Bell v. 4th Dimension Technical Productions Inc., 2017 HRTO 1209

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadia Bell

Applicant

-and-

4th Dimension Technical Productions Inc.

Respondent

DECISION

Adjudicator: Jennifer Khurana Date: September 15, 2017 Citation: 2017 HRTO 1209 Indexed as: Bell v. 4th Dimension Technical Productions Inc.

APPEARANCES

Nadia Bell, Applicant Mikaila Greene, Counsel

4th Dimension Technical Productions, Inc. Jonathan Kleiman, Counsel

Introduction

1This is a Contravention of Settlement Application filed under s.45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges that the respondent failed to pay compensation and failed to implement public interest remedies in accordance with Minutes of Settlement ("Minutes") signed by the parties on September 7, 2016 in settlement of an Application alleging discrimination in the area of employment.

Respondent's participation in the proceedings

2The respondent did not file a Response to the Application. The Tribunal wrote to the parties directing the respondent to file a Response and warning the respondent about the consequences of failing to file a Response. The respondent did not comply with the direction to file a Response.

3The respondent and his former legal counsel called in to the hearing. The respondent's legal representative indicated that while he had previously advised the Tribunal that he was no longer representing the respondent, he was nonetheless retained for the hearing for this Application.

4The applicant objected to the respondent's participation at the hearing on the grounds that the respondent failed to file a Response, did not communicate in any way with the applicant or with the Tribunal, and did not deliver or file witness statements or hearing documents. The respondent acknowledged that it received the Application and all communications from the applicant and the Tribunal and that it did not file a Response. Counsel for the respondent also confirmed that the respondent accepts the allegations in the Application, and that it acknowledges that it failed to comply with the terms of the Minutes. He also advised that the respondent did not intend to cross-examine the applicant or to call any evidence at the hearing and would only make limited closing submissions.

5After consulting with her client, counsel for the applicant confirmed that the applicant did not object to the respondent's participation, subject to the limits described above.

6The hearing proceeded with the applicant testifying. The respondent did not cross-examine the applicant or present any evidence. Respondent counsel made very limited submissions with respect to the respondent's current financial situation and confirmed that the respondent has not initiated any bankruptcy proceedings or filed for bankruptcy.

7In Kearns v. 1327827 Ontario, 2009 HRTO 457 at paras. 11 to 14, the Tribunal set out its approach in circumstances where a respondent fails to file a Response after having been cautioned by the Tribunal about the consequences of not doing so. As the Tribunal noted, after having been provided clear notice of what is required, a respondent who refuses or chooses not to file a response should not be able to frustrate the objects of the Code, and the applicant's rights to assert a claim and seek a timely determination of that claim.

8Where no response is filed, the Tribunal will proceed to determine the application in the absence of the respondent. In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate in the proceeding and deem the respondent to have accepted all of the allegations set out in the application.

9The respondent explicitly accepted all of the allegations set out in the Application. In any case, in light of the respondent's failure to file a Response, the respondent is also deemed to have accepted all of the allegations set out in the Application

BACKGROUND

10Paragraph 5 of the Minutes of Settlement reads as follows:

5. 4D will pay Bell $15,000 as general damages within 30 days from the date of these Minutes of Settlement to the Applicant's address as noted above. 4D will implement a human rights policy/procedure within 3 months of these Minutes of Settlement and will engage a human rights expert to draft said policy/procedure. 4D will train any employees on the policy/procedure, including Mr. Matusik. 4D's counsel will confirm with the Applicant's counsel that Epiq has complied with this paragraph. It is understood that Epiq is not responsible or liable for any obligations of 4D in respect of these Minutes of Settlement, including the creation of the policy and payment of the sum noted above.

11The original application named two respondents. Paragraph [5] of the Minutes refers to "Epiq", however the applicant makes no allegations of contravention of settlement with respect to Epiqvision, and it is not named as a respondent to this Application.

12The applicant did not receive the $15,000 that the respondent agreed to pay within 30 days of the Minutes signed on September 7, 2016. On October 12, 2016, the applicant's legal representative wrote to counsel for the respondent and asked about the settlement cheque which was due on October 7, 2016. The respondent's legal representative responded the following day advising that following a review of the corporation's finances, "it turns out that the corporation does not have funds to pay at this time. I will update you if and when that changes."

