Thunder Bay Police Services Board v. Burns, 2014 HRTO 1721

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thunder Bay Police Services Board Applicant

-and-

Richard Burns Respondent

DECISION

Adjudicator: Kathleen Martin Date: November 28, 2014 Citation: 2014 HRTO 1721 Indexed as: Thunder Bay Police Services Board v. Burns

APPEARANCES

Thunder Bay Police Services Board, Applicant Holly Walbourne, Counsel

Richard Burns, Respondent Self-represented

1This is an Application filed under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging a contravention of settlement. The applicant alleges that the respondent contravened Minutes of Settlement entered into on February 1, 2011 and Confidentiality Agreements signed by the parties during the mediations that were held to resolve the original application.

2A hearing into the Application was held on August 19, 2014 by conference call. At the outset of the hearing, I heard submissions from the parties on the impact of the respondent’s failure to comply with the Tribunal’s various directions on the ability to the respondent to participate. The applicant took the position that the respondent should be bound by what he said previously, whereas the respondent stated that he wished to call witnesses on some future date. After hearing from the parties, I ruled that the hearing would proceed and Mr. Burns would be able to participate consistent with his earlier submissions.

3During the hearing, the respondent also complained about the manner of hearing by conference call as opposed to an in-person hearing and following the hearing, filed several emails repeating this concern, as well as raising other issues with respect to process. The applicant filed a response to the same. Given my disposition below, while I have reviewed the additional submissions made, I do not find necessary to address the substance of the respondent’s concerns.

4I have determined that the applicant has not established a contravention of the Minutes of Settlement. My reasons follow.

Background Facts

5The background facts and many of the facts underlying the alleged contravention are not in dispute. In those few instances where there are disputes I do not find it necessary to resolve the disputes for the purpose of this decision.

6The Contravention Application relates to the settlement of a complaint originally filed with the Ontario Human Rights Commission in July 2007. This OHRC complaint was transitioned into an application at the Tribunal (“the Transition Application”).

7On December 1, 2010, prior to engaging in the Tribunal’s mediation process, the parties agreed to meet in effort to try to resolve some or all issues in the Transition Application. The confidentiality agreement entered into as part of this private mediation included the understanding and agreement that the meeting was “confidential” and that all statements made were “without prejudice” and could not be used in evidence before the Tribunal or in any other proceeding without the consent of the party who made the statement. Further, the confidentiality agreement stated that “nothing said at the meeting is to be disclosed to any other person”. The Transition Application was not resolved at this meeting.

8On February 1, 2011, the parties met again in a mediation convened by the Tribunal in an effort to resolve the Transition Application. In accordance with the Tribunal’s process, the parties signed a Confidentiality Agreement (the “Tribunal’s Confidentiality Agreement”), which among other things stated that, “we understand and agree that this is a confidential process”; and all documents provided and statements made during the mediation are “without prejudice and cannot be used in evidence before the Tribunal or in any other civil proceeding”. The session resulted in Minutes of Settlement which were entered into on February 1, 2011, by the applicant, Chief Robert Herman, and the respondent (“the MOS”).

9The MOS state that the “terms of the Settlement are confidential and shall not be disclosed to any persons other than the signatories…”. In addition, the respondent (the applicant in the Transition Application) agrees in the MOS that the settlement is in “full, final and complete settlement of all claims existing up to the date hereof, arising out of, or in any way relating to the matters giving rise to the Application against the Respondents” and to a full and final release of any and all claims related to the events in the Transition Application. Further, the respondent signed a separate Full and Final Release of All Claims which elaborates on the terms of the release.

10The Contravention Application was filed on September 4, 2013 by the applicant and alleged that the respondent had contravened the MOS, the confidentiality agreement signed during the private mediation session and the Tribunal’s Confidentiality Agreement. In particular, the applicant alleged that the respondent made false and malicious statements to numerous individuals, including media and politicians, that the settlement he achieved was the result of a fraudulent misrepresentation. The applicant further alleged that the respondent contravened the confidentiality agreements entered into at the private mediation of the parties but also during the Tribunal’s mediation. The applicant alleged that the “libel and slander” heaped on the applicant is an unacceptable abuse of the Tribunal’s process and that the respondent was seeking to maliciously damage the applicant and harm its reputation.

11The applicant sought a number of remedies related to the alleged contraventions including that the respondent be ordered to pay back the settlement monies, pay $50,000.00 in damages and that he cease and desist from sending abusive correspondence to the applicant and others about the applicant and violating the MOS and the signed confidentiality agreements. The applicant also sought that the respondent be declared a vexatious litigant.

