Shankman v. Eke, 2014 HRTO 1710

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Shankman Applicant

-and-

Dave Eke Respondent

DECISION

Adjudicator: Paul Aterman Date: November 27, 2014 Citation: 2014 HRTO 1710 Indexed as: Shankman v. Eke

APPEARANCES

Jerome Shankman, Applicant Nathaniel Erskine-Smith, Counsel

Dave Eke, Respondent Terrence Hill, Counsel

Introduction

1The title of the mayor of the town of Niagara-On-The-Lake is "Lord Mayor". The respondent held that position at the time the applicant, a resident of Niagara Falls, brought an Application alleging discrimination with respect to services because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant maintained that, as mayor, the respondent had established a "Lord Mayor's Prayer Breakfast Committee" that had a Christian focus, and that gave the appearance of being sanctioned by the municipal government. As a non-Christian, the applicant objected to the apparent endorsement by the Lord Mayor of one form of religious belief and worship to the exclusion of others.

3A mediation was held and the Application was settled. Both parties were represented by counsel. The relevant terms of the Minutes of Settlement read as follows:

3. The Respondent agrees that on or before September 30, 2013 he will recommend to the Lord Mayor's Prayer Breakfast Committee that members of the community of various faiths, spiritual and philosophical beliefs be invited to join the committee in order to reflect the diverse nature of the Niagara on the Lake community.

4. The Respondent agrees that should his recommendation be rejected by the committee, he will forthwith resign his membership in the committee and remove his name and office from inclusion in the committee's name.

5. The Respondent agrees that if his recommendation is accepted by the committee, the following press release will be jointly submitted for release by him and the Chair of the committee to the Niagara Advance and Niagara This Week, within two weeks of the Committee's acceptance:

Given the successes of the Lord Mayor's Prayer Breakfast and the desire to continue to improve fellowship within the community, the Lord Mayor and the Committee would like to extend the following invitation.

We wish to invite members of the community of all spiritual and religious, beliefs and backgrounds and those of all philosophical backgrounds to join the Committee. It is our desire to include all members of the community of varying backgrounds.

It is our hope that your assistance will help to achieve further successful Prayer Breakfasts that will reflect the diversity of our community.

4The respondent approached the committee and made his recommendation for change in accordance with the Minutes of Settlement. The committee rejected his recommendation. The respondent resigned from the committee in September of 2013.

5The committee changed its name from "The Lord Mayor's Prayer Breakfast Committee" to "The Niagara-On-The-Lake Prayer Breakfast Committee".

6On March 20, 2014 the committee ran an advertisement for a prayer breakfast in a local newspaper, the Niagara Advance. In large letters at the top of the advertisement the event is billed as the "2014 Niagara-On-The-Lake Lord Mayor's Prayer Breakfast". Small print at the bottom of the advertisement states: "Sponsored by the Niagara-On-The-Lake Prayer Breakfast Committee". The advertisement invites the public to come hear retired hockey icon Paul Henderson speak on April 2, 2014. It sets out his various sports achievements and then states: "Paul currently works with various clubs, foundations affiliated with Campus Crusade for Christ".

7On the day after the prayer breakfast, April 3, 2014, another local paper, the Town Crier, ran an article on its front page. The article has a picture of the respondent posing with Paul Henderson at the prayer breakfast. The respondent is wearing the mayor's chain of office.

8The applicant has brought this Application alleging a breach of settlement. He maintains that while the respondent stated that he had distanced himself from the committee in accordance with the Minutes of Settlement, his actions told the opposite story.

9The respondent denies any breach. He maintains that he complied with the strict terms of the settlement: he made his recommendation to the committee; it was rejected; he resigned from the committee and told the committee that his name and office were not to be used in the committee's name.

10For the reasons which follow, I agree with the applicant that the terms of settlement have been breached by the respondent.

Background

11A hearing was held by teleconference on November 4, 2014. The applicant and respondent gave oral evidence. They were both credible in their evidence, with the exception of one aspect of the respondent's testimony, which I address below. The underlying facts are not in dispute. Rather, what the parties disagree on is how to interpret the Minutes of Settlement and whether the respondent's actions after the settlement amounted to a breach.

12The applicant came to know of what he alleges was the respondent's breach of settlement by reading articles in the local press before the prayer breakfast took place. One, published in the Town Crier on March 6, 2014, has as its headline: "Eke scores Henderson for prayer breakfast". The title and content of the article suggest that the respondent had a role in organising the event by arranging for Paul Henderson to attend. The article also specifies that the event is non-denominational and open to all members of the community.

