Square Peg in a round hole

 

De Minimis Non Curat Lex Legal

The Latin phrase De Minimis Non Curat Lex Legal stands for the proposition that the law does not care for small or trifling matters. De Minimis was expressed in an 1818 English decision where the Court held that penalties should not be inflexibly severe where there are irregularities or very slight consequences or where the deviation was a “mere trifle” (i). De Minimis arose in the criminal context, but now is widely accepted as a common law defence available in both the criminal and civil context.

Application (or Misapplication) in the Human Rights Context

The Human Rights Tribunal of Ontario has applied this common law defence in a number of recent decisions. The problem is the Tribunal has yet to find an intelligible way to integrate this two hundred year old common law doctrine into the remedially-focused human rights world. Tribunal decisions applying this doctrine have largely arisen in contravention of settlement proceedings, where the parties resolve their dispute and one party subsequently breaches a term of settlement.

In Adorgloh v. Sentrex Communications, (ii)  a 2010 decision of the Tribunal, the Vice-Chair, before hearing any evidence or scheduling the hearing, stated by way of Case Assessment Direction that “it appears to me, without deciding the issue, that any damages for any delay of less than two months, given the amount in question…, would be minimal, assuming there is justification for awarding them.” Prior to hearing the evidence, the Tribunal made clear that it assumed the breach was minimal and did not mention the possible impact the breach may have had on Mr. Adorgloh. Following the teleconference, Tribunal found that the employer contravened a term of settlement and noted there was evidence presented that Mr. Adorgloh suffered mental health issues as a result. Despite this, the Tribunal focused solely on the technical nature of the breach itself and declined to award any remedy. In focusing on the seemingly trivial delay in payment the Tribunal failed to meaningfully consider the impact of the breach on Mr. Adorgloh. In fact, beyond noting that there was some evidence in this respect, the Tribunal did not even mention it in the analysis section of the Decision.

In Pereira v. Designer Furniture and Art, (iii) a decision released in October 2014, the Tribunal heard another contravention of settlement application where extensive evidence was proffered on the impact the contravention had on the Applicant in terms of her mental health. I was Counsel for the Applicant (no, this is not sour grapes – a much more important issue is at play) and made submissions on the application of the de minimis doctrine. I asked the Tribunal to consider the impact on the Ms. Pereira, instead of or alongside the technical nature of the breach. The Tribunal however neither mentioned the Applicant’s submissions on the application of the de minimis doctrine, nor was the impact on the Applicant mentioned at all. The Tribunal found there was a contravention but refused to order a remedy, again focusing solely on the technical nature of the breach. We asked the Tribunal to reconsider and received a boilerplate decision, again not addressing any of the Applicant’s arguments on de minimis. (iv)

It is firmly established that the Ontario Human Rights Code is remedial and not punitive. The objective is to make the Applicant whole, not punish the Respondent. So why is it that the Tribunal does not focus at all on the actual impact of the contravention on an Applicant, beyond just the technical appearance of the breach itself? Looking at the technical breach in isolation – for instance payment sent one month after it was due – may appear “trifling” or de minimis. But what if that one month delay caused an Applicant to lose his or her home or caused an Applicant dealing with serious mental health issues to fall into a depression and become unable to work for a significant period time. What if the Applicant contemplates suicide? I have represented parties in several matters where settlement has been contravened, and while not always the case, this is often the reality (particularly for applicants with serious mental health issues).

In assessing de minimis, the Tribunal must look at the impact of the contravention on the Applicant. If the technical nature of the breach is relevant at all, it should only be one factor, considered alongside the impact of the breach on the Applicant. The Respondent’s intention is irrelevant and the remedy is not to “punish” the Respondent. Remedial legislation focuses on fixing the harm caused. From my perspective, that is difficult and impossible to do when the Tribunal does not consider what that harm may be.

This highlights a bigger issue, perhaps for another article, on the dangers of parachuting common law principles into the human rights context without full appreciation as to how those principles fit with the remedial nature of the Code and established human rights principles.

End Notes

__________________________________________________________

(i) See Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76 at paras at 200-207.

(ii) Adorgloh v. Sentrex Communications Inc., 2010 HRTO 2524

(iii) Pereira v. Designer Furniture and Art, 2014 HRTO 1599

(iv) Pereira v. Designer Furniture and Art, 2014 HRTO 1731

 

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