HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sabrina Rollick
Applicant
-and-
1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533
and Kevin Matson
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Rollick v. 1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533
APPEARANCES
Sabrina Rollick, Applicant
Jamie McGinnis, Counsel
1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533 and Kevin Matson, Respondents
No one appearing
1This is a Contravention of Settlement Application filed on June 12, 2015 alleging a violation of the terms of Minutes of Settlement entered into between the parties on April 23, 2015.
2This matter proceeded to a teleconference hearing on November 20, 2015. The respondents did not appear for the teleconference hearing. At the teleconference hearing, I heard the applicant’s evidence and submissions regarding the alleged violation of the settlement terms and the remedy that should be awarded.
3By Case Assessment Direction (“CAD”) dated January 19, 2016, I requested submissions from the parties in relation to this Tribunal’s decision in Keating v. 2229884 Ontario Inc., 2015 HRTO 1677. Submissions in response to the CAD were filed by the applicant on March 1, 2016. The respondents were afforded an opportunity to file submissions in response to the applicant’s submissions, but failed to do so.
Did the respondents have notice of the hearing?
4This matter has a lengthy and somewhat tortured history. The applicant originally filed an Application (the “original Application”) with this Tribunal against the corporate respondent on November 30, 2012, alleging discrimination in employment because of disability and reprisal in violation of her rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
5The corporate respondent did not respond to the original Application. By Interim Decision dated April 12, 2013, the Tribunal found that the corporate respondent was deemed to have accepted all the allegations in the original Application and to have waived all rights with respect to further notice or participation in the proceeding.
6The hearing in relation to the original Application was held on February 10, 2014, and proceeded in the absence of the corporate respondent. By Decision dated March 10, 2014, the Tribunal found a violation of the applicant’s rights under the Code and awarded to the applicant $15,000 as compensation for injury to dignity, feelings and self-respect and $27,378.15, less statutory deductions, as compensation for her wage loss, plus pre-judgment and post-judgment interest.
7The corporate respondent sought reconsideration of the Tribunal’s decision on the basis that it did not receive proper notice of the hearing. The corporate respondent’s reconsideration request was granted by Reconsideration Decision dated September 24, 2014, on the basis that the original Application and the Interim Decision dated April 12, 2013 had not been sent to the current address for the corporate respondent such that the corporate respondent had not received proper notice of the hearing.
8Of significance to this proceeding is that the corporate respondent verified that its current address was 1127 Oliver Road, Thunder Bay, ON, P7B 1A4, which is the same address to which materials were sent to the respondents in the context of this contravention of settlement proceeding. It also was verified that the Application and certain decisions and directions had been received by the personal respondent at his home address on March 6, 2013, which is the same home address to which materials also were sent to the respondents in the context of this contravention of settlement proceeding.
9By Interim Decision dated October 31, 2014, the personal respondent was added as an additional respondent to the original Application. On January 12, 2015, the personal respondent filed a Response to the original Application, showing the address for the corporate respondent as being the same as verified in the context of the reconsideration request.
10The original Application then proceeded to mediation on April 23, 2015, at which time Minutes of Settlement were entered into by the parties. The respondents had received notice of the mediation by letter dated January 26, 2015 at the same corporate address as verified above. There is no issue that the respondents received notice of the mediation, as the personal respondent attended the mediation in his own right and on behalf of the corporate respondent.
11The Tribunal’s file was closed as a result of the settlement by letter dated April 27, 2015. At no time up to April 27, 2015 did the respondents advise the Tribunal that their mailing addresses had changed, as was their obligation under Rule 1.13 of the Tribunal’s Rules of Procedure.
12As stated above, the Contravention of Settlement Application was filed on May 12, 2015, some two weeks after the Tribunal’s file had been closed in the original Application. The Contravention of Settlement Application listed the same corporate address for the respondents as had been verified by the respondents in the Response to the original Application filed on January 12, 2015 and in respect of which there had not been any notice that this address had changed up until the Tribunal closed its file in the original Application on April 27, 2015.
13The Contravention of Settlement Application was served on the respondents by the Tribunal by letter dated June 15, 2015 sent to the same address as provided by these respondents in the original Application. A Response to the Contravention of Settlement Application was to be filed by the respondents by June 26, 2015.
14When no such Response had been received by that date, the Tribunal sent a further letter to the parties dated July 8, 2015 advising that no Response had been filed and that the Commission’s correspondence to the respondents had not been returned. The respondents were advised of the potential consequences of failing to file a Response. The respondents were given until July 15, 2015 to file their Response. This letter was sent to the respondents by regular mail and courier to the address they had previously verified to the Tribunal as their current address for service, and also was sent to the respondents by fax using a fax number for the respondents as provided in their Response to the original Application. The Tribunal’s file has confirmation that the fax was successfully transmitted to the fax number previously provided by the respondents.
