Levinsky v. Canadian Tire Corporation, 2012 HRTO 783

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberley Levinsky

Applicant

-and-

Canadian Tire Corporation

Respondent

decision

Adjudicator: Sheri D. Price

Date: April 18, 2012

Citation: 2012 HRTO 783

Indexed as: Levinsky v. Canadian Tire Corporation

APPEARANCES

Kimberley Levinsky, Applicant ) Self-represented

Canadian Tire Corporation, Respondent ) S. John Page, Counsel

INTRODUCTION

1This is an Application under s.45.9(3) of the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the “Code”), in which the applicant alleges that the respondent breached the settlement of her 2009 human rights Application against the respondent. Specifically, the applicant alleges that the respondent breached its obligation under the October 27, 2010 Minutes of Settlement “to maintain confidentiality of the terms of [the] Minutes of Settlement” and not to “disclose the terms of settlement with anyone other than immediate family, or legal or financial advisors, or as required by law”.

2The respondent denies the applicant’s allegations.

3A hearing was held by way of teleconference on March 26, 2012, at which the parties were given an opportunity to present their evidence and arguments with respect to the Application.

BACKGROUND

4In or around 2009, the applicant, a former employee of the respondent, filed an Application with the Tribunal alleging that the respondent had infringed her rights under the Code.

5That Application was settled by the parties at mediation. The terms of the settlement are set out in October 27, 2010 Minutes of Settlement between the applicant, Kimberley Levinsky, and the respondent, Canadian Tire Corporation (“Canadian Tire”). One of the terms of the Minutes of Settlement between the parties is as follows:

The Applicant and the Respondents agree to maintain the confidentiality of the terms of these Minutes of Settlement, and shall not discuss or disclose the terms of settlement with anyone other than immediate family, or legal or financial advisors, or as required by law.

6The applicant’s former husband is a manager with the respondent (on the operations side). At the time she concluded her October 27, 2010 settlement with the respondent, the applicant was separated from her husband and the two of them were involved in separation proceedings in family court.

7The applicant’s allegation that the respondent breached the confidentiality provision of the October 27, 2010 Minutes of Settlement stems from the fact that, approximately two weeks after the settlement was concluded, the applicant’s husband’s lawyer allegedly contacted the applicant’s lawyer seeking details of the human rights settlement between the applicant and Canadian Tire. The applicant was not privy to those discussions and was therefore not in a position to describe exactly what was allegedly said. (Nor did she present evidence from her lawyer in the separation proceedings as to what was said.) However, the applicant did produce a number of documents from December 2010 onwards in which her former husband, through his lawyer, sought to obtain the details of the applicant’s human rights settlement with the respondent.

8Ultimately, the applicant consented to a January 31, 2011 order of the Superior Court of Justice that she “disclose details and produce documentation with respect to her Human Rights settlement with Canadian Tire.” The applicant submits that she consented to such an order so that she could disclose the terms of the settlement to her former husband without breaching the confidentiality provision of the Minutes of Settlement herself. (Once ordered by the court, the applicant’s disclosure of the terms of the settlement was “required by law” and therefore not prohibited by the settlement.)

9The applicant submits that since she did not disclose anything about the October 2010 settlement to her husband (prior to the January 31, 2011 court order) and since she did not have any documentation pertaining to either the settlement or her human rights Application against the respondent in her residence, her husband must have found out about the settlement from “someone” at Canadian Tire.

10Specifically, in her Application to the Tribunal, the applicant alleges that her husband found out about the settlement from another Canadian Tire manager whom he was dating around the time of the October 27, 2010 settlement. The applicant acknowledges, however, that she cannot prove that this is how her former husband found out about the settlement. Moreover, although the applicant initially alleged that the manager her husband was dating during the relevant time frame worked in the respondent’s human resources department, at the hearing, she did not dispute the respondent’s assertion that the manager in question did not actually work in human resources.

11Nonetheless, the applicant maintains that someone from the respondent must have disclosed the terms of the October 27, 2010 Minutes of Settlement to her former husband. There was no other way, submits the applicant, for her former husband to have found out about the settlement.

LEGISLATIVE PROVISIONS

12The relevant provisions of the Code are s. 45.9(3) and (8), which read 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.

