Pro-Flex Transport v. Marois, 2014 HRTO 1706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pro-Flex Transport

Applicant

-and-

Joanne Marois

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: November 26, 2014

Citation: 2014 HRTO 1706

Indexed as: Pro-Flex Transport v. Marois

APPEARANCES

Pro-Flex Transport, Applicant

Khiam Nong, Counsel

Joanne Marois, Respondent

Melissa Mark, Counsel

1Pro-Flex Transport, the applicant, alleged that the respondent Joanne Marois (“Ms. Marois”) breached the settlement of an Application contrary to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, Pro-Flex Transport alleged that Ms. Marois breached the confidentiality provision contained in Minutes of Settlement (“MoS”) that resolved an earlier Application she had filed with the Tribunal.

2At the hearing of this Application, I heard evidence in support of the applicant’s case from Phillip Gallant, the sole proprietor of Pro-Flex Transport, as well as Daniel Hunt and Gus Hunt. I heard testimony in support of the respondent’s case from Joanne Marois and her sister Lynne Marois.

3For the reasons set out below, I find that the applicant has not met its onus of establishing a breach of settlement on a balance of probabilities.

Factual Background

Settlement

4The following background facts relating to the settlement signed by the parties are not in dispute.

5Pro-Flex Transport is a sole proprietorship that provides transportation services. Ms. Marois is a former employee of Pro-Flex Transport. Ms. Marois and Mr. Gallant participated in a mediation at the Tribunal on January 15, 2014. With the assistance of a mediator, the parties entered into the MoS.

6The parties agreed that the MoS was not an admission of liability by Pro-Flex Transport. Under the MoS, Pro-Flex Transport agreed to pay a sum of money to Ms. Marois in order to settle her Application.

7The MoS included a confidentiality clause which stated:

The Employee agrees that the terms of this Agreement will be kept confidential by the Employee and, not as to restrict the generality of the foregoing, will not be communicated to or discussed, directly or indirectly, with employees or former employees of the Employer (including by way of social media) or with representatives of the media or any other person whatsoever. It is understood however that the Employee may discuss the terms of this Agreement with the Employees legal advisor, or final advisor or members of the Employee’s immediate family who will undertake to keep the terms of the agreement confidential. The Employee shall not disclose the terms of the settlement to members of the general public, including to employees or former employees of the Employer, without the written consent of the Employer.

8As originally written, this clause included an exception which would permit Ms. Marois to disclose the terms of the MoS to members of her immediate family. However, Mr. Gallant requested that the words “or members of the Employee’s immediate family” be struck out. The parties agreed to strike out the words at his request.

9On or around February 12, 2014, counsel for Pro-Flex Transport delivered the settlement funds to Ms. Marois’ counsel in satisfaction of its obligations under the MoS.

10It was not disputed that at all material times, Ms. Marois lived in the basement of a home that was jointly owned by her sister and her sister’s then common law spouse, Daniel Hunt (“Mr. Hunt”). Mr. Hunt and Mr. Gallant are long-time friends.

Testimony Regarding Alleged Breach Of Settlement

Phillip Gallant

11Mr. Gallant testified that it was important to him that Ms. Marois not be permitted to disclose the terms of the MoS to her immediate family. He testified that he did not believe he did anything wrong in relation to the events that gave rise to the settled Application, that he was embarrassed about the whole thing, and that he did not want others to know that he had agreed to settle the case. He felt that people would look down upon him and his business if they found out about the settlement. He testified that he would not have signed the MoS if the words “or members of the Employee’s immediate family” had not been struck out.

12Mr. Gallant testified that on February 17, 2014, Mr. Hunt phoned him and told him that Ms. Marois had told her sister Lynn about the settlement, including the amount of the settlement, and that Lynn Marois then told him about the terms of the settlement. According to Mr. Gallant, Mr. Hunt told him that the matter had been bothering him for quite a while and that he felt he had to tell Mr. Gallant since he did not think Mr. Gallant was being treated fairly. Mr. Gallant said that Mr. Hunt did not tell him exactly when Ms. Marois had allegedly disclosed the contents of the settlement to her sister but that it was a little while before Mr. Hunt called him. He testified that Mr. Hunt called him about Ms. Marois’ alleged disclosure before she had received the settlement money. In cross-examination, Mr. Gallant agreed that he would not have known about the alleged breach of settlement unless Mr. Hunt had told him about it.

