Mitchinson v. Niagara Child and Youth Services, 2012 HRTO 2174

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elisabeth Mitchinson Applicant

-and-

Niagara Child and Youth Services (now known as Pathstone Mental Health) Respondent

-and-

David Baker Intervenor

DECISION

Adjudicator: David Muir Date: November 20, 2012 Citation: 2012 HRTO 2174 Indexed as: Mitchinson v. Niagara Child and Youth Services

APPEARANCES

Elisabeth Mitchinson, Applicant Self-represented

Niagara Youth and Family Services (now known as Pathstone Mental Health), Respondent Leslie Brown and Anne Verschagen, Counsel

David Baker, Intervenor Louis Sokolov, Counsel

1These are two Applications filed under section 45.9(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement. Tribunal file number 2012-11539-S (the first Application) was filed on May 14, 2012. File number 2012-12668-S (the second Application) was filed on October 2, 2012. A hearing was held by telephone conference call on Monday October 29, 2012. Subsequent to the hearing the applicant filed further submissions in part related to the issues canvassed here. Although irregular, neither the respondent nor the intervenor has commented and I have considered those submissions in coming to the conclusions below.

2The background to these Applications is extensive and is described in three Interim Decisions of the Tribunal: 2012 HRTO 1243, 2012 HRTO 1446, and 2012 HRTO 1765. My description of the development of this case from 2012 HRTO 1765, which was issued on September 19, 2012, is set out here:

The procedural history of this Application is somewhat complex and is set out in part below. In this Application the applicant alleged a breach of settlement of a prior Application (Tribunal File #2010-07633-I) before the Tribunal, pursuant to 45.9(3) of the Code. At the hearing of the prior Application in April 2012 the parties entered into settlement discussions which resulted in Minutes of Settlement (MOS) which included, amongst other terms, the payment of a global sum to the applicant allocated between legal fees and general damages. The MOS provided as they often do that the settlement funds would be payable to the applicant’s counsel in trust. The parties executed and file[d] a Form 25 advising the Tribunal that the case had settled and jointly requesting that the Tribunal finally dispose of the Application and close its file.

A dispute apparently arose between the applicant and her counsel, Mr. David Baker, who she dismissed the day following the execution of the MOS. Consequent to this dispute a further issue arose with respect to the implementation of the MOS. Contrary to its strict terms, the applicant requested that the settlement funds be sent directly to her. As I understand it Mr. Baker has apparently proposed that the applicant and the respondent agree to an amendment of the MOS to allow the funds to be payable directly to the applicant. The respondent has to date refused to agree to the suggested amendment of the MOS.

The applicant filed a Request for Interim Remedy which was denied in 2012 HRTO 1243. In the same Interim Decision I granted the respondent’s Request for Summary Hearing. Subsequent to this Interim Decision the applicant filed a Request to Withdraw this Application but at the same time sought an Order from the Tribunal setting aside the MOS. In her Request to Withdraw the applicant appeared to acknowledge that there was little merit to her allegation of a breach of settlement but it remained unclear what it was she was actually seeking.

In response to a subsequent Case Assessment Direction seeking clarification of the applicant’s position, it became clear that the applicant was seeking an Order setting aside the MOS and re-opening the prior Application. The applicant alleges that this is appropriate having regard to what she alleges was serious misconduct by Mr. Baker as well as the respondent and their counsel. It may be therefore that the Breach of Settlement Application and the subsequent Request to Withdraw are moot.

In her Request to Withdraw the applicant also alleged that I and every other member of the Tribunal were biased and could not adjudicate these issues because her former counsel, Mr. Baker, is a member of the Tribunal’s Practice Advisory Committee. Consequent to the allegation of bias the applicant also sought an Order from the Tribunal appointing a “disinterested person”. pursuant to section 16 of the Public Officer’s Act, R.S.O, 1990 c. P.45. In 2012 HRTO 1446 I dismissed the applicant’s claim of bias. I also concluded that the Tribunal had no authority to appoint a “disinterested person” pursuant to section 16 of the Public Officer’s Act, R.S.O, 1990 c. P.45.

