HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Yves Bernard Applicant
-and-
Patricia Jasen, Jennifer Roth, Pamela Wakewich, Jane Nicholas, Kristin Burnett, Constance Russell, and Lori Chambers Respondents
-and-
Lakehead University Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané Date: October 15, 2013 File Numbers: 2013-14348-I; 2013-14349-I; 2013-14350-I Citation: 2013 HRTO 1739 Indexed as: Bernard v. Jasen
APPEARANCES
Jean-Yves Bernard, Applicant Self-represented
Lakehead University, Intervenor Barry Kuretzky, Counsel
Ronald Harpelle Self-represented
1The applicant has filed seven Applications against individuals who are former co-workers.
2In Interim Decision 2013 HRTO 1383 (the "Interim Decision") the Tribunal directed that there would be a preliminary hearing to address a number of issues, including whether the applicant has entered into Minutes of Settlement that preclude him from filing the Applications. The Minutes of Settlement were executed by a number of individuals, including Ronald Harpelle – who had filed two previous Applications with the Tribunal which were consolidated with the applicant's two previous Applications – and Lakehead University. None of the respondents executed the Minutes of Settlement.
3This Interim Decision deals with a number of procedural issues.
BACKGROUND
4Since both the applicant and Lakehead University were taking the position that the Minutes of Settlement contained confidential terms, I ordered that the parties would exchange portions of the Minutes of Settlement that they did not object to sending to the respondents.
5On September 1, 2013, Ronald Harpelle filed a Request to Intervene, in which he states that he is not aware of the scope of the seven new Applications nor does he care to be involved. Mr. Harpelle states that his interests in these Applications are solely with respect to maintaining the confidentiality of the Minutes of Settlement. In this Request to Intervene, Mr. Harpelle states that counsel for the intervenor is in a conflict of interest because he acted for Lakehead University in the two previous applications filed by Mr. Harpelle and was involved in the negotiation of the Minutes of Settlement.
6Lakehead University and the applicant have filed submissions with respect to Mr. Harpelle's Request to Intervene.
DISCLOSURE OF MINUTES OF SETTLEMENT
7The Summary Hearing is scheduled via conference call on November 15, 2013 and the Tribunal must decide if the Minutes of Settlement will be sent to the respondents.
8Settlement privilege is not absolute. The Supreme Court of Canada in Sabel Offshore Energy Inc. v. Ameron International Corp., [2013] SCC 37 has stated at paragraph 19:
There are, inevitably, exceptions to the privilege. To come within those exceptions, a defendant must show that, on balance, "a competing public interest outweighs the public interest in encouraging settlement" (Dos Santos Estate v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, 207 B.C.A.C. 54, at para. 20).
9In Dos Santos v. Sun Life Assurance Co. of Canada, [2005] BCCA 4, the decision referred to above, the British Columbia Court of Appeal stated at paragraph 20:
To establish an exception in this case, the defendant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice.
10I have considered the matter and the submissions of the parties and Mr. Harpelle. The Minutes of Settlement are relevant. In light of the argument advanced by Lakehead University that the applicant is precluded from filing the Applications, I find that it is necessary at this time that some of the portions of the Minutes of Settlement be disclosed to the respondents so that they can, if they wish, make submissions with respect to their defence.
11I have considered the two versions sent by the applicant and Lakehead University, and I prefer the versions sent by Mr. Bernard, except that Mr. Harpelle's name will be further redacted. It is these Minutes of Settlement that will be sent to the parties by the Tribunal.
REQUEST TO INTERVENE
12Having considered the matter I find that Mr. Harpelle has some limited interest with respect to the issue of confidentiality raised by the disclosure of the Minutes of Settlement. I decline at this time to grant Mr. Harpelle intervenor status in these proceedings since he has repeatedly stated that he has no interest in the Applications and does not wish to be involved, other than any interests that he may have with respect to the confidentiality of the Minutes of Settlement.
13In these circumstances, I will grant Mr. Harpelle limited rights as an affected party so that he can participate as an observer at the Summary Hearing.
APPLICANT'S REQUEST FOR AN ORDER
14On September 23, 2013, the applicant filed a Request for an Order in which he seeks a preliminary hearing, the removal of Lakehead University's counsel, that the Tribunal limit Lakehead University's right to participate and that he obtain all documents sent between the seven respondents and Lakehead University's counsel.
15Both the applicant and Mr. Harpelle take the position that counsel for the intervenor is in a conflict of interest, is a potential witness and should be removed as counsel for the intervenor.
16A party's right to select a legal representative should not be lightly interfered with by the Tribunal. Rule 2.04(4) of the Rules of Professional Conduct of the Law Society of Upper Canada states:
A lawyer who has acted for a client in a matter shall not thereafter act against the client or against persons who were involved in or associated with the client in that matter
(a) in the same matter,
(b) in any related matter, or
(c) save as provided by subrule (5), in any new matter, if the lawyer has obtained from the other retainer relevant confidential information unless the client and those involved in or associated with the client consent.
17The intervenor's counsel never acted for the applicant or Mr. Harpelle. There is absolutely no basis to remove counsel for Lakehead University because they were involved in the previous proceedings.
18With respect to the applicant's other requests, these are procedural issues that I have already decided. Further, I decline to make any production orders at this time.
ORDER
19The Tribunal orders as follows:
a. Mr. Harpelle is an affected party to the Application and shall have the following rights:
i. The Tribunal will send to him copies of the Applications and any previous Case Assessment Directions and Interim Decisions;
ii. The parties shall copy Mr. Harpelle on any future submissions with respect to the Summary Hearing; and
iii. The Tribunal will send Mr. Harpelle the Notice of Summary Hearing, and he may, if he wishes, participate as an observer. If during the course of the Summary Hearing, Mr. Harpelle wishes to make submissions he will have to obtain leave of the Tribunal at that time.
b. The applicant's Request for an Order during Proceeding dated September 23, 2013 is denied.
20I am not seized.
Dated at Toronto, this 15th day of October, 2013.
"Signed by"
Geneviève Debané Vice-chair