HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Briggs
Applicant
-and-
Durham Regional Police Services and Christopher Delaney
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Briggs v. Durham Regional Police Services
1In Briggs v. Durham Regional Police Services, 2015 HRTO 1712, I upheld the Application and found that the respondents discriminated against the applicant on the basis of race and colour when they decided to run the applicant’s licence plate. I found that the applicant was reprised against, in part, when the personal respondent and another officer stopped the applicant’s vehicle after he drove it out of the parking lot. I ordered monetary compensation as a remedy and remained seized with respect to a non-monetary remedy. The non-monetary remedy remains outstanding.
2In a June 2, 2017 Case Assessment Direction (“CAD”), I stated that I had become aware of another Tribunal decision, Briggs v. Durham Regional Police Service, 2017 HRTO 442, issued in another matter between these parties. It appears from that decision that there is a dispute between the parties about whether or not the matter before me was settled before 2015 HRTO 1712 was issued. I invited the parties to file submissions on this issue and they did so.
3The applicant takes the position that when minutes of settlement were entered into in March 2015 (“the minutes”), they settled a second application which had been filed by the applicant, but they did not settle this Application. The respondents take a different position. They submit that the minutes resolved both the second application as well as this Application.
4In a CAD dated June 20, 2017, I advised the parties that I was leaving the Tribunal at the end of June/beginning of July, provided the name of the law firm I was joining, and directed the parties to provide their positions on whether they wished the Tribunal to hear the dispute about whether or not there is a settlement, and, if so, their positions as to whether there is any reason why I should not continue as the adjudicator before hearing dates were canvassed. The parties filed submissions. Neither party objected to me as adjudicator, although the respondents submitted that they do not agree that the Tribunal should determine whether or not there is a settlement. They submitted that the issue is presently before Divisional Court by way of an application for judicial review and that the Tribunal is attempting to “bootstrap a decision”.
5In a CAD dated June 30, 2017, I stated that the issue of whether or not there was a settlement of the Application should be determined by the Tribunal. I also stated that from the submissions filed by the parties, it would appear that oral evidence may be required, in addition to legal submissions. I directed the parties to provide their availability for hearing dates in August and September 2017 by July 14, 2017. My last day working for the Tribunal was July 6, 2017.
6The parties did provide the Tribunal with their availability dates by July 14, 2017. The respondents indicated that they wanted to call Mark Hart, a Vice-chair with the Tribunal, as a witness. The applicant identified himself, his former counsel and a law student as potential witnesses. Unfortunately, while the Tribunal received their available dates, the Tribunal did not schedule hearing dates and these dates were not brought to my attention.
The respondents’ request for an order during proceedings
7The respondents have filed a Request for an Order During Proceedings (“RFOP”) seeking a Tribunal order restricting the admissibility of parol evidence with respect to the minutes. They attached to the RFOP an affidavit of Mattison Chinneck, a lawyer at the respondents’ lawyers’ law firm, which provided information about how the minutes were entered into, asserted that Vice-chair Hart assisted the parties in reaching the minutes, and provided information about what occurred after the minutes were entered into. Mr. Chinneck’s affidavit was made, it states, in support of the respondents’ application for judicial review.
8The respondents submit that there no basis for the admissibility of parol evidence with respect to the minutes. Further, they submit that the law is clear that the intention of the parties is to be determined by reference to the words they used in drafting the document. They submit that it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. Unless there is ambiguity in the wording of the document, extrinsic evidence regarding the subjective intention of the parties is inadmissible pursuant to the parol evidence rule. They submit that there is no ambiguity in the minutes.
The applicant’s response to the rfop
9The applicant filed a Response to the RFOP opposing the order requested by the respondents. He submits the minutes did not settle this Application.
10He submits that the RFOP is premature as the respondents are asking the Tribunal to accept, based only on their written submissions, its underlying position that the minutes are unambiguous. The question of ambiguity is one that must be determined by the Tribunal, he submits, and is integrally related to the very issue that has been sent to hearing.
11The applicant submits that the respondents have themselves relied upon parol evidence in their submissions, including evidence that is presumptively inadmissible. The fact that the respondents are unable to make their request to exclude extrinsic evidence without themselves relying on extrinsic evidence, he submits, highlights that the issue will require nuanced consideration which is best suited to a hearing.
12Further, the applicant submits, the respondents rely on an outdated test for interpretation that has been rejected by the Supreme Court of Canada. The current approach requires a decision maker to consider evidence of the “factual matrix” and “surrounding circumstances” which is not considered parol evidence.