13On December 21, 2016, counsel for the applicant again wrote to the respondent's legal representative noting the continued failure of the respondent to pay the applicant compensation in the amount of $15,000 in accordance with the terms of the Minutes. She also noted that the deadline for the respondent to implement the non-monetary obligations set out in paragraph [5] of the Minutes was December 7, 2016. Counsel for the respondent replied the same day advising that the respondent has no money to pay anybody to implement the training and policy remedies and is no longer able to operate. He later explicitly confirmed that the respondent has not complied with the terms of the Minutes.

14The applicant asks that the Tribunal order that the respondent breached the Minutes, and that it direct the respondent to comply with the terms of the Minutes, including payment of compensation in full amount of the $15,000. The applicant also requests that she be awarded $10,000 in general damages as compensation for the harm caused by the breach of settlement, together with pre-judgement and post-judgement interest. She submits that there is no evidence before the Tribunal that the respondent no longer exists or has filed for bankruptcy, and that as long as it exists it must comply with its contractual obligations.

ANALYSIS AND DECISION

15There is no doubt that there has been a breach of the Minutes and I find as such. The respondent has acknowledged that it breached the Minutes and that there is no issue with respect to notice. It is also deemed to have accepted all of the allegations in the Application. The respondent failed to pay the compensation owed to the applicant and did not implement the non-monetary remedies agreed to in the Minutes.

16I also find it appropriate in the circumstances to make a remedial order to remedy this breach.

17Section 45.9(8) of the Code sets out the Tribunal's power to remedy contraventions of settlements. It states that the Tribunal may make "any order that it considers appropriate to remedy the contravention." As noted in Matos v. Transplay, 2010 HRTO 2527 at para. 17, "the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention." See also Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867 and Francis v. Toronto Police Services Board, 2011 HRTO 2018.

18The Tribunal has recognised 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 for example Adorgloh v. Sentrex Communications, 2010 HRTO 2524, and Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618.

19I accept the applicant's submissions that the contravention of paragraph [5] of the Minutes is not de minimus in light of the respondent's complete failure to implement any aspect of the terms agreed to.

20I was not provided with details of any out-of-pocket expenses incurred by the applicant as a result of the respondent's failure to implement the terms of the Minutes. Rather, the applicant testified about the adverse emotional and mental consequences of the breach. While she initially felt relieved at the settlement of her Application and felt a sense of justice, the respondent's failure to honour the terms of the agreement has been taxing given the energy the applicant has had to devote to the process of pursuing her former employer for nearly a year. This experience has left her feeling further harmed because the respondent's conduct demonstrates a total disregard for the human rights process, the settlement and her rights. She had hoped for closure and the breaches have halted her healing process and held her back because this process has reopened wounds.

21With respect to the specific terms agreed to and the impact of the breaches, the applicant testified that she had been planning on putting some portion of the settlement funds into savings, and to use the balance to start her own business. She has had to put her plans on hold as a result of the respondent's failure to pay the agreed amount. The applicant testified that the public interest remedies are very important to her and that she fears that the respondent's failure to complete the training will jeopardise future employees. This experience has left her feeling like there are cracks that parties can slip through in the human rights system, and that the respondent has been able to disregard the process. The applicant is wary of what lies ahead and how the Minutes will be enforced.

22The applicant submits that the evidence demonstrates that the respondent committed egregious breaches of fundamental terms of the Minutes. The respondent's conduct and confirmation through its counsel shortly after the funds were due of an inability to pay demonstrates that the respondent had no real intention to pay the applicant as agreed. The applicant submits that the non-monetary remedies agreed to in the Minutes represent a strong public interest settlement that mean a great deal to the applicant. The respondent's failure to even attempt to initiate this part of the agreement also suggests a lack of any real intention to comply with the terms of the Minutes. She argues that these terms go to the core of the consideration that the applicant provided to release her original application in agreeing to settle the matter.

