HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Billie Jo Ramey
Applicant
-and-
ORNGE Ltd.
Respondent
DECISION
Adjudicator: Yola Grant
Indexed as: Ramey v. ORNGE Ltd.
APPEARANCES
Billie Jo Ramey, Applicant
Scott D. Ramey, Representative
ORNGE Ltd., Respondent
Kathryn Bird, Counsel
Introduction
1This Application, filed on June 27, 2016, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges Contravention of a Settlement (the “Settlement”). The contravention relates to the settlement of an earlier Application (Tribunal File No. 2014-19464-I) that alleged discrimination on the basis of disability and failure to accommodate in employment. This earlier Application, along with various grievances, was settled in a grievance arbitration process on February 23, 2016, between the applicant (grievor), her union and her employer ORNGE Ltd.
2Around April 11, 2016, the applicant filed for benefits with the Workplace Safety & Insurance Board (“WSIB”). In its response to the WSIB (Form 7), the respondent disclosed that monies were paid to the applicant to settle various grievances and a human rights complaint. The applicant alleges that this disclosure of the Settlement Agreement contravened the Settlement and that this was done to colour the mind of the WSIB Case Manager and to deny the claimant her entitlement as an emergency worker to legislated presumptive entitlement to benefits.
3The respondent admitted that it disclosed to the WSIB that settlement monies were paid to the applicant in February 2016 to settle grievances and a human rights complaint. It also did not dispute that additional records were disclosed although it objected to an amendment to the Application to address that issue.
4It is important to set out additional context about the litigation processes in which the applicant was involved. The applicant filed a grievance with her union against the employer and contemporaneously filed an Application with the Tribunal. She opted to defer the Application before the Tribunal, pending a resolution of the grievance process. This deferral occurred before any of the Tribunal’s rules requiring her to disclose arguably relevant documents was engaged. The applicant settled her grievance at the grievance hearing stage, after she had disclosed her relevant medical records to the employer in the usual manner prior to the start of the arbitration hearing.
SUMMARY OF THE DECISION
5As the WSIB is not a named party in this Contravention of Settlement Application, the Tribunal has no jurisdiction to address its processes or the actions of its Case Manager. The WSIB (and its appeal body) has full authority to uphold its rules and to accept or reject materials that are placed before it for consideration. While it might be upsetting to be required to satisfy the WSIB Case Manager of the legitimacy of a claim, the concerns expressed regarding the fairness or manner of the handling of the applicant’s WSIB claim is not within the jurisdiction of the HRTO to remedy.
6The allegation that the respondent employer breached the “confidentiality term” of the Settlement is not supported by a plain reading of the terms of the agreement and by giving effect to the usual interpretation of these terms as between a union and an employer. The obligation of confidentiality was imposed solely on the applicant-grievor.
7Furthermore, one cannot interpret a “no prejudice or precedent” clause included in an agreement made under a grievance process to infer that the employer had an obligation to keep the Settlement strictly confidential. Additionally, for the reasons set out in full below, the ability to assert that the agreement shall not serve as a “precedent in any other proceeding” rests with the union and the employer, who were the only parties to the settlement for the purposes of the resolution of the grievances.
8The Settlement included a requirement to seal the applicant’s file and a restriction on comments to prospective employers regarding the applicant’s tenure. This suggests that the parties turned their attention to restricting the employer’s disclosure of sensitive personal information concerning the applicant, like medical and grievance records, contained in her personnel file. Even absent an express term in the Settlement to bind the employer to non-disclosure of the applicant’s personnel file, the employer is still not at liberty to disclose the contents of the “sealed” file as the records in personnel files are for the most part, if not all, considered confidential. Indeed, where the personnel file includes material gathered (compelled) in the grievance arbitration process, its disclosure for use in a collateral matter may constitute a breach of the common-law “implied undertaking” rule.
9Moreover, I take notice that ORNGE is a listed “institution” in the Regulation related to the Freedom of Information and Protection of Privacy Act (R.R.O. 1990, Reg. 460, institution #137) and it is thus bound not to release the applicant’s personal information except in limited circumstances. However, the Tribunal has no jurisdiction to address a breach of FIPPA, if any, in these circumstances.
