Shaw v. York Condominium Corporation No. 73, 2013 HRTO 1565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allan Shaw

Applicant

-and-

York Condominium Corporation No. 73, Jun Wu, John Zhu, Gerrick Denton, Ringo Chow, Pal/Max Property Management Inc., Horatio Fung, Fanny Liu and James Liu

Respondents

DECISION

Adjudicator: Dawn J. Kershaw Date: September 18, 2013 Citation: 2013 HRTO 1565 Indexed as: Shaw v. York Condominium Corporation No. 73

APPEARANCES

Allan Shaw, Applicant Andrea Lusk, Counsel

York Condominium Corporation No. 73, Ringo Chow, Jun Wu, John Zhu, Gerrick Denton, PalMax Property Management Inc., Horatio Fung, Fanny Liu, and James Liu, Respondents Amanda Smallwood, Counsel

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging that the respondents contravened the terms of the settlement reached between the parties.

Background

2On August 17, 2012, the applicant signed a "Full and Final Release" containing the terms of settlement (the "release") of his Application to the Tribunal. The respondents signed the release on September 7, 2012.

3The applicant commenced this Application on April 9, 2013. He alleges the respondent York Condominium Corporation No. 73 ("York") failed to comply with the following terms of the settlement:

4. To adopt a formal policy, which may be enumerated in its by-laws or rules, requiring all current and prospective directors to undertake an educational requirement in the area of corporate governance, such as the "Condo 101" and "Condo 102" courses, as a condition of being elected to office.

4(a) To adopt a formal policy, enumerated in its by-laws or rules, requiring all current and prospective directors to commit and agree to a Professional Code of Conduct as a condition for their eligibility to be elected and hold office, such as the Directors' Code of Ethics published by the Canadian Condominium Institute;

4(b) To adopt a formal policy, enumerated in its by-laws or rules, requiring all service providers and agents of the corporation to provide all documents (e.g., quotes, estimates, reports and contracts) in a fully accessible format, where reasonably possible, as a condition of engagement;

6. In a timely manner, to require its Directors to "obtain and receive awareness and sensitivity training with respect to the AODA and the Human Rights Code via the Ontario Human Rights' Commission's eLearning module "Human Rights 101.

4The applicant alleges that the respondent Pal/Max Property Management Inc. (Pal-Max) failed to comply with the following settlement terms:

7. to require its employees to take the Human Rights 101 and other related e-training courses provided by the Ontario Human Rights Commission and to have all its property managers "study the RCM [Registered Condominium Manager] courses provided by ACM.

5The applicant further alleges the respondent, York, breached the confidentiality provisions contained in the settlement.

I COVENANT AND AGREE not to disclose the terms of this settlement to any person other than as required by law.

Submissions

Course Attendance

6York agrees that at the time the Application was filed not all its directors had completed the Condo 101 and Condo 102 courses. York noted that the courses were first offered in September 2012 and again in June 2013. York states directors have now all attended the courses.

7The applicant argues that the courses were not taken in a timely manner.

8The release does not require the courses to be completed by a particular date. York's position is that the courses were completed within a reasonable period of time.

9There is no dispute that two of York's directors took the Human Rights 101 course in October 2012; one did it in December 2012; and the last two did the training on April 13, 2013. The applicant alleges this contravenes the settlement because the training was not done in a timely manner. York argues that the training occurred within a reasonable period of time, noting again that the release contained no specific term setting out when the training was to be completed.

10With respect to the training of Pal/Max employees and managers, on March 27, 2013, the applicant's lawyer asked for written confirmation that the training had been done.

11On April 4, 2013, Mr. Liu responded saying he was away from the office but returning the following week. On April 12, 2013, Mr. Liu confirmed by e-mail that its employees had taken the required training, that Pal-Max was "ACMO certified" and all its property managers had completed or were completing their RCM. Mr. Liu further stated: "I can ask the president of the company to provide a formal letter stating as such if it is needed".

12The applicant's lawyer did not ask for this letter, but in the interim filed the Application on April 9, 2013.

Amendments to By-Laws and Rules

13There is no dispute that York has not amended its by-law or rules as contemplated by paragraph 4 of the release. York takes the position the terms of the release do not require it to do so. The applicant concedes that paragraph 4 states that the formal policy "may" be included in its by-laws or rules.