13Mr. Gallant testified that the alleged breach of settlement has had a significant effect on him since Daniel Hunt mentioned the terms of the settlement to his father Gus Hunt who then told his wife and news of the settlement spread from there. Mr. Gallant testified that the whole situation has been upsetting to him and his wife since they are both private people who like to keep their personal affairs to themselves.

Daniel Hunt

14Daniel Hunt testified that he had gotten Ms. Marois the job with Mr. Gallant’s company. Mr. Hunt said that Ms. Marois had lived with him and his former common law spouse for 3 to 4 years at the time of the events in question. According to Mr. Hunt, Ms. Marois was paying them rent but that she owed them for unpaid rent around the time the MoS was signed.

15Mr. Hunt testified that he knew that Ms. Marois had had a falling out with Mr. Gallant but that he did not know extent of it. When asked in examination-in-chief whether he knew that Ms. Marois had filed a human rights Application against Pro-Flex Transport, he said he did not know about the Application until the last week of January, 2014. He testified that, before that, he knew that Ms. Marois was talking to the Ministry of Labour but he did not know extent of those discussions.

16Mr. Hunt’s signed witness statement filed with the Tribunal prior to the hearing states that, due to Mr. Hunt’s close familial relationship with Ms. Marois, and the fact that she resided in his home, he was aware that she had filed an Application against Pro-Flex Transport alleging that she was discriminated against when her employment was terminated. When asked in cross examination about the discrepancy between his signed witness statement and his testimony, Mr. Hunt said that he knew that Ms. Marois was talking to someone, whether it was the Ministry of Labour or the Tribunal he was not 100% sure. In cross-examination, Mr. Hunt also stated that he did not know that Ms. Marois participated in a mediation on January 15, 2014.

17When asked in cross-examination whether he had access to Ms. Marois’ belongings in the basement of his home, Mr. Hunt said he did. However, he testified that he never had any reason to go down to the basement and did not go down into the basement during the relevant period of time. In re-examination, he denied going through Ms. Marois’ documents relating to her human rights Application.

18Mr. Hunt testified that he had to be admitted to the hospital around February 3, 2014. He testified that he and Lynn Marois were having significant relationship problems and financial problems leading up to that time. Mr. Hunt testified that the week before he was admitted to the hospital, he and Lynn Marois got into an argument about how they were going to pay the bills and she told him not to worry because they would soon be getting money from her sister. According to Mr. Hunt, Lynn Marois told him that her sister Joanne would soon be getting a certain amount of money due to the settlement of her Application against Mr. Gallant’s company. Mr. Hunt testified that Lynn Marois told him the exact amount of the monetary settlement agreed to in the MoS. He also testified that she told him not to tell anyone since her sister was not supposed to tell her about the settlement.

19Mr. Hunt testified that he felt upset to hear that Ms. Marois had filed a human rights Application against Mr. Gallant since Mr. Gallant had given her the job at Mr. Hunt’s request. Mr. Hunt testified that he did not call Mr. Gallant about it until a few weeks later since he entered into hospital on February 3, 2014. According to Mr. Hunt, as part of the treatment in the hospital, he was encouraged to talk about things that were bothering him. He testified that he told his doctor that one of the things that was bothering him was the situation surrounding Ms. Marois’ Application against Mr. Gallant’s company. According to Mr. Hunt, the doctor encouraged him to talk to his family about the things that were bothering him including the situation surrounding the human rights Application and settlement. Mr. Hunt then told his family about the settlement including the exact amount of the settlement. It was at this time that he also decided to call Mr. Gallant to tell him about it. Mr. Hunt testified that he had used his cell phone early on in his stay at the hospital but that his cell phone was confiscated. He testified that he called Mr. Gallant as soon as he once again had access to a phone.

