Wanda Thornton v. Toronto Police Services Board, 2012 HRTO 2412

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wanda Thornton

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 31, 2012

Citation: 2012 HRTO 2412

Indexed as: Thornton v. Toronto Police Services Board

APPEARANCES

Wanda Thornton, Applicant

Sara Hickey, Counsel

Toronto Police Services Board, Respondent

Darragh Meagher, Counsel

Introduction

1This is a breach of settlement application dated October 19, 2011, and filed under s. 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), arising out of a settlement reached at mediation before the Tribunal on May 20, 2011.

2The applicant alleges that the respondent breached paragraph 9 of the settlement, which provided that the applicant would “be designated as the key point of contact and the subject matter expert for the Audio Data Systems Team on the E-Disclosure Project”.

3While the Application also alleged a breach of another provision of the settlement, this allegation was withdrawn at the hearing.

4A hearing in this matter was held on August 20, 2012. In advance of the hearing, I issued a Case Assessment Direction (“CAD”) dated August 14, 2012, in which I set out my understanding that it was being alleged by the applicant that paragraph 9 of the settlement was breached in the following respects:

a. There was delay in the assignment to the applicant of the designation as “the key point of contact and the subject matter expert for the Audio Data Systems Team on the E-Disclosure Project” and in the assignment of work arising out of this role;

b. That the applicant was not made part of the greater E-Disclosure committee identifying and resolving issues throughout the Toronto Police Service, as opposed to being the subject matter lead within her group and dealing with office-specific issues;

c. That the applicant was not accorded a promised time commitment of 5 to 10% of her work time that would grow over time;

d. That the applicant has not been given a decision-making role, but must run decisions by her supervisor;

e. That the applicant is required to attend all meetings along with her supervisor;

f. That this designation has not provided the applicant with “interesting and challenging” work.

5Having reviewed in detail the materials filed by the parties to be relied upon at the hearing, I indicated in the CAD it appeared to me that much proverbial water may have passed under the bridge since the time the Application was filed. Accordingly, at the commencement of the hearing on August 20, 2012, I indicated that I would be asking the applicant and her counsel to identify for me with specificity how it is alleged that the respondent is in violation of paragraph 9 of the settlement in light of subsequent events.

6Counsel for the applicant confirmed that these remained the issues being raised. Counsel raised two additional representations alleged to have been made by the respondent at mediation, namely that the applicant would be involved in a “train-the-trainer” initiative and that she would be involved in testing the E-Disclosure process more generally in the respondent police service than just as it applied to her unit. These two alleged representations were not raised in the Application. Counsel also submitted that the work being assigned to the applicant was more administrative in nature, which was also alleged to be in breach of paragraph 9 of the settlement. In my view, this issue is appropriately addressed as part of the issue identified as paragraph 4(f) above.

7After receiving these clarifications, I indicated in the CAD that I next wanted to hear submissions from the parties regarding the interpretation of paragraph 9 and particularly whether I should entertain evidence regarding any statements made by the parties during mediation as an aid to the interpretation of paragraph 9. I indicated particular concern about statements alleged to have been conveyed by the parties through the mediator, who is not compellable as a witness, and also generally about statements made at mediation that were not incorporated as part of the text of the settlement agreement. I also invited submissions from the parties regarding the applicability of the parol evidence rule in these circumstances.

8I further advised the parties that, depending upon my disposition of this issue, I may or may not wish to hear evidence from the parties regarding what was said at mediation. In either event, after hearing any such evidence, I indicated that I would invite submissions from the parties as to whether the applicant has a reasonable prospect of success in establishing a contravention of the settlement, on the basis of the materials filed and the proposed testimonial evidence.

9Given how I intended to proceed with the hearing on August 20, 2012, and my need to consider and rule upon the submissions I heard, I advised the parties that we would not be getting to testimonial evidence on that hearing day, with the possible exception of evidence regarding statements made at mediation.

