Stefano Damassia v. Browns Socialhouse Erin Mills, 2017 HRTO 1212

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stefano Damassia Applicant

-and-

Browns Socialhouse Erin Mills Respondent

DECISION

Adjudicator: Bruce Best Date: September 18, 2017 Citation: 2017 HRTO 1212 Indexed as: Damassia v. Browns Socialhouse Erin Mills

APPEARANCES

Stefano Damassia, Applicant Self-represented

Browns Socialhouse Erin Mills, Respondent Maria Gergin, Counsel

Introduction

1This Application was 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 has contravened a settlement entered into between the parties in a prior application brought to the Tribunal. A hearing was held by teleconference on September 11, 2017.

2For the reasons below, I find that the respondent has not contravened the terms of the settlement. As such, the Application is dismissed.

Background

3The applicant brought an application to the Tribunal against the respondent in 2016, which was resolved by minutes of settlement signed on October 20, 2016 (“the settlement”).

4The applicant claims that the respondent disclosed to individual staff members the amount of financial compensation paid to him in the settlement. He alleges that this was a contravention of the settlement agreement.

5The respondent denies that any details respecting the settlement, other than the fact of settlement, were disclosed to the respondent’s staff. The respondent further noted, however, that even if it had there would be not be a breach as the confidentiality clause in the settlement did not apply to it. The confidentiality clause, at paragraph 7 of the settlement, reads as follows:

The Applicant agrees to maintain the strictest confidentiality of the terms of these Minutes of Settlement, with the exceptions that the Applicant may disclose them to his immediate family, legal and financial advisors, or as required by law.

6There were no provisions in the settlement indicating that the respondent would be similarly bound to keep the terms of the settlement confidential.

7By Case Assessment Direction (“CAD”) dated January 27, 2017, the Tribunal directed that a teleconference hearing to determine whether there had been a contravention of the settlement.

8At the hearing, the applicant argued that shortly after the settlement was reached on October 20, 2016, he was contacted by various staff members of the respondent inquiring about the settlement. He claims that several staff disclosed that they had been told by another staff member the dollar amount of the settlement, and that some staff appeared to be aware of some of the other issues that arose at the mediation.

9The applicant made various other allegations, including that the respondent had shared the results of the settlement to deliberately cause him difficulties. I noted at the hearing that such allegations appeared to be based on reprisal under s. 8 of the Code, rather than a contravention of settlement under s. 45.9.

10I raised the issue that the settlement, on its face, did not impose any terms respecting confidentiality on the respondent, and asked the applicant to indicate why he believed it had any such obligation. The applicant indicated that after he reviewed the first draft of the settlement, two changes were discussed with the mediator; first was the specific timeline for delivery of the financial portion of the settlement, and second was whether the confidentiality provisions, reproduced above, should be mutual.

11The minutes were amended, and a specific deadline for delivery of the cheque was written in next to paragraph 1 of the settlement. However, no change was made to paragraph 7, the confidentiality clause. The applicant testified that he noted the change to paragraph 1, but claims he did not realize that no changes had been made to paragraph 7. He signed the settlement without requiring further changes.

Analysis

12Sections 45.9(1), (3) and (8) of the Code read as follows:

45.9 (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.

13A settlement is a contract. The determination of liability under s. 45.9(8) should be based on contractual principles. See Saunders v. Toronto Standard Condominium Corporation Corp. No. 1571, 2010 HRTO 2516 at paras. 37-39.

14The Court of Appeal held in Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at paras. 32-34, that the primary goal of contract interpretation is to give effect to the intentions of the parties at the time the contract was entered into. However, though extrinsic evidence may be admitted to resolve an ambiguity in a contractual provision, where the language of a contract is clear and unambiguous on its face, extrinsic evidence respecting the negotiations is not admissible, and the determination of the intention of the parties should be determined based on the wording of the contract itself. The Tribunal has adopted the above reasoning in a number of decisions. See Thornton v. Toronto Police Services Board, 2012 HRTO 2412 at paras. 12-16, and Karges v. Norfolk (County), 2017 HRTO 382 at para. 22.

15There is no ambiguity in the settlement. The confidentiality clause clearly applies only to the applicant. There is nothing in the settlement on its face that could lead to the conclusion that it also applied to the respondent.

16In the absence of any ambiguity, it is not appropriate to delve into the details or to consider any evidence respecting what occurred at the mediation. The confidentiality clause did not apply to the respondent, so even if it had disclosed to its staff details of the result, this could not give rise to a finding that it had contravened the settlement.

17As noted above, the applicant appears to be claiming that the respondent had disclosed the details of the settlement as reprisal for his having brought the original application. My decision that there has not been a contravention of the settlement is without prejudice to the applicant’s right to pursue separate proceedings, should he choose to do so within the applicable limitation period under the Code, that the respondent disclosed the details of the settlement as a reprisal. I make no finding with respect to any such allegations.

Order

18The Application is dismissed.