Sultana v. Jyu, 2017 HRTO 1441

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Sultana

Applicant

-and-

Christopher Jyu

Respondent

DECISION

Adjudicator: Romona Gananathan

Date: November 1, 2017

Citation: 2017 HRTO 1441

Indexed as: Sultana v. Jyu

APPEARANCES

Mary Sultana, Applicant

Self-represented

Christopher Jyu, Respondent

No one appearing

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent contravened the terms of the settlement reached between the parties.

2The Tribunal held a telephone hearing on October 20, 2017.

BACKGROUND

3On October 7, 2016, the parties signed Minutes of Settlement (“MOS”).

4The applicant filed this Application on May 1, 2017, alleging the respondent failed to comply with paragraph 5 of the MOS, which provide:

Within 30 days of the date of these Minutes of Settlement, the Respondent will complete and will have his office manager, [---], complete the Ontario Human Rights Commission’s free online human rights training, “Human Rights 101” at http://www.ohrc.on.ca/en/learning/human-rights-101.

submissions

5The respondent did not take part in the hearing. However, he filed a Response to the Application on May 25, 2017, indicating that the respondent and his office manager completed the training “a long time ago in 2016”, but that they were unable to keep a record of it as the computer system did not allow them to generate a completion report at the time. In his written submissions, the respondent submits that he and his staff have repeated the training on May 2, 2017, and included screen shots of the quizzes and records of completion as evidence of compliance with paragraph 5 the MOS.

6The applicant contends that the respondent and his office manager failed to complete the training set out in paragraph 5 of the MOS within the 30-day period.

7She argued that although the respondent filed screen shots and asserts the training was completed in 2016, the email chain of correspondence between counsel for the applicant and the respondent shows this is untrue because the respondent requested the link to the training site on May 1, 2017. The applicant asserts that the respondent would not have done so if the training had already been completed in 2016.

8The applicant submits that this lack of compliance led to further anxiety and stress on her as she had to file a contravention application and bring the respondent to the Tribunal to ensure compliance. The applicant submits that “punitive” action needs to be taken against the respondent and requested the Tribunal order monetary compensation as a remedy.

the law

9Subsection 45.9(3) of the Code states:

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).

10Subsection (8) states:

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.

11The applicant has the onus of proving a contravention. See, for example, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.

ANALYSIS

12As noted above, the respondent did not appear during the teleconference hearing. I heard the applicant’s submissions regarding the alleged violation of the settlement terms and the remedy that should be awarded during the teleconference hearing and evaluated them against the respondent’s documents.

Did the respondent violate the terms of the settlement?

13I am satisfied that the respondent and his manager failed to complete the human rights 101 training within 30 days of signing the MOS on October 7, 2016.

14While the respondent’s written submissions indicate he completed the training “a long time ago in 2016”, the documents filed by the respondent suggest otherwise. For example, on July 25, 2017, the respondent confirmed with the Tribunal via email communication that he (and his office manager) had completed the training but was unable to print the certificates from the website in December 2016. This was clearly after the expiry of the 30-day period.

15It is possible that the respondent and his manager completed the training sometime in 2016 as submitted by the respondent. It is also possible that the respondent requested the link again due to the difficulties he was having in getting the acknowledgement of the training from the site, as evidenced by further email communication between the respondent and counsel for the applicant dated May 2, 2017. In this email, the respondent indicates that he completed the training session and asked for a certificate by typing his name in, but nothing came out after the session.

16However, there was nothing in the respondent’s documents and submissions to confirm that the training had been completed within the 30-day timeframe.

17For these reasons, I find that the respondent contravened the terms of the Minutes of Settlement dated October 7, 2016 by failing to complete the human rights 101 training contemplated in paragraph 5 of the MOS within the required timeframe of 30 days.

Should remedies be awarded for the breach of settlement?

18Although the respondent did not attend the hearing, the documents attached to the pleadings including the “screen shots” of the Code training clearly confirm that the respondent and his office manager repeated the training on May 2, 2017. The respondent attached his email correspondence with applicant’s counsel indicating that they had repeated the training on May 2, 2017 and took screen shots of the training completion which he attached as evidence of compliance with paragraph 5 of the MOS.

19The applicant did not dispute the fact that the respondent appears to have completed the training in May 2017 and she did not raise any concerns about the authenticity of his documents.

20For these reasons, I am satisfied that both the respondent and his office manager completed the course in May 2017, which is approximately six months after the MOS was signed. Accordingly, I find that, even if the respondent did breach the MOS, he clearly complied with the terms of the settlement shortly afterwards.

21The object of the Code is to remedy a breach and not punish or penalize a contravening party. The Tribunal’s remedial jurisdiction under s.45.9 of the Code is broad, to make “any order” that the Tribunal considers appropriate to “remedy the contravention”, and this could include damages for mental distress and/or punitive damages.

22However, in Keating v. 2229884 Ontario Inc., 2015 HRTO 1677, the Tribunal held that this was not to include factors such 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. 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.

23The applicant asserts that she experienced anxiety and stress as a result of this breach. She argued that she knew the respondent would not comply with the training requirements and that the only way he would learn to respect the Code would be through monetary penalties out of his own pocket.

24While I appreciate the position, I am not satisfied this is a situation in which I should exercise my discretion to award a remedy.

25In my view, the contravention of settlement was relatively minor. It was remedied reasonably quickly. There is a general legal principle that “the law does not deal with trifles”. See for example Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC) at para. 65. In my opinion, the contravention amounted to a minor breach of the Settlement Agreement. The Tribunal has refused to order a remedy in such situations. See, for example, Adorgloh v. Sentrex Communications, 2010 HRTO 2524; Abegunrin v. Toronto Hydro-Electric Commission, 2016 HRTO 1471; Maissoneuve v. Soullière, 2017 HRTO 16.

26Based on the facts of this case, although I find the respondent breached the MOS by failing to complete training within the agreed time, the respondent met the terms of the training requirements within a short time. While fully appreciating the applicant’s frustration with the respondent’s conduct, I am not satisfied the applicant has provided sufficient evidence to support an award of damages for the breach.

DECISION

27The Application for Contravention of Settlement is allowed. I make no order for remedy.