12Subsequent to the filing, the procedural history of the Contravention Application was somewhat protracted, although I do not find it necessary to review this procedural history in detail for the purposes of this decision, with the exception of what is summarized below. The history is documented in nine Case Assessment Directions of the Tribunal dated October 23, 2013, December 4, 2013, February 3, 2014, February 4, 2014, March 3, 2014, March 26, 2014, April 17, 2014, June 16, 2014 and August 13, 2014.

13The Contravention Application was initially scheduled for a conference call hearing given the respondent’s failure to file a complete response. It was then re-scheduled for an in-person hearing when the respondent orally stated during a conference call on March 25, 2014, that he was challenging the facts underlying certain allegations, and additional directions were issued which included directing the respondent to file a complete response and hearing materials. Prior to the August 19th hearing date, the applicant filed a Request for Order During Proceedings asking that the hearing be done by oral or written submissions. In its Request, the applicant withdrew its request that the respondent be declared a vexatious litigant (albeit without prejudice to further proceedings if warranted). The applicant emphasized that the Contravention Application was narrow in scope, characterizing its claim as being limited to an order for damages and an order that the respondent cease and desist from repeating falsehoods based on information received under the confidentiality protection provisions of the Tribunal mediation process.

14Having regard to the material filed and submissions made, including the absence of a proper response from the respondent and any witness statements, in a Case Assessment Direction dated August 13, 2014, the Tribunal determined that the hearing would be converted to a one-day hearing by conference call.

15At the hearing, the applicant narrowed the Contravention Application further. The applicant stated that it was limiting the factual basis of its allegations to those that stem from the “federal crown” incident disclosed during the mediation sessions. The applicant states that during both mediation sessions it was disclosed to the respondent that the police had received information from a federal crown and acted on that information in detaining the respondent on March 17, 2008, but that it was subsequently determined that the information was a mistake so the respondent was released. The applicant relies on two affidavits confirming the circumstances surrounding the respondent’s detention on March 17,2008, which were submitted in the hearing. Among other things, the affidavits substantiate that a police constable of the applicant Police Service (working as a court officer) received information that there was an arrest warrant issued for the respondent from a federal crown, that other officers then located and detained the respondent, that subsequently, the police constable received clarification that it was a “discretionary” bench warrant and not yet registered on CPIC and that as a result, the respondent was released (the entire events taking less than 30 minutes).

16The applicant states that this specific incident was not an allegation in the Transition Application but that the respondent raised the issue in the mediation and thus it fell within the scope of the full and final release which was ultimately agreed to.

17It would appear that following the mediation, the respondent complained to the federal prosecutor in Ottawa about the role of the federal agents in his arrest/detention. While no copy of any complaint was submitted in the hearing, it would appear from the letter disposing of a complaint which was submitted that the respondent alleged that the federal agents had “directed” his arrest (which I note is different from what the applicant states occurred). In a letter to the respondent dated July 10, 2013, the chief federal prosecutor concluded that based on the investigation and the complete lack of documentation, there was no evidence that the respondent’s arrest by the police was carried out as a result of “any action” by federal agents. While the date of the arrest referenced in the letter is March 17, 2010, I have presumed this is in error, but even if it is not, the federal prosecutor makes it clear that federal agents have not directed the respondent’s arrest in the manner complained of at any time.

18Aside from contacting the federal prosecutor, the respondent’s conduct that is complained of in the Contravention Application stems from the respondent’s actions following the receipt of this letter from the federal prosecutor. In particular, the respondent engaged in the following conduct:

• On August 15, 2013, the respondent sent an email to the Office of the Independent Police Review Director, the Tribunal, the Attorney General’s Office of Ontario, a member of the Police Services Board and the Chief of Police for Thunder Bay, referring, among other things, to “the fabrication of the Federal Crown and the willingness of others such as Police legal Counsel…to participate in the deception of the substantively disabled victim demonstrates the need for deterrence” and that the “court will be asked to consider these facts when the civil action is filed later this month…”.

• On August 16, 2013, the respondent sent an email to some of the same individuals and also a senior counsel in the office of the federal prosecution service, a member of Parliament, and a civil lawyer, stating among other things, that the respondent completed an interview with members of the media and asked that “special attention be placed on the Police fabrication of a Federal Crown in the Provincial Courthouse incident”; that “Once the victim has established the claimed basis for the encounters is like the Federal Crown a police fabrication then action can be taken to obtain injunctive relief from further abuse and this role falls to the HRTO and OIPRD”; and other similar statements.

