Burns v. Thunder Bay Police Service, 2013 HRTO 1589

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Burns

Applicant

-and-

Thunder Bay Police Service

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: September 20, 2013

Citation: 2013 HRTO 1589

Indexed as: Burns v. Thunder Bay Police Service

APPEARANCES

Richard Burns, Applicant

Self-represented

Thunder Bay Police Service, Respondent

Robert Edwards, Counsel

Introduction

1This is an Application filed under s. 46.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging a breach of a settlement. In particular, the applicant alleges that the respondent breached its obligations under confidentiality provisions of the Minutes of Settlement dated February 1, 2011. In particular, he alleges "disclosure of monetary settlement during PSA Hearing".

2The respondent filed a response submitting that there is "nothing in the allegations in this matter that could constitute a breach by the Respondent Police Services Board".

3On November 2, 2012, the Tribunal issued a Case Assessment Direction (CAD) directing that a half-day telephone conference be scheduled to hear the Application. It directed the parties to file any additional cases or documentation they wished to rely upon no later than 14 days before the scheduled telephone conference hearing.

4A half-day telephone conference hearing was scheduled to hear the allegation of breach of settlement in this matter. Though the matter was scheduled to commence at 1:30 pm, the applicant did not appear on the telephone call until 2:15 pm. When he called in, he was directed to provide detail regarding his breach of settlement application. He alleged that during a hearing convened pursuant to the Police Services Act R.S.O. 1990, c. P.15 (the "Police Services Act"), where three members of the Thunder Bay Police Force were charged following a complaint he made, counsel for the three officers asked the applicant in cross-examination if the hearing was simply a way for him to get money from the force "again". The applicant stated that he asked counsel for the officers how he knew that he had received money, as the prior settlement had been confidential. He stated that counsel for the officers then indicated that the applicant himself had said so at an earlier point in his evidence. In fact, the applicant asserted, the adjudicator confirmed that all the applicant had said was that there had been a settlement, and had said nothing regarding it including a financial component.

5When asked what evidence he wished to present in support of his Application, the applicant indicated that he believed he required the transcript of the Police Services Act proceedings. When asked if he wished to present any other evidence or witnesses, he indicated that he would like to know where counsel for the officers got his information about the settlement. He also thought it might be useful to call the adjudicator as a witness, but agreed that it would likely not be necessary if the transcript was in evidence.

6At the conclusion of his remarks, the applicant indicated that he wanted to hang up the telephone and allow the hearing to proceed in his absence, as he said he was not well. I told the applicant that his participation was necessary and I offered him a ten minute break, which he accepted, agreeing to call back in to the teleconference hearing at the end of the ten minutes. Before the break, however, I advised the applicant that upon returning I would be asking the respondent if it agreed with his description of what had occurred at the Police Services Act proceedings and whether he agreed that the emails included in documentation provided by the respondent, were sent by him. I also indicated to him that it was my intention to then ask counsel for the respondent about the origin of the documents he provided and to describe the use he intended to make of the documentation in these proceedings. I also indicated that I would then ask counsel for the respondent to outline his position, and then would determine the "next steps". The applicant also indicated that he had shredded the documents provided by counsel for the respondent, but if they were from a particular email address, they were his.

7The parties disconnected from the teleconference hearing at 3:00 p.m., and both called in again at 3:10 p.m., when the hearing resumed.

8At the resumption of the hearing, the applicant indicated that although he had destroyed the documents provided by counsel for the respondent, he had made notes on his computer about them and was concerned that they may not be genuine documents. He also expressed a concern that some of the documents provided by counsel for the respondent may have been emails sent by him and marked "without prejudice". All the e-mails were reviewed and it was determined that there were two emails from the applicant marked "without prejudice". Counsel for the respondent indicated that he did not propose to rely upon any of the documents marked "without prejudice". The applicant asked if I had read these documents, and I indicated that I had skimmed them. The applicant then submitted that those documents were improperly submitted and that I should not have read them, and that this raised a reasonable apprehension of bias. When I asked him what his particular concern was, he simply repeated that it is improper for them to have been submitted and stated that the fact that I have seen them may influence my decision making.

9Counsel for the respondent indicated that the applicant's assertion of reasonable apprehension of bias is insulting to the Tribunal and that the applicant regularly forwards material to the Tribunal which contains false statements. He apologized for having submitted the "without prejudice" emails and requested that they be disregarded.

