Smith v. 2144174 Ontario Inc., 2017 HRTO 1132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeremy Smith

Applicant

-and-

2144174 Ontario Inc. c.o.b. as Ventech Plumbing and Heating and Riley Venne

Respondents

DECISION

Adjudicator: Brian Cook

Date: September 1, 2017

Citation: 2017 HRTO 1132

Indexed as: Smith v. 2144174 Ontario Inc.

APPEARANCES

Jeremy Smith, Applicant

James Smith, Representative

2144174 Ontario Inc. c.o.b. as Ventech Plumbing and Heating and Riley Venne, Respondents

No one appearing

1This Application alleges a Contravention of Settlement contrary to section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The applicant filed an earlier Application which was settled by the parties on April 28, 2016. The Minutes of Settlement, signed on that date, provided, among other things:

The Respondent agrees to pay the Applicant the sum of $4,000 as general damages, payable in accordance with the attached schedule A.

3Schedule A provided for an immediate payment of $3,000. The remaining $1,000 was to be paid in monthly instalments of $250, starting on June 30, 2016. The applicant was given four post-dated cheques for the installments.

4The applicant received the $3,000 but when he attempted to cash the June 30, 2016 cheque it was returned as non-sufficient funds. The same thing happened with the July 30, 2016 installment. The applicant filed this Contravention of Settlement Application on August 3, 2016.

5The Contravention of Settlement Application was delivered to the respondents who were directed to file a Response. The respondents did not do so.

6On September 7, 2016, the Tribunal again wrote to the respondents and directed that the respondents file a Response to the Application by September 14, 2016, together with an explanation for the failure to file a Response to date. The letter warned the respondents about the consequences of not filing a Response which include that the respondents could be deemed to have accepted the allegations in the Application as true and that a hearing could proceed in the absence of the respondents.

7The respondents did not reply to this letter or otherwise communicate with the Tribunal. On January 24, 2017, the Tribunal issued Interim Decision 2017 HRTO 100. The Interim Decision reviewed the history of the Application and directed that the respondents were deemed to have accepted the allegations in the Contravention of Settlement Application as true and that a hearing could continue without further notice to the respondents.

8A hearing by telephone conference call was scheduled for August 25, 2017. Despite the warning that the respondents were not entitled to further notice, the Tribunal did send notice of the hearing to the respondents. However, the respondents did not call into the hearing.

9The applicant was represented at the hearing by his father who was identified as his representative in the Contravention of Settlement Application. The applicant's representative advised that the applicant did not appear because he is still upset about the fact that the settlement was contravened and that this adversely impacts the applicant because of his disability.

The Respondents

10I am satisfied that the respondents had notice of the Application and the hearing, and that they elected to not participate. At the hearing, the applicant's representative advised that the corporate respondent may have filed for bankruptcy. The Tribunal has not received any indication of this. However, if there is an order of a court to this effect, the Application as against 2144174 Ontario Inc. c.o.b. as Ventech Plumbing & Heating may be stayed.

11This would not, however, relieve the personal respondent of his obligations as a party to the original Application. When the original Application was filed, only the personal respondent was named. The Application was subsequently amended to include the corporate respondent. This means that the personal respondent and the corporate respondent were both respondents to the original Application.

12The Minutes of Settlement refer to “2144174 Ontario Inc. c.o.b. as Ventech Plumbing & Heating and Riley Venne” as “the respondent”. Mr. Venne signed the Minutes only once and the Minutes do not specify whether the signature was on behalf of both respondents. However, as noted, it is clear that there were two respondents to the Application and I find that the Minutes of Settlement were signed by Mr. Venne in his personal capacity and also in his capacity of owner of the corporate respondent.

13Since there were two respondents to the Application, I find that the corporate respondent and the personal respondent were jointly and severally liable to make the payments agreed to in the Minutes of Settlement. If the Application as against the corporate respondent is stayed, this means that the personal respondent is liable for the full amount.