A number of issues have arisen subsequent to the events described above. The applicant evidently disagrees with my conclusions in 2012 HRTO 1446. In correspondence dated August 8, 2012 the applicant requested a second decision of the Tribunal on her bias allegation from the Associate Chair David A. Wright. Although not framed precisely in this way and not using the correct Form, it appears that the applicant is seeking the Reconsideration of the Interim Decision pursuant to section 45.7 of the Code. The applicant has also commenced a civil proceeding related to the issues arising out of this Application and has requested the deferral of this Application pending the conclusion of that matter. As well the applicant’s former solicitor has filed a Request to Intervene which has not yet been addressed. This Interim Decision deals with these latter issues.

3The applicant’s former solicitor was granted intervenor status pursuant to his Request to Intervene. The Request to Defer and the Request for Reconsideration were both denied. See 2012 HRTO 1765.

4As indicated above, on October 2, 2012, the applicant filed a second Application alleging a breach of settlement (the Second Application). The Second Application related to the same MOS but in a reversal of her position the applicant sought not the setting aside of the MOS but, amongst other things, an Order directing that the respondent comply with the MOS.

5At that stage, the positions the applicant was taking in the two Applications appeared to be contradictory. Consequently, I issued a Case Assessment Direction on October 5, 2012, seeking clarification of the applicant’s position with respect to the validity of the MOS. The applicant confirmed her position that she sought enforcement of the MOS as agreed on April 17, 2012, and in the alternative an Order setting the MOS aside. At the same time I sought the parties’ submissions on consolidation of the two Applications and based on apparent agreement of the parties, the intervenor having taken no position, and the fact that the two Applications related to the same MOS I ordered them consolidated.

6In a Case Assessment Direction issued on October 15, 2012, I directed that at the hearing the parties would address the following issues arising out of the Second Application:

a. Whether as alleged by the applicant the respondent is in breach of the April 17, 2012 MOS, or whether as alleged by the respondent it is not in breach;

b. Whether it is within the Tribunal’s jurisdiction to make the kind of orders/directions sought by the respondent (see below); and

c. If a breach of settlement is found what is the appropriate remedy?

7I also directed that if there was time the parties could address a number of issues that arose out of the First Application. At the hearing the applicant indicated that she was withdrawing her argument that the MOS should be set aside and these matters were not addressed at the hearing.

8The respondent has taken the position since the filing of its Response to the First Application that it has not breached the MOS, but alleges that the applicant is herself in breach of the terms of the settlement in essentially two ways: first, by not allowing the respondent to implement the MOS according to its terms and, second, by threatening to reveal the terms of the MOS. The respondent has also taken the position from the beginning of this proceeding that the applicant and/or her spouse have engaged in a course of vexatious conduct against them in an attempt to compel the respondent to comply with their demands in this case.

9It is reasonably clear that the respondent did seek to implement the MOS as agreed on April 17, 2012, and it was the applicant who sought to change the terms of the agreement. The respondent also alleges that the applicant was in breach of the settlement by threatening to and in fact in one respect violating the confidentiality provisions of the MOS. The respondent also alleges that the applicant has engaged in an abuse of the Tribunal’s process in the manner in which she has conducted herself in the course of this dispute, in particular in her treatment of the respondent and some of its officials/employees as well as the Tribunal.

10In its Response to the Second Application the respondent reiterated its position as set out above, but stated that due to the ongoing nature of the behaviour of the applicant and her spouse it sought additional relief (see below).

11On October 25, 2012, the applicant filed a Request to Defer these Applications pending the conclusion of criminal proceedings concerning an alleged assault by the applicant’s spouse during the course of a related court proceeding.

The Positions of the Parties

12At the hearing, the applicant reiterated her position that she was prepared to accept implementation of the MOS in accordance with its terms. The respondent’s position remained unchanged from the position it took in its Response to the First Application, in that it stood ready to comply with the MOS but in light of the alleged conduct of the applicant and her spouse since late April 2012, it could not do so without the Tribunal addressing that conduct with a number of directions based on the applicant’s breach and threatened breach of the MOS as well as alleged abuse of the Tribunal’s process.

