Lam v. LOFT Community Services, 2017 HRTO 1034

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sue Lam

Applicant

-and-

LOFT Community Services and Toronto North Support Services

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: August 11, 2017

Citation: 2017 HRTO 1034

Indexed as: Lam v. LOFT Community Services

APPEARANCES

Sue Lam, Applicant

Self-represented

LOFT Community Services and Toronto North Support Services, Respondents

Patricia Murray, Counsel

Introduction

1This is a Contravention of Settlement Application (“Application”) filed September 26, 2016, alleging a contravention of Minutes of Settlement between the parties dated February 16, 2016, contrary to s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Registrar’s letter dated April 18, 2017, this Tribunal directed that a half-day teleconference hearing be held to allow the parties to make oral submissions as to whether the respondents contravened the Minutes of Settlement (“MOS”).

3This hearing was held on July 13, 2017, at which time I heard evidence and submissions from the parties. I have also considered all materials filed by the parties for the purpose of the hearing.

background

4The applicant alleges the respondents, LOFT Community Services (“LOFT”) and Toronto North Support Services (“TNSS”) breached paragraph 2 of the MOS dated February 16, 2016 that states:

The Employers [respondents] shall ensure that its Human Resources Managers complete the Human Rights 101 online training offered by the Ontario Human Rights Commission. Thereafter, the Human Resources Managers shall train all managers of both Employers [respondents]. The Employers [respondents] will make best efforts to complete this training within six (6) months, August 15, 2016. The Employers [sic] [respondents’] counsel will confirm to the Applicant via e-mail that the training has been completed.

5The applicant alleges the respondents failed to complete the agreed upon training of all managers by August 15, 2016. She further alleges the respondents’ counsel did not send the Applicant written confirmation that the training was completed.

6The respondents take the position that their counsel confirmed with the applicant by e-mail dated September 27, 2016 that the training was completed, and that because they only agreed in the MOS to make best efforts to complete the training by August 15, 2016, they have not contravened the MOS.

legal principles

7Section 45.9(3) of the Code states in part:

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) […]

evidence

8The applicant testified that as of August 15, 2016 she had not received e-mail confirmation from the respondents that the training was complete. She waited until September 26, 2016 when she filed this contravention of settlement Application.

9The applicant testified she received an e-mail from respondents’ counsel the following day confirming that the respondents completed the training on September 22, 2016, which she submits was late. She further submits there was no proof that two individuals at each of LOFT and TNSS completed the training.

10The applicant further submits the list of signatures the respondents provided of people who attended the training on September 22, 2016 is insufficient to show that the training was adequate or that it took place, though she agreed on cross-examination that the MOS did not require anything other than e-mail confirmation from respondents’ counsel that the training was done. The applicant takes the position that the training could have been done by August 16, 2016.

11I asked the applicant to address the respondents’ position that they did not breach the MOS because they only agreed to make best efforts to complete the training by August 16, 2016. The applicant submitted they did little or nothing to comply, which does not constitute best efforts.

12With respect to LOFT, the applicant alleges a few people are missing from the list of signatures. With respect to TNSS, the applicant submits it did hardly anything to comply by August 16, 2016.

13She testified that when the respondents did not comply, she had to relive the whole nightmare of the Code violation against her. She testified the respondents broke their promise to her. They agreed to keep the case quiet in exchange for the respondents undertaking training.

14Ideh Kahali, Human Resources Manager at LOFT, testified she did the online training on July 15, 2016, but did not print off a completion certificate. She was then to train the “managers”, according to the MOS. Since no one at LOFT has that title, she took that to mean LOFT’s program directors, which is even broader than the definition of a manager.

15Ms. Kahali testified LOFT has a minimum of 25 program directors in locations from downtown Toronto to Simcoe County, making it very difficult to get them together unless it is scheduled well in advance. As all directors had to attend an already scheduled directors’ meeting on September 22, 2016, she trained them all then.

16Susan Meikle, Executive Director of TNSS, testified that Arif Nizami, the Human Resources Manager for TNSS, took the online training on March 7, 2016, and printed off his completion certificate. She was present when he then trained all TNSS’s managers at a March 22, 2016 meeting. She disclosed the meeting minutes that showed the attendees.

analysis and decision

17Paragraph 2 of the MOS states in part that the “[e]mployers [respondents] will make best efforts to complete this training within six (6) months, August 15, 2016 […]” and that counsel for the respondents will advise the applicant by e-mail when the training is done. The only issue before me in this contravention of settlement Application is whether the respondents complied.

18With respect to TNSS, the applicant agreed Mr. Nizami did his training on March 7, 2016. I also accept Ms. Meikle’s uncontroverted evidence that Mr. Nizami trained the managers at a March 22, 2016 as the MOS required. Therefore, I find no breach of the MOS by TNSS.

19With respect to LOFT, it is not disputed that LOFT completed the required training of its managers on September 22, 2016, 5 ½ weeks after the August 15, 2016 date. I must determine whether LOFT used its best efforts to complete the training within 6 months.

20Ms. Kahali testified because there were more than 25 people she considered managers, it was difficult to get them together for training, and therefore LOFT decided to make it part of an already scheduled directors’ meeting on September 22, 2016.

21While the applicant questioned why the directors could not have done the training differently so it was done by August 15, 2016, the MOS contemplate the Human Resource Managers doing the online training first and then training the managers.

22Given the number of managers and their schedules, I find it was reasonable and constitutes best efforts for LOFT to schedule the training to take place at its already scheduled directors’ meeting on September 22, 2016. While the applicant raised the possibility of the directors doing online training rather than in person training, I find if they had done so that may have constituted a breach of the MOS, given that the MOS contemplated Ms. Kahali doing the training herself and then training the managers.

23I find no breach of the MOS by LOFT given that it made its best efforts to complete the training by August 15, 2016 and in fact completed it 5 ½ weeks later on September 22, 2016.

24Even if my finding is wrong that LOFT made its best efforts to complete the training by August 15, 2016, the short delay in LOFT training its managers was relatively minor. This minor delay in my view would have amounted to a de minimus breach of the MOS. The Tribunal has recognized that a minor delay in meeting settlement terms may be a de minimus breach of the MOS that does not warrant the award of compensation. See for example Adorgloh v. Sentrex Communications, 2010 HRTO 2524; Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618; and Maisonneuve v. Soullière, 2017 HRTO 16.

25Finally, the applicant raised an issue with respect to whether some managers did the training. Not only was there no evidence to support the applicant’s position, but the MOS only required the respondents’ counsel to confirm with the applicant via e-mail that the training was completed, which counsel did on September 26, 2016.

26For the reasons above, I find no breach of the MOS.

order

27The Application is dismissed.