Re The Crown in right of Ontario (Ministry of the Attorney General) and Ontario Public Service Employees Union [Indexed as: Ontario (Ministry of the Attorney General) and O.P.S.E.U. (Re)]

File No. 2001-0660 Ontario Crown Employees Grievance Settlement Board R.H. Abramsky

Heard: July 7, November 13, December 4, 2003, and January 5, 2004 Decision rendered: January 23, 2004

SUPPLEMENTARY AWARD concerning enforcement of settlement. J. Brewin, for the union. S. Kearney, for the employer.

SUPPLEMENTARY AWARD

The Ministry alleges that the grievor has breached the confidentiality provision contained in Minutes of Settlement dated September 19, 2002. Paragraph 3 of the settlement states:

(3) The parties agree that the terms of this settlement shall remain confidential and shall not be disclosed except as required by law or as required to implement this settlement. In the event that this provision is determined to have been breached, Vice Chair Abramsky will have the authority to determine the appropriate remedy.

The grievor denies that she told anyone the terms of the settlement or that she breached this provision. Facts 1. The September 19, 2002 Minutes of Settlement On February 15, 2001, the grievor, Ms. Young, filed a grievance alleging that a supervisor ("S") "repeatedly harassed" her, causing her to go onto sick leave. In terms of relief, she sought a variety of things, including a return to her contract position, return of all sick credits and lost income as well as damages under the Human Rights Code, R.S.O. 1990, c. H.19. On September 19, 2002, a mediation was held and Minutes of Settlement were entered into. The settlement was a relatively simple and straightforward agreement. There were no admissions of liability or wrongdoing. It was without prejudice or precedent, and there were three specific terms: 1. The grievor was to be paid the sum of $1,000 as general, out-of-pocket expenses. 2. The grievor would receive 5.75 attendance credits. 3. The terms of the settlement were to remain confidential. There was also a withdrawal of the grievance, a general release clause, and I was to remain seized. Manager of Court Operations for Hamilton, Cathy Hiuser, attended the mediation session on behalf of the Ministry and testified at the hearing. She testified that she had been reluctant to settle this grievance since she felt that it had no merit. She would only do so with a strong confidentiality provision. She was concerned about the reputation of "S" and wanted to ensure that any settlement would protect his reputation and character. She stated that "S" had to be convinced to settle this matter because he would not get to state his side of events. She also testified that Ms. Young had "breached confidentiality clauses" in the past, and she wanted to have some avenue of recourse if a breach occurred in this matter. She agreed to the language set out in paragraph 3 of the Minutes of Settlement, with

its uncommon second sentence. That language, in her view, was added due to her concerns about confidentiality. Ms. Young testified that she understood that, under paragraph 3 of the settlement, she could not disclose the specific terms of the agree-ment. She did not recall that management had a specific concern about confidentiality, or why the last sentence of paragraph 3 was added.

2. The Alleged Breach of Confidentiality Supervisor, Court Operations — Hamilton, Bette Jean Glassford, testified that at the end of the day on March 19, 2003, she saw Elaine Young who appeared to be very angry over a situation involving two court employees, Jeannie Fazakas and Elena Sarno. She stated that Ms. Young said that "she was so incensed that she couldn't talk about it". This was confirmed by Ms. Young as well. Elena Sarno was one of Ms. Glassford's employees while Ms. Fazakas reported to another supervisor, Brian Horracks. Ms. Glassford then briefly met with Mr. Horracks to learn more about the situation. They had a brief conversation and Ms. Glassford decided that she would speak to Ms. Sarno about the situation the following morning. The next day, March 20, 2003, Ms. Glassford met with Ms. Sarno. She relayed her brief interaction with Ms. Young and what she heard from Mr. Horracks and asked her what was going on with Jeannie Fazakas. Ms. Glassford testified that Ms. Sarno insisted that nothing was going on and that she believed that Ms. Young had instigated the situation because Elaine was angry at her because she had coffee with an employee named Ron, with whom Ms. Young had a brief relationship in the past. Ms. Sarno then proceeded to give Ms. Glassford "a little background information" about Ms. Young. Ms. Glassford stated that Ms. Sarno told her that she was not sure if Ms. Glassford was aware but at one time, Elaine had laid a charge of sexual harassment against "S". Ms. Glassford was not aware of this. Ms. Sarno continued that the hearings in Toronto were quite the thing, that "S" was "sweating buckets, right through his shirt", and that Cathy Hiuser got her "knuckles rapped" at those hearings because she did not follow the rules. She then added that whole sexual harassment matter was confidential although she could not recall the proper terminology for that. Shortly after their meeting

