HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Kendall Applicant
-and-
Metrolinx Respondent
AND BETWEEN
Metrolinx Applicant
-and-
Sandra Kendall Respondent
DECISION
Adjudicator: Josée Bouchard Date: May 20, 2016 Citation: 2016 HRTO 697 Indexed as: Kendall v. Metrolinx
APPEARANCES
Sandra Kendall, Applicant/Respondent Self-represented
Metrolinx, Respondent/Applicant Daniel B. Fogel, Counsel
INTRODUCTION
1These are two Applications, pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), alleging that Sandra Kendall (“the applicant”) and Metrolinx (“the respondent”) contravened the terms of the settlement reached between them.
BACKGROUND
2On May 5, 2015, the parties signed Minutes of Settlement (“MOS”).
3The applicant commenced an Application on October 14, 2015, alleging the respondent failed to comply with paragraph 3 of the MOS (“failure to comply with paragraph 3”), which provides:
- Metrolinx undertakes to immediately examine the possibility of partnering with the Township of King`s Municipal By-Law Enforcement Office to assist its Transit Safety Officers in enforcement of parking by-laws and access to accessible parking spaces with a view to exploring what neighbouring regions are already doing by way of support and partnerships, such as in East Gwillimbury.
4The respondent commenced an Application on November 5, 2015, alleging the applicant failed to comply with paragraphs 9 and 10 of the MOS (“failure to comply with duty of confidentiality”), which provide:
The only statements which the Applicant may make to any third-parties, including members of the media, related to the Application for any of the allegations and events described therein, will be restricted to those made in the article written by Tess Kalinowski which was published in the Toronto Star on March 27, 2014 and those made in the article written by Mark Pavilons which was published in the King Weekly Sentinel on March 31, 2015. The Applicant may also direct any third-party that inquires to the aforementioned articles and/or to the news release attached hereto as Appendix A.
The parties agree to maintain the strict confidentiality of the terms of these Minutes of Settlement, subject only to the following exceptions. The Applicant may disclose their terms to members of her immediate family and to their legal and financial advisors after specifically advising them of and obtaining their agreement to comply with the aforementioned requirement of strict confidentiality. The Respondent may disclose these Minutes of Settlement and their terms required to implement or enforce them and to have the agreements made herein applied and upheld.
5The applicant argues that the respondent did not “immediately” implement paragraph 3 of the MOS, while the respondent submits that the applicant contravened the duty of confidentiality by disclosing information about the MOS to the Mayor (the “Mayor”) of the Township of King (“Township”) and to a Township employee.
6As background information, the applicant explained that most workdays she travels from the GO King City Station (“the Station”) to her position as a medical librarian at a Toronto downtown hospital. She requires access to the accessible parking spaces at the Station, but was often denied that access by other cars using the spaces. She had repeatedly raised concerns about this with the respondent, which led to her original application to the Tribunal and the MOS between the parties.
7I turn now to the alleged contraventions of the MOS.
ANALYSIS AND DECISION
8Section 45.9(3) of the Code states:
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 […]
9Section 45.9(8) of the Code states:
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.
10An applicant has the onus of proving a contravention. See, for example, Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516.
Failure to Comply with Paragraph 3
11The applicant argues that the respondent undertook to “immediately” begin implementing paragraph 3 of the MOS. She maintains that between May and July 2015, the respondent did not appear to have begun implementing paragraph 3 of the MOS. She submits the respondent contravened paragraph 3 because it only began its implementation when, in July 2015, she enquired about progress.
12The respondent’s two witnesses were its Legal Counsel and its Sergeant for Operations Support. Detailed witness statements were entered into evidence and the applicant was provided with an opportunity to cross-examine the witnesses.
13Legal Counsel provided the following overview of the respondent’s implementation of paragraph 3:
a. On May 8, 2015, Legal Counsel emailed various employees of the respondent to advise them of the specific requirements of paragraphs 3 and 4 of the MOS.
b. On May 19, 2015, Legal Counsel began legal research into the proposed involvement of the Township’s municipal by-law officers in enforcing the appropriate usage of accessible parking spaces on the respondent’s property. The legal research into jurisdictional and other legally complex issues continued into July 2015.
c. Through the summer and into the fall of 2015, the respondent held internal consultations with stakeholders. Employees of the respondent were busy as they were heavily involved in the 2015 Pan Am Games, Parapan Am Games and Pan American Economic and Climate Summit in Toronto during the summer of 2015.
d. On August 14, 2015, Senior Counsel for the respondent sent an email to Township officials proposing a conference call.
e. The respondent arranged a conference call for September 11, 2015 between the respondent and the Township to present an initial proposal. The call was rescheduled to September 22, 2015 because Township officials were not available. The meeting led to further research.
f. On November 18, 2015, the defendant provided an outline proposal to the Township and exchanges between the respondent and the Township continued.
g. Effective January 14, 2016, the respondent and the Township reached an agreement with respect to the enforcement of a parking by-law at the Station.