10Finally, the Tribunal is without jurisdiction to address whether the implied undertaking rule, codified in Rule 3 of the Tribunal’s Rules of Procedure, was breached. In this Contravention of Settlement Application, the alleged breach is tied to the collateral use of documents disclosed under the grievance arbitration process that was underway while the initial Application was deferred. The Tribunal must confine itself to determining Code breaches, breaches of its own Rules when those rules are engaged, and breaches of settlement where those breaches hinge on a contextual interpretation of a term of the written settlement document. Although the “implied undertaking” rule has been widely adopted in various fora where employment disputes are addressed, this is not an issue within the Tribunal’s jurisdiction in the instant Application, but may be within the grievance arbitrator’s jurisdiction, as the applicant’s documents were disclosed to the employer in the arbitration process.
SUMMARY OF PARTIES’ SUBMISSIONS
11The applicant alleged a Contravention of Settlement, pursuant to s.45.9(3) of the Code (the “COS Application”), that is cited on the Tribunal’s Form 25 – Confirmation of Settlement. She requested as a remedy that the Tribunal provide for “repudiation of the Settlement Agreement”, “reinstatement of all … Code complaints” and “any additional damages that the Tribunal deems appropriate for past or new violations of the applicant’s human rights and the settlement agreement.”
12In its response, ORNGE asserted that the Tribunal did not have jurisdiction to address the alleged breach, if any, of the Settlement attained through the grievance process. On a preliminary basis, the Tribunal agreed with the applicant and asserted its jurisdiction over an alleged breach of the settlement that had ostensibly resolved the Application before the Tribunal. By a Case Assessment Direction (“CAD”) issued on July 26, 2016, the Tribunal directed that the COS Application proceed to a conference call hearing.
13In the instant COS Application, the applicant submitted that the respondent’s disclosure to the WSIB had the effect of stalling the applicant’s WSIB claim, even though as a “first responder” she had a presumptive entitlement to benefits. The applicant also stressed that there is an established process with safeguards at the WSIB for obtaining relevant medical records from the claimant and her treating physicians – and that the respondent effectively did an end-run on that process. The applicant alleges that she experienced considerable emotional harm when she was “interrogated” by the WSIB Case Manager after receipt of the grievance file from the respondent-employer.
14The respondent in turn submitted: (a) that the applicant should not be permitted to make new allegations regarding medical records at the hearing not contained in her COS Application; (b) that there was no breach of the Settlement as the employer had a duty to ensure that the applicant did not obtain “double recovery” for the alleged harms or injury that arose from her employment; and (c) in the alternative, if there was a breach, it was de minimus.
15According to the applicant, the extent of the respondent’s disclosure to the WSIB was not known at the time of filing the instant Application, as the respondent delayed in mailing a copy of the employer’s submission to the WSIB (Form 7) to the applicant. The applicant further submitted that the Form 7 sent to the applicant did not indicate that there were attachments and furthermore, the employer did not mail to her the attachments that it had shared with the WSIB. The applicant asserted that the respondent should not benefit from its concealment of the extent of its disclosure made to the WSIB.
16The applicant submitted that she became aware that the employer disclosed the grievance file with medical evidence to the WSIB sometime after receipt of the Form 7, about 10 days prior to filing the instant Application.
17Orally, I ruled that the applicant should confine her submissions to the allegations regarding disclosure contained in pages 4 and 5 of the COS Application (Form 18) that reads in part as follows:
The employer explicitly mentioned the settlement in the applicant’s WSIB Form 7 report with the expressed interest of causing suspicion, misdirection and prejudicing the applicants claim for WSIB benefits under Bill 163 for first responders and emergency service workers diagnosed with PTSD as a presumptive legislation with intent to advantage the employers [sic] position.
The document at issue was not associated with enforcing the terms of the settlement. By agreement it is not open to the Employer to refer to the settlement or its terms in any other proceeding. The Employer has contravened this provision to the detriment of the applicant by purposely prejudicing the WSIB adjudicators and case manager. The terms of the settlement did not include any lost wages or reportable employment income outlined in WSIB Policy 18-02-02 that would be required under the Workplace Safety and Insurance Act by the employer.
It is further alleged that the Employer intentionally and knowingly delayed sending a copy of the Form 7 to the applicant to provide an opportunity to prejudice and misinform the WSIB prior to the applicant gaining knowledge that the breach of settlement had occurred. ORNGE also failed (under section C12 of WSIB Form7 instructions) to provide the attached supporting documents as indicated by checking this box. No additional documents were received with the delayed Form 7. [emphasis added]
18This matter was heard on January 16, 2017 by teleconference and a decision issued in November 2017. This delay was necessitated by the adjudicator’s absence on leave.
ANALYSIS
Relevant excerpts from the Settlement on which the parties relied
19The “Settlement and Release” document (the “Settlement”) includes the following terms that were referenced at the hearing or that I consider relevant for a contextual interpretation:
The Employer shall seal the Grievor’s personnel file.