Statements made at mediation

10The applicant’s allegations of a breach of settlement were largely based upon statements alleged to have been made to her at mediation by representatives of the respondent. The Minutes of Settlement reached on May 20, 2011 were a fairly comprehensive document and address a variety of issues, including the payment of a sum of money and the applicant’s rate of pay. In addition, it appears that one of the items sought by the applicant at mediation was a role that would provide her with more interesting and challenging work. In the context of discussions about this item, it appears that the respondent tabled a proposal for the applicant to perform some work in the context of her existing position that related to the E-Disclosure Project.

11There is no dispute that, at some point during the mediation, the mediator convened a meeting with both the applicant and her counsel and the respondent representatives at which this role was discussed. It is at this meeting that it is alleged that the respondent representatives made representations that the applicant would be part of a broader E-Disclosure Committee, that her work in relation to the E-Disclosure Project would amount to approximately 5 to 10% of her workload and would increase over time, that she would be involved in a “train-the-trainer” initiative, and that she would be involved in testing the E-Disclosure system more broadly in the respondent police service.

12After hearing submissions from the parties on the admissibility of evidence regarding statements made by the respondent representatives at mediation, I made the following oral ruling at the hearing:

I am not going to hear evidence regarding statements made at mediation. I do not regard the language of paragraph 9 to be ambiguous as that term has been interpreted in the case law as being susceptible to two meanings. If there were specific elements of the role that were important to the applicant, I would have expected those to have been reflected in the terms of settlement. This also in my view addresses the allegation of misrepresentation. If certain statements were made by the respondent that were important to the applicant in accepting the role, then these should have been reduced to writing and included in the terms. In my view, it is not consistent with the role and practice of mediation at this Tribunal to allow parties to give evidence as to what was said at mediation as an aid to interpreting Minutes of Settlement, particularly in a case such as this where both parties were represented by counsel. To establish a contravention of settlement, the allegations must be based upon the terms as agreed between the parties and as reduced to writing in the settlement agreement. This is consistent with the case law of the Tribunal as referenced in argument.

13I indicated to the parties that I may expand upon this oral ruling in my written decision. In Eli Lilly v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, Iacobucci J. stated (at para. 54) that “the contractual intent of the parties is to be determined by reference to the words they used in drafting the document” and (at para. 55) that “it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face”. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule (see paras. 56 to 58).

14Similar principles are enunciated by the Ontario Court of Appeal in Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538, which cited the Eli Lilly decision for the proposition that, where a document is clear and unambiguous on its face, it is unnecessary to consider extrinsic evidence in order to interpret its terms (see para. 33). The Court further held that “a contractual provision is ambiguous if it is reasonably susceptible of more than one meaning”, in which case “extrinsic evidence may be admitted to assist in resolving the ambiguity” (see para. 34).

15In Ihasz v. Ontario (Revenue), 2011 HRTO 1991, the applicant alleged a breach of settlement on the basis that the settlement required the respondent to permanently maintain him in a specific job. The applicant alleged that, during the negotiation of the settlement, it was his understanding that there was no time limit on the agreement and therefore that he was to be kept permanently in the position provided for in the agreement. In addressing this evidence, the Tribunal stated (at paras. 21 to 22):

A party’s beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement, constitute extrinsic evidence which, in accordance with the parol evidence rule, cannot be considered when interpreting the meaning of the words of the contract. Thus, in the absence of exceptional circumstances, I cannot impute the applicant’s intentions and beliefs into the written word of the agreement. As explained in Barter v. Bata, 2010 HRTO 325, “there is no basis to circumvent the parol evidence rule, whereby an agreement is to be interpreted on the basis of its provisions and a court or tribunal will not entertain ancillary evidence about the parties’ intentions”.

I agree with the respondent that if the parties intended to give the applicant an absolute entitlement to the position offered . . . then such a right would have been explicitly stated in the Minutes of Settlement or Letter of Employment, particularly given the magnitude of the benefit.