20Mr. Hunt said that his conversation with Mr. Gallant was not very long. He told Mr. Gallant that Ms. Marois had told her sister about the settlement and that her sister had then told him about it including the exact monetary amount paid under the settlement. Mr. Hunt said he told Mr. Gallant that he needed to tell him about it because it was bothering him.

Gus Hunt

21Gus Hunt is Daniel Hunt’s father. He testified that he and another person were having coffee one day after the MoS was signed and that Mr. Gallant joined them. When the other person asked Mr. Gallant how the mediation had gone, Mr. Gallant said he could not talk about it.

22Gus Hunt also testified that, while his son was in the hospital, his son told him and other members of his family that his spouse had told him about the human rights settlement. He testified that his son told him the specific monetary amount paid under the settlement. Gus Hunt testified that his son told him that he and his spouse had an argument about paying bills. In the course of that argument, his spouse told him that Ms. Marois would soon be giving Mr. Hunt the money she owed them. Gus Hunt said that his son told him that he (Daniel Hunt) asked his spouse where Ms. Marois would be getting money to repay them and she said that she was getting the money from the settlement of her human rights Application against Mr. Gallant.

23Gus Hunt testified that he encouraged his son to tell Mr. Gallant since he did not think it was fair for Ms. Marois to disclose the settlement when Mr. Gallant was required to keep in confidential.

Joanne Marois

24Ms. Marois testified that she and Daniel Hunt were close at the time she filed her Application and also at the time of the mediation. According to Ms. Marois, Mr. Hunt not only knew about the Application but he was the one who suggested that she file it. She testified that both her sister and Mr. Hunt were her emotional supports throughout the process. Ms. Marois testified that Mr. Hunt knew about the mediation and offered to attend the mediation with her. She testified that she felt bad having Mr. Hunt attend since he was friends with Mr. Gallant so she told him he did not need to accompany her. According to Ms. Marois, Mr. Hunt programmed her GPS so she could find her way from their home outside Toronto to the mediation venue.

25Ms. Marois said she agreed to sign the MoS with the confidentiality provision in it. She was aware that she could not tell members of her immediate family about the terms of the MoS. Ms. Marois denied that she told anyone about the terms of the MoS. Specifically, she denied that she told either her sister or Mr. Hunt about the terms of the MoS.

26Ms. Marois testified that, when she returned from the mediation, her sister and Mr. Hunt were sitting at the kitchen table. When they asked how it went, she said that she could not tell them anything. Ms. Marois said that Mr. Hunt tried to press her for more information but she refused to say anything and her sister told him to leave Ms. Marois alone. Ms. Marois testified that neither her sister nor Mr. Hunt asked anything further after that and she never discussed the MoS with them.

27Ms. Marois testified that her sister and Mr. Hunt likely knew that the mediation went well since she did not come back miserable or upset. She said she did not come back overjoyed but that it would have been obvious from her mood that things went well. She said she felt relieved and that this may have been evident to her sister and Mr. Hunt. Ms. Marois testified that she thought her sister also likely figured out she received a monetary settlement when she was able to pay the rent that she owed her and Mr. Hunt.

28Ms. Marois testified that Mr. Hunt would have had easy access to her belongings, including all of the documentation relating to her human rights Application. She said that the basement had a door that did not lock and it had an open concept lay out. She testified that she kept all of her paper work on the bed since she was sleeping on the couch because her older dog was unable to get on the bed. Although she conceded that she cannot prove it, Ms. Marois believes that Mr. Hunt may have discovered the terms of the settlement by going through her documents.

29Ms. Marois testified that her sister had to get a restraining order against Mr. Hunt because her sister felt threatened by him. She testified that Mr. Hunt was served with the restraining order when he and Mr. Gallant came to the house to retrieve Mr. Hunt’s belongings after he left the hospital around the third week of February 2014.