ended, Ms. Sarno returned and told her that the phrase she had been trying to remember was a "gag order". Ms. Glassford testified that she was "stunned, to say the least" and mortified for "S". She later advised "S" about this and she testified that he was "furious, shocked and very upset".

Ms. Glassford stated that Ms. Sarno said that she had received this information from Elaine Young. She told her that at the time they were friendly and Elaine would call her numerous times a day, at work and at home. Ms. Hiuser was away from the office on March 20, 2003 and again on March 21. On March 21, 2003, both Ms. Glassford and Mr. Horracks called Ms. Hiuser and advised her of the situation between Jeannie Fazakas and the disclosures of Ms. Sarno. Ms. Hiuser testified that she was very upset when she learned about this and was concerned for "S" and his reputation. She stated: "I thought this would occur, but I couldn't believe it did." The following Monday, March 24, 2003, Ms. Hiuser called a meeting with Jeannie Fazakas, Elena Sarno, Elaine Young, and supervisors Glassford and Horracks in attendance. The purpose of the meeting was twofold. First, to sort out the conflict between Ms. Fazakas and Ms. Sarno, and second, to confirm what Ms. Sarno had told Ms. Glassford and to ask Ms. Young about it. Both Ms. Glassford and Ms. Hiuser testified about this meeting, and their recollections were recorded in notes made shortly after the meeting. Ms. Sarno also confirmed what she said during this meeting. There is no dispute between the parties as to what took place during this meeting.

The meeting began with Ms. Fazakas and Ms. Young stating what, in their view, occurred between Ms. Fazakas and Ms. Sarno, some of which had been witnessed by Ms. Young. Ms. Sarno denied making any derogatory comments or spreading rumours, as asserted by Ms. Fazakas and Ms. Young. Ms. Fazakas and Ms. Sarno were asked to leave, and Ms. Hiuser met briefly with Ms. Young. Ms. Fazakas was then invited back in, for further discussion. After she left, Ms. Sarno returned to discuss the discrepancies between the two versions of events. Ms. Young remained in the meeting. Ms. Hiuser then asked Ms. Sarno, with Elaine Young present, if it was true that she told Ms. Glassford that "S" had a sexual harassment

case filed against him by Ms. Young. Ms. Sarno denied saying that she used the words "sexual harassment", but Ms. Glassford confirmed that she did. Ms. Sarno responded that she did not remember but meant "harassment". Ms. Sarno then described how "S" had been "sweating buckets" at the hearing in Toronto, so much so that his shirt became wet under the arms. Ms. Hiuser asked Ms. Sarno who told her this information, and she replied "Elaine". Ms. Hiuser then turned to Elaine, whom in her view looked "shocked", and asked what this was about, and Ms. Young responded that she "did not know anything about that. This is the first time I heard this." Ms. Hiuser then asked Ms. Sarno — did Elaine tell you this — and she responded "yes" and added that Ms. Young told her she received a "four-figure" settlement but that next time she was going to ask for "six figures". She added that Ms. Young told her she had done the same thing to another supervisor "P" previously. Ms. Sarno said that Ms. Young told her that Ms. Hiuser got her "knuckles rapped" because she does not follow the rules, and that Ms. Young used a tape recorder to record everything that was said in a grievance involving Martin Tosoian, Lynn Thompson, Joanne Leigh and Ms. Young. Ms. Hiuser again asked Ms. Young about this, and she replied that she knew nothing about it. Ms. Sarno then left the room, and Ms. Hiuser questioned Ms. Young about her allegations. Ms. Young restated that she knew nothing about it and this was the first she had heard it. The meeting then ended. The following day, Ms. Hiuser and Ms. Glassford again met with Ms. Sarno. Management had prepared a written statement containing the assertions that Ms. Sarno had made at the meeting on March 24. Ms. Sarno was asked to review them, and to confirm them by signing the document. Most of the assertions involved the dispute with Ms. Fazakas, but the last one dealt with her disclosure to Ms. Glassford. It reads: • you confirmed that it was true that you told Bette Jean Glassford on March 20, 2003, that ["S"] had a sexual harassment case filed against him by Elaine. You did note that you did not recall using the word "sexual". You also confirmed that Elaine Young told you that ["S"] had been at the grievance board and was sweating buckets. So much so that his shirt was wet under the arms. When asked who provided you with this information you replied "Elaine". You advised that Elaine told you that she got a 4-figure settlement but next time was going to ask for 6 figures. You stated that she had done the same thing to [P]. You said that Elaine told her that Cathy Hiuser had her "knuckles rapped" in Toronto because she had not handled things properly and

