4137566 Canada Ltd. (Canadian Tire) v. Clements, 2011 HRTO 106

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

4137566 Canada Ltd. (Canadian Tire) and Stu Cameron

Applicants

• and -

Debbie Clements

Respondent

DECISION

Adjudicator: David A. Wright

Date: January 14, 2011

Citation: 2011 HRTO 106

Indexed as: 4137566 Canada v. Clements

APPEARANCES

4137566 Canada Ltd. (Canadian Tire) and Stu Cameron, Applicants ) Arthur P. Tarasuk, Counsel

Debbie Clements, Respondent ) Self-Represented

INTRODUCTION

1This is an Application under s. 45.9(7) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging a breach of a settlement of a Tribunal application. The corporate applicant, 4137566 Canada Ltd. ("Canadian Tire"), operates a Canadian Tire store in Orangeville. The respondent, Debbie Clements, is a former employee. Ms. Clements previously filed an Application with the Tribunal against Canadian Tire and Mr. Cameron, which was settled. Canadian Tire alleges that Ms. Clements violated the confidentiality and non-disparagement provisions of the settlement.

2A hearing was held on January 5, 2011. Following receipt of the applicants' witness statements, the Tribunal issued a Case Assessment Direction holding that the Tribunal would deal, as a preliminary issue, with whether the statements allegedly made by Ms. Clements constitute a violation of the settlement. The hearing was converted to a conference call during which counsel for the applicants and the respondent made submissions.

3Having heard the parties' submissions, I find that Ms. Clements did not violate the terms of the settlement, assuming she made the statements alleged. Accordingly, the Application is dismissed.

THE SETTLEMENT

4The following provisions of the Minutes of Settlement of the previous Application are relevant to this Decision:

5. The parties agree that by entering into these Minutes of Settlement, the Respondents do not admit liability.

6. The Applicant agrees to withdraw her Application and to sign the necessary documentation to that effect.

7. The parties agree that separate copies of these Minutes of Settlement can be signed by different parties and that the separate copies, once signed by all parties, together constitute a single agreement and constitute the whole agreement between the parties.

8. The Applicant, Susan Hall and the respondents agree to maintain strict confidentiality of the terms of these Minutes of Settlement, and the Applicant and Susan Hall shall not discuss or disclose the terms of this settlement with anyone other than the Applicant's husband, (who shall be bound to the confidentiality provision as if he was a signatory to it), legal or financial advisors, or as required by law. The Corporate Respondent may communicate the contents of these Minutes internally so as to implement the terms hereof. If the Applicant breaches this confidentiality provision, she shall be liable to pay back the full amount set out in paragraph 1 hereof.

9. The Applicant, Susan Hall and the Applicant's spouse hereby agree not to make disparaging remarks either directly or indirectly about the Respondents or any of the Corporate respondent's employees to any person or entity.

ALLEGATIONS

5Canadian Tire alleges that several months after the agreement was reached, Ms. Clements was at the store and spoke with a Canadian Tire employee, Linda Kozanczyn. Ms. Kozanczyn's witness statement outlines the following alleged conversation:

a) The conversation commenced with casual friendly greetings;

b) That Linda Kozanczyn inquired of the Respondent, Debbie Clements, of what she was doing;

c) That in Response to this query; The Respondent, Debbie Clements, informed Linda Kozanczyn that she and her husband had purchased a cottage property and that she, Debbie Clements, was kept busy getting the said property into order and repair to her personal liking;

d) That Linda Kozanczyn complimented the Respondent, Debbie Clements, for keeping herself busy and occupied;

e) That at this point in the conversation the Respondent, Debbie Clements, volunteered to Linda Kozanczyn the fact that she had taken the Applicant to Human Rights and had made a claim of discrimination against the Applicants;

f) That in response to this information, Linda Kozanczyn was surprised to learn that the Respondent, Debbie Clements, had taken her issues so far as to make a formal complaint with the Human Rights Tribunal;

g) That in response to this information provided by the Respondent, Debbie Clements Linda Kozanczyn then inquired of the Respondent, Debbie Clements what was the result of the Respondent having taken the Applicants to Human Rights;

h) In response to this question, that Respondent, Debbie Clements, did not state that she was not at liberty to answer that questions [sic] and proceeded to advise Linda Kozanczyn that she got a settlement out of the Claim;

i) That at no time in the conversation did the Respondent, Debbie Clements, advise Linda Kozanczyn that the information provided in the course of the conversation was confidential or that Linda Kozanczyn was not to tell anybody what the Respondent, Debbie Clements, had told her about the Human Rights Complaint;

j) That the conversation between Linda Kozanczyn and the Respondent Debbie Clements lasted for three to five minutes.

6Section 45.9 (3) and (8) of the Code reads as follows:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(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.

SUBMISSIONS OF THE PARTIES

7Canadian Tire argues that, assuming the conversation occurred as related by Ms. Kozanczyn, Ms. Clements violated both articles 8 and 9 of the Minutes of Settlement by disclosing that the parties had settled the previous Tribunal Application.