13In its Response to the First Application the respondent sought the following relief:

a. A direction that the applicant comply with the MOS. The respondent states that upon the Direction of the Tribunal it will re-send the package consisting of the settlement monies and the reference letters to the applicant’s former solicitor, the intervenor in this case;

b. A direction that the applicant and her spouse cease any and all disturbing coercive, abusive, discriminatory and threatening email communication with the respondent;

c. A direction that the applicant and her spouse maintain confidentiality of the MOS.

14In its Response to the Second Application the respondent reiterated its need for the directions above, but also sought a direction that the applicant and/or her spouse cease posting disparaging comments about Elliot Katsof and/or the respondent on the internet and to cease attending at the homes of any member of management and/or the Board of Directors.

The Deferral Issue

15The applicant sought the deferral of this case pending the resolution of a criminal charge against her spouse arising out of an alleged assault by her spouse on the Executive Director of the respondent during the course of a related civil proceeding.

16The Tribunal may defer consideration of an Application under its Rules. Typically, deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The applicant argued that the criminal proceeding was outside of the Tribunal’s jurisdiction. What I understood the applicant to be arguing was that if in the criminal proceeding it is proved that the applicant’s spouse was provoked by the respondent resulting in the alleged assault the remedies sought by the respondent would not be justified. The respondent opposed the deferral Request and in response to my query indicated that it did not need to rely on the alleged assault and in fact did not refer to it again in its submissions on the other issues to be dealt with.

17I agree with the respondent that it would not be appropriate to defer this Application. In coming to this conclusion I have considered the fact that the respondent indicated that it did not need to rely on, and in fact did not rely on, any allegation of assault in relation to the proceedings before the Tribunal. In the end, the question of whether or not an assault occurred as alleged is immaterial to my conclusions on the remaining issues in this case. While I agree with the applicant that I have no criminal jurisdiction, in the circumstances of this case whether or not there was an assault is of no consequence to my determinations. To be clear, even assuming that an assault had taken place as alleged by the respondent, it would not change my conclusions below.

The Abuse of Process Issues

18The respondent takes the position as indicated earlier that it stands ready to implement the MOS immediately but requires the directions above because of what it characterizes as breaches of confidentiality and abuses of the Tribunal’s process by the applicant. It also argues that the applicant is in breach of the MOS and it is not.

19The confidentiality provisions of the MOS and Release are fairly standard and require the parties to keep the terms of the MOS strictly confidential and they agree that they shall not disclose their contents to any person with some exceptions, including the applicant’s spouse in this case. The confidentiality provision of the MOS is set out here:

The parties agree that the terms of settlement outlined herein shall be confidential and treated as confidential by both parties, subject only to disclosure to competent regulatory agencies, for the implementation of the settlement including reporting to the Agencies’ Board of Directors and the processing of payments under this agreement, to legal counsel, to the Applicant’s financial advisor and spouse as otherwise required by law.

20Confidentiality of settlements is often important to the parties and is usually of particular importance to respondents. It is often a central element of the consideration they negotiate for in a settlement. Clearly confidentiality was an issue for the parties in this case because it is referred to more than once in the settlement documents.

21The applicant denies that she has breached the settlement provisions of the MOS. The applicant also takes the position that only she is bound by the MOS and its confidentiality provisions do not apply to her spouse. I do not agree on either score.

22The applicant is correct that her spouse did not sign the MOS or the Release, but for the reasons below, I find that the parties intended that the applicant’s spouse be bound by the confidentiality provisions and to the extent that he may not be directly bound, the applicant has assumed the risk of any breach of the confidentiality provisions by her spouse. Accordingly any breach of the confidentiality provisions by the applicant’s spouse is a breach of her obligations under the MOS.

23It is clear from all of the material that the applicant’s spouse has been an active participant in these and the prior proceedings. He signed the mediation agreement when mediation was facilitated by the Tribunal. He attended at the hearing on April 17, 2012, and was an active participant in the settlement discussions that took place there. He was present on the conference call hearing held on October 26, 2012. It is also significant that the applicant has taken no steps to disavow the actions and statements of her spouse or to distance herself from them; indeed, she appears to take the position that her spouse is entitled to breach the confidentiality provisions of the MOS and that this does not result in a breach of the agreement. There can be little doubt based on the emails and other materials filed by both the respondent and the applicant that both the applicant and her spouse have threatened on more than one occasion to breach the confidentiality provisions of the MOS and Release. I also have no hesitation in concluding that the applicant’s spouse has disclosed a term of the MOS on a website that he has established with the apparent purpose of seeking a resolution of this dispute by, in his words, “exposing the alleged bad faith of the respondent and its Executive Director.”