16In my view, as a pre-condition to hearing extrinsic evidence regarding statements made at mediation, I need to find that the language of the term at issue is ambiguous, in the sense that it is reasonably susceptible of more than one meaning. More particularly, I need to make such a finding in the context not of some ambiguity generally, but in relation to the specific allegations raised. For example, the applicant alleges that it was represented to her at mediation that she would be part of the broader E-Disclosure Committee. The respondent’s position is that this was not what was agreed upon. I need to consider whether there is some ambiguity in the language of paragraph 9 of the settlement which makes it reasonably susceptible of these two meanings. I find that there is no such ambiguity. The language of paragraph 9 clearly speaks to the applicant assuming a role within her existing team and not more broadly within the respondent police service. Similarly, it is alleged that the respondent represented at mediation that the applicant’s work on the E-Disclosure Project would entail 5 to 10% of her workload and would increase over time. In my view, as there is nothing in paragraph 9 that speaks to any specific time commitment for the applicant’s role in relation to the E-Disclosure Project, there is no proper basis upon which I can find the settlement language to be ambiguous in this regard. While not raised in the Application, I note that the alleged representations regarding the applicant being involved in “train-the-trainer” initiatives or testing the E-Disclosure system more broadly within the respondent police service also are neither set out in paragraph 9 nor do I see any ambiguity in the language of that provision that would encompass these activities.

17The applicant submits that another exception to the parol evidence rule exists where misrepresentation is alleged, citing Fridman, The Law of Contract in Canada, 6th ed. at p. 449. The circumstances in which an allegation of misrepresentation will allow the introduction of extrinsic evidence in the face of unambiguous terms of a settlement agreement were not made clear to me. In my view, there is a distinction between misrepresentations and statements alleged to have been made by a party at mediation in the context of the kind of settlement term at issue in this case.

18While misrepresentation and fraud are exceptions to the parol evidence rule, such an argument is usually raised to vitiate an agreement rather than uphold it. The kinds of statements the applicant is alleging were made in this case are not really misrepresentations (i.e. statements clearly wrong on their face) but rather are representations about the extent and scope of the duties to be assigned. The contract law principles related to representations that apply here are the principles relating to collateral contracts and warranties. As a general rule, parol evidence is admissible to establish a representation that induced someone to enter into a contract (i.e. to establish there was a distinct collateral agreement), but such evidence is only admissible to establish such a distinct collateral agreement where the oral evidence is not contradictory or inconsistent with the written contract (i.e. where the written agreement is silent). In this case the written contract is not silent on this point but rather has a provision that expressly addresses the duties to be assigned to the applicant. In order for a collateral agreement to be binding upon the parties, there must be a clear intention to create a binding agreement: see Hawrish v. Bank of Montreal, 1969 CanLII 2 (SCC), [1969] S.C.R. 515. In my view, there is no proper basis upon which to make such a finding where the parties expressly addressed the duties to be assigned to the applicant in the settlement agreement with a provision that did not include the representations upon which the applicant seeks to rely.

19It may be that there was discussion at mediation as to whether the applicant’s role in relation to the E-Disclosure Project would involve her being a member of the broader E-Disclosure Committee and that her role in the E-Disclosure Project would take up 5 to 10% or more of her time, and it may be that the applicant subjectively believed that these assurances had been made. But in my view, if these matters were important to the applicant in the sense that she wanted to be able to enforce upon the respondent a requirement to make her part of the broader E-Disclosure Committee and to provide her with work that would fulfil a specific allotment of time, then these were matters that properly ought to be reflected in the terms of the written settlement agreement, particularly where counsel were involved.