13The applicant relies on this article to assert that the respondent was involved in organising the breakfast by inviting Mr. Henderson. The respondent states that he was not consulted about the article and did not know of its content in advance of its publication. He denies that he arranged for Mr. Henderson to be a speaker.

14The applicant's conclusion that the respondent was involved in organising the prayer breakfast is based wholly on having read the article and accepted its content as true. However, the applicant did nothing to prove the truth of the article's content, such as by calling its author as a witness. The applicant had the onus of proving this fact and has not done so. I accept that the respondent did not play a role in inviting Mr. Henderson and that he cannot be held responsible for what a third party – a journalist – wrote in that article.

15A second article, which appeared on the same day, but in the Niagara Advance, specifies that the respondent did not play a part in organising the breakfast. The respondent is reported as saying that he had distanced himself from the committee after some residents criticised the involvement of town staff and resources in an event that was not seen by them as inclusive of the community as a whole. The respondent is quoted as stating that the name of the committee had been changed and that now "the state and church separation is clear". The respondent is also quoted as saying that he will attend the event and speak, just as he does at other events. The respondent did not take issue with the truth of the content of this article.

16As I note above, the prayer breakfast was advertised in the local press. In addition to billing Mr. Henderson as the special guest, the advertisement indicates there will be a musical guest as well. The musical guest is a pastor at a church in the area.

17The applicant watched a televised broadcast of the prayer breakfast on a local cable channel. He states that the content of the prayer breakfast was Christian in nature. The respondent sat at the head table, and at the end of the keynote speech he thanked Mr. Henderson.

18The third newspaper article introduced into evidence was the one I refer to above that contains a large photograph of the respondent, wearing the mayoral chain of office, and Mr. Henderson posing together for the camera. The content of the article is about Mr. Henderson's experiences and the message he had for the attendees at the prayer breakfast, not about the respondent's role in the event.

19The applicant stated that he felt the respondent's participation in the prayer breakfast was a clear repudiation of the settlement. The event was advertised as the "2014 Niagara-On-The-Lake Lord Mayor's Prayer Breakfast", and was wholly Christian in content. The respondent knew this to be the case, yet he attended in his capacity as the Lord Mayor, wore his chain of office and thanked the keynote speaker.

20The respondent says he attended the prayer breakfast, knowing that it was billed as the "Lord Mayor's Prayer Breakfast", because he felt that doing so was not a breach of the settlement. He made his recommendation to the committee, it had rejected the recommendation and he had resigned.

21When asked in cross-examination whether he had taken any action to remove the reference to "Lord Mayor" from the billing of the breakfast, he said that he had not because he felt that the committee's use of the mayor's title was not a breach of the settlement. The settlement required him to do no more than resign and remove his name and office from the committee's name. He says the fact that the committee had changed its name shows that he had complied with the settlement.

22In cross-examination the respondent denied that the event was a Christian event because it was open to all members of the public. He denied knowing whether the speakers were of the Christian faith, even after the event. He said he did not know what their faiths were.

23This is the one aspect of the respondent's testimony which I find lacks credibility. His statement is not in "harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions" (per the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at p. 357). I say this because it is obvious from the advertisement that the main guest, Mr. Henderson, is affiliated with Campus Crusade for Christ. Furthermore, the musical guest is a pastor at a local church. I cannot accept that, after having heard Mr. Henderson speak, the respondent would not know what his religion was. I conclude from this that the respondent knew the event was wholly Christian in content and that he was well aware that this had been the principal point of contention raised by the applicant in his original Application.

Analysis

24This Application involves competing interpretations of paragraph 4 of the Minutes of Settlement:

The Respondent agrees that should his recommendation be rejected by the committee, he will forthwith resign his membership in the committee and remove his name and office from inclusion in the committee's name.

25It is not disputed that the respondent submitted his resignation to the committee, but the applicant maintains it was a resignation in form only. He says the respondent continued to play a leading role in the work of the committee because he took no steps to repudiate the committee's use of the Lord Mayor's title in advertising the prayer breakfast, he attended the prayer breakfast in his official capacity, sat at the head table and thanked the speaker. He further broadcast his participation to the community by posing with the keynote speaker while wearing his chain of office.

26The applicant argues for a broad interpretation of paragraph 4 that captures the underlying intent of the parties in entering into a settlement. The purpose of the settlement was to distance the office of mayor from the work of a committee that had chosen not to adopt the respondent's recommendation for a more inclusive approach to the prayer breakfast.