10In response, the applicant stated that he was "absolutely finished'. He stated that he had been abused by members of the Thunder Bay Police Force for long enough and that the hearing should proceed in his absence. I told him not to hang up, but he nonetheless hung up and disconnected from the teleconference hearing. This occurred at approximately 3:25 p.m., 15 minutes after the recommencement of the teleconference hearing.

11The hearing proceeded in the applicant's absence. Counsel for the respondent indicated that for purposes of this proceeding, the respondent was prepared to accept that counsel for the police officers said something in cross-examination of the applicant at the Police Services Act proceeding, to suggest that the applicant had received money previously and that he was simply trying to accomplish the same again. He also submitted, however, that by virtue of paragraph 2 and Schedule "A" to the settlement, a directive was to be issued to "All Sworn Personnel" indicating, among other things, that the matter had been resolved between the parties. Accordingly, he submitted, as mandated by the settlement itself, all sworn personnel were aware of the fact of a settlement, though not of any financial component. He also referenced several of the documents he had provided to the applicant and to the Tribunal on February 13, 2013, being emails he had personally received from the applicant. In some emails, the applicant indicates that he had attempted to show officers the directive which was Schedule "A" to the Minutes of Settlement, but the officers had refused to look at it. Other emails also stated the applicant's view that the Minutes of Settlement had been breached at several "traffic stops" when officers stopped him, and in another email he states that if counsel "wants to keep a lid on this then I will be expecting something in return". Finally, counsel referred to one email where the applicant stated that he believes he would be awarded more than $250.00. None of the documents referenced by counsel for the respondent were marked "without prejudice".

12Counsel for the respondent further submitted that pursuant to section 83(3) of the Police Services Act, the respondent had no standing and was not a party at the above-noted proceedings where counsel for the police officers cross-examined the applicant. Only the prosecution, the officers being charged and the public complainant have party status. Accordingly, he submitted, counsel for the police officers had no legal retainer with or authorization from the respondent Police Board. He submitted that the respondent Police Board cannot be held responsible for what independent counsel said. Further, he submitted that it is illogical to conclude that the respondent Police Board would disclose the fact of a financial settlement, as such disclosure is contrary to its own interests in avoiding a perception that it will pay settlement money. Finally, he submitted, as the fact of the settlement itself was widely known, perhaps it is not surprising that defence counsel, responsible for advancing any reasonable argument on his clients' behalf, would impute a motive to a witness in the course of cross-examination, nor is it surprising that counsel may have speculated as to the existence of a financial component to the settlement.

13Following the hearing, on March 4, 2013, the Tribunal issued a CAD directing the applicant to write to the Tribunal within seven days of the CAD, confirming his intention to continue with the application, failing which the Application may have been dismissed as abandoned.

14The CAD also directed that if the parties wished to present any further evidence, including testimony from witnesses, or other documentation, they were to advise the Tribunal within seven days of the CAD. It stated that if they provided no such advice to the Tribunal, a decision would be based on the submissions and materials already before the Tribunal.

15The CAD also addressed the concern raised by the applicant regarding the "without prejudice" documents. In it, I indicated that I do not accept that I am unable to disregard such documentation and accept the respondent's confirmation that it does not seek to rely upon such documentation.

16On March 4, 2013, the applicant wrote to the Tribunal, copying the respondent, again stating his concern with the fact that the respondent's counsel had placed documents marked "without prejudice" before the Tribunal, and that I indicated that I had read them. He stated that "This is in the opinion of the legal counsel all that is required to obtain the HRTO version of a mistrial". He also wrote about his frustration with the HRTO process generally and his ability to participate without counsel.

17On March 11, 2013, counsel for the respondent wrote to the Tribunal, copying the applicant, and stating that the respondent did not wish to submit any further evidence. The respondent also submitted that the Application should be dismissed "on the merits…as an abuse of process; and…as abandoned".

