Aird v. McCollough, 2011 HRTO 398

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dean Aird

Applicant

-and-

Glenn McCollough and Steven Kendall

Respondents

decision

Adjudicator: Douglas Sanderson

Date: February 23, 2011

Citation: 2011 HRTO 398

Indexed as: Aird v. McCollough

APPEARANCES

Dean Aird, Applicant ) Self-represented

Glenn McCollough and ) Alanna P. Brogan, Steven Kendall, ) Counsel Respondents )

1This matter is an an Application under s. 45.9(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging contravention of the settlement between the parties that resolved a previous application to the Tribunal. Specifically, the applicant alleges that the respondents breached the confidentiality requirements set out in the Minutes of Settlement.

2The Tribunal ordered the hearing to proceed by teleconference in a Case Assessment Direction, dated January 20, 2011. The Tribunal also directed the applicant to be prepared to explain his allegations and how they amount to a breach of the minutes of settlement, including how the confidentiality requirements of the settlement between the parties apply to the respondents. The hearing by teleconference proceeded as directed.

3For the reasons which follow, the Application is dismissed

4On March 1, 2010, the parties settled a previous Application involving them during a Tribunal mediation session and executed Minutes of Settlement (“the Minutes”). The Minutes included confidentiality language, as follows:

6. The Applicant agrees to maintain the strict confidentiality of the terms of these Minutes of Settlement, except that he may disclose the terms to members of his immediate family and his legal and financial advisors or except as required by law.

5Subsequent to the settlement, the applicant made another claim against the respondents. The respondents referred the matter to their insurance company, Aviva Canada Inc. (“Aviva”). Aviva informed the applicant that the claim was resolved in the settlement of the previous Application and was barred by the release language contained in the Minutes.

6The applicant submitted that everyone who attended the mediation session was required to sign a Confidentiality Agreement that required the attendees to maintain the confidentiality of the session. The applicant acknowledged that the confidentiality provision in the Minutes only applied to him, but argued that the Confidentiality Agreement covered the Minutes as well as communication during the session. Therefore, the applicant believes that the respondents breached the confidentiality of the Minutes by communicating them to Aviva. The applicant also noted that correspondence he received from the Tribunal came in envelopes marked “Confidential”. The applicant argued this was further evidence that all aspects of the application, including the Minutes, were confidential and could not be disclosed by the respondents.

7Counsel for the respondents made three submissions. First, she noted that Aviva defended the respondents in the original Application. Pursuant to the contract of insurance between Aviva and the respondents, Aviva acts “in the name of the insured” and is effectively “one” with the insured in the litigation. Aviva participated in the matter and was aware of the Minutes as a result of that participation. Consequently, the respondents did not disclose the Minutes to Aviva.

8Second, in the face of a claim covered by the Minutes, the respondents were entitled to rely on the release contained in the Minutes. If the Minutes were secret, as the applicant seemed to suggest, they would be effectively useless.

9Third, the confidentiality requirement set out in the Minutes applied only to the Applicant. The respondents were not required to maintain the confidentiality of the Minutes and therefore could not contravene the settlement by disclosing the terms of it.

ANALYSIS

10The Tribunal encourages parties to settle and offers mediation and mediation-adjudication to facilitate settlement. As the applicant noted, the Tribunal requires anyone attending a mediation session to sign a Confidentiality Agreement. The Confidentiality Agreement promotes the free exchange of ideas and offers during mediation. However, a Confidentiality Agreement applies only to communications during mediation and does not apply to the terms of settlement. Minutes of Settlement are a contract between the parties to it and, by and large, they may agree to whatever terms they wish, including the extent to which a party may disclose whether a settlement exists and in what circumstances disclosure of the terms of settlement is permitted.

11Before addressing the terms of settlement, it is appropriate to address the fundamental issue of whether the respondents actually disclosed the Minutes. In this regard, I accept the respondents’ submission (which was not disputed) that Aviva acted on behalf of the respondent in defending the previous Application. The respondents and Aviva were thus not separate entities for the purpose of any confidentiality requirements surrounding the previous Application. Aviva was aware of the Minutes because it acted for the respondents in negotiating them. If there was a disclosure between the parties specifically in attendance at the mediation and other Aviva personal, for the purpose of reviewing the applicant’s subsequent claim, it did not amount to disclosure to a third party.

12Turning to the terms of the Minutes, the parties chose confidentiality language that applied only to the applicant. Accordingly, disclosure of the Minutes by the respondents, had it occurred, would not have amounted to a contravention of the settlement. I also reject the applicant’s submission that the respondents were required to maintain the confidentiality of the Minutes because the Tribunal marks envelopes as “Confidential”. Marking an envelope “Confidential” merely indicates that the contents of the envelope relate to a sensitive matter for the addressee and should be handled accordingly. The Tribunal typically marks correspondence to parties in this manner, but this practice has no bearing on the terms of settlements and, in particular, does not insert a confidentiality requirement not agreed by the parties.

13I find the respondents did not disclose the Minutes given its relationship with Aviva and, in any event, the respondents were not obliged to maintain the confidentiality of the Minutes. I do not need to deal with the respondents’ other submission to dispose of the matter. The Application is dismissed.