Caroline Inman v. Seniors on Site, 2016 HRTO 723

Human Rights Tribunal of Ontario

Between:

Caroline Inman Applicant

-and-

Seniors on Site Respondent

Decision

Adjudicator: Douglas Sanderson Date: May 26, 2016 Citation: 2016 HRTO 723 Indexed as: Inman v. Seniors on Site

Appearances

Caroline Inman, Applicant Brent Craswell, Counsel

Seniors on Site, Respondent Jeannie Matthews, Representative

1The applicant filed an Application for Contravention of Settlement (Form 18) ("the Application") on October 23, 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 applicant did not pay an installment of $9,000 in general damages by October 15, 2015, as required in Minutes of Settlement (the "Minutes") that resolved Tribunal Application 2014-19270-I. The applicant stated that the respondent had not made the payment as of the date she filed this Application.

2The respondent filed a Response to an Application for Contravention of Settlement on November 2, 2015. The respondent acknowledged that it did not make the payment as required on October 15, 2015 because the respondent did not have sufficient funds to make the payment and did not wish to send a cheque in those circumstances. The respondent stated that it needed an additional week to receive payments from clients in order to pay the applicant. The respondent stated that it paid the funds to the applicant about a week late. The respondent stated that the applicant's lawyer contacted the respondent's former counsel shortly after October 15, 2015 to inquire about payment, but the respondent was not initially advised of the communication as counsel no longer acted for the respondent. On October 26, 2015, the respondent communicated with the applicant's lawyer to explain the delay in payment and to advise that the applicant should receive the settlement funds shortly. The respondent noted that it paid the first installment of general damages to the applicant in September 2015; therefore, there was no reason to expect that the respondent would not comply with its obligations.

3The hearing of this matter took place by teleconference on March 24, 2016. There is no dispute that the Minutes required the respondent to pay the applicant two installments of $9,000.00 in general damages on September 15, 2015 and October 15, 2015. There is no dispute that the respondent paid the second installment late and the applicant received the second payment on or about October 28, 2015. The applicant's evidence was that the respondent did not inform her that the second payment would be late and had to get her lawyer involved. The applicant stated that she hoped the matter was concluded with the settlement. The applicant stated that she felt the respondent was "thumbing their noses" at her by delaying the payment. Ms. Matthews' evidence was that she could not pay on time and needed to wait for funds to arrive in order to make the payment. Ms. Matthews stated that she communicated with the applicant's lawyer and wanted to resolve the issue. She stated that she offered to pay interest on the late payment.

Submissions

4The applicant relied on two decisions of the Tribunal that address remedies for breach of settlement: Archer v. Dobson, 2014 HRTO 1810 and Kim v. 1743766 Ontario Inc., 2015 HRTO 685. The applicant submitted that in Kim the Tribunal stated that a respondent's financial situation does not excuse it from meeting its obligations under a binding settlement with an applicant. The applicant submitted that in Kim the Tribunal recognized that section 45.9(8) of the Code grants it broad remedial power to remedy contraventions of settlements, including for the emotional impact of a contravention. The applicant noted that in Archer, the Tribunal noted the wide range of awards in contravention of settlement cases. The applicant submitted that in this case the final settlement payment was delayed by approximately two weeks and that this delay caused her anxiety. The applicant submitted that, as a result, she was entitled to an award of $1,000.00 in compensation for the settlement breach.

5The respondent submitted that Kim and Archer were distinguishable on their facts, since in both cases the respondents failed to pay the required settlement funds at all. The respondent, however, did meet its obligation to the applicant shortly after the payment deadline. The respondent noted that in one of the cases cited in Archer, Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867, the Tribunal awarded a remedy of $150.00 when the respondent paid the settlement of $37,000.00 eleven days late.

Analysis and Decision

6The Tribunal's remedial authority regarding a contravention of settlement is set out in section 45.9(8), which states:

(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.

7In Glover v. 571566 Ontario Inc., 2011 HRTO 1563, the Tribunal concluded that settlement of an application before the Tribunal is no different than settlement of any other legal proceeding and, accordingly, the common law of contracts provided the appropriate principles to apply when determining a remedy under section 45.9(8). See also Keating v. 2229884 Ontario Inc., 2015 HRTO 1677. As noted in Glover, the remedy for breach of contract will generally be the enforcement of the contract and damages arising from the breach or damages that may reasonably been contemplated by the parties (see paragraphs 35 and 36). What is reasonably foreseeable to the parties must be determined on a case by case basis, but in my view it will generally be foreseeable that an applicant will suffer financial and emotional distress where the breach of settlement is protracted, as in Archer and Kim. I agree, however, with the decision in Glover that a breach of settlement per se does not give rise to an award of monetary compensation. The Tribunal has also recognized that a minor delay in meeting settlement terms may be a de minimus breach of the minutes of settlement that does not warrant the award of compensation. See Adorgloh v. Sentrex Communications, 2010 HRTO 2524.

8In this case, the applicant received the final payment required under the Minutes 13 days after the payment was due and five days after she filed this Application, which I find to be a breach of the terms of settlement. In my opinion, however, the delay was minor. The applicant presented no evidence indicating that it was foreseeable that she would incur losses as a result of such a minor delay. Although the applicant stated that she felt anxious and slighted because of the delay, she provided no evidence of actual emotional or financial distress. In these circumstances, the delay experienced by the applicant amounts to a de minimus breach of the parties' settlement that does not warrant an award of compensation.

9The Application is dismissed.