15When no Response was received by the Tribunal by July 15, 2015, the Tribunal sent a further letter to the respondents dated July 30, 2015 notifying them that this matter would be scheduled for a half-day teleconference hearing and again drawing the respondents’ attention to the consequences of failing to file a Response. This letter was sent to the respondents by regular mail at the address that had been verified by the respondents in the prior proceeding. This correspondence was not returned to the Tribunal.
16The Tribunal thereafter issued a Notice of Hearing by letter dated August 10, 2015, advising the parties that the hearing in this matter would proceed by teleconference on November 30, 2015 commencing at 1:30 p.m. The Notice of Hearing expressly advised the respondents that if they did not attend the hearing, the hearing would proceed in their absence. This correspondence was not returned to the Tribunal.
17On August 13, 2015, the Tribunal’s July 8, 2015 correspondence to the respondent was returned. On the envelope containing this correspondence is the handwritten notation “return to sender, no longer at this address”.
18The Tribunal thereafter sent a letter to counsel for the applicant dated August 14, 2015 advising her of the returned correspondence. The Tribunal directed the applicant to provide current, complete and accurate addresses for the respondents by September 3, 2015 and to explain the steps taken to ensure this. This correspondence was copied to the respondents by e-mail to the e-mail address used by the respondents to file their Response to the original Application on January 12, 2015. This e-mail bounced back as undeliverable.
19On September 3, 2015, the applicant filed her response to the Tribunal’s request. She advised that an updated corporate search had been conducted for the corporate respondent on August 25, 2015, which shows the registered office address for the corporate respondent as being the address verified by the respondents in the context of the original Application and which shows the mailing address for the corporate respondent as being the address to which materials previously had been sent to the corporate respondent in the context of the original Application, but which the respondents stated on reconsideration was not current. Based upon this updated information, the applicant re-stated her position that the respondents had lied about not having received notice of the hearing in relation to the original Application, and were continuing to attempt to evade proper service.
20In her correspondence, the applicant listed all addresses associated with the respondents, including the two addresses shown on the corporate search records and the home address for the personal respondent at which he previously acknowledged receiving materials from this Tribunal. The applicant requested that the Tribunal deliver the notice of the Contravention of Settlement Application to all three addresses.
21The Tribunal thereafter sent a letter to the respondents dated September 4, 2015 enclosing a copy of the Notice of Hearing. This letter was sent by regular mail to all three addresses provided by the applicant. No copy of this letter was returned to the Tribunal.
22The hearing thereafter proceeded by teleconference on November 30, 2015 commencing at 1:30 p.m. As previously stated, the respondents did not appear at the hearing.
23Thereafter, I issued the CAD dated January 19, 2016, which was sent to the respondents at the address for the corporate respondent that had been verified by them in the context of the original Application. The CAD was returned to the Tribunal with the handwritten notation “return to sender, not at this address anymore”.
24As a result, the Tribunal issued a further letter to the respondents dated February 19, 2016 advising that the CAD dated January 19, 2016 had been returned, and sending out the CAD again to the respondents by courier to the address for the corporate respondent that had been verified by them in the context of the original Application and shown as the official corporate address on the corporate search records and to the personal respondent’s home address. The courier tracking records confirm that this correspondence was delivered to the door of both addresses on February 22, 2016 at 10:03 a.m. Neither courier package was returned to the Tribunal.
25The applicant then requested an extension to file her submissions in response to the CAD, which was granted by letter dated February 24, 2016. The Tribunal’s letter dated February 24, 2016 was sent by regular mail to the respondents at the address for the corporate respondent that had been verified by them in the context of the original Application and shown as the official corporate address on the corporate search records and to the personal respondent’s home address. While the copy of the letter sent to the corporate respondent’s address was returned to the Tribunal with the handwritten notation “moved, return to sender”, the copy sent to the personal respondent’s home address was not returned.
26In all of the circumstances, I am satisfied that both respondents received notice of the hearing in this matter. While it may be that the address for the corporate respondent that had been verified by the respondents in the context of the original Application and shown as the official corporate address on the corporate search records is no longer current, the Notice of Hearing was sent to the personal respondent, who is the principal of the corporate respondent, at his home address and has never been returned. The respondents themselves acknowledged receiving material from the Tribunal at the personal respondent’s home address on March 6, 2013. Despite being added as a personal respondent to the original Application as of October 31, 2014, neither the personal respondent nor the corporate respondent advised the Tribunal that there had been any change of address up until the time the file in the original Application was closed on April 27, 2015. The Notice of Hearing in relation to the Contravention of Settlement Application, in addition to having been sent to the corporate address as verified by the respondents in the original Application, was also sent directly to the personal respondent’s home address on September 4, 2015 and was not returned. The courier package with the CAD was delivered to the personal respondent’s home address and not returned, and further correspondence sent to the personal respondent’s home address was not returned.