• On August 17, 2013, the respondent made a comment online in response to a news article which stated:

In July 2013 the Federal Crown’s office released the findings of it’s investigation, and found the claims by police to have been acting on the direction of a Federal Crown when arresting this victim FALSE. The fabrication of evidence by police in an abuse investigation is serious. In response to hearing from the other side, I agreed to waive the confidentiality provision in the HRTO police declined to do so. They are choosing not to debate this issue and instead lets blame the victim. Police and their lawyers were asked several times to disclose the identity of this Federal Crown and refused mostly because there wasn’t one :)

• On August 19, 2013, the respondent sent an email to the Tribunal, the Attorney General’s Office of Ontario, the Chief of Thunder Bay police, a member of the Police Services Board, a lawyer and an individual of the Ombudsman Office stating, among other things, that “I have argued that my agreement was obtained by false pretences based on a fabrication by the respondent [the applicant in this proceeding]”; and “During a settlement conference at the Prince Arthur Hotel in Thunder Bay police legal Counsel…stated he possessed the identity of the federal crown who his client had claimed directed the Provincial Courthouse incident.”; and “I doubt anyone could have predicted the respondent would be found to have fabricated evidence ot [sic] the fabrication would be facilitated by their legal counsel…”.

• On August 22, 2013, the respondent sent an email to the Chief of Police, a senior partner at the law firm (the employer of the respondent’s legal counsel), a senior counsel in the office of the federal prosecution service, a television reporter, and a member of Parliament stating, among other things, that “legal counsel has threatened me with legal action for disclosing the fabrication of evidence in the provincial courthouse incident” and that the respondent has met with the media and “am now suggesting they follow up this story”.

19The respondent does not dispute the conduct complained about, i.e. that he authored these emails and the online comment. However, the respondent disputed for the first time during the conference call that he obtained the information about the federal crown during the mediation sessions; instead he claimed that while the issue was raised at mediation, he knew about the information earlier. While I am somewhat skeptical of this assertion given that the respondent himself appears to suggest in his August 17, 2013 online comment that he is prepared to waive “confidentiality”, ultimately, I do not find it necessary to resolve this difference for purposes of this decision. I address this in my analysis and decision below.

20Notwithstanding the reference to a civil action being filed in one of the respondent’s emails, there was no submission made that another proceeding has been commenced either in the civil process or otherwise.

21Following the hearing, in a Case Assessment Direction dated November 17, 2014, the Tribunal asked the applicant to confirm by November 19, 2014 if the Contravention Application was filed on behalf of both the named applicant and Robert Herman (who had been a respondent party to the MOS), and if it was not, the applicant’s submissions on whether Mr. Herman was entitled to notice and/or had received notice. The Tribunal directed that by November 21, 2014, the respondent may provide any submissions in response.

22On November 19, 2014, the applicant clarified that the Application was filed only on behalf of the Thunder Bay Police Services Board and that while Mr. Herman was aware of the Application, he did not wish to participate and waives the need to any further notice or service in this matter. Such information was confirmed by Mr. Herman in an email dated November 18, 2014. While the respondent sought a brief extension to the deadline to make submissions in response, ultimately, the respondent did not file any submissions in accordance with the extension granted.

23Having regard to the information filed, I am satisfied that Mr. Herman had notice of the proceeding but does not wish to participate in the proceeding. The Tribunal will not provide a copy of this Decision directly to Mr. Herman, but directs the applicant to do so within seven days of the date of this Decision.

Analysis and Decision

24Section 45.9 states in part:

(1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

(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),…

(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.

(emphasis added)

25As is apparent from the statutory language, the key question in any contravention application is whether or not a party has contravened the settlement. The Tribunal has stated that to establish a breach of settlement the allegations have to be based on the terms as agreed to by the parties and reduced to writing in the settlement.

26The applicant bears the onus of proving a contravention: see, for example, Levinsky v. Canadian Tire Corporation, 2012 HRTO 783.

27In this case, the applicant makes several arguments why the MOS have been contravened. First, the applicant submits that by using the information given in the confidential mediation sessions and subsequently repeating (and misstating) the information disclosed, the respondent has breached the confidentiality agreements signed in those mediation sessions. The applicant relies on the language in the respective agreements that refer to the meetings being “confidential” and the restrictions on the use of documents and statements made as summarized in paragraphs 7 and 8 above. The applicant submits that the confidentiality agreements have to be in place to permit a settlement meeting and therefore are “part and parcel” of one contract made by the parties, which I presume is a reference to the settlement.