24In the absence of any evidence that the applicant is unaware of her spouse’s threats and actual revelation of one of the provisions of the MOS I find that the applicant was aware of and either approved or consented to her spouse’s actions. In any case there are emails from the applicant herself threatening to reveal the contents of the settlement.

25I also find that it is an implied term of the confidentiality provisions that the parties intended the applicant’s spouse to be bound by those provisions. The confidentiality provisions of the MOS provide that the applicant’s spouse is one of the few people to whom the applicant was entitled to reveal the content of the MOS. The other classes of individual listed in the provisions are ones who would clearly be bound to preserve the confidentiality provisions either as matters of professional conduct or fiduciary obligation (e.g. legal counsel or financial advisors). To conclude that the confidentiality provisions could be circumvented by the applicant through her spouse would produce an absurd result. On this point I agree with the respondent that to conclude otherwise would entirely defeat the purpose of the confidentiality provisions of this settlement agreement. There would be little or no incentive for many respondents to settle cases if the confidentiality terms of the settlement could be circumvented by disclosure by someone contemplated as entitled to know the contents of the settlement.

26I do acknowledge that the revelation of the provision in question by the applicant and/or her spouse on the website – the agreement that the settlement funds be paid to the applicant’s former solicitor in trust – is expressed obliquely and while it would be readily apparent what was meant to anyone familiar with how settlements are often implemented, its revelation is not particularly damaging to the interests of either the respondent or the applicant. Nonetheless, as damaging to their interests as it would be for the applicant or her spouse to reveal anything further about these MOS, the threat to do so has been made more than once and not withdrawn.

27In considering whether or not the applicant’s actions with respect to the confidentiality provisions of this settlement might constitute an abuse of process, I found helpful the following passage from Campbell v. Toronto District School Board, 2008 HRTO 62, and the cases cited there:

The term abuse of process has been applied to a variety of circumstances in which a court or tribunal has found it unfair to permit proceedings to continue. It may bring proceedings to an end where there has been inordinate delay (see Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, 2000 S.C.C. 44), where in the criminal context there has been unfair or oppressive treatment of an accused (R. v. Conway 1989 CanLII 66 (SCC)), or based on the cumulative effect of breaches of fairness and delay (Anonuevo v. General Motors of Canada Ltd (No. 3) (1998) 32 C.H.R.R.D/322 (Ont. Bd Inq)).

28In my view the applicant’s threats to breach a key provision of the MOS in an attempt to coerce the respondent to change its position while at the time seeking to enforce the MOS in this proceeding constitutes an abuse of process.

29Given my conclusions above and in light of the central importance of confidentiality of the terms of these MOS for both parties, I find it appropriate to make Orders confirming the obligations of the applicant and her spouse to maintain the confidentiality of all of the terms of the MOS. I also note that the disclosure of the one term of the settlement has been made on a website established by the applicant and/or her spouse which may still be active. All references to the terms of the settlement should be removed. Any future breaches of the confidentiality provisions of the MOS or Release may constitute a breach of settlement for which the party alleging such a breach would be entitled to seek damages.

30In light of the material before me, I also have no hesitation in concluding that the applicant’s spouse, acting with the consent of the applicant and essentially as her representative, has been engaged in a campaign to intimidate the respondent into acceding to the applicant’s demands in this litigation which until recently would have required the respondent to accept an amendment to the MOS. In my view such actions constitute an abuse or process.

31I also have no hesitation in concluding that the applicant has engaged in an abuse of the Tribunal’s process in the manner in which she and her spouse have treated the respondent and the Tribunal in these proceedings. In addition to the threatened revealing of the terms of the MOS, which in the context of this proceeding constitutes an abuse of process, the applicant’s communications with the Tribunal and the respondent have been at times abusive and disrespectful. Amongst many other abuses the applicant has made serious yet completely unsupported allegations of collusion between counsel in relation to the settlement discussions on April 17, 2012, as well as serious yet completely unsupported allegations of fraud on the part of the respondent. As well, as can be seen from a review of the various Interim Decisions in this case, the applicant has also made serious yet completely unsupported allegations against myself and the Tribunal as a whole of bias and repeated baseless charges of favouritism shown to the intervener and respondent. These unsupported allegations of bias and favouritism on the part of the Tribunal and myself continued to the date of the hearing and were repeated in the post-hearing submissions of the applicant.