20Finally, as I mentioned briefly in my oral ruling, I do not believe that it is consistent with the practice of mediation at this Tribunal to allow parties to introduce evidence regarding statements made at mediation by opposing parties in order to add to or enhance what is set out in a written settlement agreement. The parties to mediation at the Tribunal are routinely informed that statements made by opposing parties are “without prejudice” in the sense that they cannot be used as evidence at any Tribunal hearing or in any other proceeding. This is part of the Confidentiality Agreement that parties sign as a pre-condition for engaging in mediation at this Tribunal. The purpose of this is to encourage open and frank discussion in an effort to resolve the matter, without any of the parties having to fear that what they say could be used against them at some later stage. In my view, it would be inconsistent with such practice to allow a party to introduce evidence regarding statements alleged to have been made by an opposing party at mediation in order to buttress a breach of settlement allegation. At mediation, the parties reduce any settlement agreement to writing for a reason, which is to have a clear record regarding what they have agreed upon and to afford a basis for enforcement, where necessary, under s. 45.9 of the Code. If there are significant elements of the agreement that a party is relying upon as part of the resolution, then these should be reduced to writing and contained in the written settlement.

21Accordingly, for these reasons, I found that evidence regarding alleged statements made at mediation was inadmissible at the hearing before me.

Reasonable prospect of success

22After making my oral ruling that I would not admit evidence regarding statements made at mediation, I next heard submissions from the parties regarding whether the applicant has a reasonable prospect of success in establishing that the respondent breached paragraph 9 of the settlement based on the materials filed.

23This Tribunal’s case law has established that at any appropriate point in the hearing process, an adjudicator can request submissions from the parties as to whether an applicant has a reasonable prospect of success in proving her or his allegations: see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

24The principles relating to an assessment of whether an applicant has a reasonable prospect of success in establishing a violation of the Code were articulated by this Tribunal in Dabic v. Windsor Police Service, 2010 HRTO 1994. Adapting these principles to the context of a breach of settlement application, the question would be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to her can show a breach of some specific provision of the settlement.

25There are three main areas where the applicant alleges a contravention of paragraph 9. First, she alleges that there was delay in implementing this term. The Application states that applicant’s counsel contacted counsel for the respondent in June 2011 to follow up on an alleged failure to implement the terms of paragraph 9. Respondent counsel replied on July 19, 2011 to state that it was in full compliance with the settlement and that all terms had been implemented. In fact, it appears that as of this date, the applicant had not yet been formally assigned any duties in relation to the E-Disclosure Project.

26On July 29, 2011, the applicant was formally advised by Staff Sergeant Smythe that she had been designated as the key point of contact and the subject matter expert for the Audio Data Systems (“ADS”) Team on the E-Disclosure Project. In this regard, she was advised specifically that:

As the key point of contact, your role will include liaising with personnel from Divisions, Detective Services, Court Services and the E-disclosure project team on matters relevant to Audio and Data Systems; to monitor the implementation process as it pertains to the ADS unit; record issues and concerns as they arise and discuss them with involved personnel with the goal of successful resolution; attend meetings and training sessions as a representative of the ADS unit and any other required tasks as identified during the project.

27The respondent’s E-Disclosure Project is intended to provide an efficient and standardized electronic disclosure process to reduce and/or eliminate the use of hardcopy production of paper copies of disclosure and, in doing so, increase efficiencies and productivity in its production, while reducing costs. This project is being implemented across the entirety of the scope of operations of the respondent’s operations.

28The E-Disclosure Project at the respondent police service dates back to 2004, and as early as 2009, was used by the respondent in the context of complex homicide cases. As of the date upon which the parties entered into the settlement on May 20, 2011, the E-Disclosure Project was being brought to Divisions and area courts for everyday court disclosure.

29The date upon which the E-Disclosure Project was scheduled to be rolled out for the ADS team was December 1, 2011. After that date, the ADS team would send disclosure materials to the court supporting a number of police Divisions using the E-Disclosure system.

30The documentary evidence before me indicates that the applicant was assigned a number of duties relating to the rollout of the E-Disclosure Project and its impact on the work of the ADS team in the lead-up to the rollout on December 1, 2011. The applicant participated in a demonstration of the E-Disclosure process to the members of the ADS unit, she prepared a written workflow for the ADS unit in relation to the project with input from team members, she was assigned the task of completing testing of the link for 32 Division in order to ensure that technical issues were resolved prior to the rollout, and she was assigned to continue to identify, analyze and resolve issues as the project rolled out and report these to her supervisor.