30According to Ms. Marois, Mr. Hunt has undertaken various actions against her and her sister since he left the hospital. For example, Mr. Hunt has taken legal action against Ms. Marois for rent monies she allegedly still owed him. Also, someone called the welfare authorities claiming that Ms. Marois had failed to report money she had received. Ms. Marois believes that Mr. Hunt was the person who made that call because she does not know anyone else, other than her sister, who would know anything about her circumstances. Mr. Hunt denied calling the welfare authorities to report Ms. Marois.

Lynne Marois

31Lynn Marois testified that she and Mr. Hunt had serious relationship problems in January and February, 2014. She testified that she knew that her sister had filed an Application against Pro-Flex Transport. She also testified that Mr. Hunt encouraged her sister to file the Application.

32According to Lynn Marois, both she and Mr. Hunt knew that the applicant was attending a mediation on January 15, 2014. She testified that when Ms. Marois returned from the mediation, she and Mr. Hunt were sitting in the kitchen. She assumed that her sister was successful at the mediation since she seemed happy when she returned. According to Lynn Marois, Mr. Hunt asked her sister what she got as a settlement and her sister said she could not discuss it with him. Her sister said that, if he wanted to know, he should ask Mr. Gallant.

33Lynn Marois testified that her sister paid her and Mr. Hunt the amount she owed them for unpaid rent. She said that her sister did not say the money was connected to the mediation, but she assumed that it was since her sister had no money to pay the unpaid rent up to that point.

34Lynn Marois denied that her sister told her about the settlement or disclosed the amount of the settlement. She denied disclosing the amount of the settlement to Mr. Hunt since she said she did not herself know whether her sister signed a settlement or the terms of any settlement. When I asked Ms. Marois when she found out the exact amount of the settlement, she testified that she did not know the exact amount until the day of the hearing of this breach of settlement Application.

35Lynn Marois testified that she got a restraining order against Mr. Hunt in part because of an incident that occurred prior to his being hospitalized in which he picked up a heavy statue and appeared to be about to throw it at her. Mr. Hunt also referred to this incident in his testimony. He testified that he picked up the statue and was about to throw it but ended up putting it back down. Lynn Marois testified that she was afraid that Mr. Hunt might hurt her in the future and that is why she sought the restraining order against him. She also testified that Mr. Hunt was stalking her. When asked in cross-examination whether he stalked Lynn Marois, Mr. Hunt said he did not know how she could prove that he was stalking her. On re-examination he denied stalking her.

36Lynn Marois stated that, since Mr. Hunt left the hospital, he has undertaken a number of actions against her which she considers retaliatory in nature. For example, she testified that he has brought a motion to resell the family home and that he has refused to pay his portion of their joint debts. In his testimony, Mr. Hunt agreed that he has undertaken legal action against Lynn Marois but stated that these actions are legally justified. Lynn Marois also testified that Mr. Hunt called the Humane Society to claim that she did not have proper licenses for her dogs. Mr. Hunt denied doing this.

Parties’ submissions

37The applicant’s counsel submitted that Pro-Flex Transport had met its onus of proving a breach of settlement in this case. She submitted that it was more probable than not that the applicant disclosed the terms of the settlement to her sister who then disclosed them to Mr. Hunt since Mr. Hunt knew the precise amount of the settlement. The applicant’s counsel argued that Ms. Marois’ testimony that Mr. Hunt may have gone through her papers was not credible. She pointed out that Mr. Hunt denied going through Ms. Marois’ papers. She noted that Mr. Hunt testified that he did not know about the mediation. The applicant’s counsel argued that it was not credible that Mr. Hunt offered to take a day off work to attend the mediation with Ms. Marois since he was having financial difficulties at the time and likely would not want to miss a day of work. Overall, the applicant’s counsel argued that the most plausible scenario was that the applicant told her sister about the terms of the settlement in an effort to reassure her that she would be able to repay the money she owed her.

38The applicant’s counsel submitted that the confidentiality provision in the MoS was of utmost importance to Mr. Gallant. This was evidenced by the fact that Mr. Gallant requested that Ms. Marois not be permitted to disclose the terms of the MoS to members of her immediate family. The applicant’s counsel requested that the Tribunal award the applicant $4 000 to compensate for the breach of settlement in this case.