28In addition, the applicant submits that the respondent has contravened the MOS. The applicant relies on the provision that states that the “terms of the Settlement are confidential” and the term that the settlement is in “full, final and complete settlement of all claims existing up to the date hereof…” and that the applicant in the Transition Application agrees to “release the respondents…from any and all claims related to the events in this Application….” Further, the applicant relies on the Full and Final Release attached to the MOS which releases and discharges the respondents “from any and all actions, causes of action, applications, claims, complaints, demands, and any other proceedings of whatever kind for damages, indemnity, costs, compensation or any other remedy….”

29The applicant submits that by raising the issue with the federal crown, the respondent is making a “claim or demand”, although the applicant acknowledges that it is not saying that the respondent has commenced a “proceeding”. The applicant also submits that the raising of the issue with the federal crown breaches confidentiality. The applicant urges the Tribunal to find a contravention, submitting that no respondent would enter into a settlement if the precise matters settled could be continuously litigated and discussed publicly as the respondent has done in this case.

30There appears to no doubt that the respondent is talking about the issues discussed during the mediations (even he acknowledges as much although he asserts now that he knew it before). In general, this type of conduct is not helpful to facilitating and encouraging settlements in most situations. However, while I can appreciate the concerns raised, I do not find that the applicant has established a contravention of the MOS.

31In considering the issues in this Application, I do not find it necessary to determine whether or not the respondent learned about the federal crown through the mediations or not. Even assuming without finding that the information in question was disclosed in the mediations in question, I do not find that the applicant has satisfied me that the use and disclosure of information provided during the course of a mediation to resolve the Transition Application is a contravention of the MOS.

32Turning first to the confidentiality agreements, the applicant quite properly highlights that the confidentiality agreement (at least in the Tribunal’s process) is a condition to engaging in that process. However, that does not make the confidentiality agreement a term of the settlement unless it is negotiated to be a term of the settlement. Thus, even assuming that the respondent repeated information and/or misstated information disclosed in that process, I do not find that the disclosure is a contravention of settlement in the absence of language incorporating obligations to maintain the confidentiality of those statements and/or information in the settlement itself. There is no such incorporation of this obligation in these MOS.

33This does not mean that there is not a mechanism to enforce the confidentiality agreement, particularly the confidentiality agreement in the Tribunal’s process (obviously the confidentiality agreement signed outside of the Tribunal’s process presents other challenges). Subject to the circumstances, there may be an issue of whether or not a breach of confidentiality provision is an abuse of process, although in a case such as the Contravention Application before me where the issue is limited to the enforcement of a private contract – i.e. the settlement between the parties – I do not find that an abuse of process argument has merit. In a case where there is only a settlement, there may be other mechanisms to enforce the agreement, including in the civil courts. However, the only issue before me is the alleged contravention of the settlement and I do not find that a breach of the confidentiality provisions contained in the Confidentiality Agreement, but not in the MOS, is, in this case, a contravention of settlement.

34I also am not satisfied that the applicant has established a contravention of the MOS more directly. I do not find that the respondent has contravened the term of confidentiality in the MOS. The MOS state that the parties agree that “the terms of Settlement are confidential and shall not be disclosed…” There is no term addressing the discussions that may have occurred in mediation.

35Further, I am not convinced that the terms setting out the full and final release either in the MOS or in the attached Full and Final Release are contravened by the respondent’s conduct in this case. There appears to be no dispute that the respondent made a complaint to the federal prosecutor and then used the information from the prosecutor’s letter to accuse the applicant in a public way of fabricating information, given the content of the various emails and the online comment. While the applicant attempted to characterize this conduct as making a claim or demand within the meaning of the MOS and Full and Final Release, I do not agree. Considering the language in the MOS and the Release, it is clear that what is barred are legal claims that result in a proceeding and that lead to a remedy. The MOS contains a release whereby the applicant in the Transition Application releases the respondents from any and all claims, including claims under various statutes and the common law, none of which are engaged by the respondent’s conduct. Similarly, the Full and Final Release releases the respondents [one of whom is the applicant in this proceeding] from any and all actions, causes of action, applications, claims, complaints, demands, and “any other proceedings of whatever kind for damages, indemnity, costs, compensation or other remedy” (emphasis added). While the respondent has sent emails and made an online comment about an issue that was arguably resolved and has suggested wrongdoing by characterizing the information he received as being a fabrication, no actual claim or demand for a remedy has been made nor has he commenced a proceeding. In my view, the reference to a proceeding and link to a remedy qualifies the type of claim or demand that is prohibited by the settlement.

36While I can appreciate that the applicant is frustrated given its perspective on what occurred, I do not find that the respondent’s conduct is a contravention of the MOS and in particular the terms of the Release, whether those in the body of the MOS or in the attached Schedule.

37For all of the foregoing reasons, the Application for Contravention of Settlement is dismissed.