ANALYSIS

13In accordance with the legal principle “she who alleges must prove”, in order to succeed in her Application under s.45.9 of the Code, the applicant bears the onus of establishing on a balance of probabilities that the respondent contravened the confidentiality provision of the October 27, 2010 settlement. In other words, the applicant must prove in evidence that it is more likely than not that the respondent contravened the settlement. Based on the evidence and submissions before me, I find that the applicant has not done this.

14The applicant asks me to infer that someone from the respondent disclosed that the applicant had entered into a human rights settlement with the respondent from two facts: (1) the fact that the applicant’s former husband was aware, in or around November 2010, that there had been a settlement between the applicant and the respondent (hence his lawyer’s request for details of the settlement); and (2) the fact that the applicant’s former husband did not find out about the settlement from the applicant. In the circumstances, however, it is not necessary for me to determine whether the above-noted inference ought to be drawn. Even if I were prepared to infer that someone from Canadian Tire told the applicant’s former husband that the applicant had entered into a human rights settlement with the respondent, it would not be sufficient to establish that the respondent contravened the October 27, 2010 Minutes of Settlement.

15This is because the confidentiality provision in the October 27, 2010 settlement between the applicant and the respondent requires the parties to maintain the confidentiality “of the terms of [the] Minutes of Settlement” (emphasis added). Such a provision does not prohibit the respondent (or the applicant) “from disclosing the fact that there was a settlement.” 4137566 Canada v Clements, 2011 HRTO 106, at para. 16. Thus, in order to establish that the respondent contravened the confidentiality provision of the Minutes of Settlement, the applicant must do more than establish that someone from the respondent told her former husband that the applicant had settled a human rights case with the respondent. The applicant must establish that the respondent disclosed one or more of “the terms” of the settlement to her former husband.

16When I put this to the applicant during the hearing, she submitted that her documentary evidence from December 2010 and early 2011 establishes that her former husband knew about one of the terms of her human rights settlement with the respondent, namely that the applicant received monetary compensation from the respondent. In this regard, the applicant points to court documents dated December 16, 2010 and later, in which her former husband, through his lawyer, alleged that the applicant had been “awarded a settlement” by the respondent and sought an order from the court compelling the applicant to provide him with full particulars of this “asset”. The applicant submits that since she did not disclose to her former husband that she had received monetary compensation from the respondent, he must have obtained information about that term of the Minutes of Settlement from someone at Canadian Tire, in breach of the confidentiality provision.

17I agree with the applicant that one of the terms of the Minutes of Settlement is that the applicant was entitled to receive a certain amount of monetary compensation from the respondent. I also agree that it would have been a breach of the Minutes of Settlement for the respondent to have disclosed to the applicant’s former husband that the applicant had received or was entitled to receive an amount of monetary compensation from the respondent pursuant to the settlement. However, the evidence falls short of establishing that the applicant’s former husband knew that the applicant had received monetary compensation from the respondent, much less that the respondent had disclosed that to him.

18The fact of the matter is that the applicant’s former husband alleged that the applicant had received financial compensation pursuant to a settlement with her former employer. It is possible that he made that allegation because he knew that the applicant had received some amount of monetary compensation pursuant to the settlement. However, it is just as possible that he did not know that the applicant had received monetary compensation from the respondent pursuant to her human rights settlement, but merely suspected or assumed that she did. This would not be surprising given that settlements of human rights claims, like many other types of civil claims, frequently provide for the payment of monetary compensation to claimants. In any event, the mere fact that the applicant’s husband alleged that the applicant had received monetary compensation pursuant to a human rights settlement with the respondent is not a sufficient basis upon which to conclude on a balance of probabilities that he knew that the applicant had received monetary compensation from the respondent, and from there infer that he had gained such knowledge from the respondent.

19Accordingly, I find that the applicant has failed to establish that the respondent breached the confidentiality provision of the October 27, 2010 Minutes of Settlement entered into by the parties by disclosing the terms of the settlement to her former husband. The Application is dismissed accordingly.

20In light of the above, it is not necessary for me to consider the respondent’s alternative argument that, even if the applicant’s former husband had not been aware that the applicant had settled a human rights application with the respondent, the applicant was obliged, pursuant to Rule 13 of the Family Law Rules, Regulation 114/99 under the Courts of Justice Act, R.S.O. 1990, c. C.43, to disclose the terms of the October 27, 2010 settlement in the context of the family law proceeding between the applicant and her husband.

ORDER

21The Application is dismissed.