18On March 13, 2013, the applicant again wrote to the Tribunal, though he did not copy counsel for the respondent. In the interest of expediency, the Tribunal forwarded a copy of the applicant's correspondence to counsel for the respondent on March 20, 2013. In his correspondence, the applicant did not clearly state his intention to continue with his Application, but rather states that he disagrees with my assertion that I would be able to continue to adjudicate this matter despite the fact that I had seen the documents marked "without prejudice". He also states that until the HRTO makes a ruling regarding the inclusion of these documents, the matter should not proceed. He also states that "within a day or 2 of the HRTO hearing the transcript that had been requested for inclusion at that hearing was delivered to me". He then requested that the Tribunal provide a copy of his correspondence to counsel for the respondent and advises that he has advised the Law Society of Upper Canada about what took place at the hearing. He did not include a copy of the transcript he indicated he received, nor did he indicate that he wished to present any further evidence, including testimony from witnesses, or other documentation.

DECISION AND ANALYSIS

19While the applicant has stated his concern regarding the fact that counsel for the Tribunal provided documents marked "without prejudice" and I indicated that I had read them, as stated in the CAD, I do not accept that I am unable to disregard such documentation and I accepted the respondent's confirmation that it did not seek to rely upon that documentation. Further, in his submissions, counsel for the respondent made no reference to and placed no reliance on the documents marked "without prejudice". For my part, as will be seen below, I have placed no reliance on any of the documents provided by counsel for the respondent in his pre-hearing disclosure package, including the two documents marked "without prejudice".

20There is a presumption of impartiality and the onus is on the person seeking disqualification of a decision maker to establish a reasonable apprehension of bias. I am not persuaded that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that there was a reasonable apprehension of bias, and I do not find that the applicant has established that there is any conflict which would prevent me from deciding the matter before me.

21Given the content of the applicant's March 13, 2012 correspondence, I presume that he wishes to continue with this matter. Despite the fact that he disconnected from the teleconference hearing, I am not satisfied that he has abandoned this Application and it is not dismissed on that basis.

22The March 4, 2013 CAD clearly directed the parties to advise the Tribunal as to whether they wished to present any further evidence, including testimony from witnesses, or other documentation, failing which a decision would be made based on the submissions and materials already before the Tribunal. As neither party has indicated that they wish to present any further evidence, including testimony from witnesses, or other documentation, this Application is determined with reference to the material already before the Tribunal. Further, I note that for purposes of this Decision, the applicant's assertion that in cross-examination at the PSA proceedings, counsel for the officers asked him if he wanted to receive money again, is accepted as fact.

23The applicant and the respondent Thunder Bay Police Service and Robert Herman (former chief of police) were parties to Minutes of Settlement executed on February 1, 2011, with respect to an Application at the Tribunal. One of the terms of those Minutes of Settlement provided financial compensation to the applicant. The Minutes of Settlement also incorporated a Schedule containing a directive which was to be sent out to the attention of "all sworn personnel" and which contained the following introductory words: "On February 1st, 2011, a human rights tribunal matter was resolved between Richard Burns and Thunder Bay Police Service." It then stated that the directive was being issued "[a]s a part of that resolution".

24Another term of the Minutes of Settlement required that the parties maintain confidentiality:

All parties agree that the terms of the Settlement are confidential, and shall not be disclosed to any persons other than the signatories to this agreement, their legal counsel, the immediate family of the Applicant (on the condition that the family member are required to observe this covenant of confidentiality), persons necessary to allow implementation of this Settlement, or otherwise as required by law.

25The applicant alleges that three police officers in Thunder Bay were prosecuted under the Police Services Act, R.S.O. 1990, c. P.15 ("PSA") in respect of certain conduct toward him in September 2011. He alleges that a hearing took place with respect to those charges in July 2012, and that when he was being cross-examined by counsel for the police officers, counsel referenced the fact that the applicant had previously received money in a settlement with the Thunder Bay Police, by accusing him of wanting to receive money again. The applicant alleges that at that point he told counsel for the police officers he had breached the Minutes of Settlement. He alleges that counsel for the police officers said he had referenced the fact earlier in the hearing, but that the adjudicator reviewed his notes and confirmed that the applicant had mentioned a settlement, but had not disclosed the terms of the settlement. He alleges that two of the three police officers charged were ultimately convicted. The applicant asserts that he has asked counsel for the police officers where he got his information from, but that he has not responded. He stated that he wondered if counsel for the police officers would be more forthcoming at a hearing. He asserted at the hearing that he felt the transcript of the PSA matter was "very important". Again, I note that the applicant's assertion regarding the question from counsel for the officers, is accepted as fact for purposes of this Decision, and he is not required to prove it by producing the transcript.

