HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Temple
Applicant
-and-
Super Deal Auto Sales Ltd. and Kadhim Alabidi
Respondents
DECISION
Adjudicator: Josée Bouchard
Indexed as: Temple v. Super Deal Auto Sales Ltd.
APPEARANCES
Christopher Temple, Applicant
Roger Love, Counsel
INTRODUCTION
1This is an Application filed on March 31, 2016 pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), alleging that the respondents contravened the terms of the settlement reached between the parties.
2The respondents did not file a response within the prescribed timeline and failed to communicate with the Tribunal. Although it appeared that the Application had been served on the personal respondent, from March 31, 2016 until March 9, 2017, numerous attempts were made to complete delivery of the Application on the corporate respondent.
3On March 9. 2017, the Tribunal issued Interim Decision 2017 HRTO 317 (“Interim Decision”) as follows at paras. 19 and 20:
Notwithstanding the numerous failed attempts made to complete delivery with the corporate respondent, I note that the personal respondent is listed in the Application as the corporate respondent’s representative. In the original matter before this Tribunal, which was filed in 2014 and led to the September 11, 2015 Minutes of Settlement, the personal respondent listed in his response that he was the Director of the corporate respondent. In addition, unlike a new application, this Application is a contravention of settlement and it is assumed the respondents are aware that a failure to comply with the Minutes of Settlement could lead to further enforcement proceedings.
For these reasons, I am satisfied that the corporate respondent, through the personal respondent, is deemed to have received the Notice of Application and the further direction requiring it to file a Response. The corporate respondent refuses or has chosen not to participate in these proceedings.
4In the Interim Decision, the Tribunal found the respondents in default and stated as follows at para. 21:
a. The respondents are deemed to have accepted all of the allegations set out in the Application;
b. The respondents are deemed to have waived all rights to notice or participation in these proceedings; and
c. The respondents are not entitled to further notice with respect to the Application.
5On October 12, 2017, the applicant filed with the Tribunal his documents, book of authorities and a Request for an Order During Proceedings to amend the Application by increasing the remedies sought for the contravention of settlement from $1,300 to $2,000.
6The Tribunal held the contravention hearing on October 13, 2017.
1The applicant testified. As the respondents did not participate in the hearing, the evidence of the applicant was not contested. His testimony was clear and consistent. Accordingly, I accept the applicant’s evidence.
BACKGROUND
7On September 17, 2014, the applicant filed an Application with the Tribunal alleging discrimination with respect to employment because of his disability. The applicant alleged that he was terminated by the respondents on September 23, 2013 and that his learning disabilities were a factor in the decision to terminate him.
8On September 11, 2015, the parties entered into Minutes of Settlement (“MOS”).
9The MOS indicates that:
The Respondents will pay to the Applicant $1,300 in general damages for alleged pain and suffering arising out of alleged violations of the Code (“the Payment”), without deductions. No T-4 or other similar document, will be issued for the Payment. The Respondents agree to be jointly and severally responsible to pay this amount.
10The MOS indicates that “The Payment will be made within 21 days of the Respondents’ receiving an executed copy of these Minutes of Settlement. Payment shall be mailed directly to the Applicant at the following address […]” (“general damages clause”).
11Additionally, the respondents agreed to post a Human Rights Code Card, in a conspicuous location in the workplace, within 60 days of the signing of the MOS (“Code Card clause”).
12Finally, the respondents agreed to ensure that all of its management staff would complete the Ontario Human Rights Commission’s online course “Human Rights 101” within 60 days of the signing of the MOS (“Human Rights 101 clause”). Confirmation of completion of the online course was to be provided to the applicant’s counsel via email.
REQUEST TO AMEND REMEDIES
13I deal first with the applicant’s request to amend the Application to increase the remedies sought for the contravention of settlement from $1,300 to $2,000.
14Rule 1.7(c) of the Tribunal’s Rules of Procedure states “in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended”.
15The Tribunal has regularly granted requests to amend remedies up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050. Accordingly, I grant the request amend the remedies sought for the contravention of settlement from $1,300 to $2,000.
analysis and decision – contravention of settlement
Applicable Law
16Section 45.9 of the Code provides that (1) if a settlement of an application made under s. 34 of the Code is agreed to in writing and signed by the parties, the settlement is binding on the parties, and (2) a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order to remedy the contravention.