39Ms. Marois’ counsel submitted that the Tribunal’s decision in this case hinges on whether it believes Daniel Hunt’s testimony. She noted that Ms. Marois denied disclosing the terms of the settlement to her sister, as alleged, and that her sister corroborated her testimony. Ms. Marois’ counsel conceded that Ms. Marois could only speculate as to how Mr. Hunt learned about the exact amount of the settlement. She argued that the evidence showed that Mr. Hunt would have had access to Ms. Marois’ documents, including her copy of the MoS. She also argued that there was evidence from Ms. Marois and her sister that Mr. Hunt had a motive to retaliate against them and had undertaken actions that were retaliatory in nature. Finally, Ms. Marois’ counsel argued that the timing of Mr. Hunt’s call to Mr. Gallant was suspect. Mr. Hunt testified that he found out about the amount of the settlement the week before he entered the hospital but did not call Mr. Gallant until after his relationship with Lynn Marois had ended. Ms. Marois’ counsel submitted that this supported her claim that Mr. Hunt was seeking to retaliate against her and her sister.

Credibility

40This case turns upon my assessment of the credibility of the witnesses who testified at the hearing, in particular Mr. Hunt, Ms. Marois and Lynn Marois. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354. In particular, when making credibility findings I have sought to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances. I was also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.

Findings

41Under s. 45.9(1) of the Code, a settlement agreed to in writing and signed by the parties is binding on the parties.

42The Tribunal has compensated parties for a breach of the confidentiality of settlement terms in Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939 (“Tremblay”); Shaw v. York Condominium Corporation No. 73, 2013 HRTO 1565 (“Shaw”) and Morley v. London Condominium Corporation #2, 2014 HRTO 371 (“Morley”).

43As with any other alleged breach of the Code, the applicant bears the onus of establishing on a balance of probabilities that the respondent breached the settlement. In other words, Pro-Flex Transport must prove in evidence that it is more likely than not that Ms. Marois breached the confidentiality provision contained in the MoS. Based on the evidence at the hearing, I find that the applicant has not met this onus.

44The outcome of this case turns entirely upon an assessment of the relative credibility of Daniel Hunt, on the one hand, and Ms. Marois and her sister on the other. Although Mr. Gallant and Gus Hunt both testified that Daniel Hunt told them that Ms. Marois had disclosed the amount of the settlement to her sister and also mentioned the exact amount of the settlement, their testimony is hearsay as it relies entirely upon what Daniel Hunt told them. Neither Mr. Gallant nor Gus Hunt had any direct knowledge of whether Ms. Marois disclosed the terms of the settlement. Their testimony relied entirely upon what Daniel Hunt told them. Neither Mr. Gallant nor Gus Hunt had any direct knowledge of how Daniel Hunt discovered the exact amount of the monetary settlement. Their testimony on this point also relied entirely upon what Daniel Hunt told them. Therefore, the applicant’s case relies entirely upon Mr. Hunt’s credibility and the reliability of his evidence.

45I have serious concerns about Mr. Hunt’s credibility for the reasons set out below. By contrast, I found both Ms. Marois and her sister to be credible witnesses. They testified in a forthright manner. Their testimony was internally consistent and their evidence corroborated the other’s evidence. Their testimony also was not shaken in cross-examination.

46The applicant’s counsel argued that it was not credible that Mr. Hunt encouraged Ms. Marois to file her Application against Pro-Flex Transport or that he offered to take a day off work to attend the mediation. Whether Mr. Hunt encouraged Ms. Marois to file her Application or not, I find it more likely than not that he knew that she had filed the Application. As noted above, in his signed witness statement Mr. Hunt stated that he knew that Ms. Marois had filed an Application against Pro-Flex Transport due to his close familial relationship with Ms. Marois and the fact that she lived in his home. I do not find credible his attempt to reconcile this statement with his testimony in examination-in-chief that he did not know that Ms. Marois had filed a human rights Application against Pro-Flex Transport. I do not find it credible that, in his witness statement, Mr. Hunt confused the Human Rights Tribunal with the Ministry of Labour and that he did not know about the human rights Application but instead only knew that Ms. Marois was in talks with someone who he thought was from the Ministry of Labour.