The Employer shall provide the Grievor with three (3) copies of the letter confirming her employment as outlined in Schedule “A” and shall answer all inquiries in accordance with the content of the correspondence.
The Grievor agrees not to disclose the terms of this settlement to members of the public, including to employees and former employees of the Employer, by any means, including ….
The Grievor further acknowledges that in the event that she breaches the confidentiality provision in paragraph 8 herein, the payments outlined in paragraph 2 herein will not be payable and/or will be immediately repayable to the Employer by the Grievor within thirty (30) days of Arbitrator S. finding that the confidentiality provision outlined herein at paragraph 8 has been breached by the Grievor. (redacted)
The Parties further agree that this settlement and release is without prejudice or precedent to any other case and shall not be referred to by any of them in any future proceedings except for the purpose of enforcing its terms. [emphasis added]
The Grievor acknowledges that the Parties have discussed or otherwise canvassed any and all human rights complaints …. and that this agreement constitutes a full and final settlement of any existing, planned or possible complaint or complaints against the Employer under the Human Rights Code …
Grievor and Employer shall execute a copy of the Tribunal’s Form 25 … and the Employer shall file a copy of the same with the Tribunal.
The parties acknowledge and agree that this settlement and release in no way prejudices or limits the Grievor’s claim against XYZZ as set out in the Statement of Claim …
The union, with the Grievor’s agreement, hereby withdraws the Grievance as settled upon the terms contained herein.
The Parties agree that Arbitrator S. shall remain seized of any issues arising from the implementation of these Minutes of Settlement. (redacted)
20I note that at paragraphs 12, 13 and 15 (above), the parties addressed settlement of disputes related to the Code and the continuation of another claim by the applicant that arose from the employment relationship.
The Tribunal’s Jurisdiction
21The Settlement expressly mentioned the grievor’s 2014 Application to the Tribunal (File No. 2014-19464-I) in its preamble and again in paragraph 13 cited above. The Settlement required the applicant to execute the Tribunal’s Form 25 and for the respondent to file it with the Tribunal to indicate that the Application had been resolved.
22The applicant relied on a term in the Form 25 to assert that she was entitled to seek redress for a breach of the Settlement that had ostensibly resolved the issues articulated in her human rights Application.
23At the outset of the instant COS proceeding, the respondent employer re-asserted that the Tribunal had no jurisdiction over the allegations concerning the WSIB and its disclosure to the WSIB.
24In my view, the Tribunal has express jurisdiction to address a breach of settlement by virtue of section 45.9(1) and (3) of the Code that provides for claims arising from a breach of settlement. The waiver provided at paragraph 12 of the Settlement, although it specifically mentioned future complaints arising under the Code, cannot be interpreted to deny the applicant the right to seek redress from the Tribunal, where the applicant alleges a breach of the Settlement and initiates a contravention of settlement application.
25Furthermore, there is no derogation from the Tribunal’s jurisdiction by virtue of the fact that the Settlement provided (at paragraph 19) that the grievance arbitrator “shall remain seized of any issues arising from the implementation of these Minutes of Settlement”. In the instant case, neither party to the grievance arbitration process (employer or union) has brought the instant allegations of a breach of confidentiality to the attention of the grievance arbitrator, under whose jurisdiction the personal information of the applicant was disclosed to her employer.
26I note also that the applicant did not have “carriage rights” in the grievance arbitration process; her former union did. In contrast, the applicant did not require the consent or cooperation of her union to seek redress from the Tribunal for an alleged breach of the Settlement.
27As indicated in the CAD, the Tribunal’s jurisdiction is limited and some of the allegations in the instant COS Application cannot be resolved by the Tribunal. Specifically, allegations regarding the conduct of employees of the WSIB or the fairness of that Board’s process cannot be addressed through this COS Application where the WSIB is not a named party and where the WSIB had no role in the implementation of the Settlement.
28While I am sympathetic to the applicant’s position that the WSIB Case Manager cannot “un-see” the medical and other records disclosed by the employer, it is the responsibility of the WSIB to control its own proceedings and to accept or reject information in accordance with its home statute and its rules.
29As a result, this decision will interpret the terms of the Settlement and address the applicant’s general allegation that the respondent-employer’s disclosure of the Settlement and her related grievance information to the WSIB was in contravention of the Settlement terms.