14With respect to the alleged contravention of paragraphs 4(a) and 4(b), the applicant alleges that York has not enumerated in its by-laws or rules the formal policies with respect to the Code of Conduct or Code of Ethics or the requirement that all service providers provide documents in a fully accessible form. In addition he alleges that the directors did not sign a Code of Ethics until April 13, 2013.

15While the applicant concedes York gave notice to all unit owners of its intention to adopt the policies and described them in that notice, he alleges that the notice did not include a copy of the rules as required by section 58(6) of the Condominium Act, 1998, S.O. 1998, c. 19, and therefore they could not have been formally adopted.

16York submits that the Code of Ethics requirement has been enumerated in the rules, and the directors have signed the Code of Ethics. It states it has implemented a rule requiring all service providers and agents of the corporation to provide all documents (e.g., quotes, estimates, reports and contracts) in a fully accessible format. It states there is no requirement that the Code of Ethics be included in the package given to the condominium owners at the annual general meeting.

Breach of Confidentiality Clause

17The applicant alleges two breaches of the confidentiality agreement. First, York sent a general letter to the condominium owners on December 14, 2011, advising them about the human rights Application and providing some more detailed information to one condominium owner, Mr. B. The applicant was not aware of these disclosures when he signed the release in September 2012. Had the applicant known that these details had been disclosed to Mr. B., he would have considered the potential harm of this when negotiating the release.

18Second, after the release was signed, the applicant alleges someone from York disclosed information about the settlement to Mr. B. Mr. B. commented on the Application at the annual general meeting and referred to the amount that had been claimed in the human rights Application, that York paid money to the applicant and to the applicant's lawyer, and that there was more than one respondent to the Application. The disclosure of this information to Mr. B. is alleged to have contravened the release. I was provided with a transcript of these remarks.

19York submits that some of the information Mr. B. commented on at the annual general meeting came from the notice sent to the condominium owners before the release was signed and some from information obtained while he was member of the York board. The reference to a settlement figure, which was close to the actual settlement figure, was a reference to a prior dispute with respect to a lawyer's fees. Support for this submission is evidenced by the fact that Mr. B. also stated that the amount paid to settle the application was "undisclosed". Further, Mr. B. did not accurately name the parties involved.

20The respondents agree that someone from York advised Mr. B. of the amount claimed in the Application, but state this disclosure occurred prior to the settlement of the Application and did not violate the confidentiality term that was signed months later. At the time the release was signed, the respondents were unaware of the applicant's concern about Mr. B. knowing the amount claimed.

21York sent a letter to Mr. B. about his comments at the meeting that advised him that such comments would not be tolerated. York agrees that Mr. B's comments were "nasty", and does not condone them. However, the respondents submit that there is no basis to conclude there was a breach of the release.

Analysis and Decision

22Section 45.9(3) of the Code states:

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 [...]

23Section 45.9(8) of the Code states:

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.

24The object of the Code therefore is to remedy the breach and not punish or penalize the contravening party. As noted in Matos v. Transplay, 2010 HRTO 2527 at para. 17, "the power to remedy a contravention of settlement is tied to the harm caused as a result of the contravention." See also, Xitimul v. Marriott Hotels of Canada, 2011 HRTO 1867, and Francis v. Toronto Police Services Board, 2011 HRTO 2018.

25The applicant has the onus of proving a contravention. See, for example, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.

26Where the terms of a settlement do not contain timelines for compliance the Tribunal has applied a reasonableness standard. See, for example, Sugarman v. St. Lawrence College, 2012 HRTO 664, and Kong v. Toronto Standard Condominium Corporation No. 1959, 2013 HRTO 687.

27I find there is no contravention of paragraph 4 of the release. The language of the release does not require directors to take the Condo 101 or 201 training, although this would be the result of a formal policy being adopted. The applicant conceded the language of the release makes the adoption such a policy discretionary. Notwithstanding there being no enforceable requirement that the directors take the course, each of them has now taken it and did so within a reasonable period of time.

28I find no contravention of paragraph 4(a) of the release. York gave notice to the condominium owners of the "new policies" on May 1, 2013, approximately eight months after the release was signed, and the notice included a recitation of the policies. While section 58(6) of the Condominium Act requires that a "copy" of the rule [policy] be included in the notice, I find that the rule was cited exactly in the notice and that the wording of the rule was what was adopted. Therefore, in my view, a "copy" of the rule was provided to the condominium owners, and the rule became effective 30 days after the notice was given, on May 31, 2013.

