Lani Kogon v. Cornerstone Insurance Brokers Ltd., 2014 HRTO 559

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lani Kogon

Applicant

-and-

Cornerstone Insurance Brokers Ltd.

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: April 22, 2014

Citation: 2014 HRTO 559

Indexed as: Kogon v. Cornerstone Insurance Brokers Ltd.

APPEARANCES

Lani Kogon, Applicant

Self-represented

Cornerstone Insurance Brokers Ltd., Respondent

Mark Fryer, Counsel

Introduction

1This is an Application filed under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent contravened the terms of the settlement reached between the parties.

2The hearing was scheduled for April 11, 2014, at which time I heard submissions with respect to the preliminary issue of whether or not I could, in determining whether or not there was a contravention of the settlement, consider the respondent’s notes made at mediation.

3I had directed the respondent in a Case Assessment Direction (“CAD”) dated April 7, 2014 to disclose the notes to the applicant, which it did.

4The CAD also had advised the parties that they may wish to review the decisions in Thornton v. Toronto Police Services Board, 2012 HRTO 2412 (especially paras. 10-21), and Ihasz v. Ontario (Revenue), 2011 HRTO 1991 (para. 21), prior to the hearing.

5Both parties made submissions with respect to the preliminary issue in the absence of any of the proposed witnesses.

Background

6The parties entered into Minutes of Settlement at a Tribunal mediation. The Minutes of Settlement, signed by both parties, stated that the respondent would pay to the applicant the sum of $20,000 as general damages. A Full and Final Release (“the Release”), signed only by the applicant, stated in part:

IN CONSIDERATION OF the terms of the Minutes of Settlement dated April 23, 2013, including the continuation of my regular earnings through to October 31, 2013, the receipt of all of which is hereby acknowledged […]

7The applicant commenced this contravention of settlement Application alleging that, while the respondent had paid her the $20,000 in general damages, it had failed to pay her ongoing wages to October 31, 2013.

Law and Analysis

8In my view, having considered the case law with respect to the use of notes made at a mediation, which are subject to a confidentiality agreement, I can consider those only if I am satisfied that there is an ambiguity in the Minutes of Settlement. As an aside, I consider the issue of whether I can hear the witness’ testimony to be the same as whether I can consider notes from the mediation in that I can hear that evidence, which would disclose information from a confidential mediation, only if I find an ambiguity in the Minutes of Settlement. See Thornton and Ihasz, above. As stated in Ihasz:

A party’s beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement, constitute extrinsic evidence which, in accordance with the parole evidence rule, cannot be considered when interpreting the meaning of the words of the contract. Thus, in the absence of exceptional circumstances, I cannot impute the applicant’s intentions and beliefs into the written word of the agreement […]

9Despite it being the respondent who wished to use the notes as evidence, the respondent submitted at the hearing that the Minutes of Settlement were clear and set out the obligations of the parties. It submitted that no obligation on the respondent was created by the terms of the Release. In other words, despite any interpretation that might be given to the terms of the Release, it did not impose any obligation on the respondent because it was not signed by the respondent.

10The applicant submitted that it was her belief that the Minutes of Settlement and the Release were two separate documents with different terms in each, the Minutes of Settlement being for the general damages and the Release being for the continuation of wages. She read the Release as meaning that she would get her wage loss up to October 31, 2013.

11I find that there is no ambiguity between the Minutes of Settlement and the Release. As in Ihasz, the parties’ “beliefs and intentions” are extrinsic evidence, which I cannot consider unless there is some ambiguity. In this case, the applicant signed Minutes of Settlement in which she agreed to one payment only, namely $20,000 general damages. The Release, in my view, does not change the Minutes of Settlement. In the Release, the applicant released the respondent in accordance with the “terms of the Minutes of Settlement dated April 23, 2013 [the $20,000], including the continuation of my regular earnings through to October 31, 2013” (emphasis added). There was no reference in the Minutes of Settlement to any other payment other than the $20,000, and I cannot find an ambiguity between the Minutes of Settlement and the Release. As such, I cannot consider the confidential information resulting from the mediation.

12As such, this is a case of contractual interpretation only and I find no contravention of the terms of the Minutes of Settlement. The Minutes of Settlement were signed by both parties in which they agreed that the respondent would pay to the applicant the sum of $20,000. Both parties agree that this payment has been made.

order

13This Application is dismissed.