Lukey and Pietrzyk v. Rygier, 2017 HRTO 1459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dorothy Lukey Applicant

-and-

David Rygier Respondent

AND BETWEEN:

Marta Pietrzyk Applicant

-and-

David Rygier Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: November 6, 2017 Citation: 2017 HRTO 1459 Indexed as: Lukey and Pietrzyk v. Rygier

APPEARANCES

Dorothy Lukey and Mart Pietrzyk, Applicants Roger Love, Counsel

David Rygier, Respondent No one appearing

1The applicants each filed a Contravention of Settlement Application alleging that the respondent breached the terms of Minutes of Settlement entered into between the parties on December 8, 2016.

2On December 4, 2015, the applicants each filed an Application alleging that the respondent discriminated against them contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the "Code") when he refused to rent them an apartment ("original Applications"). The parties entered into the Minutes of Settlement during a mediation-adjudication held at the outset of the hearing of the case.

3The applicants' Contravention of Settlement Applications proceeded to a teleconference hearing on October 20, 2017. The respondent did not participate in the contravention of settlement proceeding. At the teleconference hearing, I heard the applicants' evidence and submissions regarding the alleged violation of the settlement terms and the remedy that should be awarded.

respondent's failure to participate in this proceeding

4The respondent did not file a Response to the Contravention of Settlement Applications, despite being directed to do so several times and despite being warned of the consequences of failing to file a Response.

5On May 12, 2017, the Tribunal issued a Confirmation of Receipt of Applications Alleging Contravention of Settlement to the respondent in which it directed the respondent to file a Response no later than May 30, 2017.

6The respondent did not respond to this letter.

7By letter dated June 7, 2017, the Tribunal advised the respondent that, if he wished to participate in this proceeding, he was required to file a Response by June 15, 2017, together with an explanation of why he failed to file a Response sooner. In the letter, the Tribunal warned the respondent that, if he did not file a Response by June 15, 2017, the Tribunal might proceed without further notice to him and might and take any or all of the steps set out in Rule 5.5 of the Tribunal's Rules of Procedure.

8The Tribunal sent both of the above letters to the address that the applicants provided for the respondent in their Contravention of Settlement Applications. This is the same address the respondent himself listed in the Response he filed to the original Applications filed by the applicants in 2015.

9The respondent did not file a Response, nor did he contact the Tribunal following its correspondence with him.

10In accordance with Rule 5.5 of the Tribunal's Rules of Procedure, the Tribunal deemed the respondent to have accepted all of the allegations in the Application. It also deemed the respondent to have waived all rights to notice and participation in this proceeding. See Interim Decision, 2017 HRTO 1030.

Did the respondent violate the terms of settlement?

11As previously stated, the parties entered into Minutes of Settlement dated December 8, 2016. In the Minutes of Settlement, the respondent agreed to pay the applicants $7,000 as monetary compensation in the nature of general damages. The respondent agreed to make the payment by e-transfer in three instalments as follows: $2,500 by December 31, 2016; $2,500 by January 31, 2017 and $2,000 by February 28, 2017.

12The applicants did not receive any of these three instalments. On February 7, 2017, the applicants' counsel emailed the counsel who represented the respondent in the original Applications to advise him that his client had failed to make the first two instalments agreed upon in the Minutes of Settlement. He asked the respondent's counsel to advise when the applicant could expect to receive payment.

13On May 11, 2017, the counsel who had represented the respondent in the original Applications responded that he was no longer acting for the respondent. He stated that he had not acted for the respondent since the parties entered into the Minutes of Settlement and that he had had no communications with the respondent since then.

14As of the date of the teleconference hearing on October 20, 2017, the respondent still had not paid the settlement funds to the applicants, nor is there any indication that the settlement funds have been paid to date.

15Accordingly, I find that the respondent has contravened the terms of the Minutes of Settlement dated December 8, 2016 by failing to pay to the applicants any of the $7,000 owing to them.

What remedies should be awarded for the breach of settlement?