29The release did not include an express term requiring the directors to sign a Code of Ethics, although admittedly this would be the result of the adoption of the rule. The directors in any event complied with the terms of the rule and signed a Code of Ethics by April 13, 2013, prior to the adoption of the rule, and within approximately eight months of the release being signed. In my view, this is a reasonable timeline given the number of directors who had to sign, and given that the board meets only three or four times a year.

30I am satisfied York complied with paragraph 4(b). Notice of the new rule was given to the condominium owners in the May 1, 2013 letter. There was no response from any of the condominium owners and the rule became effective on May 31, 2013. Given the need for a formal board resolution and the number of times a year the board meets I am satisfied the Board complied with this term in a reasonable time.

31Similarly, I am satisfied that although there was some delay in the human rights training being completed, any delay was minimal. Three directors had completed the training within four months, and the remaining two directors within seven months, of signing the release. In my view, this is not an unreasonable period of time given the number of directors who had to complete the training.

32With respect to the alleged contravention of paragraph 7, Mr. Liu confirmed that all property managers had either begun or completed the RCM courses. The release contains no express term that this be done by any particular time, nor even that they "complete" the courses. With respect to the Human Rights 101 training, Pal/Max says its employees have done this training. The onus is on the applicant to prove that the respondent has not complied with the terms of the settlement. There is no evidence beyond bald assertion to find otherwise.

33Finally, with respect to the confidentiality term, I find there was a contravention. The release is very simple. The parties are not to disclose the terms of the settlement. There is no prohibition on disclosing the fact that there was an application or that the application was settled.

34The transcript of what Mr. B. said at the annual general meeting on November 12, 2012, supports a finding that someone from York told him at least generally about a term of the settlement: that money was paid. However, I am satisfied the actual amount of the settlement was not disclosed, given that Mr. B described the amount paid to the applicant as "undisclosed". Although Mr. B. referred to a payment of between $10,000 and $12,000, I am satisfied this was in relation to another matter. The disclosure of some money being paid is more information than the mere fact that a settlement was reached. See, for example, 4137566 Canada v. Clements, 2011 HRTO 106.

35In Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939, the Tribunal considered whether disclosure of payment without disclosing the amount paid would constitute a breach of settlement. It concluded at paras. 20 and 25:

The fact that she did not disclose the amount of the settlement is not relevant to the determination of whether there was a breach. By her comments she disclosed that there was a monetary settlement, which was a term of the Minutes of Settlement. The extent and content of the breach of confidentiality is a relevant factor to consider in assessing the remedy for the breach.

A breach of the confidentiality provision in a settlement is a significant breach of the agreement. Confidentiality can be important to all parties in resolving disputes. If these provisions are routinely ignored by applicants there may be a disincentive for respondents to settle human rights applications.

36In Tremblay, the Tribunal awarded $1,000 as compensation for the breach of settlement, taking into account that the monetary amount had not been disclosed, but that the disclosure of the settlement term was posted on Facebook in a small community. In this case, disclosure was made by someone at York to a person who was known to have an antagonistic relationship with the applicant, and who then disclosed the information at an annual general meeting of condominium owners with whom the applicant lives side-by-side. The effect of the breach in this case is similar to that in Tremblay because of the public disclosure. In Tremblay, the impact was significant because the respondent was a business operating in a small community. In this case, the applicant lives in the building side-by-side with people who became aware the applicant had been paid some money in settlement of his Application. In the circumstances I find the disclosure by York of a term of the release to Mr. B was a contravention of the parties' settlement. I award $1,000.00 as compensation for this breach.

37The allegation that Mr. B. was told details about the Application prior to the applicant's signing the release and the December 2011 disclosure to the owners that an application had been filed nine months before the release was signed do not retrospectively breach the terms of the release.

38The respondent, York, is ordered to pay to the applicant the following amounts:

a. Monetary compensation in the amount of $1,000.00 for contravention of the confidentiality term of the release, to be paid within 30 days of the date of this Decision;

b. In the event that the respondent, York, fails to make the payment within 30 days of the date of this Decision, the respondent shall pay post-judgment interest calculated at 3% in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.