Pettit v. 2330653 Ontario Inc., 2017 HRTO 1700

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandi Pettit

Applicant

-and-

2330653 Ontario Inc. o/a Paws and Claws and Corey Samuel

Respondents

DECISION

Adjudicator: Romona Gananathan

Date: December 22, 2017

Citation: 2017 HRTO 1700

Indexed as: Pettit v. 2330653 Ontario Inc.

APPEARANCES

Sandi Pettit, Applicant

Self-represented

2330653 Ontario Inc. o/a Paws and Claws and Corey Samuel, Respondents

No one appearing

Introduction

1This is an Application filed on August 2, 2017, 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 respondents contravened the terms of the Minutes of Settlement (MOS) reached between the parties on April 5, 2017.

2The Tribunal held a telephone conference hearing on December 19, 2017. The respondents did not participate in the contravention of settlement proceeding. At the hearing, I heard the applicant’s evidence and submissions regarding the alleged violation of the terms of the MOS, and the remedy that should be awarded.

Failure to Participate in these Proceedings

3The respondents did not file a Response to the Contravention of Settlement Application, despite repeated directions to do so and warnings issued by the Tribunal of the consequences of failing to file a Response.

4The Tribunal issued a Confirmation of Receipt of Application alleging the Contravention of Settlement on August 3, 2017. Because the Minutes of Settlement from the previous file was not initially included, the completed Application with the Minutes of Settlement was filed with the Tribunal and sent to the respondents on August 17, 2017, with an extension of time to file a Response by August 31, 2017. The respondents did not file a Response.

5On September 15, 2017, the Tribunal wrote again to the parties directing that the respondents file a full Response to a Contravention of Settlement by September 29, 2017. The letter once more warned the respondents the Tribunal might proceed without further notice to them and might and take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Procedure if they did not file a Response. The letter was sent by regular mail and email to the respondents’ counsel. The respondents did not file a Response, nor did they contact the Tribunal following this correspondence.

6On October 24, 2017, the Tribunal issued an Interim Decision, 2017 HRTO 1407, in accordance with Rule 5.5 of the Tribunal’s Rules of Procedure. The Interim Decision deemed the respondents to have accepted all of the allegations in the Application, and to have waived all rights to notice and participation in this proceeding.

Did the Respondents Violate the terms of the settlement?

7The applicant originally filed an Application with the Tribunal against both the individual respondent and the organizational respondent on February 17, 2015. The matter was deferred pending the outcome of concurrent criminal proceedings which concluded on March 14, 2016. The matter then proceeded to mediation but the parties were unable to resolve the issues, so the matter was scheduled for a hearing.

8At the April 5, 2017 hearing day, the parties entered into Minutes of Settlement and filed a Form 25 confirming the Application was resolved based on a negotiated settlement.

9The terms of the MOS included that the respondents jointly and severally pay the applicant the sum of $30,000 in general damages under the Code to be paid in ten monthly instalments of $3,000 beginning in June 2017 and ending March 2018 (paragraph 1, MOS). These payments were to be made to the applicant’s counsel in trust and sent to their offices on June 4, 2017, and monthly on the fourth day of each month thereafter.

10The MOS included provisions (paragraph 3, MOS) to dismiss a separate civil action commenced by the corporate respondent against the applicant (the “civil action”) no later than June 4, 2017.

11The MOS also included provisions (paragraph 2, MOS) for the personal respondent, Corey Samuel, to take the Human Rights 101 e-learning course available through the Ontario Human Rights Commission’s (the “OHRC”) website, to review the OHRC’s Policy on Preventing Sexual and Gender-Based Harassment, and for the respondents' counsel to confirm in writing to the applicant’s counsel that this obligation has been fulfilled.

12As noted above, the applicant filed this Application on August 2, 2017, alleging the respondents failed to comply with the terms of the MOS, in particular with respect to the payment of $30,000 in instalments, and completion of the e-training described above.

13The applicant has the onus of proving a contravention. See, for example, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.

14At the hearing, the applicant confirmed that the civil action described in paragraph 3 of the MOS was withdrawn by the corporate respondent. However, she described that despite repeated requests by her counsel, the respondents have failed to pay any of the settlement funds, and that neither she nor her counsel has received any confirmation that the personal respondent has completed the Code-related training on sexual and gender-based harassment.

15As of the date of the teleconference hearing on December 19, the settlement funds had still had not been paid to the applicant, nor was there any suggestion that the respondents had communicated any intention to pay the applicant any of the settlement funds. There is also no indication that the personal respondent completed the Code-related training.

16The emails submitted by the applicant confirm that the applicant’s counsel contacted the respondents’ counsel repeatedly from June 5, 2017 onwards, and that the applicant had no choice but to initiate these contravention of settlement proceedings as a result of the respondents’ failure to comply with the settlement agreement.

17Accordingly, I find that the respondents have contravened the terms of the Minutes of Settlement dated April 5, 2017 by failing to pay to the applicant any of the $30,000 due and owing to her, and by failing to complete the Code training on sexual and gender-based harassment.

Remedies to be Awarded for the Breach of Settlement

18Under section 45.9(8) of the Code, the Tribunal has a broad discretion to “make any order that it considers appropriate to remedy the contravention”, if the Tribunal determines that a party has contravened a settlement agreement.

