunal ordered $1,500 for the respondent's failure to comply with the terms of the settlement. At paragraph 8, the Tribunal stated:

The applicant also is entitled to compensation for the emotional impact on her of the respondents' failure to abide by the terms of the settlement agreement, as part of this Tribunal's authority "to make any order that it considers appropriate to remedy the contravention": see s. 45.9(8). An applicant is entitled to rely upon a respondent's agreement to settle a human rights application and comply with the agreed-upon terms of settlement. Cases before this Tribunal typically raise issues that go to the core of an applicant's self-identity and feelings of self-worth, and the resolution of these issues is supposed to provide an applicant some relief and an ability to move forward with her or his life. However, the failure of a respondent to abide by the terms of settlement can serve to re-open wounds that the applicant had hoped to start healing by agreeing to the settlement.

21In Archer v. Dobson, 2014 HRTO 1810, the Tribunal ordered $1,000 as damages for contravention of settlement for failure to pay the full amount of a settlement, based on evidence that the contravention had increased the applicant's anxiety and mental health issues. The Tribunal noted that part of the reason for agreeing to compromise and settle was to avoid a hearing and a public decision, and that by breaching the settlement the applicant was then required to proceed to a hearing in any case to enforce the agreement. The Tribunal also noted that the range of awards the Tribunal has ordered for contravention of settlement applications is $150 to $1,500.

22In this case, the breach was remedied relatively quickly, which supports an award below the high end. However, the cheque and letter were still sent to the wrong address, causing the applicant additional inconvenience. Furthermore, the respondents were clearly aware of the applicant's mental health issues, and were also clearly aware of how significant the issues raised in the underlying Application were to her. It was, in my view, reasonably foreseeable that the applicant would suffer an increase in anxiety it appeared that the settlement had not, in fact, resolved the dispute between the parties.

23In the circumstances of this case, I find that the amount sought by the applicant of $1,000 is a reasonable amount to compensate her for the damages flowing from the contravention of the settlement.

ISSUE 2: Confirmation of Human Rights Training

24Paragraph 5 of the settlement provided as follows:

[Y.Z.] shall complete HR 101 training from the Ontario Human Rights Commission within 60 days from the date of these minutes of settlement and Counsel for [Y.Z.] shall provide Counsel for the Applicant with confirmation of same. Western University shall recommend to [C.D.] that she complete HR 101 training from the Ontario Human Rights Commission forthwith.

25On April 1, 2015, less than a week after the settlement was signed, counsel for the respondents provided confirmation, by email, to counsel for the applicant that Y.Z. had completed the training. The respondents take the position that this satisfied paragraph 5 of the settlement. No issue was taken with this confirmation at the time.

26On June 4, 2015, the applicant personally (rather than through counsel) sent an email to counsel for the respondents, which stated:

I have not received any documentation showing that [Y.Z.] or [C.D.] have completed the human rights training, this was part of the order of settlement. Please forward me this documentation at your earliest convenience.

27Counsel for the respondents answered as follows:

The Minutes of Settlement required that I confirm with Mr. Poziomka that [Y.Z.] had taken this training.

It was recommended that [C.D.] take this training and she declined to do so. However, I can confirm that [Y.Z.] did take this training and I confirmed this with Mr. Poziomka verbally.

28In the Application, and in her witness statement, which she adopted as her testimony, the applicant argues that based on her experiences over the course of the proceedings prior to the settlement, she has reason to doubt the credibility of the respondents or respondents' counsel, and that she felt the confirmation provided by counsel for the respondents was therefore inadequate.

Decision on Confirmation of Human Rights Training

29It is clear that the applicant doubts whether the respondent Y.Z. in fact completed the training as required under the Minutes of Settlement. However, it is also clear that her mistrust existed prior to the settlement.

30It was open to the applicant to require, as part of the settlement, more details respecting what was required in order for her to be satisfied that the training had in fact been done. The settlement could have required confirmation through "written documentation on official Western University letterhead", which is what she now is seeking. However, that is not what was agreed to. The settlement required only that counsel for the respondents provide confirmation to counsel for the applicant that Y.Z. had completed the training. This was done pursuant to the settlement.

31The applicant is in essence asking the Tribunal to reopen the settlement and include a more rigorous term than was originally agreed to. As noted above, s.45.9(1) provides that a settlement in writing is binding on the parties. The respondents have complied with the requirements under the settlement. There is no basis on which the Tribunal should interfere with the settlement in this regard.

Issue 3: Additional Terms of Settlement

32The applicant further alleges that the respondents failed to meet their obligations under the Tribunal's disclosure rules, and filed a significant number of documents shortly prior to the originally scheduled hearing in March 2015. She claims that had the documents been provided in a timely fashion, and had she had an opportunity to review them with counsel, she would never have agreed to the settlement, but would instead have sought to amend her Application to address what she believes was additional discriminatory conduct by other individuals during the course of her time in the program. She is now seeking an order from the Tribunal in this Application that additional individuals be required to take human rights training.

33The applicant is not alleging that the respondents contravened the settlement; rather, she is, as with the previous issue, asking the Tribunal to reopen the settlement and change the terms agreed to.

34In an application under s.45.9, however, it is not the Tribunal's role to assess the appropriateness of a settlement, or whether the settlement addresses all of the issues between the parties. Rather, the issue to be determined is whether the settlement is legally binding and final. See Senior v. City of Toronto Bendale Acres Long Term Care Homes and Services, 2016 HRTO 133.

35The settlement included a provision whereby the applicant released the respondent university and its employees from any further claims arising from her study in the program. It also included a provision expressly noting that the settlement was a compromise, and that the applicant did not withdraw her allegations, nor did the respondents admit to any discriminatory conduct.

36The applicant may now regret agreeing to the settlement on March 26, 2015. The applicant was represented by counsel at the signing of the settlement. She agreed to the terms, including the release, and is bound by them.

Issue 4: Was the Applicant Coerced into agreeing to the settlement?

37The applicant further alleges that she felt she was coerced by both the respondents and the Tribunal Vice-chair into agreeing to the settlement on March 26, 2015. At the hearing, I asked if she was alleging coercion, and she indicated she was not. Following the hearing, however, she contacted the Tribunal by email and stated that she in fact did feel coerced to agree to the settlement, because she and her lawyers felt that the Tribunal would not adjourn because of the late disclosure (discussed above), and that she was in extreme discomfort because of the location of the hearing.

38As with the above issue, it is not clear that coercion or duress is properly raised in a contravention of settlement application under s.45.9. Even if it were, however, in my view the applicant's description of what happened at the settlement discussions would not, at law, amount to duress such that the settlement should be set aside or varied. Duress is a very high standard; the pressure and stressors associated with legal proceedings, which are what the applicant is claiming occurred on March 26, 2015, will, in general, not amount to duress. See King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228.

Order

39The respondents shall, within 30 days of the date of this Decision, pay to the applicant $1,000 to remedy the contravention of the settlement.