Breach of “confidentiality” term with disclosure of Settlement
30The express confidentiality or non-disclosure provision, the respondent argued, is found in paragraph 8 and is a one-sided (unilateral) obligation imposed only on the applicant-grievor regarding the terms of the settlement. I agree with the respondent’s submission regarding paragraph 8 of the Settlement. As a simple matter of contract interpretation, I agree that paragraph 8 serves to bind only the grievor to non-disclosure of the terms of the settlement. Furthermore, paragraph 9 establishes clear consequences to the grievor if she breaches that clause. There is no similar obligation on or consequence to the employer. The applicant’s claim is similar to that dealt with in Aird v. McCollough, 2011 HRTO 398, where the Tribunal ruled:
Turning to the terms of the Minutes, the parties chose confidentiality language that applied only to the applicant. Accordingly, disclosure of the Minutes by the respondents, had it occurred, would not have amounted to a contravention of the settlement.
31The applicant argued strenuously that paragraph 11 of the Settlement, which states “the parties further agree that this Settlement and Release … shall not be referred to by any of them in any future proceedings except for the purpose of enforcing its terms”, should be interpreted to mean that the respondent employer breached the Settlement when it disclosed to the WSIB the monetary settlement obtained by her in the grievance arbitration process.
32The respondent argued instead that paragraph 11 is a standard term in grievance settlements that does not address confidentiality or privacy of records, but is commonly used to give effect to the fact that the particular settlement agreed to by the union and employer shall not be used by either of them in addressing “any other case” or “any future proceedings”.
33I agree with the respondent that the paragraph 11 “no prejudice or precedent to any other case” clause serves only to underscore that the settlement should not be referred to in addressing other grievances between the employer and the union. Practically, it means that the parties to the collective agreement (the union and employer) agree not to use the settlement as a benchmark or a precedent to address future grievances filed by any member of the union. The additional clause “and shall not be referred to by any of them in any future proceedings except for the purpose of enforcing its terms” similarly binds the union and the employer to refrain from referring to the Settlement in future proceedings.
34The applicant-grievor is not a party to the Collective Agreement and does not personally have carriage of grievances filed under the Collective Agreement. It is settled labour arbitration law that although the grievor is the subject of the Settlement (and grievance), it is the union that has “carriage” rights as a party. In my view, given the nature and proper interpretation of paragraph 11 of the Settlement, this provision is restricted to the employer and the union as parties to the Collective Agreement and any grievance process under the collective agreement, and cannot be relied upon by the individual applicant-grievor to assert a contravention of her rights under the Settlement.
Alleged breach of “confidentiality” with disclosure of personnel file contents
35The applicant asserted that the personnel/grievance file was disclosed as an attachment to the respondent’s Form 7 and that this fact was concealed. The respondent in turn conceded that the file was disclosed to the WSIB in an “over-understanding” of its obligations to disclose relevant material.
36It is noteworthy that the absence of an express non-disclosure term binding on the respondent does not relieve it from an obligation to treat confidential personal information with care, particularly confidential information garnered during the grievance process, where the applicant was compelled to disclose sensitive medical records to address issues of disability and accommodation. This is supported both by the common law, codified rules of procedure and by privacy statute(s).
37During the hearing, I raised with the respondent that the Settlement required that the respondent employer “shall seal the Grievor’s personnel file” and provided that the employer’s comments on the applicant’s tenure be confined to a letter attached to the Settlement (paragraphs 6 and 7 respectively). The respondent submitted that the sealing of records would limit access to certain personnel within the respondent-employer’s organization, but would not otherwise restrict the employer’s ability to disclose those records (including medical records) to external parties. I disagree. In my view, the fact that the parties turned their attention to sealing the personnel file of the applicant (grievor) and restricting comments to prospective employers suggests that there was intent to restrict, to some extent, the employer’s and its agents’ access to and disclosure of particularly sensitive personal information, including any grievance and medical-related records contained in the personnel file of the applicant to at least some external parties, such as prospective employers.
38Both the applicant and the respondent agreed that disclosure of medical information can be compelled by the WSIB. In the instant COS Application, it was also undisputed that the applicant is afforded with a vetting opportunity before medical records are shared with the WSIB or disclosed to the employer as an interested party to a WSIB claim. Given my decision that there was no breach of paragraph 8 or 11 of the Settlement, I need not address both parties’ strenuous arguments regarding the appropriate interpretation of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended, except to find that the employer provided no evidence that it was compelled to reveal the sealed records but did so because it believed the records to be relevant.