13Finally, the applicant submits that the Tribunal has the discretion to admit extrinsic evidence in order to resolve the ambiguity and give effect to the objective intentions of the parties, should the Tribunal find ambiguity in the minutes after interpreting it in light of the surrounding circumstances. This can include post-minutes conduct of the parties, which, the applicant submits, demonstrates that the minutes did not settle this Application.
14Finally, the applicant submits that if the Tribunal finds that ambiguity in the minutes cannot be resolved by admitting extrinsic evidence, the ambiguity should be resolved by constructing contra proferentum against the respondents who drafted the release in the minutes.
analysis
Parol Evidence
15In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (“Sattva”), at paras. 59 to 61, the Supreme Court of Canada made a number of observations about the parol evidence rule. It stated:
It is necessary to say a word about consideration of surrounding circumstances and the parol evidence rule. The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary or contradict a contract that has been wholly reduced to writing…. To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties. …. The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract….
The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is inconsistent with the objectives to finality and certainty because it is used as an interpretative aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of these words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore the concern of unreliability does not arise.
Some authorities and commentators suggest that the parol evidence rule is an anachronism, or, at the very least, of limited application in view of the myriad of exceptions to it…. For the purposes of this appeal, it is sufficient to say that the parol evidence rule does not apply to preclude evidence of surrounding circumstances when interpreting the words of a written contract.
16Based upon Sattva, above, I cannot exclude the possibility of evidence about the surrounding circumstances to the minutes. Further, I cannot determine, in the absence of submissions, whether or not there is ambiguity in the language of the minutes. I do note that the minutes do not specifically refer to this Application or the personal respondent, Christopher Delaney. The Tribunal document, Form 25, Confirmation of Settlement, was not filed by the parties in this Application.
17In Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912 (“Shewchuk”), the Court of Appeal held that when the trial judge found the parties’ contract to be ambiguous, he properly considered the parties’ subsequent conduct to assess their evidence about the intended scope of their contract.
18In their RFOP, although they submit that the minutes are unambiguous, the respondents also appear to suggest that the minutes are ambiguous as they refer to events that occurred after the minutes were entered into. In the affidavit sworn in support of the respondents’ application for judicial review, the affiant provides contextual information about who assisted with the settlement (which is expanded upon in paragraph 19 of the respondents’ written submissions) and what occurred after the minutes were entered into. In paragraph 6, he provides his opinion about an issue.
19Following Settva and Shewchuk, above, I am not prepared to rule at this point that evidence about the surrounding circumstances of the minutes is inadmissible, nor am I prepared to rule that post-minute evidence is inadmissible.
20Accordingly, the hearing will be scheduled for the Tribunal to hear the parties’ evidence and submissions about whether or not the minutes settled this Application. The parties are directed to exchange with each other and file with the Tribunal witness statements detailing the anticipated evidence of their witness(es). These witness statements are to be filed not less than three (3) days before the scheduled hearing. The Tribunal will likely have the witnesses adopt these witness statements as their examination-in-chief, with some supplementary questions. Of course, there will be cross-examination on the statements and the viva voce evidence.
21The hearing will not address the non-monetary remedy which remains outstanding. This will be scheduled at a later date if the Tribunal finds that there was no settlement of this Application.
Vice-chair Hart as a Witness
22The respondents have identified Vice-chair Hart as one of their witnesses. While I have not received submissions about whether or not Vice-chair Hart can testify in this matter, I wish to point out the following.
23The Human Rights Code of Ontario, R.S.O. 1990, c. H.19. as amended, does not provide for a Vice-chair or member testifying before a Tribunal hearing. Section 4.9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, says that mediators are not compellable to give testimony or produce documents in a proceeding before the tribunal or in a civil proceeding with respect to matters that come to his or her knowledge in the course of exercising his or her duties under this or any other act.
24Rule 15A of the Tribunal’s Rules of Procedure permits the Tribunal’s Vice-chairs and members to offer mediation-adjudication, and requires the parties to sign a mediation-adjudication agreement. The mediation-adjudication agreement which parties are required to sign (and signed in the second application) specifically states, at para. 9:
We understand that the mediator/adjudicator is not compellable as a witness before the Tribunal or in any other civil proceeding and that the mediator/adjudicator’s notes or records are inadmissible before the Tribunal or any other civil proceeding.
25In the event that the respondents want Vice-chair Hart to testify, the parties should be prepared to make submissions addressing whether or not he can be compellable to testify in a Tribunal hearing about a mediation/adjudication over which he presided.
Next Steps
26As set out above, the Tribunal will schedule a hearing
Dated at Toronto, this 26th day of September, 2017.
“Signed by”
Alison Renton
Vice-chair