Section 45.9 – Contravention of Settlement

14Section 45.9 provides in part 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),

(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.

The Contravention of Settlement

15According to the information in the Contravention of Settlement Application, the post-dated cheques that were provided were returned as non-sufficient funds. According to the applicant’s representative, the applicant attempted to cash two cheques which were both returned along with a $30 bank service charge for each cheque.

16In order to remedy the contravention, the respondents are required to pay the applicant $1,000 plus $60 for the bank charges. The payments were to have been made approximately one year ago and so the applicant is also entitled to interest on the unpaid amount. At 1.2% interest, as per the Courts of Justice Act, this amount is approximately $13. The total amount owing in respect of the direct financial consequences of the contravention of settlement is $1,073.

17The applicant’s representative submitted that in addition, the applicant should be entitled to compensation for the contravention of the settlement itself. He argued that there should be some penalty to the respondents for breaching a settlement they agreed to.

18The Tribunal has held that the Tribunal has held that a Contravention of Settlement is a contravention of a contract and that the applicable principles for remedying the contravention are the common law principles relative to contract law.

19In my view, this means that in some circumstances, damages can be awarded for the consequences of the contravention, including damages for mental distress, or injury to dignity, feelings, and self-respect. In particular, these damages may result if it was or should have been reasonably foreseeable that the applicant would experience injury to dignity, feelings, and self-respect if the settlement, or contract, was not fulfilled (see C.H. v. C.W.C., 2016 HRTO 220, and Fata v. Workplace Safety and Insurance Board, 2016 HRTO 592).

20At the hearing, the applicant’s representative stated that he observed that the applicant was very upset when the June 30 installment cheque was returned as non-sufficient funds. He further stated that at the time of the mediation session, the applicant was reluctant to settle and that the respondent was aware of this and understood or ought to have understood that the settlement was important to the applicant. As discussed at the hearing, in a Contravention of Settlement Application, it is generally not possible to re-open the settled Application and to re-argue the allegations in the original Application. If there are damages, they are for damages arising out of the contravention.

21As also discussed, the information provided by the applicant’s representative about the applicant’s state of mind is hearsay because it is not evidence that comes directly from the applicant. At the same time, the applicant's representative is the applicant’s father. He was present at the mediation session. The applicant lives with him and he is closely involved in the applicant's life. I conclude that his personal observations of the applicant can be taken as relevant and reliable evidence. I therefore accept that the applicant experienced significant upset which he experienced as an injury to his dignity, feelings and self-respect.

22I further conclude that it was or should have been reasonably foreseeable to the respondents that the applicant would be upset when the post-dated cheques were returned because the respondents knew that the settlement was important to the applicant and that harm, emotional damage or injury to dignity, feelings and self-respect would arise if a term or terms of the settlement were breached.

23I conclude that it was or should have been reasonably foreseeable to the respondents that a Contravention of the Settlement would be upsetting to the applicant and would give rise to injury to the applicant's dignity, feelings and self-respect.

24The applicant’s representative did not stipulate any amount of additional damages but suggested that they should be proportionate to the original settlement.

25I find that the applicant is entitled to compensation in the amount of $1,000 for the injury to dignity, feelings, and self-respect he experienced as a result of the Contravention of Settlement.

ORDER

26The respondents contravened the Minutes of Settlement signed on April 28, 2016. The respondents were jointly and severally liable for the amounts agreed to in the Minutes of Settlement and are jointly and severally liable for the consequences of the contravention of the settlement. The respondents are directed to pay $2,073 in compensation to the applicant as follows:

1. $1,000 for the unpaid settlement

2. $60 for bank charges arising out of the non-sufficient funds

3. $13 interest for the unpaid funds.

4. $1,000 for injury to dignity, feelings, and self-respect caused to the applicant by the contravention of the settlement.

27This money is to be paid to the applicant no later than 30 days from the date of this Decision. Post-judgement interest at 2% is payable on any amount not paid by that date, in accordance with the Courts of Justice Act, R.S.O. 1990, c C.43.