16Under section 45.9(8) of the Code, if the Tribunal determines that a party has contravened a settlement, the Tribunal has a broad discretion to "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. I agree with, and endorse, the approach to determining the harm caused by a contravention of settlement adopted by the Tribunal in C.H. v. C.W.C., 2016 HRTO 220 ("C.H.") and Rollick v. 1526597 Ontario Inc. o/a Tim Horton's Store No. 2533, 2016 HRTO 910 ("Rollick"). In both C.H. and Rollick, the Tribunal held that it has the power to remedy the harm, emotional damage, or injury to dignity, feelings and self-respect that may have been caused by a breach of settlement.

17In their Contravention of Settlement Applications, the applicants requested an order for the payment of the $7,000 owed to them under the Minutes of Settlement along with pre-judgment and post-judgment interest. They also requested $1,000 each as additional compensation for the breach of the settlement in this case. By Request for Order During Proceedings filed on October 17, 2017, the applicants increased their request for additional compensation to $5,000 each for the respondent's breach of the settlement.

18Both applicants testified that they expected the payment of the settlement funds to be made by the dates set out in the Minutes of Settlement. Both applicants were intensely frustrated by the respondent's failure to pay the funds he had agreed to pay. Both applicants also were profoundly disillusioned by the fact that the respondent could agree to a settlement, not pay the funds he agreed to pay, and simply ignore their Contravention of Settlement Applications. Both of the applicants testified that they felt like the Code's protections against discrimination would mean very little if a respondent could simply disregard his obligations under the settlement and the Tribunal's process without any consequences.

19Both applicants testified that the respondent's breach of the settlement had a significant financial and emotional impact on them. The applicants stated that they were forced to find an apartment on short notice and ended up paying more in rent than what they had agreed to pay the respondent. They also both testified that the respondent lived in their previous neighbourhood and they would frequently see him on the street near their home after he had failed to pay them the settlement funds. Both applicants testified that this caused them anxiety and stress.

20Ms. Lukey testified that the applicants' experience with their Applications caused her to lose confidence and that she was scared to apply for a better job out of fear that an employer might discriminate against her. She also testified that the respondent's breach of the settlement and its consequences had caused a strain on her relationship with Ms. Pietrzyk. Finally, she testified to the stress and frustration she felt as she waited in vain for the respondent to make the e-transfers he had agreed to make.

21Ms. Pietrzyk testified that the settlement funds would have assisted to pay down her debt and permitted her to return to school. She testified that she had to declare personal bankruptcy due to her debt load. Ms. Pietrzyk testified that, when she moved to Canada, she expected to be protected against discrimination. She stated that she felt like she lost the naiveté she once had about the human rights process and that she felt worse off for filing her Application.

22I note that the applicants' testimony was unchallenged as the respondent chose not to take part in this contravention of settlement proceeding.

Findings

23There is no doubt that the applicants are entitled to an order requiring the respondent to pay them the $7,000 he agreed to pay them under the Minutes of Settlement. They are also entitled to pre-judgment and post-judgment interest calculated in accordance with ss. 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

24As found in C.H. and Rollick, the Tribunal must consider the following two factors when determining whether it is appropriate to award compensation for additional harm caused by a breach of settlement:

1. Whether it reasonably foreseeable, at the time the settlement was entered into, that harm, emotional damage or injury to dignity, feelings and self-respect would arise if a term of terms of the settlement were breached; and

2. If so, whether any harm, emotional damage, or injury to dignity, feelings and self-respect did in fact arise as a result of the contravention.

See C.H., above, at para. 49 and Rollick, above, at para. 38.

25Applying the first factor, I agree and endorse the following passage from the Tribunal's decision in Rollick at para. 39:

...in my view, 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.

26In the particular circumstances of this case, I find that it was reasonably foreseeable to the respondent that harm, emotional damage or injury to dignity, feelings and self-respect of the applicants would arise if the settlement was breached.