19The Tribunal has held that contractual principles provide an appropriate framework for analyzing contraventions of settlement and that it has the broad remedial powers to address the harm caused by a breach of settlement. See C.H. v. C.W.C., 2016 HRTO 220 (“CH”), and Rollick v. 1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533, 2016 HRTO 910 (“Rollick”). Both Rollick and C.H. lay out the approach to determining the harm caused by a contravention of settlement, which includes emotional damage, or injury to dignity, feelings and self-respect that may have been caused as a result of the breach.

20The Tribunal has also held that the power to remedy a contravention of settlement though broad, is tied strictly to the harm that arises from 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. The Tribunal’s power does not include any other factors such as the private or public importance of complying with settlement terms, or any emotional impact evidence that is tied to the underlying human rights issue that gave rise to the original application. See for example, Keating v. 2229884 Ontario Inc., 2015 HRTO 1677 at paras. 81-83.

21In this case, the applicant testified that she has suffered great financial and emotional distress as a result of the respondents’ failure to pay the settlement funds. She was relying on receiving these monthly payments to cover her living expenses as a single woman, and the respondents’ failure to pay these monthly amounts has repeatedly caused her severe anxiety and emotional distress every month since June 2017. The applicant testified that these issues have been ongoing for over three years and the respondents’ breach of the terms of the settlement agreement has resulted in further delay and an inability on her part to move forward and put these issues behind her.

22The applicant described that she has incurred significant legal fees of about $17,000 related to these matters which she intended to pay with the settlement funds, but that she has been unable to do so because of the respondents’ failure to pay her the large sum of settlement funds owed to her. She has no other means of paying her legal fees and this inability to pay has resulted in collections proceedings against her and additional financial stress, as well as damage to her credit history and financial stability.

23The applicant testified that she is extremely frustrated with the respondents’ blatant disregard of the Tribunal’s directions and her counsel’s repeated requests to pay the funds as agreed by the parties in the MOS. The applicant testified that while she has had to comply with the Tribunal’s Rules and processes, she felt like the Code’s protections against discrimination have not been helpful to her because the respondents has simply disregarded their obligations under the settlement and the Tribunal’s processes, without any consequences whatsoever.

24I found the applicant to be a credible witness and her testimony and evidence was unchallenged, because the respondents did not participate in these proceedings.

25There is no doubt that the applicant is entitled to an order requiring the respondents to jointly and severally pay her the sum of $30,000 as agreed to under the MOS. She is also entitled to pre-judgement and post judgement interest calculated in accordance with ss. 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

26In my view, and given the particular circumstances of this case, an award of general damages to remedy the contravention of settlement in the amount of $5,000 is appropriate. I find that the respondents’ failure to comply with the settlement terms was blatant and egregious, which exacerbated the applicant’s emotional and financial distress. The individual respondent’s failure to complete the Code-related training on sexual and gender-based harassment discloses a flagrant disregard for the Tribunal’s processes and the terms of the MOS he voluntarily entered into. I accept the applicant experienced significant financial and emotional harm as a result of the breach of the terms of the MOS which caused injury to her dignity and self-respect by exposing her to collection action, damaging her credit history and undermining her financial security.

27As noted above, the MOS signed by the parties, sets out a payment schedule to breakdown the payment of $30,000 into ten monthly instalments from June 4, 2017 to March 4, 2018. Given the conduct of the respondents to date, I find that the applicant should not be required to return to the Tribunal to seek enforcement of any further amounts owed to her based on the proposed payment schedule. Therefore I order the amount of $9,000 owed to the applicant for the remaining three months from January 4-March 4, 2018 be paid immediately.

ORDER

28For all of these reasons, I order that the respondents shall, jointly and severally, immediately pay the applicant:

1. $30,000 as general damages in accordance with the agreement reached on April 5, 2017 as follows:

a. $3,000 plus pre-judgement interest on that amount calculated from June 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

b. $3,000 plus pre-judgement interest on that amount calculated from July 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

c. $3,000 plus pre-judgement interest on that amount calculated from August 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

d. $3,000 plus pre-judgement interest on that amount calculated from September 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

e. $3,000 plus pre-judgement interest on that amount calculated from October 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

f. $3,000 plus pre-judgement interest on that amount calculated from November 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

g. $3,000 plus pre-judgement interest on that amount calculated from December 4, 2017 at the rate of 0.8% in accordance with s. 128 of the Courts of Justice Act;

h. The remaining $9,000 to be paid to the applicant as of the date of this Decision.

2. $5,000 as monetary compensation for the contravention of settlement reached April 5, 2017 to be paid as of the date of this Decision.

3. Post-judgement interest on all of the above amounts at a rate of 2.0% per annum beginning on the date of this Decision in accordance with s.129 of the Courts of Justice Act.

4. The respondents will not make any deductions from any of these above amounts given they are in the nature of general damages.

29The personal respondent is ordered to file confirmation of the completion of the OHRC’s training with the Tribunal within 30 days of the date of this Decision.

30The applicant may ask the Superior Court of Justice to enforce this Decision as an order of that Court by filing a certified copy with the Court in accordance with section 19 of the Statutory Powers Procedures Act. The Registrar will provide a certified copy of the Decision to the applicant. The Human Rights Legal Support Centre may be able to provide advice about enforcement.