Emmons v. Brantford Police Services Board, 2014 HRTO 1290

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Emmons

Applicant

-and-

Brantford Police Services Board

Respondent

DECISION

Adjudicator: Paul Aterman

Date: September 2, 2014

Citation: 2014 HRTO 1290

Indexed as: Emmons v. Brantford Police Services Board

APPEARANCES

Jeffrey Emmons, Applicant

Self-represented

Brantford Police Services Board, Respondent

Seann McAleese, Counsel

background

1This Decision explains why the present Application, which alleges a breach of settlement contrary to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), has no reasonable prospect of success and is therefore dismissed.

2The applicant, a police officer, is employed by the respondent. The respondent is a police services board constituted under the provisions of the Police Services Act, R.S.O. 1990, c. P.15 (the “Act”). Under s.41(2) of the Act, the Chief of Police reports to and takes direction from the Board. There is no dispute between the parties that where the Chief is unable to act in his regular capacity, the Deputy Chief of Police can do so on the Chief’s behalf.

3By-law number 06-01 of the respondent Board governs how its meetings are conducted. It provides for the position of an Executive Assistant to the Board. It is evident from a reading of the by-law as a whole that the job of the Executive Assistant is to provide administrative support to the Board. This includes attending both public and closed meetings of the Board, opening and screening Board correspondence and sorting out what matters need to be referred to the Board and what matters need to be referred to the Chief. In this case the Executive Assistant to the Board also fulfils the function of Executive Assistant to the Chief.

4The applicant had brought an Application alleging a breach of the Code. Through mediation the Application was settled. Minutes of Settlement were drafted and signed on January 13, 2014.

5The parties to the Minutes are the applicant, who is identified as “the Employee”, and the respondent, who is identified as “the Employer”. The Minutes were signed by the applicant and the then Chief of Police on behalf of the respondent.

6Two of the terms of settlement are that the respondent would pay a sum of money to the applicant and that the Chief would send the applicant a letter. A further term is a confidentiality provision which reads as follows:

7. The terms of this settlement shall be maintained in confidence by the Employee and the Employer, except as otherwise required by law and except that the parties shall communicate only that a mutually amicable resolution was achieved pursuant to which the Employee anticipates a future return to work.

7The Minutes of Settlement also state:

9. The Employee acknowledges by signing this settlement that he understands its terms and has had a reasonable opportunity for independent legal advice with respect to it. The Employee further confirms that this settlement constitutes the entire agreement between the parties, and that the Employer's undertakings herein are the sole consideration for the release described below.

8In order to give effect to the settlement the Board had to ratify the Minutes of Settlement. The ratification took place at a closed meeting of the Board at the end of January, 2014. Along with the members of the Board and the then Chief, the Board’s Executive Assistant and the then Deputy Chief of Police (who has since become the Chief) were present at the closed meeting.

9Once the settlement was ratified, the next step for the respondent was to implement its terms. In order to provide the cheque to the applicant, the Executive Assistant asked an employee of the City of Brantford who works in its human resources department to ensure the cheque was issued in accordance with the Board’s ratification decision. The Executive Assistant did this by email (with a copy to the employee’s supervisor) on February 4, 2014. Attached to the email were a copy of the Minutes of Settlement and the Board’s motion ratifying the Minutes. The relevant part of the email from the Executive Assistant reads:

I have been referred to you by [the employee’s supervisor]. As part of a confidential Ontario Human Rights Settlement, the Brantford Police Services Board is to provide our employee Jeffrey Emmons with a lump sum payment of $ [dollar amount], in cheque form, within 21 days of ratification (which took place on January 30, 2014).

I would ask that you please add this amount to payroll. I understand that the cheque would be available February 13, 2014.

Attached is a copy of the Minutes of Settlement and Release, as well as a motion of the Board ratifying the settlement.

Thank you for your assistance, and I would appreciate receiving confirmation that this can be accomplished in the manner above.

[Emphasis added. The dollar amount and name of the supervisor appear in the email, but I have deleted them as it is not necessary to include them for the purpose of this Decision.]

10The employee responded to the Executive Assistant by email as follows:

I will provide the instructions to Finance to have the cheque created payable to Jeffrey Emmons for payroll week ending February 15, 2014. [The employee’s supervisor] has advised the cheque will be picked up in the Finance department at that time.