8Canadian Tire submits that the settlement establishes a very high standard of confidentiality by requiring that neither party will "disclose" or "discuss" a term of the settlement, and by establishing a significant financial penalty – the return of the financial settlement – for any violation. It argues that articles 5, 6, 7 are a confirmation that the parties have reached a settlement and that by disclosing the existence of the settlement, Ms. Clements has discussed or disclosed these clauses.

9Canadian Tire argues that having heard what Ms. Clements said, a reasonable person would conclude that Canadian Tire made a concession in settling the case, and may have felt it had to compromise because it had done something wrong and did not have an iron-clad case. It argues that such a person would assume that money had been paid by Canadian Tire to Ms. Clements. Disclosing the existence of a settlement, it argues, undermines the purpose of confidentiality provisions, which is to ensure that the discussion about the settlement of a claim does not encourage others to file claims, whether legitimate or not, to obtain settlements.

10Canadian Tire also argues that the statements indirectly disparage Canadian Tire in violation of article 9. By disclosing the existence of a settlement and compromise, it says, Ms. Clements indirectly disparaged Canadian Tire by suggesting that it had done something wrong that required compromise. It argues that anything that would "cause people to snicker and second guess" is an indirect disparaging remark contrary to s. 8. It emphasizes that according to the witness statement, it was Ms. Clements who raised the subject of the claim to the Human Rights Tribunal during the conversation.

11The respondent, Ms. Clements, argues that all that she said was that she went to mediation and settled, and that she is not responsible for what others may take from it.

ANALYSIS

12Most applications to the Tribunal, and indeed most legal disputes, are resolved by settlement. The Tribunal encourages settlement, offering mediation and mediation-adjudication to parties with disputes before it. There are many types of settlements reached, sometimes involving creative and unique solutions. It is not uncommon for applications to be settled without the payment of money or with nominal payments. Section 45.9 of the Code facilitates settlement, by providing a mechanism to remedy a breach of a settlement: see Dunn v. Sault Ste Marie (City), 2008 HRTO 149 at para. 33.

13Agreeing to a settlement is not an acceptance by either party of the other's position. Rather, it is recognition that the parties will move forward from the litigation and put the matters behind them without the consequences and risks of a hearing and decision. While settlements frequently contain clauses specifying that the respondent does not admit any wrongdoing and the applicant does not retract the allegations, this is implicit in any settlement unless it is stated otherwise.

14Confidentiality provisions are common in settlements of Tribunal applications. They are sometimes a critical term of the agreement, often for the respondent who may have a particular concern about confidentiality of monetary terms. Clauses that prohibit a party from disparaging another party ensure that the dispute is put to an end both in the legal process and in the community, by requiring that neither party make negative comments about the other. A party who believes that a confidentiality or non-disparagement agreement has been breached may bring an application before the Tribunal and seek a remedy, as the applicants have here. The Tribunal will enforce such agreements and treat breaches seriously.

15The central issue in this case is whether disclosure of the fact that the Application had been settled was a violation of the confidentiality provision (article 8), which prohibited discussion or disclosure of the "terms" of the settlement, or of the non-disparagement provision (article 9). In making this determination I consider the language of the settlement and also apply the Tribunal's expertise and experience in the settlement of human rights and employment disputes.

16The language of article 8 sets out an obligation to maintain the confidentiality of the "terms" of the Minutes of Settlement. The agreement did not prohibit a party from disclosing the fact that there was a settlement. Accordingly, there was no breach if the applicant disclosed merely that there was a settlement: see Christian Labour Assn. of Canada, [2009] O.E.S.A.D. No. 404. Indeed, when explaining confidentiality provisions, many counsel and mediators tell claimants that if asked what happened with their claim, they should simply say that "it was settled".

17I do not agree with the applicants that disclosing that a claim was settled implicitly suggests that money was paid or that one party compromised. The reasonable person understands that a settlement is simply that – a decision by both parties to resolve the dispute instead of proceeding with litigation, and may not involve the payment of money. There is also no basis to find that disclosing the fact of the settlement disclosed what was in articles 5, 6, or 7 of this agreement, which deal with the implementation of the settlement and its consequences. In particular because the applicant was self-represented, any ambiguity about what was required by the Minutes of Settlement must be resolved in her favour.

18I note that it is open to parties to negotiate into settlements exactly what a party should say if asked a question about the Tribunal Application. Parties may also negotiate language that prohibits either party from talking about the fact of the claim or the settlement. That said, the safest course for any party subject to a confidentiality provision is to avoid any discussion of the subject, and certainly not to raise the subject as the applicant is alleged to have done here.

19I also find that disclosing the existence of a settlement is not "disparagement" of Canadian Tire. Parties that enter into settlements generally maintain the position that they have done nothing wrong, and I cannot agree with the applicants that, assuming the respondent advised that an Application was settled, this was a "disparaging remark". In light of the values of our legal system, in which resolution of disputes is encouraged, I do not agree that advising that a party settled a claim is a negative comment about that party.

20I find that assuming she made the statements attributed to her, the respondent did not violate the settlement. The Application is therefore dismissed.