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Despite settlement breach, an award of compensation not warranted

settlementAn Applicant recently went before the Human Rights Tribunal of Ontario (Tribunal), alleging that the Respondent failed to pay settlement monies owed to him per the schedule agreed to in Minutes of Settlement. The Applicant sought full payment of the general damages amount agreed to in the settlement and a further $1,000 for the harm caused by the breach. Although the Tribunal found there to be a contravention of settlement, it deemed that the delay in receiving the monies was relatively minor, and therefore an award of compensation was not warranted.

Background

Per the Minutes of Settlement, the Applicant was to be paid $8,500 in general damages, where nine certified cheques, totalling that amount, were to be sent by registered mail to his home address. The first eight cheques, each for $1,000, were to be delivered to the Applicant’s home on the first day of each month, beginning with March 1, 2016 and ending October 1, 2016. The ninth cheque would be for $500, and delivered to the Applicant’s home on November 1, 2016. Should the first day of a month not fall on a business day, the cheque would then be required to be delivered on the following business day.

The Applicant did not receive his first payment on March 1, 2016.

The Applicant therefore contacted the Respondent’s lawyer the following day, who advised that the Respondent was in the hospital and that he was looking to mail out the funds that same day.

Rather, the Applicant decided to pick–up the funds from the Respondent’s lawyer on March 4, 2016.

According to the Applicant, between March 2016 and August 2016, the Respondent only paid the funds on time once.

The Applicant had filed four Applications with the Tribunal, each time he did not receive his monthly payments on time. In the latest filing, the Applicant indicated that the Respondent paid the balance owing in full.

Analysis and decision

While the Tribunal found there to be a contravention of settlement, it found the delay in the Respondent receiving the monies to be “relatively minor”, and that such minor delay amounted to a “de minimus” breach of the Minutes of Settlement.

That said, the Tribunal did not find it appropriate, in the circumstances of the case, to make any remedial order to remedy the breach.

[8] …The Tribunal has 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 award of compensation…

When asked specifically what damage he suffered due to the delay in payment, the Applicant could not express how much he had to pay as a result of the breach. Also, the Tribunal was not provided with details of any out–of–pocket expenses incurred by the Applicant due to the payment delays.

A few important points

Section 45.9(8) of the Ontario Human Rights Code sets out the Tribunal’s power to remedy contraventions of settlements. The section states that “the Tribunal may make any order that it considers appropriate to remedy the contravention.”

As noted in the 2010 case Matos v. Transplay, “the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention” (paragraph 17).

In the present case, while the Tribunal found there to be a contravention of settlement, the delay in the Applicant receiving the monies was deemed to be “relatively minor”, amounting to a “de minimus” breach of the Minutes of Settlement. As such, the Tribunal did not make any remedial order to remedy the breach.

Note: De minimus is Latin for “of minimum importance” or “trifling.” It is an abbreviated form of the “Maxim de minimis non curat lex”, “the law cares not for small things.” A legal doctrine by which a court refuses to consider trifling matters.

The case may seem to imply to employers that if a settlement has been reached with an employee and, for some reason, do not come through and satisfy the terms of that settlement as agreed, employers may be given a break, contingent on how quickly such breach is remedied. However, this is not to say that employers should be breaching their settlements. The set of facts and circumstances in each case are different, no matter how similar they may seem to be. Even the smallest differences can result in a significant change in the outcome of the case.

Cristina Lavecchia

Cristina is an editor and researcher at First Reference. She is a licensed paralegal and obtained a Bachelor of Arts degree, Political Science major at York University. During Cristina's paralegal and undergraduate studies she studied employment standards, occupational health and safety, and workplace safety and insurance. Read more
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