Andre Riopel v. Kerry Foster and Ian Dunlop, 2013 HRTO 1977

Human Rights Tribunal of Ontario

B E T W E E N:

Andre Riopel Applicant

-and-

Kerry Foster and Ian Dunlop Respondents

DECISION

Adjudicator: Brian Cook Date: November 29, 2013 Citation: 2013 HRTO 1977 Indexed as: Riopel v. Foster

APPEARANCES

Andre Riopel, Applicant Jesse Cond, Counsel

Kerry Foster and Ian Dunlop, Respondents Self-represented

Introduction

1This is an Application filed under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging a contravention of a settlement of an Application.

2This Decision considers whether the Application must be dismissed as having no reasonable prospect of success. The Decision follows a telephone conference call hearing scheduled by the Tribunal on its own initiative pursuant to a Case Assessment Direction dated November 22, 2013. The hearing was scheduled to clarify the allegations in the present Application and to determine if there is no reasonable prospect that the applicant could successfully prove that the Minutes of Settlement have been contravened.

3The Contravention of Settlement Application alleged a contravention of the settlement by both of the applicants in the original Applications, although only Ms. Foster was specifically identified as the respondent to the Contravention of Settlement Application. Both of the original applicants participated in the telephone conference call hearing on November 26, 2013. Mr. Riopel was represented by counsel who advised that his client was not available to participate in the hearing because he is out of the country.

4The applicants to the original Application are now the respondents to this Contravention of Settlement Application. However, to avoid confusion, in this Decision, I have referred to Ms. Foster and Mr. Dunlop, who are the applicants to the original Application, as the applicants and I have referred to Mr. Riopel as the respondent.

The Minutes of Settlement

5The Minutes of Settlement that the parties signed are quite brief. They include a confidentiality provision that reads as follows:

The parties agreed to maintain the strict confidentiality of the terms of these Minutes of Settlement.

6There is also a standard no admission of liability provision that reads as follows:

The Applicants agree and understand that the Respondents admit to no liability and, in fact, any and all liability is denied.

The Contravention of Settlement Application

7The Contravention of Settlement Application alleges that both of the applicants, and Ms. Foster in particular, have been disseminating materials in the community which disparage Mr. Riopel and refer to the original Application and the allegations in that original Application. The Contravention of Settlement Application does not allege that the applicants have disclosed any of the provisions in the Minutes of Settlement.

8During the telephone conference call hearing, counsel for the respondent confirmed that the respondent is not alleging that the applicants have said anything about the Minutes of Settlement signed by the parties or about any of the provisions of those Minutes. Counsel advised that the respondent feels that the fact that the Minutes stated that he admitted no liability means the applicants are precluded from talking about, or repeating, the allegations made out in the original Application. The respondent also feels that the spirit of the Minutes of Settlement included a mutual non-disparagement agreement between the parties. Counsel conceded, however, that the Minutes that were signed by the parties do not include a non-disparagement agreement and do not say anything about whether the parties are allowed, or not allowed, to continue to speak about the events giving rise to the original Application and the allegations in that Application. The applicants do not agree that the spirit of the Minutes of Settlement included any agreement to not discuss the events that gave rise to the Application.

Conclusions

9It is apparent that the original Application was filed in the context of significant conflict between the parties. It is also apparent that the Minutes of Settlement were a settlement of the Application itself and did not address the broader conflict. It appears that the broader conflict has continued.

10The Contravention of Settlement filed by the respondent arises from the continuing broader conflict. It is in essence a complaint that the applicants have continued to speak of the issues giving rise to the original Application and that they have continued to directly or indirectly disparage him.

11The confidentiality provision of the Minutes of Settlement was very specific and narrow. It said only that the applicants would "maintain the strict confidentiality of the terms of these Minutes of Settlement." There is no allegation that the applicants have said anything about the terms of the Minutes of Settlement.

12The "no admission of liability" provision of the Minutes of Settlement stated only that the applicants "agree and understand that the Respondents admit to no liability and, in fact, any and all liability is denied." An acknowledgment by the applicants that the respondent admitted no liability does not mean that they agreed that the respondent had no liability. When an Application is settled with no admission of liability it means that the question of whether there was or was not an infringement of the applicant's Code-protected rights remains unresolved. An applicant can continue to believe that her rights were infringed, and the respondent can continue to believe that there was no infringement. The essence of the agreement is to come to a settlement instead of continuing to litigate the Application.

13In this case, the fact that the applicants have continued to discuss the events giving rise to the original Application is not a contravention of the no-liability provision. There might be a contravention of that provision if the applicant's said that the respondent now admitted that he had infringed their Code-protected rights. However that allegation is not made in this case.

14Rule 19A of the Tribunal's Rules of Procedure provides that the Tribunal may dismiss an Application if there is no reasonable prospect that the Application can succeed. Details about the process are discussed in more detail in the Tribunal's Practice Direction on Summary Hearings.

15In this case no allegations have been made which, if true, could result in a finding that the applicants contravened the Minutes of Settlement signed by the parties. In these circumstances there is no reasonable prospect that the Application could succeed if it were to proceed to a full hearing before the Tribunal and I find that it must be dismissed on that basis.

Decision

16The Contravention of Settlement Application is dismissed as having no reasonable prospect of success. The hearing scheduled for December 18, 2013 is cancelled.