27As a result, I am satisfied that the hearing in this matter properly proceeded in the absence of the respondents.
Did the respondents violate the terms of settlement?
28As previously stated, the parties entered into Minutes of Settlement dated April 23, 2015. The terms of settlement provided that the respondents would pay to the applicant $15,000 in general damages for alleged pain and suffering arising out of alleged violations of the Code, without deductions. The payment was to be made by certified cheque and couriered directly to the applicant within 14 days of the signing of the Minutes of Settlement, or by May 7, 2015.
29The settlement funds were not received by the applicant by May 7, 2015. On May 8, 2015, applicant’s counsel sent e-mail correspondence to the respondents advising that the settlement funds had not been received and that breach of settlement proceedings would be initiated shortly if immediate payment was not made. Applicant’s counsel also spoke with the personal respondent by phone on the morning of May 8, 2015. Her record of this telephone conversation indicates that the personal respondent stated that he was confused about the payment due date and confirmed that he would provide the funds on Monday, May 11, 2015.
30On May 11, 2015, applicant’s counsel sent a further e-mail to the respondents asking the personal respondent to confirm that he was able to obtain a certified cheque for the applicant in the amount of $15,000 to be couriered directly to the applicant.
31When no cheque was forthcoming from the respondents, applicant’s counsel wrote again to the respondents by e-mail dated May 13, 2015 stating that the settlement had been breached and that she had been instructed to initiate breach of settlement proceedings. This e-mail also confirmed applicant counsel’s telephone discussion with the personal respondent from the previous Friday.
32Applicant’s counsel wrote to the respondents by e-mail again on May 19, 2015 reiterating the breach of settlement and asking the personal respondent to contact her immediately to avoid further litigation. No response was received from the respondents to either of these latter two e-mails.
33As of the date of the teleconference hearing on November 30, 2015, the settlement funds still had not been paid to the applicant by the respondents, nor is there any indication that the settlement funds have been paid to date.
34Accordingly, I find that the respondents have contravened the terms of the Minutes of Settlement dated April 23, 2015 by failing to pay to the applicant any of the $15,000 due and owing to her.
What remedies should be awarded for the breach of settlement?
35There is no doubt that the applicant is entitled to an order requiring payment to her by the respondents, jointly and severally, of the $15,000 in respect of her claim for general damages under the Code. She also clearly is entitled to pre-judgment interest on this amount from the time the payment was due on May 9, 2015 until the date of this Decision, at the pre-judgment interest rate of 1.0% per annum in the amount of $175.89, as well as post-judgment interest at the rate of 2.0% per annum.
36The applicant also requested that she be awarded $10,000 as general damages for the breach of settlement. The applicant testified that she expected the payment of the settlement funds to be made on May 7, 2015, and stayed home from work that day to wait for the courier to arrive, but no cheque was forthcoming. She testified that she had plans to help her son pay for post-secondary education with the settlement funds and potentially help her to obtain a new vehicle, neither of which she was able to do as she did not receive the promised payment. She testified that as a result of not receiving the settlement funds, she has felt cheated and misled by the personal respondent and believes that the personal respondent has no respect for the human rights process. She testified that as a result of not receiving the settlement funds, she has experienced stress and a loss of confidence in having her human rights protected. At the hearing, the applicant described herself as an “emotional wreck” as a result of the respondents’ failure to comply with the settlement, and this was evidenced by her breaking down into tears during the course of giving her testimony. The applicant described herself as feeling frustrated and angry at the respondents’ breach of the settlement.
37Subsequent to the hearing in this matter, the Tribunal issued its decision in Keating v. 2229884 Ontario Inc., 2015 HRTO 1677. In the Keating decision, the Tribunal held that contractual principles provide an appropriate framework for analyzing contraventions of settlement. In the case of compensatory damages, the Tribunal relied upon the test applied by the courts in cases of breach of contract: namely, the test for compensatory damages is that damages must be “such as may fairly and reasonably be considered either arising naturally… from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties.” The Tribunal observed that, in an appropriate case, this could include damages for mental distress and/or punitive damages. The Tribunal further held that, while its remedial jurisdiction under s.45.9 of the Code is undeniably broad, the jurisdiction is to make any order that the Tribunal considers appropriate to “remedy the contravention”. This was held not to include such factors as the private and public importance of complying with settlement terms, or emotional impact evidence that was tied to the underlying human rights issue as opposed strictly to the settlement contravention: see paras. 81 to 83.