11On February 12, 2014, the Board then sent the applicant a covering letter that enclosed both the cheque and the letter addressed to the applicant from the then Chief. The covering letter was signed by the Board’s Executive Assistant and its substance reads:

Re: Ontario Human Rights Action - Settlement and Release

In accordance with the Minutes of Settlement and Release between you and the Brantford Police Services Board, attached is a cheque in the amount of $ [dollar amount].

Also enclosed is a letter signed by Chief of Police Jeffrey Kellner as outlined in paragraph three of the Minutes of Settlement.

12The fact that money was paid to the applicant as part of a settlement of his Application is recorded in the payroll records of the City of Brantford. Evidence of this was provided in the form of a pay stub that shows the applicant’s earnings and deductions for both the pay period and the year to date.

13Like any other pay stub, items such as the applicant’s salary, his union dues, Canada Pension Plan and Employment Insurance deductions are recorded. However, in addition to the usual entries, there is a line in the applicant’s year to date earnings entitled “Human Rights” and next to it the dollar amount of the settlement is recorded.

14The applicant then brought this Application. He alleges that the confidentiality provision of the settlement was breached by:

• The then Deputy Chief of Police and the Executive Assistant being present at the closed meeting of the Board;

• The Executive Assistant sending a copy of the Minutes of Settlement to the City employee and copying the employee’s supervisor on that email; and

• The City of Brantford payroll department recording the fact he was paid an amount in settlement of his Application and then reproducing this fact on his pay stub, as this is information which other City employees may see.

The Hearing

15A hearing was held on August 28, 2014, to determine whether a breach of settlement had occurred.

16The applicant wanted to introduce evidence of what was said at the mediation. I ruled at the outset of the hearing that I would not hear any evidence regarding discussions during mediation. I explained to the parties that in my view there is no ambiguity in the wording of the terms of settlement. Absent any ambiguity, there is no need for me to resort to extrinsic evidence to interpret the Minutes of Settlement. For me to consider what was said at the mediation would undermine the confidentiality of the Tribunal’s mediation process and the circumstances of this case do not justify doing so. I told the parties that in coming to this conclusion I was relying on the Tribunal’s analysis of the same issue in Thornton v. Toronto Police Services Board, 2012 HRTO 2412.

17The applicant testified. I find that he was forthright in his testimony. However, the facts are not in dispute and thus I do not need to make any specific credibility findings.

18In addition to what is outlined above, the applicant stated that after the Board ratified the settlement he called counsel for the respondent. They had a conversation on January 31, 2014, which the applicant recorded without counsel’s knowledge. No objection was made to introducing the recording into evidence.

19The recorded conversation is brief and is largely about when and how the applicant will receive the cheque. The applicant then seeks confirmation about the scope of confidentiality of the settlement and counsel for the respondent answers that the settlement is a matter between the applicant, the then Chief and the Board.

20The applicant raised the issue of the scope of confidentiality on the call because he was concerned that if information about the settlement leaked out, he could become the subject of what he termed retaliation and indirect threats from the then Deputy Chief and, possibly, other people.

21In cross-examination the applicant confirmed that, as a former president of the Brantford Police Association, he was aware of the Board’s practice of discussing and determining how to deal with labour relations such as grievance settlements in closed session. He was also aware that the Board’s Executive Assistant and the Deputy Chief would typically be present at such meetings.

22The applicant testified that he was aware that one of the roles of the Executive Assistant to the Board is to screen incoming correspondence. He agreed that in that capacity the Executive Assistant could have seen his original Application and subsequent correspondence he sent to the Board regarding his Application before it was settled.

23He also testified that he understands that the Board and the City of Brantford have a duty to account for their expenditures and that the City’s accounts have to withstand the scrutiny of auditors.

24At the conclusion of the applicant’s evidence, I indicated to the parties that the Tribunal’s case law has established that at any appropriate point in the hearing process, an adjudicator can request submissions from the parties as to whether an applicant has a reasonable prospect of success in proving their allegations: see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. I requested submissions on this issue.

The issue to be determined

25The issue to be determined is whether, based on the applicant’s evidence, he has a reasonable prospect of showing that the way the respondent implemented the Minutes of Settlement amounts to a breach of its confidentiality provision.

26The applicant’s argument that a breach occurred rests on his contention that the Minutes of Settlement are an agreement between him as the “Employee” and the Board as the “Employer”. He argues that the word “Employer” refers only to the five persons who constitute the Board under the Act. “Employer” does not include the Board’s Executive Assistant, the Deputy Chief or any City employee in the payroll department.