14The witness statement for the Sergeant for Operations Support provides information about his task of tracking and reporting the Transit Safety Officer’s attendance at the Station pursuant to the MOS.
15The respondent submits that paragraph 3 clearly and plainly states “the respondent will immediately examine the possibility of partnering with the Township” (emphasis added). The respondent argues that it fully complied with, and went beyond, the obligations under paragraph 3, but the applicant was simply unaware of the respondent’s actions. Three days after the execution of the MOS, the respondent began implementation by conducting the required legal research and internal consultations. The respondent then began discussions with the Township which led to an agreement, effective January 14, 2016, with respect to the enforcement of parking by-laws at the Station.
16When considering whether there is a contravention of a settlement, the Tribunal has held that the intention of the parties is to be discerned from the words of the contract. “In interpreting a contract, one should not generally have reference to extrinsic evidence, and in particular, bargaining history.” See Reyns v. Timmins (City) 2014 HRTO 466 at para. 21.
17I find no contravention of paragraph 3 of the MOS. The respondent began implementing paragraph 3 three days after the execution of the MOS. The respondent took the appropriate steps to implement paragraph 3 within the required timelines, which led to the adoption of a shared enforcement agreement with the Township beyond the requirements of paragraph 3 of the MOS.
Failure to Comply with Duty of Confidentiality
18I turn now to the allegations that the applicant failed to comply with her duty of confidentiality.
19The respondent alleges that the applicant contravened the duty of confidentiality by disclosing information about the MOS to the Mayor and to a Township employee. The respondent argues that confidentiality of minutes of settlement is of the utmost importance. The respondent requests the reimbursement of the general damages paid to the applicant pursuant to the MOS.
20The applicant testified that she had two informal conversations with the Mayor in May and June, 2015 following the execution of the MOS. During those conversations, the Mayor enquired about her case before the Tribunal. The applicant testified she informed the Mayor that the case was settled, but the MOS were confidential. When he asked for a copy of the MOS, the applicant refused to provide them claiming confidentiality.
21The applicant agrees with the respondent that confidentiality of minutes of settlement is very important. The applicant testified that following this exchange the Mayor told her the Township and the respondent had not entered into a shared enforcement agreement. The applicant testified that she was not surprised by the Mayor raising the shared enforcement matter. For a number of years, she and the Mayor had been discussing accessible parking at the Station, including the idea of shared enforcement of the municipal by-law (“shared enforcement”) between the Township and the respondent. The applicant had not revealed information about the MOS and in her view the mention of shared enforcement was not in reference to the MOS. The applicant and Mayor’s support for shared enforcement was no secret; it had been the subject of newspaper articles in the Toronto Star around March 2014 and the King Weekly Sentinel around March 2015.
22The applicant testified that in July 2015, she contacted the respondent’s Senior Legal Counsel to enquire about the implementation of the MOS, particularly the development of a shared enforcement agreement between the Township and the respondent. Senior Legal Counsel asked the applicant to provide a contact at the Township. The applicant informed Senior Legal Counsel that she was reluctant to contact the Township because of concerns about violating the confidentiality of the MOS. She testified that Senior Legal Counsel told her to proceed. She emailed the Township clerk as follows:
A quick follow-up on the issue of negotiating to have King by-law officers share the enforcement of our King GO parking lot with Metrolinx. Has this been discussed or brought to your attention by Metrolinx or the senior legal counsel?
And the Township clerk answers:
Yes, I did identify this matter at my site meeting yesterday, and I am expecting the legal enforcement staff to discuss the implementation. We will be working together to define the scope of the shared enforcement, and at what lots…Thanks for the prompt.
The applicant testified that once introductions were made between the respondent and Township, she stopped being involved in discussions. Senior Legal Counsel did not testify and this evidence is not contradicted.
23Confidentiality agreements in minutes of settlement are of utmost importance. I find that the applicant did not contravene the confidentiality agreement when speaking with the Mayor. The applicant and the Mayor’s long-standing and public discussions of those issues explain his reference to shared enforcement following his enquiries about the human rights matter. There is no evidence that the applicant revealed information about the MOS to the Mayor.
24The communication with the Township happened as a result of the respondent’s informed approval. I find that the respondent waived the confidentiality agreement for the limited purpose of allowing the applicant to identify a contact person at the Township. The applicant limited her communication with the Township to that purpose and the communication ended once the respondent and the Township had been introduced. The Township’s response to the applicant’s email reveals that it appreciated the prompt to begin discussions with the respondent. Those discussions ultimately led to a shared enforcement initiative between the respondent and the Township.
25For these reasons, the Contravention of Settlement Applications are dismissed.
Dated at Toronto, this 20th day of May, 2016.
“signed by”
Josée Bouchard Vice-chair