Nash v. Ottawa Carleton District School Board, 2017 HRTO 1363

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Nash

Applicant

-and-

Ottawa Carleton District School Board and Janice McCoy

Respondents

RECONSIDERATION DECISION

Adjudicator: Leslie Reaume Date: October 16, 2017 Citation: 2017 HRTO 1363 Indexed as: Nash v. Ottawa Carleton District School Board

WRITTEN SUBMISSIONS

Lisa Nash, Applicant Self-represented

Ottawa Carleton District School Board and Janice McCoy Respondents Roger Mills, Counsel

Introduction

1On March 6, 2017, the Tribunal issued its Decision, 2017 HRTO 285 (the Decision), dismissing two Applications filed by the applicant in 2014: the first alleged contravention of settlement against the school board and Janice McCoy (2014-17811-S); the second alleged reprisal against the school board, Janice McCoy and Jennifer Baldelli (2014-18509-I)

2The applicant filed a Request for Reconsideration of that portion of the Decision that relates to her allegations of contravention of settlement. The applicant filed submissions in support of her request. The respondent also filed submissions opposing the request.

Reconsideration

3Under section 45.7 of the Human Rights Code, RSO 1990, c.H.19, as amended (“the Code”), the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4The Tribunal has issued Rules of Procedure, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers. (Practice Direction on Reconsideration, January 2008, last amended April 2014). Here the applicant relies on Rule 26.5 (c):

A Request for Reconsideration will not be granted unless the Tribunals satisfied that:

c. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

5The Tribunal’s Practice Direction on Reconsideration states:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

6The Tribunal also has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 that reconsideration is not an opportunity to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as final and closed, subject to limited exceptions.

decision

7The events leading to the Decision dismissing the allegation of breach of settlement are set out in detail in the Decision from paragraphs 10 to 22. The applicant settled two previous Applications with the school board and three individual respondents. The three individual respondents were integrally involved in the negotiations but did not sign the Minutes of Settlement (“MOS”) in their personal capacity. The school board then initiated a contravention of settlement Application alleging that the applicant had breached the confidentiality provision of the MOS. The applicant then filed a contravention of settlement Application against the school board. She alleged that the school board breached the confidentiality provision of the MOS when it delivered copies of its contravention Application to the individual respondents who had not signed the MOS.

8I dismissed the applicant’s contravention Application for the following reasons which are set out in paragraphs 17 to 21 of the Decision:

The applicant’s contravention Application cannot succeed. Ms. Gage and Mr. Armstrong were parties to the original proceedings which were disposed of by the MOS. The Tribunal requires the applicant in a contravention application to file a copy of the settlement agreement. Rule 24.1 requires the person initiating a contravention application to deliver the application to the other parties to the settlement. Rule 24.2 requires that the moving party include a copy of the settlement alleged to have been contravened. Section 45.9(6) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), defines the parties to a contravention application as follows:

(6) Subject to the Tribunal rules, the parties to an application under subsection (3) are the following:

1. The parties to the settlement.

2. Any other person or the Commission, if they are added as a party by the Tribunal.

Ms. McCoy, Ms. Gage and Mr. Armstrong were named as individual respondents in the original 2009 and 2012 Applications and actively participated in the settlement negotiations. They agreed to a resolution which resulted in the Applications being dismissed against them and they agreed to be bound by the confidentiality provision in the MOS, though they did not sign the MOS. Ms. McCoy signed the MOS in her capacity as a representative of the Board but not in her personal capacity. Ms. McCoy, Ms. Gage and Mr. Armstrong bargained for and benefitted by various clauses in the MOS including a full release, no admission of liability and confidentiality. Ms. Gage and Mr. Armstrong were aware of and agreed to every term other than the specific amount of money paid to the applicant. Without the agreement of all of the individual respondents, the resolution would not have occurred.

I would not restrict the interpretation of the term “parties to the settlement” in section 45.9(6) of the Code to the signatories of the settlement agreement in these circumstances for two reasons.

The first is that the applicant was relying on the status of Ms. McCoy, Ms. Gage and Mr. Armstrong as parties to the original proceeding to enforce the confidentiality provision against them. Everyone who participated in the settlement negotiations gave an undertaking to be bound by the confidentiality provision whether or not they signed the MOS. The decision not to tell Ms. Gage and Mr. Armstrong how much money would be paid was made by the respondent Board, not the applicant. As far as the applicant was concerned, Ms. Gage and Mr. Armstrong were privy to all of the terms. She took no steps to shield them from knowing how much money she would be paid because she was relying on the confidentiality provision applying to them. The applicant cannot now take advantage of a more narrow interpretation of what it means to be a party to the settlement in her claim that the Board contravened the confidentiality provision of the MOS.

The second reason is that it would be unfair and punitive to find a contravention in this context where the definition of parties to a settlement under the Code can bear more than one interpretation. This is especially true where the motivation for serving Ms. Gage and Mr. Armstrong was to ensure that everyone who participated in the settlement negotiations, and considered themselves bound by the terms of the MOS, received notice that the settlement may be in jeopardy. Had the respondent Board identified Ms. Gage and Mr. Armstrong as having an interest in this matter, rather than serving them with the Application, I would have exercised my discretion to add them as parties pursuant to section 45.9(6)(2) of the Code. It does not constitute a breach of the confidentiality provision of the MOS that the contravention Application was served on Ms. Gage and Mr. Armstrong along with a copy of the MOS.

