A Breach is a Breach, No Matter How Small

Scent allergy

Photo: Vancouver Sun

Paralegal Kristin Bisbee summarizes a recent case that highlights the risks of ignoring the terms of a tribunal settlement. How much accommodation is enough, and what can an Applicant do if an employer breaches the terms?

As an employer, you’ve received an Application to the Human Rights Tribunal of Ontario (HRTO) and you are now at the Mediation stage. You bring your best “good faith” game and enter into a settlement where you believe you have compromised quite a bit, but you believe it’s enough to put this all behind you. Who is going to hold you to that settlement, anyway?

In a recent case from the HRTO – Currie v. Ontario (Children and Youth Services), 2015 HRTO 478 (CanLII) — the employer was found to have breached its undertakings within the Settlement and they paid heavily for it.

The duty to accommodate lived on, despite no expressly written duty in the settlement agreement; the worker’s need for accommodation still existed
The HRTO has a mechanism by which either party can fill out a document (Form 18, “Application for Contravention of Settlement”) and file it electronically with the HRTO, indicating that they believe a contravention of a settlement has occurred. This will not re-open the original allegations of discrimination and must be done within six months of the alleged contravention or if there is a series of events, within six months of the last alleged contravention. This mechanism is not available to those who did not first make an Application to the HRTO.

    Process to Deal With Breach Allegation

Serving and filing the Form 18 under s.45.9(3) of the Human Rights Code and Rule 24 of the Rules of Procedure will be the catalyst to whole new event. Within 14 days of service, a Response is due from the other party and the matter could possibly proceed to a hearing. That is what happened in this case.

In Currie , the Applicant had brought an Application to the HRTO alleging that she had been discriminated at work due to her disability, which was a scent sensitivity. Currie worked at the Roy McMurtry Youth Centre as a Youth Services Officer, supervising young persons at the correctional facility, and provided escort detail for the teachers.

As part of the settlement deal, Currie received employment accommodation for a short time until she could properly retire. She was given two assignments: one in Building D when school was in session, where her disability could be accommodated; and one in Unit #5A (aka “the Cottage”) when school was not in session, where her disability could not be accommodated. More specifically, the settlement read:

    “To work 3 weeks of 0700-1500 hours and then 3 weeks of 2300-0700 hours reporting to YSM Sean Tomlinson. She’s assigned to unit #5A. When working days 0700-1500 hours she’s assigned as internal YSO escort duties and will be placed in building D during school hours. Internal YSO escort duties will be assigned only when the school is in session and when youth are in building D. To carry out all YSO duties within Unit #5A at all other times.”

When school resumed session, Currie was not assigned to work in Building D; she was in fact assigned solely to the Cottage, where her disability could not be accommodated. Currie alleged that this was not discussed with her and not reported, as the settlement agreement set out, to the “HPP Committee” and was therefore a breach of the settlement agreement.

    Was Reassignment Discipline, or a Breach?

The employer, the Ministry of Child and Youth Services of Ontario, rebutted this contravention, saying that Currie left her post in Building D on November 6, 2013 (when school was in session), without first being relieved of her duties, and was therefore re-assigned to the Cottage where she would work until her retirement. The Ministry submitted that the re-assignment decision was made strictly because of the November 6, 2013 incident and it would have been subject to discipline proceedings, had Currie not be retiring in just a few weeks.

Currie agreed that she left her post on November 6, 2013 without first being relieved, but the evidence differed at the hearing on why she left and how long she was gone. The Tribunal made the decision that the re-assignment while school was in session was a breach of the settlement agreement on the part of the Ministry. The Tribunal found that the Cottage was not an “alternate work site” as it did not accommodate Currie’s scent sensitivity.

The Tribunal did not buy the Ministry’s submission that they did not discipline Currie because it was so close to her retirement. From the decision:

    “I note that there was no notice, verbal or written, to the applicant of the alleged dereliction of duties. The applicant was not provided with any formal or informal warning that her accommodation arrangements may be in jeopardy because of her departure from her post… ”

The Ministry’s duty to accommodate Currie’s disability lived on, despite no expressly written duty in the settlement agreement. The Tribunal said that Currie’s need for accommodation in the workplace still existed, and that the Ministry’s duty to accommodate that disability still existed. The Tribunal found the employer had ignored that duty by:

  • Not exploring other areas in the facility where Currie could have worked
  • Choosing not to undergo a disciplinary investigation, under the guise of sparing Currie the process so close to her retirement, thereby extinguishing her ability to fairly address the conduct issue
  • Not seeking out other YSO duties that Currie could have performed safely
  • Embarrassing Currie with the re-assignment

Interesting to note, the Tribunal submitted that because the Ministry made the choice not to discipline Currie for the November 6, 2013 incident, they cannot then rely on that incident to make the statement that Currie’s posting at Building D was not “operationally feasible” to properly excuse the breach of the settlement agreement.

    Assessing Breach-Related Damages

On damages, the Ministry suggested that because this breach was so triflingly small, it should not have any damages awarded (de minimis). The Applicant asked for damages, but did not submit an amount. Here’s what the Tribunal said about it:

    “The respondent made a decision to ignore the plain meaning of the minutes of settlement and sought to spare itself the trouble of justifying its decision by framing it as an attempt to spare the applicant of a disciplinary process pre-retirement. Instead, the applicant experienced the embarrassment and emotional distress of her accommodation being unilaterally revoked just prior to her retirement.”

The Tribunal relied upon ADGA Group Consultants Inc. v. Lane et. al. (2008) 2008 CanLII 39605 (ON SCDC), in noting that even minor contraventions under s.45.9(3) of the Code are contraventions nonetheless and, if ignored as de minimis, completely undermine the purpose of the Code. The decision notes:

    “Damages awarded even for a technical breach should not be so insignificant as to amount to a licence fee.”

Currie was awarded $3,000 for the breach, even though she did not suffer any loss of wages. The award was strictly for the contravention of s.45.9(3) of the Code.

Employer Lesson #1: Talk to your employees. Keep the lines of communication open to talk openly and honestly about accommodation in the workplace. The threshold of accommodation is extremely high for employers – if you think you’ve done enough, you probably haven’t.

Employer Lesson #2: Use a progressive discipline system honestly and swiftly, no matter what the situation. As an employer, you cannot rely upon any “concerns” that you did not follow through with at the time. An employee is not expected to improve their performance if the employer does not give them the fair opportunity to improve or explain in the moment.

Employer Lesson #3: A “no big deal” defence can be expensive.

Settlement Breach - Related Cases, Legislation

Paralegal Kristin Bisbee

Kristin Bisbee has a diverse background in law and business. Kristin practises in the areas of human rights, employment law, Workplace Safety and Insurance Board (WSIB), Workplace Safety and Insurance Appeals Tribunal (WSIAT), Occupational Health & Safety, and Small Claims Court. A firm believer in access to justice, Kristin volunteers with the Ontario Justice Education Network (OJEN) and Yellow Brick House.

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One comment

  1. Tracey Gauley · · Reply

    Great article.

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