17The applicant has the onus of proving, on a balance of probabilities that a contravention of the settlement of his human rights application has occurred. A balance of probabilities means that it is more likely than not that a contravention has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.
Contravention of General Damages Clause
18The applicant testified that he has not received the cheque to the amount of $1,300 for general damages owed under the MOS within 21 days of the respondents’ receiving an executed copy of the MOS.
19The applicant stated that once the deadline had passed, his counsel informed him that the respondents had failed to comply with the monetary terms of the MOS. On October 8, 2015, the applicant’s counsel sent an email to the respondents advising them that if the applicant did not receive the settlement funds by October 15, 2015, the applicant would be proceeding with enforcement through the Tribunal. The respondents did not pay the amount or reply to the correspondence.
20On November 30, 2015, a corporate search confirmed the business address of the corporate respondent, Super Deal Auto Sales Ltd., and the address of the personal respondent, Kadhim Al Abidi.
21On December 14, 2015, counsel for the applicant sent a letter by courier and regular mail to the respondents requesting that they comply with the terms of the MOS. More specifically, the letter requested that the respondents pay the applicant $1,300 owed for pain and suffering within 30 days of the letter, otherwise further enforcement measures would be taken. The courier company confirmed that the letter was delivered to the respondents’ door on December 15, 2015. The respondents did not pay the amount or reply to the correspondence.
22To date the respondents have failed to pay $1,300 to the applicant and the time for doing so has passed. I find that the applicant has met the onus of proving, on a balance of probabilities, that the respondents contravened the terms of the settlement to pay to the applicant $1,300 in general damages for alleged pain and suffering arising out of alleged violations of the Code, without deductions.
Contravention of Code Card Clause
23The MOS reads as follows:
The Respondents agree to post a Human Rights Code Card (Code Card), as available from the Ontario Human Rights Commission’s website, in a conspicuous location in its workplace. The Respondents will post the Code Card within sixty (60) days of signing these Minutes of Settlement.
24The applicant alleges that the respondents have not complied with these terms of settlement as he has not received confirmation that the Code Card had been posted. The applicant indicated that these terms of the MOS are important to him as they were meant to ensure that all employees had the knowledge of human rights.
25The Tribunal indicated to the applicant that the MOS does not include an obligation on the respondents to inform the applicant that it has posted the Code Card. In response, the applicant admitted that he did not know if the Code Card had been posted.
26In the circumstances, I find that the applicant has not met the onus of proving, on a balance of probabilities, that the respondents contravened the Code Card clause of the MOS.
Contravention of Human Rights 101 Clause
27The MOS reads as follows:
The Respondents agrees (sic) to ensure that all of its management staff will complete the “human Rights 101” online course available on the Ontario Human Rights Commission’s website within 60 days of signing these minutes of settlement. The Respondents will provide confirmation that they have completed the course to the applicant’s counsel via email […]
28The applicant testified that he found this clause important because educating management on human rights issues could prevent future human rights violations. The applicant stated that his counsel wrote to the respondents on December 14, 2015 reminding the respondents that they were to provide confirmation that they had completed the Human Rights 101 online course within 60 days of signing the MOS. The respondents never replied to the correspondence.
29I find that the applicant has met the onus of proving, on a balance of probabilities, that the respondents have contravened the Human Rights 101 clause of the MOS.
remedies
30The applicant is entitled to an order requiring the respondents to pay him, jointly and severally, “$1,300 in general damages for alleged pain and suffering” as agreed to in the MOS. He is also entitled to pre-judgment interest on this amount from the time the payment was due on October 2, 2015 until the date of this Decision, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O, 1990, c. C.43 (“CJA”), as amended. He is also entitled to post-judgment interest on this amount from the date of this Decision calculated in accordance with the CJA.
31The applicant also requested an award of $2,000 as damages in compensation for injury to dignity, feelings and self-respect as a result of the breach of settlement. The applicant testified that he was forced to expend a considerable amount of resources and time to attempt to locate the respondents to file the Application for Contravention of Settlement. The respondents simply ignored his attempts to seek compliance with the MOS. He stated that the respondents’ failure to comply with the monetary and public interest remedies of the settlement terms has caused him significant adverse emotional and mental consequences. He felt disrespected and hurt.