32Notwithstanding these considerations and despite the able argument of the respondent, I do not agree that I have the jurisdiction to grant what amounts to an injunction prohibiting the applicant and her spouse from conducting themselves in certain ways going forward. The Tribunal does have jurisdiction to control its process and prevent its abuse, however it is confined to the conduct of the parties within its process including how they treat each other, the Tribunal and its staff. The cases the respondent referred me to confirm these points. See also Felix v. Global Payments, 2011 HRTO 1983; Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667; and Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 2085. However the respondents could point me to no authority for the proposition they have advanced and in my view it is beyond my jurisdiction to give them what they want – an end to the campaign of harassment by the applicant’s spouse. See Felix v. Shopper’s Drug Mart, 2010 HRTO 2179. Their remedies for such behaviour in the unfortunate event that it should continue lie elsewhere.

33I also do not entirely agree that what the respondent is seeking amounts to nothing more than putting the parties back in the position they were on April 17, 2012. While I agree that the conduct of the applicant and more particularly her spouse, in his campaign in a misguided attempt to support the applicant, has been abusive, coercive and at times discriminatory, nonetheless what the respondent seeks now amounts to the inclusion of a non-disparagement clause into the MOS, something that could have been negotiated at the hearing. While I agree that some of the more extreme conduct engaged in here might not have been contemplated at the time the MOS were executed, it was not beyond the realm of possibility that the dispute between the parties would not come to a complete end with the MOS.

34I have also considered that there is a value in bringing this matter to an end immediately and that with its ending some of the behaviours the respondent is concerned with may cease. I also take the applicant’s point that I would likely need evidence of the applicant’s or her spouse’s attendance at the home or homes of officials of the respondent before even considering their request for an order prohibiting the applicant from doing so in the future. I am also concerned that by their very nature the respondent’s requests may give rise to further litigation. Further delay in ending this dispute can only be to the detriment of the parties, perhaps not least to the applicant’s interest in this settlement.

35In all of the circumstances, including the fact that this decision disposes of the application, I decline to make any specific orders with respect to my findings on abuse of process.

Orders

36Counsel for the intervenor advised that he is prepared to receive the settlement funds and reference letters contemplated by the MOS and process those payments as required by the agreement, with a Direction to do so from the Tribunal. The respondent confirmed again its willingness to implement the MOS recognizing that the passage of time has meant that the schedule of payments has been delayed. The applicant as indicated has abandoned her argument that the MOS should be set aside and is agreed to allow the respondent to now implement the MOS according to their terms.

37The applicant also requested interest on any delayed payments to her. The applicant also sought whatever damages the Tribunal considered appropriate in the circumstances.

38As I indicated earlier it is my view that the delay to date in implementing the MOS rests largely with the applicant. The short delay attributable to the respondent’s reluctance to comply when advised by the applicant in September that she was prepared to accept implementation in accordance with the terms of the MOS is in all of the circumstances reasonable. I do not find that it is appropriate to award either interest to date or further damages to the applicant.

39The MOS contemplated a schedule of payments. As of this writing all of the payments contemplated by the MOS should have been made. The respondent did not make any submissions in support of a rescheduling of those payments. Accordingly the respondent shall make all payments required under the MOS within 21 days of the date of this Decision.

40For all of the reasons set out above the Tribunal makes the following Orders:

a. The parties will forthwith comply with and implement the MOS as agreed to on April 17, 2012.

b. The intervenor will receive and process the payments and reference letters contemplated by the April 17, 2012 MOS in accordance with the terms of the parties’ agreement.

c. The applicant and her spouse, Timothy Mitchinson, are bound by the confidentiality provisions of the MOS and Release. All references to the terms of the MOS will be removed from any website established by Mr. Mitchinson.