47I also find it more probable than not that, for the same reasons that Mr. Hunt stated in his witness statement that he knew about Ms. Marois’ Application, he also likely knew that Ms. Marois was attending a mediation on January 15, 2014. In other words, I find it more likely than not that, due to his close familial relationship with Ms. Marois and the fact that she lived in his home, Mr. Hunt knew that the mediation was taking place. Both Ms. Marois and her sister testified that Lynn Marois and Mr. Hunt were sitting in the kitchen of their house when Ms. Marois returned from the mediation. This specific part of their testimony was not tested in cross-examination and I find it credible. In addition, I find Lynn Marois’ testimony credible that both she and Mr. Hunt suspected that Ms. Marois had agreed to some kind of settlement of her Application due to the fact that she returned from the mediation in a relatively good mood. I find that this conclusion is in harmony with the preponderance of the probabilities given that I have found that Mr. Hunt likely knew that Ms. Marois was participating in the mediation.

48Just because I find Mr. Hunt’s testimony on these points not credible does not necessarily mean that his testimony on other points is not credible. That is, it does not necessarily mean that his testimony as to how he found out about the exact sum of the settlement is not credible. However, his lack of credibility with respect to his awareness of the Application and the mediation does suggest a need to carefully examine how the rest of his testimony compares to the rest of the evidence and in particular how it compares to the testimony of Ms. Marois and her sister.

49Mr. Hunt testified that Joanne Marois must have disclosed the terms of the settlement to her sister because her sister told him about the terms of the settlement in late January 2014. As noted above, Mr. Hunt testified that Lynn Marois told him about the settlement and the amount of the settlement during an argument about their finances. He also testified that she told him not to tell anyone since her sister was not supposed to disclose the settlement. Both Ms. Marois and her sister deny that Ms. Marois told her sister about the settlement and Lynn Marois denied telling Mr. Hunt about it.

50Having considered the evidence as a whole, I find Ms. Marois and Lynn’s Marois’ testimony on these points more persuasive and credible. I do not find it likely that Lynn Marois disclosed the settlement and/or the amount of the settlement to Mr. Hunt as alleged. Mr. Hunt, Lynn Marois and Joanne Marois all testified that Mr. Hunt and Lynn Marois were having serious relationship problems in late January 2014. As an example of the severity of these problems, it was not disputed that Mr. Hunt had picked up a heavy statue during one of their arguments and almost threw it at Lynn Marois before setting it back down. Given this context, I do not find it likely that Ms. Marois would disclose to Mr. Hunt something that her sister had allegedly told her in confidence and that she had made her promise not to repeat. I find it likely that Lynn Marois may have told Mr. Hunt not to worry and that her sister would soon be able to repay the amounts she owed them. However, I do not find it likely that she would tell Mr. Hunt the exact amount that her sister received as a settlement, an amount that significantly exceeded what Ms. Marois owed in unpaid rent. As a result of this finding, there is no evidence to support the claim that Ms. Marois disclosed the terms of the settlement to her sister or anyone else.

51For all of the above reasons, I find the testimony given by Ms. Marois and her sister more credible than Mr. Hunt’s testimony. Due to my concerns about Mr. Hunt’s credibility, I do not find that the applicant has met its onus of establishing that Ms. Marois breached the settlement on a balance of probabilities.

52I have considered the fact that Ms. Marois’ alternative explanation as to how Mr. Hunt may have discovered the amount of the settlement is speculative. There is no doubt this is the case. However, it is not Ms. Marois’ obligation to disprove the allegations against her or to prove how Mr. Hunt may have learned about the amount of the settlement. Instead, it is the applicant’s onus to prove that it is more likely than not that Ms. Marois breached the settlement. For the reasons set out above, I find that it has failed to meet its onus in this case.

Order

53For the reasons set out above, the Application must be dismissed.