Buttigieg v. Orchard Apartments (2503-2507) Inc., 2015 HRTO 1037

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Buttigieg Applicant

-and-

Orchard Apartments (2503-2507) Inc. and Eugenia Perebzak Respondents

A N D B E T W E E N:

John Buttigieg Applicant

-and-

Orchard Apartments (2503-2507) Inc. and Eugenia Perebzak Respondents

A N D B E T W E E N:

Estate of Lorenza Buttigieg Applicant

-and-

Orchard Apartments (2503-2507) Inc. and Eugenia Perebzak Respondents

DECISION

Adjudicator: Naomi Overend

Date: August 5, 2015

Citation: 2015 HRTO 1037

Indexed as: Buttigieg v. Orchard Apartments (2503-2507) Inc.

APPEARANCES

Robert Buttigieg, John Buttigieg and Estate of Lorenza Buttigieg, Applicants

Robert Buttigieg, Self-represented and Representative for John Buttigieg and Estate of Lorenza Buttigieg

Orchard Apartments (2503-2507) Inc. and Eugenia Perebzak, Respondents

Guy Hunter, Counsel

1On September 4, 2014, the applicants reached a settlement of three previous Applications with this Tribunal against the respondents. On March 5, 2015, the applicants filed these three Applications for Contravention of a Settlement pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging a breach of that settlement.

2The September 4, 2014 Minutes of Settlement consist of eight separate paragraphs, of which only the following two are relevant:

2. The Applicant [sic] and the Respondents agree to maintain confidentiality of the terms of these Minutes of Settlement. The Applicants shall not discuss or disclose the terms of settlement with anyone, including past or present employees or tenants of the Corporate Respondent, other than immediate family, or legal or financial advisers, or as required by law. The Respondents may disclose the terms of the settlement necessary to give effect to the terms of the settlement.

3. The parties shall not disparage or criticize each other in any public forum outside their Small Claims Court proceedings.

3The applicants allege the confidentiality provision set out in paragraph 2 was breached when the respondents attempted to introduce a property search (for a property owned by Robert Buttigieg) in the Smalls Claim Court proceeding referred to in paragraph 3. They say, and the respondents do not dispute, that this search was conducted while the respondents were in attendance at the mediation at which the Minutes of Settlement were reached. They also allege, although the respondents do not agree with this allegation, that it was conducted after the respondents received information from the mediator.

4I do not need to resolve this factual dispute as, even at its highest, the allegation does not amount to a contravention of the settlement. The applicants do not allege that any of the terms of the Minutes of Settlement were breached. The confidentiality provision in paragraph 2 of the Minutes refers only to the disclosure of the terms of the settlement.

5Instead, they argue that the respondents breached the confidentiality agreement, signed by the parties at the outset of the mediation, which states in part: “All documents provided for the purposes of mediation and all statements made during the mediation process are without prejudice and cannot be used in evidence before the HRTO or in any other civil proceeding.”

6Subsections 45.9(1) and (3) of the Code provide:

(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).

7It is clear from these provisions that a contravention application must be based on an alleged breach of the settlement of an application. It cannot be based on the breach of the confidentiality agreement executed by the parties in advance of that settlement. If a party is concerned about the improper use of confidential information disclosed during settlement discussions, this should be raised as an issue in the proceeding at which the other party is attempting to use that information.

ORDER

8There has been no contravention of the September 4, 2014 Minutes of Settlement. Accordingly, these Applications are dismissed.