9The applicant argues, as she did at the time of the contravention hearing, that since Ms. Gage and Mr. Armstrong were not signatories to the MOS, they were not entitled to receive notice of the school board’s contravention Application which included a copy of the MOS. The applicant argues that sections 45.9(1), (3), and (6)(1) and Rule 24 restrict the definition of “parties to the settlement” to the parties who have signed the settlement agreement. She also argues that the effect of my Decision is to improperly add the individual respondents as parties to the school board’s contravention Application.

10The respondent argues that the effect of the Decision is not to add parties retroactively to the school board’s contravention Application. The respondent argues that the Tribunal made a finding of fact that Ms. Gage and Mr. Armstrong were parties to the MOS for the purposes of providing them with notice of the school board’s contravention Application pursuant to Rule 24.1. The respondent argues that the Tribunal’s findings are not in conflict with established jurisprudence or Tribunal procedure. The respondent also argues that the applicant’s contravention Application involves a private claim which benefits only the applicant and therefore does not establish that the issue is one of general or public importance.

11The issue before me at the contravention hearing was whether the respondent’s actions in disclosing the contents of its contravention Application to Ms. Gage and Mr. Armstrong constituted a breach of the confidentiality provision of the MOS. The respondent considered its obligations under Rule 24, the definition of parties to a settlement in 45.9 and the role played by Ms. Gage and Mr. Armstrong as respondents to the original applications and active participants in the settlement negotiations. The respondent concluded that given the unique circumstances of this case, it should act with an abudance of caution and ensure that Ms. Gage and Mr. Armstrong were made aware of the school board’s contravention Application. The applicant argued that I should find a breach of confidentiality because Ms. Gage and Mr. Armstrong were not signatories to the agreement and therefore not technically “parties to the settlement” under Rule 24 and section 45.9 of the Code. The applicant argued that the respondent was not entitled to disclose the contents of the contravention Application to anyone other than a signatory to that agreement.

12In my Decision, I found that it would be unfair and punitive to find the respondent in breach of the MOS in these circumstances. I rejected the applicant’s argument that the Rules and the Code should operate so as to preclude notice and disclosure to anyone other than a signatory to the MOS. This is what is meant by the statement “I would not restrict the interpretation of the term “parties to the settlement” in section 45.9(6) of the Code to the signatories of the settlement agreement in these circumstances for two reasons.” For clarity this means section 45.9 does not govern who would be entitled to notice of the school board’s contravention Application. Section 45.9 does not deal with notice but rather defines what constitutes a binding settlement and who can initiate a contravention application. Section 45.9(6) defines parties to a contravention application as the parties to the settlement and “any other person or the Commission, if they are added as a party by the Tribunal.” This provision contemplates notice being provided to persons other than the signatories to the agreement. Notice is governed by Rule 24 which is to be interpreted, not in a technical manner, but “liberally and purposively” to promote the fair, just and expeditious resolution of disputes (Social Justice Tribunals Ontario Common Rules, A3.1). Therefore, even if I agreed with the applicant that “parties to the settlement” in section 45.9 is restricted to the signatories to the agreement, that would not change the result in this case.

13In order to grant reconsideration, I must be satisfied that my Decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. The applicant must statisfy both parts of this test to allow the Tribunal to grant reconsideration. In this case I decided that it was not a breach of the MOS to provide Ms. Gage and Mr. Armstrong with a copy of the school board’s contravention Application, including the MOS, because they were parties to the original application, treated as parties throughout the negotiation, they agreed to the terms of the MOS and were potentially affected by the contravention Application. They were also entitled to notice if only for the purpose of considering whether they should be added as parties to the school board’s contravention Application pursuant to section 45.9(6)(2).

14In her reconsideration request the applicant expresses her disagreement with my Decision and reiterates her argument that the respondent had no authority to provide Ms. Gage and Mr. Armstrong with notice of the school board’s contravention Application. In coming to my Decision, I considered the arguments advanced by both parties in the context of both my expertise in interpreting the Code and the Tribunal’s mandate to facilitate the fair, just and expeditious resolution of every application before it. Reconsideration is a not a forum to reargue the issues in this dispute.

15The applicant has not established that the Decision is in conflict with established case law or Tribunal procedure. The applicant cited the Tribunal decision in Mishich v. Loans Till Payday Inc., 2013 HRTO 991 which is not relevant to either my Decision or the reconsideration request. In that case the Tribunal was determining a request to add a party to a contravention application in circumstances where that person was not a party to either the original Application or the minutes of settlement which resolved the Application. That issue was not before me nor did my Decision have the effect of adding Ms. Gage and Mr. Armstrong as parties to the school board’s contravention Application. The contravention hearing dealt with whether the school board was in breach of the MOS by providing notice and disclosure of its contravention Application materials to individuals who were parties to the original application and central to the settlement negotiations. In addition, the applicant has not established that her reconsideration request involves a matter of general or public importance. The dispute is a private matter, unique to these parties over an alleged breach of a term of a settlement agreement.

16For those reasons, I find that the applicant has not established that the factors set out in Rule 26.5 (c) would lead to a reconsideration of the Decision.

17The Request is denied.