Affinia Canada ULC v. Thaker, 2015 ONSC 1787

CITATION: Affinia Canada ULC v. Thaker, 2015 ONSC 1787

DIVISIONAL COURT FILE NO.: DC-13-92

DATE: 2015-03-19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, HAMBLY and D.L. CORBETT, J.J.

BETWEEN:

JAY THAKER

Responding Party/Plaintiff

– and –

AFFINIA CANADA ULC

Moving Party/Defendant

Robert Dowhan, for the Responding Party/Plaintiff

Christopher A. Chekan, for the Moving Party/Defendant

HEARD: March 16, 2015

ENDORSEMENT

The Court:

1The Plaintiffs/Respondents are former employees who settled wrongful dismissal claims with the Defendant/Moving Party. In each case the Defendant settled on the basis of Minutes of Settlement that included a confidentiality provision. In each case the court order stipulated that the settlement be “filed” with the court. In each case the Plaintiff “filed” the settlement agreement with the court. In each case the Defendant took to the position that, in filing the settlement agreement, the Plaintiff violated the confidentiality term of the agreement. Instead of seeking a variation of the court order to delete the requirement to file the settlement agreements, or seeking an order to seal the filed settlement agreements, or appealing the order, the Defendant has doggedly pursued the Plaintiffs for “breach” of the settlement agreements, and now for contempt.

2The trouble all started with the most innocuous of endorsements from Price J., on April 23, 2013:

Order to issue in accordance with Minutes of Settlement to be filed.

3Subsequently the parties entered into Minutes of Settlement. Each of those Minutes includes the following provision:

And for the said consideration, each of the Plaintiffs further covenants and agrees not to publicize, advertise or in any way communicate or disclose to anyone the terms and nature of this full and final Release save and except for his legal and financial advisors or as required by law.

4Subsequently, the Plaintiffs filed costs submissions for a disposition of costs by Price J. The Plaintiffs included the settlement agreements and Releases in their costs submissions. Counsel for the Defendant then wrote to Price J., with a copy to Plaintiffs’ counsel. Defendant’s counsel took the position that the Plaintiffs had breached the confidentiality provisions of the settlement agreements. Counsel asked the court to “destroy” the releases without reading them. Price J. then released an endorsement dated June 24, 2013 as follows:

The order made on April 23, 2013 directed that the Minutes of Settlement were to be filed. The Minutes in paragraph 16 provide that they and the Release shall constitute one and the same instrument. Accordingly, the filing of the Minutes and Release were “required by law” as permitted by paragraph 8 of the Release.

5Counsel for the Defendant then sought to have the endorsement of Price J. dated June 24, 2013 reduced to an order to be issued and entered with the court. Counsel for the Plaintiffs would not agree saying:

…we will not be agreeing to enter an order…in relation to Justice Price’s June 24, 2013 endorsement…which is not the subject of a motion. An order does not get issued and entered simply as a result of an endorsement whereby a judge is responding to a letter from counsel.

6The Defendant wished to challenge Price J.’s endorsement of June 24, 2013. In response, counsel for the Plaintiffs wrote on July 29, 2013:

…it remains our position that the June 24, 2013 correspondence from Justice Price is not an order and cannot be appealed. However, in the alternative and if it is accepted that it is in fact an order, the order is interlocutory and leave to appeal is required. Further, the time within which leave to appeal can be sought has expired. Should you proceed to file your Notice of Appeal we will move to have the appeal dismissed and will be seeking substantial indemnity costs.

7The endorsement of Price J. has never been taken out as an order. It remains an endorsement. Price J. agreed with the Plaintiffs and declined to sign an order in respect to his June 24th endorsement. By Notice of Appeal dated July 23, 2013 the Defendant purported to appeal the endorsement of Price J. In the Notice of Appeal the Defendant characterizes the endorsement as a final order and takes the position that, as a result, leave to appeal is not required. The original Notice of Appeal has other unusual features worthy of note. It seeks to both stay and to set aside the impugned endorsement of Price J. It seeks an injunction against the Plaintiffs restraining further impermissible disclosure of the Minutes of Settlement and Release. It asks this court to order Price J. to “deliver up to counsel” the Minutes and Release. It asks this court to grant an injunction against Price J., the Registrar, and the Trial Coordinator in Guelph, to prevent them from disclosing the Minutes and Release. An amended Notice of Appeal subsequently deleted the request for some, but not all, of the injunctive relief sought against court personnel and Price J.

8The Plaintiffs moved to quash the appeals on the basis that there is no order to appeal or, if there was an order, that the order is interlocutory.

9Tzimas J. agreed with the Plaintiffs on both bases and quashed the appeal. The Defendant now moves before us to set aside the order of Tzimas J.

10We agree with Tzimas J. The June endorsement is not an order. It is advice to the parties that Price J. considered the settlement agreement and release filed properly for his consideration on the issue of costs. There was no formal motion before Price J. to decide and his endorsement did not preclude the Defendant from moving for a sealing order or for removal of the documents from the file. The Defendant did neither. We also agree with Tzimas J. that if this was an order, it was interlocutory. It was made in the course of Price J. determining what materials should be filed in the court record for his consideration on the issue of costs. It does not dispose finally of the parties’ rights.

11With respect to the Defendants’ motion for contempt, while we question the appropriateness of bringing this motion before us in this way, in order to avoid further costs we are going to deal with the claim that the Plaintiffs are in contempt. In our view there is no merit to this claim. If the file was subject to a sealing order, that order would apply to whatever was in the file, including the Plaintiffs’ motion to enforce the settlement set out in the Minutes of Settlement.

12For these reasons, the motion is dismissed. On consent, an order will go directing that the minutes of settlement and release filed in the court file are to be placed in a separate envelope and sealed. In this way the documents will not be available for perusal by the public, but will be available to be viewed by any judge who has future dealings with this file.

Costs

13The Plaintiffs are requesting substantial indemnity costs in the amount of $7,000. In our view this is a case where an award of substantial indemnity costs is justified. The bringing of this motion was ill conceived and unreasonable. Further, it is just one more example of the Defendant’s failure to take a proportional approach to this litigation. Having reviewed the Plaintiff’s Bill of Costs, we are satisfied that $7,000 all-inclusive is a reasonable and appropriate figure to award for substantial indemnity costs. Therefore, we order the Defendant to pay to the Plaintiffs the sum of $7,000 by way of costs for this motion.

Sachs J.

Hambly J.

D.L. Corbett J.