39In my view, while the obligation in the Settlement to seal the applicant’s personnel file restricts disclosure of records or information in this file internally within ORNGE and to external parties such as prospective employers, it does not preclude the disclosure of relevant records by ORNGE to a statutory body like the WSIB. Further, while the employer-respondent could not show that it was compelled to disclose the applicant’s records to the WSIB, it does not follow that disclosing these records to the WSIB on the basis of the employer’s interest in the WSIB claim and its assessment that these records are relevant to the applicant’s WSIB claim constitutes a violation of para. 6 of the Settlement.
40The proximity of para. 6 to para. 7 in the Settlement in my view informs the proper interpretation and scope of para. 6 of the Settlement. Paragraph 7 of the Settlement is expressly about restricting the respondent’s responses to inquiries about the applicant’s employment to the contents of the attached letter. This provision is directed towards inquiries by external parties such as prospective employers. In my view, para. 6 of the Settlement, when properly interpreted in the context of the Settlement, similarly precludes the respondent from sharing records or information from the applicant’s personnel file internally and to external parties such as prospective employers. I am reluctant to find, however, that para. 6 restricts the respondent’s ability to disclose records that it considers relevant to a statutory agency like the WSIB. If that was the intended effect, then to the extent that any such restriction or limitation was even lawful, I would expect to have seen express language in the Settlement to achieve this effect.
41Accordingly, on a proper interpretation of the terms of Settlement, I find that para. 6 of the Settlement did not by itself preclude the respondent from disclosing the applicant’s employment records to the WSIB and thus there is no contravention of the Settlement per se.
Common law, statute and rules dealing with nondisclosure of documents obtained in litigation
42While ORNGE is a listed “institution” in the Regulation related to the Freedom of Information and Protection of Privacy Act (R.R.O. 1990, Reg. 460) and as such is statutorily bound to treat the applicant’s personal information in strict confidence and to release that information in only limited circumstances, this Tribunal’s jurisdiction is confined to allegations regarding a violation of the Code. Thus, I cannot address the application of the Freedom of Information and Protection of Privacy Act to the applicant’s allegations regarding ORNGE’s disclosure of information to the WSIB. That issue is within the jurisdiction of the Information and Privacy Commission.
43Additionally, there is a well-established rule in Ontario and many other jurisdictions regarding an “implied undertaking” to limit the use of disclosed information / records to the particular proceeding for which it was disclosed. This rule prevents parties from using information gathered in a litigation process to initiate or bolster a separate claim, without leave of the court or leave from the adjudicator in the forum in which the initial disclosure was made. The “implied undertaking” rule has been codified as Rule 3.3 of the Tribunal’s Rules of Procedure. It states:
3.3 Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
44In a recent ruling by this Tribunal in Konesavarathan v. Middlesex London Health Unit, 2015 HRTO 1698, the Tribunal directed the parties regarding the observance of Rule 3.3 and the rationale provided by the Supreme Court of Canada as follows:
First, the parties must comply with Rule 3.3 of the Tribunal’s Rules of Procedure, the purpose of which was discussed in Bernard v. Lakehead University, 2011 HRTO 977, as follows:
[…] all documentary and oral information obtained during the course of these proceedings [is] subject to Rule 3.3 of the Tribunal’s Rules of Procedure, which essentially articulates the implied undertaking rule. This rule stipulates that information obtained in the course of a proceeding cannot be used by the parties for any purpose other than in the proceedings before the Tribunal.
The Supreme Court of Canada explained the rationale for the underlying implied undertaking rule in Juman v. Doucette, 2008 SCC 8 at para. 25. Among other things, it held that the public interest in getting at the truth in a proceeding often requires the invasion of a litigant or third party’s privacy interests. Those privacy interests are, nevertheless, entitled to a measure of protection; the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone.
45This rule has been applied by grievance arbitrators to limit the circulation and disclosure of records and information disclosed in advance of a grievance hearing. See for example York University v. York University Faculty Association, 2006 CanLII 60967 (ON LA), where a grievance arbitrator commented on the rationale for the rule:
An implied undertaking attaches to the production of documents and information that they will be held in the strictest of confidence and not be used for any “collateral or ulterior purpose”, i.e. for any purpose outside of the arbitration.
46Notwithstanding the fact that the “implied undertaking rule” may have some bearing on the respondent-employer’s conduct, this Tribunal is without jurisdiction to address this issue as the applicant’s records were produced to the respondent-employer in the context of the grievance arbitration process, and not pursuant to this Tribunal’s Rules of Procedure or an Order of this Tribunal.
ORDER:
47The Application is dismissed.
Dated at Toronto, this 21^st^ day of November, 2017.
“Signed by”
Yola Grant
Associate Chair