27With regard to the second factor listed above, it also is clear to me that the applicants experienced harm, emotional damage, or injury to dignity, feelings and self-respect as a result of the contravention. I note that some of the applicants' evidence on impact to the original alleged discrimination as opposed to the impact of the contravention itself. However, I do accept that the harm they experienced from the alleged discrimination was exacerbated by the respondent's breach of the settlement. The applicants understandably felt cheated and misled by the respondent, and have lost faith in the human rights process. They have experienced feelings of frustration, stress and disillusionment as a result of the breach of settlement, which was evident in their testimony before me. It was also evident that the applicants' distress was exacerbated by having to see the respondent walking down their street after the breach of the settlement.

28The Tribunal's awards of compensation for emotional harm caused by breaches of settlement have tended to range between $1,000 and $3,000. See for example C.H., above ($1,000); Sugarman v. St. Lawrence College, 2012 HRTO 664 ($1,500); Torcato v. Fulton Engineered Specialties Inc., 2015 HRTO 687 ($1,500); Kim v. 1743766 Ontario Inc., 2015 HRTO 685 ($1,500); Grady v. Niagara Neighbourhood Housing Cooperative Inc., 2017 HRTO 355 ($2,000); Bell v. 4th Dimension Technical Productions Inc., 2017 HRTO 1209 ($3,000) ("Bell").

29The applicants sought to rely upon Rollick, above, in which the Tribunal awarded the applicant $5,000 for the respondent's breach of the settlement. However, I find the Rollick case distinguishable for two reasons. First, as the Tribunal noted in Bell, above, the circumstances in Rollick were particularly egregious in that they related to an Application that dated back 3 years. The respondents in Rollick failed to file a Response to the original Application and the Tribunal deemed them to have waived all rights to participate in the proceeding. After a hearing of the Application, the Tribunal awarded the applicant $15,000 as compensation for injury to dignity, feelings and self-respect and $27,378.15, less statutory deductions, as compensation for her wage loss. Following the release of the decision, the respondents successfully sought reconsideration of it saying they had not received proper notice of the hearing. The parties then entered into a settlement at mediation, only to have the respondents breach the settlement by failing to pay the applicant the $15,000 they had agreed to pay her. I find that the circumstances of Rollick were particularly egregious and made the award of compensation in that case particularly appropriate.

30Second, I note that the parties in Rollick agreed that the respondents would pay the applicant $15,000 in that case. In my view, there must be some proportionality between the amount that was defaulted upon and the compensation awarded for the breach of the settlement. The settlement amount that the parties agreed to in this case was $7,000 in total. I do not find it proportional or appropriate to order the defaulting party to pay more for a breach of the settlement than the amount the parties themselves agreed to in the settlement. In general, the greater the amount of the settlement, the more foreseeable it is that the recipient (usually the applicant) will experience emotional harm from its breach. As well, the greater the amount of the settlement, the greater the actual harm that is likely to have occurred from the breach of the settlement.

31In my view, an award of $2,500 per applicant is appropriate in the circumstances of this case. This amount is both proportional to the amount of the settlement and the impact of the actual breach described by the applicants. This amount is greater than the compensation the Tribunal has awarded in many breach of settlement cases but, in my view, it is appropriate in light of the unchallenged emotional and financial impact described by the applicants in their testimony before me.

ORDER

32For all of the foregoing reasons, the respondent shall pay to the applicants the following amounts:

a. The $7,000 that he agreed to pay the applicants under the Minutes of Settlement;

b. A further $2,500 to each applicant as compensation for the emotional harm and suffering she experienced due to the breach of settlement;

c. Pre-judgment interest on the amount set out in para. (a) above from the date each installment was due until the date of this Decision, at the pre-judgment interest rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

d. Pre-judgment interest on the amount set out in para. (b) above from the date the last installment was due until the date of this Decision at the pre-judgment interest rate of 0.8% in accordance with s. 128 of the Courts of Justice Act; and

e. Post-judgment interest at the rate of 2.0% from the date of this Decision in accordance with s. 129 of the Courts of Justice Act.