31In my view, there was no real delay in the implementation of the applicant’s role on the ADS team in relation to the E-Disclosure Project or in the assignment of work in relation to this project. The undisputed fact is that the project was being rolled out for the ADS team as of December 1, 2011. In this context, it makes sense to me that there would not be any specific work for the applicant in relation to this project and her role on the ADS team until the time period leading up to the rollout. The undisputed evidence before me indicates that the applicant was in fact assigned the role as key point of contact and subject matter expert for the ADS team within a reasonable period of time following the settlement on May 20, 2011 in relation to the rollout of this project for the ADR team. Accordingly, in my view, there is no reasonable prospect that the applicant will be successful in establishing that there was delay in the implementation of paragraph 9 in breach of the settlement.

32The applicant next submits that she does not have any autonomous decision-making role in relation to her work on the E-Disclosure Project and must run all decisions by her supervisor, and that she is required to attend all meetings together with her supervisor. This is alleged to be a violation of paragraph 9 of the settlement. There is nothing in the settlement that speaks to the applicant having autonomous decision-making authority in relation to her role or that she be entitled to attend meetings without her supervisor. This, in my view, is simply a reflection of the chain of command within a large organization such as the respondent police service. The fact that paragraph 9 of the settlement states that the applicant would be designated as the key point of contact and subject matter expert for the ADS team on the E-Disclosure Project does not require that she be given independent authority to make decisions outside of the chain of command or be entitled to attend meetings independently of her supervisor. In my view, there is no inconsistency between the applicant being the key point of contact and subject matter expert for the ADS team in relation to the project, while still being required to adhere to the decision-making authority and oversight of her supervisor. Accordingly, I find that this allegation does not give rise to a reasonable prospect of success in establishing a breach of paragraph 9 of the settlement.

33Finally, the applicant alleges that she is not being assigned “interesting and challenging work” in relation to this role, but instead is being assigned duties that are more administrative in nature. In submissions before me, the applicant took the position that she was being given no greater responsibilities in relation to the E-Disclosure Project than any other member of the ADS team. This submission is not consistent with the documentary evidence before me, as filed by both parties, which indicates that the applicant in fact has been given roles and responsibilities in relation to the E-Disclosure Project that were unique to her and not assigned to other members of the ADS team.

34It is not a term of the settlement that the applicant be assigned “interesting and challenging work”. I appreciate that there is medical documentation that had been disclosed by the time of the mediation indicating that the applicant’s medical condition would be improved if she experienced a “positive work environment” and if her work placement “met her needs more effectively”. However, that also is not a term of the settlement. It may be that the applicant hoped that the role she agreed to in the settlement would afford her with “interesting and challenging work”, but the applicant’s subjective intent is not the measure by which I need to determine whether there is a reasonable prospect of her establishing a breach of the settlement. Rather, my determination must be based upon the term of the settlement itself.

35As I already have indicated, the settlement term as agreed upon by the parties provides that the applicant will be designated as the key point of contact and subject matter expert for the ADS team on the E-Disclosure Project. It is my view that the formal assignment of this role to the applicant on July 29, 2011, and the work she has been doing as evidenced by the documents before me indicates that this term of the settlement has been fulfilled. Whether the applicant regards the work that flows from the role as being more “administrative” in nature as opposed to what she would regard as “interesting and challenging work” is not the issue. The work is what the work is. While it may be that the amount of work relating the E-Disclosure Project has decreased as the project has been implemented and issues have been resolved, this would not establish a breach of paragraph 9 of the settlement.

36Accordingly, I find that the applicant has not established that she has a reasonable prospect of proving a breach of paragraph 9 of the settlement.

37As a result, the Application is dismissed.