Abdulla Rajab v. The Governing Council of the University of Toronto, 2017 CanLII 56448

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdulla Rajab

Applicant

-and-

The Governing Council of the University of Toronto

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: August 28, 2017

Citation: 2017 HRTO 1111

Indexed as: Rajab v. The Governing Council of the University of Toronto

APPEARANCES

Abdulla Rajab, Applicant

Self-represented

The Governing Council of the University of Toronto, Respondent

Sari Springer, Counsel

1The applicant filed an Application for Contravention of Settlement (the "Application") on January 19, 2017 pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The facts are not disputed.

3The parties reached a settlement of Application 2016-24252-I. The Minutes of Settlement dated November 3, 2016 indicated amongst other things that the settlement funds and letter of regret (the "settlement package") would be delivered to the applicant within two weeks i.e. by November 17, 2016.

4The respondent delivered the settlement package on November 16, 2016.

5On January 18, 2017 the respondent received a Notice of Contravention of Settlement in which the applicant essentially indicated that he did not receive the settlement package.

6The respondent searched its records and confirmed that the settlement package had been delivered and in its Response to the Contravention of Settlement the respondent indicated that if the applicant affirmed that he did not receive the settlement package, the respondent would re-send the materials.

7The applicant then sent an email on January 25, 2017 clarifying that the respondent sent the settlement package to the wrong address. The applicant's address was 185.5 Beverly Street and not 185 Beverly Street, which is where the settlement package was delivered.

8On January 27, 2017 the respondent re-sent the settlement package to the applicant and on that day the settlement cheque was cashed by the applicant.

analysis and decision

9The Tribunal's remedial authority regarding a contravention of settlement is set out in section 45.9(8) of the Code, which states:

(8) 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.

10In Glover v. 571566 Ontario Inc., 2011 HRTO 1563, the Tribunal concluded that settlement of an application before the Tribunal is no different than settlement of any other legal proceeding and, accordingly, the common law of contracts provided the appropriate principles to apply when determining a remedy under section 45.9(8). See also Keating v. 2229884 Ontario Inc., 2015 HRTO 1677.

11As noted in Glover, the remedy for breach of contract will generally be the enforcement of the contract and damages arising from the breach or damages that may have been reasonably contemplated by the parties. What is reasonably foreseeable to the parties must be determined on a case by case basis, but in my view it will generally be foreseeable that an applicant will suffer financial and emotional distress where the breach of settlement is protracted. I agree, however, with the decision in Glover that a breach of settlement per se does not give rise to an award of monetary compensation. The Tribunal has also recognized that a minor delay in meeting settlement terms may be a de minimus breach of the minutes of settlement that does not warrant the ward of compensation. See Adorgloh v. Sentrex Communication, 2010 HRTO 2524.

12In this case, the applicant received the settlement package including the settlement cheque as required under the Minutes of Settlement a little over two months after it was due, which I find to be a breach of the terms of the settlement. However, the respondent thought that it had fulfilled its obligation in a timely manner when it delivered the settlement package to the applicant at 185 rather than 185.5 Beverly St.

13The delay in receiving the settlement package may have been mitigated had the applicant simply phoned or emailed the respondent inquiring as to when he could expect it when it did not arrive by the due date.

14Given the circumstances, I am of the view that the breach of settlement does not merit an award of monetary compensation. In any event the applicant presented no evidence indicating that it was foreseeable that he would incur any losses as a result of the delay in receiving the settlement package. Although the applicant felt anxious and slighted because of the delay, he provided no evidence of actual emotional or financial distress. In my view, the delay experienced by the applicant amounts to a de minimus breach of the parties' settlement that does not warrant an award of compensation.

15The application is dismissed.