23The applicant relies on several authorities in support of her request for a monetary remedy for the contraventions where the awards for monetary compensation ranged from $1,000 to $5,000 (C.H., v. C.W.C., 2016 HRTO 220 ("C.H."), Sugarman v. St. Lawrence College, 2012 HRTO 664, Grady v. Niagara Neighourhood Housing Cooperative Inc., 2017 HRTO 355, $2,000, Rollick v. 1526597 Ontario Inc. o/a Tim Horton's Store No. 2533, 2016 HRTO 910 $5,000 ("Rollick").

24In support of her request for $10,000 in general damages for the breaches of the Minutes, the applicant relies on Rollick, in which the Tribunal recognised that the respondent's failure to comply with the Minutes was blatant and egregious and awarded $5,000. She submits that the other cases cited in which the Tribunal has awarded damages at the lower end of the spectrum for breaches are distinguishable on the facts. She argues that while in Rollick the Tribunal found $5,000 to be an appropriate award, in her case the respondent has failed not only to pay the compensation owing to her, but has also failed to implement the non-monetary aspects of the Minutes which have all had a serious impact on the applicant.

25In Rollick, the Tribunal stated as follows at paragraph [39]:

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.

26I find it appropriate to award $3,000 in the circumstances of this case. The applicant's testimony about the distress she suffered as a result of the contravention is uncontradicted and I accept her evidence about the harm to her dignity that arose as a result of the contravention. She wanted to move on and to have closure, and instead, she finds herself at the Tribunal testifying nearly a year later with none of the terms of the settlement fulfilled. This has caused ongoing stress and anxiety, particularly in light of the applicant's initial feelings of relief that she could move on with her life. Further, in entering into mediated settlements, parties have an expectation that the agreement will be upheld. In this case, the respondent failed in all respects to manifest any intention to comply with the terms. It was only after the applicant's counsel contacted the respondent's legal representative that she learned that he did not have the funds to comply with the Minutes, and later, that he was not in a position to implement the public interest remedies. I also accept that it was reasonably foreseeable to the parties that in entering into Minutes, failure to comply with any aspect of the terms would result in distress and harm. This harm and distress came to be and I agree that the applicant should be compensated. See, C.H. above, at paras 48 to 49 and Rollick, above, at para. 38.

27I acknowledge that the applicant in this case has had to contend with a breach of both the public interest and monetary aspects of the settlement and that these are significant breaches of the fundamental terms of the Minutes. I do not agree, however, that $10,000 is the appropriate award or that it is appropriate to double the award ordered in Rollick because in this case the respondent failed to implement both the public interest and monetary aspects of the agreed terms. The applicant argues that in Rollick, which most closely resembles the circumstances of her case, the Tribunal awarded $5,000 in general damages. While Rollick also involved a breach in which the respondent failed to pay $15,000, the circumstances of that case were particular in that they related to an Application that dated back 3 years and that was settled following a Reconsideration granted of a Decision following a merits hearing because the respondents had not received proper Notice.

28Counsel for the respondent indicated that the respondent has a "couple of thousand in the bank." While I acknowledge the financial difficulties faced by the respondent, the fact remains that it entered into a binding agreement with the applicant and she is entitled to have the terms of that agreement implemented and enforced. Any issue with respect to whether the respondent is impecunious, should have been raised prior to the Minutes being agreed to by the parties. With respect to the public interest remedies agreed to in the Minutes, in the absence of any evidence that the respondent has commenced bankruptcy proceedings or is no longer in existence, it is also expected to immediately implement the remaining terms of paragraph [5] of the Minutes.

ORDER

29The Tribunal orders as follows:

a. The Contravention of Settlement Application is allowed. The respondent has contravened the Minutes of Settlement;

b. The respondent is directed to pay the applicant $15,000 as agreed to in the Minutes along with pre-judgment interest on the amount, from October 7, 2016, to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43;

c. The respondent is directed to pay the applicant $3,000 in general damages flowing from the breach of the Minutes;

d. Post-judgment interest is payable on any amount not paid from the date of this decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43; and

e. The respondent must immediately implement the remaining terms of paragraph [5] of the Minutes; if It is no longer operating, it must immediately implement those terms should it begin operating again.