HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
George Berger
Applicant
-and-
City of Toronto
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Berger v. City of Toronto
APPEARANCES
George Berger, Applicant Self-represented
City of Toronto, Respondent Sharmila Clark, Counsel
1This Application alleges that the respondent reprised against the applicant with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
Background
2The applicant was employed with the respondent until his termination on November 30, 2006. The applicant filed a transitional Application with the Tribunal bearing file number TR-0217-09 (the “transitional Application”). There are a number of previous decisions that have been issued by the Tribunal with respect to the transitional Application.
3In December 2012, the applicant, who was represented by counsel at that time, and the respondent settled the transitional Application. The Minutes of Settlement where executed by the parties on December 17, 2012.
4The applicant applied for three employment positions with the respondent. On November 13, 2013, the applicant was advised by the respondent that he was not the successful applicant and that these three positions were filled by other candidates. The Application alleges that the respondent committed an act of reprisal because it failed to grant him interviews for any of these positions. The applicant does not take the position that he should have been the successful candidate and awarded any of the three positions.
5The respondent filed a Response denying that it had reprised against the applicant when it denied him any interviews.
6The applicant filed a Reply to the Response in which he raises a number of issues, that he says are an indication that the respondent intended to reprise against him, this included:
a. That the respondent refused to include language with respect to a particular issue in the Minutes of Settlement (the applicant identified the particular issue in his submissions but I have excluded these specifics for reasons that are apparent below) ; and
b. That the respondent refused to provide the applicant with a particular remedy and that it only relented when his counsel made a demand for the particular remedy (the applicant identified the particular remedy in his submissions but I have excluded these specifics for reasons that are apparent below); and
c. The applicant included a number of emails between his counsel and the respondent’s counsel with respect to the implementation of the settlement.
7On February 27, 2014, the Tribunal directed that a summary hearing would be held to determine whether the Application should be dismissed on the basis that it has no reasonable prospect of success. On March 18, 2014, the Tribunal issued a Notice of summary hearing which advised the parties that the summary hearing was scheduled for July 2, 2014. To accommodate the applicant’s request an in-person hearing was held.
8On June 28, 2014, the respondent filed a Form 10, Request for an Order During Proceedings (the “respondent’s RFOP”) in which it sought to strike the paragraphs of the applicant’s Reply which referenced the settlement negotiations of the parties and also sought to seal the documents attached to the Reply which included the exchange of emails between counsel. The respondent also requested that these documents not be put before the adjudicator presiding over the hearing.
9On June 23, 2014, the applicant filed a Form 11, response to the respondent’s RFOP, in which he takes the position that the email exchanges that he includes occurred after the execution of the Minutes of Settlement and that such post settlement discussions are not covered by any settlement privilege because the matter had already been settled.
10The applicant also filed an RFOP seeking the production of various documents, including notes about conversations that occurred in September 2005.
11The summary hearing was held on July 2, 2014. During the summary hearing I also provided the parties with an opportunity to make written submissions on the issue of settlement and absolute privilege.
Summary Hearing
12The approach in a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
13This case is of the second type. The issue at the summary hearing stage is whether there is no reasonable prospect that the applicant can prove that the respondent reprised against him when it failed to provide him with any job interviews.
14The decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 33:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
15The Tribunal’s role at a summary hearing is not to hear any evidence, but to determine on an objective standard whether the Application has no reasonable prospect of success. The applicant is asked to explain to the Tribunal during the summary hearing the proposed evidence that he intends to rely on in support of his position that the Application should be allowed to proceed to a full hearing on the merits. It is appropriate for the Tribunal to determine whether this proposed evidence would be admissible at the hearing and whether there is no reasonable prospect this proposed evidence could lead to an inference that the applicant’s Code rights have been infringed.
16In this case I must determine whether the proposed evidence of the applicant would be admissible at a hearing, and if so whether this evidence could reasonably support that he was reprised against.
17The applicant relies on two allegations; the first is that the respondent refused to include the particular issue in the Minutes of Settlement. The second is that the respondent refused, until compelled by his counsel to provide him with a particular remedy. The Tribunal must determine whether these two allegations could be relied upon at a hearing or whether they are inadmissible because they are privileged communications.
Settlement privilege
18Settlement privilege is not absolute. The Supreme Court of Canada in Sabel Offshore Energy Inc. v. Ameron International Corp., [2013] SCC 37 has stated at paragraph 19:
There are, inevitably, exceptions to the privilege. To come within those exceptions, a defendant must show that, on balance, “a competing public interest outweighs the public interest in encouraging settlement” (Dos Santos Estate v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, 2005 BCCA 4, 207 B.C.A.C. 54, at para. 20).
19In Dos Santos v. Sun Life Assurance Co. of Canada, [2005] BCCA 4, the decision referred to above, the British Columbia Court of Appeal stated at paragraph 20:
To establish an exception in this case, the defendant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice.
20Having considered this matter, I find that the applicant cannot rely on either of these allegations in support of this Application because they are both covered by settlement privilege. The applicant is attempting to rely on the exchanges of offers to settle in support of his position that the respondent has reprised against him in this Application. However, all of these discussions and offers to settle are captured by the doctrine of settlement privilege. The majority of Applications are resolved by the parties either with or without the use of Mediation. It is important that the parties are able to have open dialogue and discussion of the issues with a view to the resolution of the Application. To permit a party to raise, either offers to settle or settlement discussions, during the course of litigation would have a chilling effect on the parties ability to resolve the issues. Further, during the course of negotiations there are often numerous offers to settle that are exchanged. It would serve no purpose for the Tribunal to hear evidence about why certain things where offered and others where not.
21With respect to the issue of the particular remedy, the applicant’s position is that the discussions between counsel occurred after the signing of the Minutes of Settlement and therefore, settlement privilege cannot apply. Having considered the matter, I find that the Minutes of Settlement themselves contemplated further negotiations between the parties, which includes the drafting of the language of the particular remedy. In these circumstances I agree that the discussions between counsel which post-date the settlement by approximately one week are covered by settlement privilege, and are continuing attempts to resolve this outstanding issue. Regardless of whether these communications were subject to settlement privilege, I would also have concluded that there is no basis for the applicant’s belief that the respondent breached the Minutes of Settlement. While I appreciate this is not a breach of settlement application – this observation means that even if the communications were not subject to settlement privilege I would not have found they had any reasonable prospect of providing evidentiary support for the applicant’s theory of reprisal. First, I note the applicant was represented by very able counsel, who never raised the issue that there was a breach of settlement. Secondly, within a week of the signing the Minutes of Settlement the parties had agreed to the terms of the particular remedy which was satisfactory to the applicant.
22In light of the fact that I have found that these two allegations are inadmissible due to settlement privilege, I have drafted my reasons to avoid disclosing the terms of the particular issue and particular remedy in order to preserve the confidentiality of the settlement between the parties.
Reasonable Prospect of Success
23Having reviewed the applicant’s materials, I am of the view that he has not proposed any evidence from which the Tribunal could reasonably infer that he was reprised against. I note that the applicant agreed that he would not have been the successful applicant in any of the competitions for which he applied. The Tribunal has often remarked that, “[f]or an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.” See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17. The Application is based on pure speculation and bald allegations and I am of the view that the applicant has no reasonable prospect of establishing that the respondent reprised against him.
24The Application is dismissed.
Dated at Toronto, this 28th day of January, 2015.
“Signed by”
Geneviève Debané
Vice-chair