27From this the applicant argues that allowing the Executive Assistant, the Deputy Chief, and the two City employees who were included in the Executive Assistant’s email to be privy to the Minutes of Settlement was a breach of confidentiality. Recording the information about a payment under the heading “Human Rights” in the applicant’s payroll information was a further breach of confidentiality because other employees in the payroll department may see this information.

28The respondent argues that the applicant’s interpretation of the scope of the term “Employer” makes no practical sense at all. It argues that in order to implement the Board’s decision to settle the original Application, the Executive Assistant, the Deputy Chief and the employees in the payroll department fall within the scope of permissible disclosure that enables the respondent to give effect to its decision. For the purposes of implementation of the settlement alone, those persons fall within the definition of “Employer”. The respondent maintains that a breach of confidentiality would only occur where information about the terms of settlement were disclosed to the public or to any employees whose involvement was not necessary to implement the settlement. As the applicant cannot point to any disclosure to persons who did not need to know about the settlement, his Application has no reasonable prospect of success.

Analysis

29When an Application to the Tribunal is settled, the Minutes of Settlement are to be regarded as a contract between the parties. In deciding whether a breach of the settlement has occurred the Tribunal often relies on principles of contractual interpretation. One of the most basic principles is that the contract be interpreted in a practical manner and having regard to the context in which it was made.

30Here the context is the implementation of a settlement by a statutory body that forms part of Brantford’s municipal administration. As a police services board, the respondent has to be capable of discharging its functions in a way that is consistent with responsible and accountable public administration. It needs to make and maintain records of its decisions. That is why it has an Executive Assistant whose job includes taking note of its decisions in closed and open meetings. It needs to ensure that once it makes a decision, the decision is properly implemented. That is why the Chief and Deputy Chief are present at such meetings. The Chief takes direction from the Board and the Deputy Chief is there to implement the Chief’s instructions. Where the Board directs payment of public funds, the amount, the payee and the reason for the payment have to be recorded in a way that the Board can be held accountable for what it has directed. That is why payment information is transmitted to payroll specialists so that they can accurately record payments that will withstand the scrutiny of accountants and auditors.

31By his own evidence, the applicant was aware of these realities. As a former official of the Brantford Police Association he knew how the Board makes decisions regarding the settlement of labour relations issues and how they are implemented. That includes understanding the respective roles of the Executive Assistant, Deputy Chief and payroll department.

32If he felt that in his case there was a need to depart from the usual manner of ratifying and implementing a settlement, he could have negotiated specific terms to that effect. If he had tried and succeeded, then those terms would have been reflected in the Minutes of Settlement, but they are not.

33When I read the words “The terms of this settlement shall be maintained in confidence by the Employee and the Employer”, I take “Employer” to include those persons who are required in the ordinary course of business to implement the settlement. Restricting the meaning of the term “Employer” to the five-person Board would mean that one or more of the Board members would have to produce and sign the cheque, record the payroll information, draft the covering letter, and so on. That is not what members of the Board were appointed to do.

34A common term in settlement agreements expressly provides that the respondent’s duty to respect confidentiality is subject to its need to both comply with the law and to implement the agreement. Here the proviso with respect to compliance with the law was included but the proviso with respect to implementation was not. If it had been included, then this Application would not have been brought. However, the failure of the parties to include this common contractual language does not mean that I should accept the applicant’s interpretation of the term “Employer”. The reason for this is that the applicant’s interpretation leads to a result that no reasonable person would believe the parties intended.

35As to the conversation the applicant had with counsel for the respondent, I am not of the view that counsel’s statement that knowledge of the agreement was restricted to the applicant, the Chief and the Board supports the applicant’s case. First, in stating that the settlement constitutes the entire agreement between the parties, paragraph 9 of the Minutes codifies the principle of contract interpretation that excludes the use of extrinsic evidence. Second, even if I were to consider the conversation in interpreting the Minutes, counsel’s reference to “the Board” has to be interpreted in the same manner as the interpretation of the term “Employer” because the Minutes of Settlement define the “Board” as the “Employer”.

36The applicant has not brought forward any evidence of a breach of the confidentiality provision. In the absence of a breach, this Application has no reasonable prospect of success and there is no need to hear evidence from the respondent.

order

37The Application is dismissed.