32The applicant testified that his experience working for the respondents affected him to a point where he decided to leave the automotive industry to pursue a career as a firefighter. The sum owed to him through the MOS would have covered some of his tuition fees to go to college and pursue a two year firefighter course. He has been unable to do so and has instead had to take on odd jobs to earn a living.
33The applicant testified that his dignity and feelings have been further harmed by the respondents’ total disregard for the human rights process, settlement, and his rights. He is upset that the respondents have not been held accountable of the discrimination he experienced and that he has been denied closure and the ability to move on from his experience.
34The Tribunal in C.H. v. C.W.C., 2016 HRTO 220 provides as follows (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 means 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.
35On the first point, the Tribunal in Rollick v. 1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533, 2016 HRTO 910, stated at para. 39 (“Rollick”):
[…] 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.
36In 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. The applicant had requested remedies in the original application of $15,000 in damages for injury to dignity, feelings and self-respect. The applicant settled for a much lesser amount, as he wanted to put the matter behind him and pursue his ambitions. It appears that the respondents ought reasonably to have foreseen that the applicant would experience emotional distress if they failed to comply with the settlement terms.
37With regard to the second point, it is also clear to me that the applicant experienced harm, emotional damage, and injury to his dignity, feelings and self-respect as a result of the contravention. He has experienced feelings of stress and disrespect as a result of the breach of settlement and of the respondents’ disregard of their human rights obligations. In addition, the applicant has been unable to pursue a new career.
38The applicant referred to case law that has awarded damages for breach of settlement typically in the range of $1,000 to $5,000. See Bell v. 4^th^ Dimension Technical Productions Inc., 2017 HRTO 1209 ($3,000); Grady v. Niagara Neighbourhood Housing Cooperative Inc.), 2017 HRTO 355 ($2,000); Rollick, above ($5,000); C.H. v. C.W.C., 2016 HRTO 220 ($1,000); and Sugarman v. St. Lawrence College, 2012 HRTO 664 ($1,500).
39In my view, in the particular circumstances of this case, an award of damages for injury to the dignity, feelings and self-respect as a result of the breach of settlement in the amount of $2,000 is appropriate. I find that the respondents’ failure to comply with the settlement terms was blatant, which exacerbated the applicant’s emotional being. I also find that the applicant experienced emotional harm as a result of the breach as detailed above.
ORDER
40For the above-noted reasons, I make the following order:
a. The Application for Contravention of Settlement is allowed in part. The respondents have contravened the General Damages Clause and the Human Rights 101 Training Clause of the September 11, 2015 Minutes of Settlement;
b. The respondents, jointly and severally, shall pay to the applicant the following amounts:
o $1,300 without deduction in general damages for alleged pain and suffering pursuant to the terms of the Minutes of Settlement;
o pre-judgment interest on the sum of $1,300, from October 2, 2015 to the date of this Decision, calculated in accordance with section 128 of the CJA;
o post-judgment interest on any accumulated principal and interest arising from the sum of $1,300 calculated in accordance with section 129 of the CJA, from the date of this Decision;
o $2,000 as damages for the injury to the applicant’s dignity, feelings and self-respect due to the contravention of settlement;
o pre-judgment interest on the sum of $2,000, from March 31, 2016, the filing date of the Application for Contravention of Settlement to the date of this Decision, calculated in accordance with section 128 of the CJA;
o post-judgment interest on any accumulated principal and interest arising from the sum of $2,000 calculated in accordance with section 129 of the CJA, from the date of this Decision;
o The applicable rate for pre and post-judgment interest may be ascertained from the website of the Ministry of the Attorney General of Ontario.
c. Within three months of the date of this Decision, the respondents shall comply with the Human Rights 101 Training clause in the September 11, 2015 Minutes of Settlement. In the event that the corporate respondent is no longer in operation but later resumes its operation, the corporate respondent shall comply with the Human Rights 101 Training clause within three months of the date that it resumes its operation.
Dated at Toronto, this 1^st^ day of November, 2017.
“Signed by”
Josée Bouchard
Vice-chair