38In the CAD dated January 19, 2016, I invited submissions from the parties in response to the Keating decision. Since then, this Tribunal has issued a further decision in C.H. v. C.W.C., 2016 HRTO 220, which in my view correctly states that applicable law on this issue and conforms to the submissions made by the applicant. In the C.H. decision, the Tribunal states (at paras. 48 to 49):
It 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.
In this case, I find that the application of these principles to this case mean that the applicant must establish:
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 or terms of the settlement were breached.
That harm, emotional damage, or injury to dignity, feelings and self-respect did in fact arise as a result of the contravention.
39With regard to the first point, in my view, it is inherent as part of the settlement of a human rights claim that harm, emotional damage or injury to dignity, feelings and self-respect will be caused if a respondent fails to comply with the settlement terms. Human rights claims, by their very nature, speak to personal characteristics of applicants that are at the core of their identity. This is why human rights legislation is routinely described as protecting fundamental rights as recognized in our society. Where such claims are settled, it is inherently on the basis that such a settlement is being made in the context of a claim that is so fundamental to the applicant’s sense of self-identity and self-worth, that I find it is reasonably foreseeable that harm, emotional damage or injury to dignity, feelings and self-respect would arise if a term or terms of the settlement were breached due to the very nature of the context in which such settlements are reached.
40Further, and in the particular circumstances of this case, I find that it was reasonably foreseeable to the respondents that harm, emotional damage or injury to dignity, feelings and self-respect of the applicant would arise if the settlement was breached. At the time of the settlement, the issues giving rise to the original Application extended back some three years or more. The applicant already had gone through this Tribunal’s hearing process and had been awarded compensation, only to have that decision overturned on reconsideration. The settlement amount was a significant compromise from what she had been awarded. In those specific circumstances, it appears clear to me that the respondents ought reasonably to have foreseen that the applicant would experience emotional distress if they failed to comply with the settlement terms.
41With regard to the second point, it also is clear to me that the applicant experienced significant harm, emotional damage, or injury to dignity, feelings and self-respect as a result of the contravention. She was unable to assist her son with his post-secondary education or purchase a new vehicle as she had hoped to do with the settlement funds. She understandably felt cheated and misled by the personal respondent, and has lost faith in the human rights process. She has experienced feelings of stress, frustration and anger as a result of the breach of settlement, which was evident in her testimony before me.
42While awards of general damages for breach of settlement typically have been low, the amount awarded has been rising over the past few years. In two recent cases, Torcato v. Fulton Engineered Specialties Inc., 2015 HRTO 687 and Kim v. 1743766 Ontario Inc., 2015 HRTO 685, I awarded general damages of $1,500 for the emotional distress caused by the breach of settlement. In Currie v. Ontario (Children and Youth Services), 2015 HRTO 478, the Tribunal awarded the amount of $3,000 as general damages for breach of settlement, where the respondent was found to have failed to follow an accommodation plan agreed to in a settlement for a period of about two weeks. In making this award, the Tribunal stated that damage awards for breaches of settlements should not be so insignificant as to amount to a licence fee. In the much earlier case of Seguin v. Ininew Friendship Centre, 2001 CanLII 26225, the Board of Inquiry awarded $5,000 as general damages for breach of settlement, where the respondent was found to have failed to make any efforts to assist the complainant in securing employment or give her priority in relation to appropriate vacancies in violation of its obligations under the terms of settlement.
43In my view, in the particular circumstances of this case, an award of general damages for emotional suffering in the amount of $5,000 is appropriate. I find that the respondents’ failure to comply with the settlement terms was blatant and egregious, which exacerbated the applicant’s emotional distress. I also find that the applicant experienced significant emotional harm as a result of the breach as detailed above.
ORDER
44For all of the foregoing reasons, I hereby make the following order:
a. The respondents, jointly and severally, shall pay to the applicant the following amounts
i. $15,000 without deduction as general damages pursuant to the terms of settlement;
ii. A further $5,000 as general damages for the emotional harm and suffering experienced by the applicant due to the breach of settlement;
iii. Pre-judgment interest on the amount of $15,000 in the amount of $175.89; and
iv. Post-judgment interest on all of the above amounts at the rate of 2.0% per annum commencing as of the date of this Decision.
Dated at Toronto, this 11th day of July, 2016.
“Signed By”
Mark Hart
Vice-chair