26After the applicant disconnected from the telephone conference hearing, counsel for the respondent made submissions in which he allowed that, for the purposes of the teleconference hearing, the respondent acknowledges that counsel had suggested in cross-examination of the applicant at the PSA hearing that the applicant had previously received money from the Thunder Bay Police and wanted to receive money again. He also submitted that as all of the text of the directive was provided to all sworn officers, all officers were aware that there had been a settlement with the applicant. Further, he submitted that it was not in the respondent's interest to make it publically known that they had paid any amount to the applicant, and that therefore it can be concluded that the respondent would have been unlikely to have shared that information.

27Counsel for the respondent also submitted that according to section 83(3) of the PSA, the respondent is not a party to PSA proceedings and has no status at such a hearing. He asserted that counsel for the police officers was not hired or authorized by the respondent and that he was counsel to the police officers who were parties at that proceeding. He asserted that the respondent had no idea that counsel for the police officers was likely to raise the matter of the applicant's previous settlement with the respondent and submitted that the respondent had no control over counsel for the police officers. He submitted that the respondent cannot be held responsible for what another party's independent counsel said. Further, he submitted that the Tribunal cannot draw the inference that the respondent was the author of a leak or condoned or encouraged one. He submitted that in fact, it is not surprising that counsel for the officers would have speculated that there was a financial component to the settlement, as it was that counsel's job to advance any reasonable argument on behalf of his client, including imputing a motive to a witness.

28As noted above, counsel for the respondent also made reference to documentation he provided to the Tribunal which included several emails from the applicant, though he did not make any reference to or place any reliance upon the above-noted documents marked "without prejudice". I do not recount any of the documentation relied upon by counsel for the respondent, at this point, as I have not relied upon any of it in coming to my decision.

29The applicant bears the onus of establishing on a balance of probabilities that the respondent contravened the confidentiality provision of the Minutes of Settlement. Based on the material before me, I do not find that he has discharged this onus.

30I accept that the respondent is not responsible for the actions of independent counsel to the police officers charged under the PSA. The matter does not end there, however, as I believe that the applicant asks me to infer that because he was asked a question which referenced a financial component to the settlement, the respondent must have breached the confidentiality requirements of the settlement and must have in some way shared confidential information with counsel for the police officers. While for the purpose of this decision, I accept that counsel for the police officers at the PSA hearing asked the applicant a question which referenced a financial component to the settlement, I do not find based on the materials and submissions before me that the applicant has established on a balance of probabilities that the respondent breached the confidentiality requirements of the Minutes of Settlement. The material before me indicates that the parties to the settlement were to maintain confidentiality with respect to the terms of the settlement. It does not indicate that the fact of a settlement was confidential, and indeed it required the respondent to inform all sworn personnel of the fact that a settlement had been reached, a part of which required it to issue a directive. As there was no requirement that the fact of a settlement be confidential, it is not surprising, nor is it evidence of a violation of the confidentiality provisions, that counsel for the police officers knew that there had been a settlement between the applicant and the respondent.

31For a breach of the confidentiality provision to be found, the applicant must first establish that the respondent disclosed the fact that there was a financial component to the settlement. I am not persuaded that the fact that counsel for the police officers made reference to a financial settlement is evidence that he knew for a fact that there was a financial component to the settlement. I note that the applicant has not alleged that the counsel for the police officers stated the amount or any other details of the financial component of the settlement. He alleges that there was a general reference to him having received a payment. In Levinsky v. Canadian Tire Corporation, 2012 HRTO 783 (Levinsky) at paragraph 18, the Tribunal noted the following in deciding an Application containing a similar allegation:

The 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. It 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.

32The applicant alleges that a third party to the settlement made a statement indicating that there was a monetary component to the settlement. His allegation does not include particulars of a party to the settlement revealing that there was a monetary component to the settlement. As in Levinsky, in the circumstances of this case, while it is possible that counsel for the police officers knew about the financial component, it is just as possible that he suspected or assumed it. The mere fact that he alleged that the applicant had received a payment by way of settlement 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. Accordingly, I find that the applicant has failed to establish that the respondent breached the confidentiality provision of the February 1, 2011 Minutes of Settlement. This Application is dismissed accordingly.

33In view of the above, it is not necessary for me to consider the respondent's request that the Application be dismissed as an abuse of process.

ORDER

34The Application is dismissed.