Under section 45.9(8) of the Ontario Human Rights Code , the Ontario Human Rights Tribunal (“OHRT”)has a broad discretion to make any order that it considers appropriate to remedy a contravention of a settlement agreement reached in ORHC proceedings. Although the discretion is described as broad, it’s exercise is tied strictly to the harm that is caused as a result of the contravention.
The OHRT has noted that contractual principles provide an appropriate framework for analyzing contraventions of settlement. In an appropriate case, this could include damages for mental distress and/or punitive damages. The OHRT considers 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 is 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 or 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.
Settlement agreements are to be complied with and respected. Failure to do so, could lead to further proceedings and remedial relief to the harmed party. Given the nature of the proceedings to begin with, this is especially an area where it is important not to compound any existing harm and add insult to injury.*
William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.