27The respondent maintains that the words of paragraph 4 are clear and that nothing in the Minutes of Settlement required the respondent to distance himself totally from the prayer breakfast event. He denies that the parties had a shared intent in entering into the Minutes of Settlement. His intent was different from that of the applicant. In the absence of any ambiguity in the language of paragraph 4, the Tribunal can only find that he complied with its terms.

28In Reyes v. Centric Health Corporation, 2014 HRTO 931 the Tribunal outlines how principles of contract interpretation are to be applied in considering if there was a breach of settlement. It notes that the Tribunal treats Minutes of Settlement as contracts and applies principles of contract interpretation to determine whether a breach occurred. The primary goal of contractual interpretation is to give effect to the intentions of the parties (see: Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888 at p. 901).

29In Reyes the Tribunal goes on to note the following at paras. 11-13:

The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, and it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intentions of the parties is inadmissible pursuant to the parol evidence rule. See Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at paras. 54, 55 and 58.

As the Ontario Court of Appeal explained in Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59, 85 OR (3d) 616, at para. 50:

In my view, when interpreting written contracts, at least in the context of commercial relationships, it is not helpful to frame the analysis in terms of the subjective intention of the parties at the time the contract was drawn. This is so for at least two reasons. First, emphasis on subjective intention denudes the contractual arrangement of the certainty that reducing an arrangement to writing was intended to achieve. This is particularly important where, as is often the case, strangers to the contract must rely on its terms. They have no way of discerning the actual intention of the parties, but must rely on the intent expressed in the written words. Second, many contractual disputes involve issues on which there is no common subjective intention between the parties. Quite simply, the answer to what the parties intended at the time they entered into the contract will often be that they never gave it a moment's thought until it became a problem: see Kim Lewison, The Interpretation of Contracts, 3rd ed. (London: Sweet & Maxwell, 2004) at 18-31.

Regardless of ambiguity, however, courts may have regard to the context or the factual matrix in order to determine the intent of the parties and the scope of their understanding (i.e. contracts are to be interpreted with regard to objective evidence of the context or factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties). See Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at paras. 33-34.

30I agree with the respondent's submission that it is not productive to look at the subjective intent of the parties for the simple reason that each claims to have had a different intent in entering into the Minutes of Settlement. Nor does the law require it. However, the caselaw does require an objective assessment of the purpose of the contract.

31An objective and purposive interpretation of a contract is one which, where possible, avoids absurd results.

32In SimEx Inc. v. IMAX Corp. (2005), 2005 CanLII 46629 (ONCA), 11 B.L.R. (4th) 214 (Ont.C.A.) at p. 223, the court commented on the objective approach to be used in interpreting settlement agreements as follows:

While the court strives to interpret a contract in a manner consistent with the intent of the parties, the parties are presumed to have intended the legal consequences of their words. The court will consider the context or factual matrix in which the contract was drafted, including commercial reasonableness, to understand what the parties intended. The court will not adopt an interpretation that is 'clearly' commercially absurd. The court must also consider the contract as a whole. The various provisions "should be read, not as standing alone, but in light of the agreement as a whole and other provisions thereof": Scanlon v. Castlepoint Development Corp. (1992), 1992 CanLII 7745 (ONCA), 99 D.L.R. (4th) 153 (Ont.C.A.), at 179.

33And, as Estey J. explained in Consolidated-Bathurst, above, at pp. 901-902 S.C.R.:

[L]iteral meaning should not be applied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties. Similarly, an interpretation which defeats the intentions of the parties and their objective in entering into the commercial transaction in the first place should be discarded in favour of an interpretation of the policy which promotes a sensible commercial result. It is trite to observe that an interpretation of an ambiguous contractual provision which would render the endeavour on the part of the insured to obtain insurance protection nugatory, should be avoided. Said another way, the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or the insured to achieve a recovery which could neither be sensibly sought nor anticipated at the time of the contract.

34When the Minutes of Settlement are read as a whole, it is clear that the purpose of the settlement was twofold. Its primary purpose was to bring about a change in the organisation and staging of prayer breakfasts to reflect a perspective that was not only multi-faith, but that also incorporated other spiritual and philosophical beliefs. This was to be done by expanding the composition of the committee to persons in the community espousing a broad range of beliefs. The first step in that process was for the respondent to approach the committee and recommend those changes. He did this and his recommendation was rejected.

35The secondary purpose was crafted in anticipation of the possibility that the committee would not accept the recommendation for change. In that case the purpose of the agreement was to dissociate the Lord Mayor and the Lord Mayor's office from the activity of the committee. The initial objection of the applicant to the committee and its work was that it was holding itself out as being approved of and sponsored by the Lord Mayor.

36The intent of this secondary purpose is expressed in language that is poorly chosen. It requires the respondent to resign from the committee and to "remove his name and office from inclusion in the committee's name". Despite the fact that it is poorly chosen, it is still susceptible of an interpretation that makes sense of the agreement as a whole.

37The respondent wishes that language to be interpreted literally. He says that because he resigned from the committee and because it changed its name from "The Lord Mayor's Prayer Breakfast Committee" to "The Niagara-On-The-Lake Prayer Breakfast Committee", the terms of the settlement were complied with.

38This interpretation produces a result that is both absurd and inconsistent with the agreement as a whole. It enables the respondent to make his recommendation to the committee and, when it is rejected, to carry on exactly as if there had been no settlement of the Application. Having resigned from the committee, the respondent saw that the committee was nonetheless billing its event as the "2014 Niagara-On-The-Lake Lord Mayor's Prayer Breakfast". In other words, it still appeared that the Lord Mayor was officially endorsing the work of a prayer breakfast committee that does not want to admit persons from a broad range of beliefs and perspectives into its fold. In what sense is the respondent's resignation as Lord Mayor from the committee meaningful if – despite his resignation – the committee continues to bill the event as endorsed by the Lord Mayor, and the respondent acquiesces in the communication of this message to the community at large?

39While the respondent made some attempts to clarify through the press that he was not involved in organising the event, and that this step had broken the link between his office and the work of the committee, these efforts were at best half-hearted. The respondent is quoted by the press as saying "the state and church separation is clear". In my view that separation is anything but clear in light of the respondent's conduct. I say this because the respondent attended the event in his official capacity, spoke in his official capacity and had himself photographed with the main speaker while wearing his chain of office. All of this suggests to a reasonable disinterested bystander that the Lord Mayor of Niagara-On-The-Lake officially endorses the prayer breakfast put on by the committee.

40There is nothing about this sequence of events to suggest that anything had changed as a result of the Minutes of Settlement being entered into. Yet, as I have found, the purpose of the settlement was to bring about change – either by changing the composition of the committee or, failing that, by having the Lord Mayor and his office clearly dissociated from the committee and its work. The interpretation favoured by the respondent is, in practical terms, meaningless because it enables the committee to still pass itself off as endorsed by the Lord Mayor simply by changing its name yet not by changing how it organises and stages the prayer breakfast or how it advertises it.

41I conclude that paragraph 4 of the settlement required the respondent, in his capacity as Lord Mayor, to dissociate himself and his office from the work of the committee. He breached the settlement by continuing to associate the name and office of the Lord Mayor with the work of the committee.

Remedy

42Section 45.9(3) and (8) of the Code read as follows:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

43Respect for terms of a settlement is not only a binding, contractual obligation, it also upholds the integrity of the Code. A settlement enables parties to resolve disputes on their own terms and avoid the risks, stress and unwanted publicity associated with the hearing process, but in order for the proper incentives for dispute resolution to remain in place, parties need to rely on the Tribunal enforcing settlement terms once they have been entered into.

44The respondent is no longer the Lord Mayor of Niagara-On-The-Lake. The applicant had requested that a determination that the respondent had breached the terms of settlement be binding on present and future Lord Mayors. I explained to him that any remedy is restricted to the conduct of the respondent, as the settlement was between the applicant and this respondent alone.

45The applicant's main concern is that the Tribunal recognise that there has been a breach of settlement. He has expended time and effort pursuing his Application and felt that the respondent's conduct was a deliberate repudiation of their agreement. He wants this to be acknowledged. This concern has been addressed through these reasons.

46In addition, he requests that the respondent be required to donate a sum of money to the Niagara-On-The-Lake Rotary Club because this is a charitable organisation open to people of different faiths.

47In the circumstances I find this to be a reasonable and appropriate way to signal the Tribunal's concern that the terms of settlement were breached. The respondent is directed to make a charitable donation in the amount of $500 to the Niagara-On-The-Lake Rotary Club.

Order

48The Application is granted.

49Within thirty days of the date of this Decision the respondent is directed to make a charitable donation in the amount of $500 to the Niagara-On-The-Lake Rotary Club.

50Post-judgment interest is to be added to any amount of the donation that is not made within thirty days of the date of this Decision in accordance with the Courts of Justice Act.