that Elaine had used a tape recorder to record everything that was said in the matter involving Martin Tosoian, Joanne Leigh, Lynn Thompson and Elaine. You also advised that in the past Elaine would call you 7 times per day and at home in the evening providing you with information.

Ms. Sarno signed this document, and added a number of additional points. Ms. Sarno added that Elaine had told her that she had followed Ms. Hiuser into the bathroom at the hearings attempting to hear her talking to others about the hearing and that she would watch her facial expressions. She said that Elaine had told her that she had used a tape recorder at GSB hearings, but that the sound was muffled because it was in her pocket. She added that Ms. Young told her that anyone could buy a tape recorder at Zellers for $40 to $80. She repeated that Elaine told her that Ms. Hiuser repeatedly had her knuckles rapped and that "S" had sweated buckets at the hearings. After this meeting, Ms. Hiuser contacted Human Resources, and the matter was referred to counsel, leading to the present hearing. In terms of the dispute between Ms. Fazakas and Ms. Sarno, Ms. Sarno was issued a letter of counsel for inappropriate behaviour.

The Union does not dispute that Ms. Sarno said these things to management. It vehemently disputes that her disclosures, as they relate to the September 19, 2002 settlement, came from Ms. Young. Instead, it asserts that Ms. Sarno's disclosures about the settlement were a lucky, or educated guess. Obviously, there is a significant issue of credibility in this case. Ms. Sarno is a Counter Clerk in the Enforcement Office at the Sopinka Court House in Hamilton. Ms. Sarno testified that she had been friends with Ms. Young since 1998, and that Ms. Young would regularly call her, both at work and at home about grievances and work-related matters. She was aware, in early 2001, that Ms. Young intended to file a grievance against "S" alleging harassment although she never saw the actual grievance. She had been told this by Ms. Young. At the hearing, she stated that she was aware that it was "harassment" that Ms. Young was claiming, not "sexual harass-ment", and that if she said "sexual harassment" to Ms. Glassford, she was mistaken. She was aware of the difference between the two. She was also aware that Ms. Young was seeking lost wages, credits, and damages in the grievance. According to Ms. Sarno, Ms. Young told her about "so many grievances, this was just another one". Ms. Sarno's testimony varied between being very certain and "fuzzy" about when she learned the terms of the settlement from

Ms. Young, but she remained adamant that it was Ms. Young who disclosed the terms to her — repeatedly. She initially testified, on examination-in-chief, that Ms. Young called her at home on the day of the settlement and told her that although it was confidential and she should not be telling her about it, she would tell her. She said that Ms. Young told her she received a "four-figure" settlement. On re-examination, she explained that this conversation stuck out in her mind because it was the only time that Ms. Young had ever mentioned a dollar figure. On cross-examination, she could not recall the date of the settle-ment, or the month. She thought it occurred before the wedding of Ms. Young's daughter which took place on September 7, 2002. She stated that Ms. Young was "calling me from the hearing all day on her cell phone" but then said that it "wasn't all day" but she believed that she did receive a call on the day of the settlement — one during the day and one later. She admitted that she was "fuzzy" on the dates and times because there were so many calls and Ms. Young often repeated herself. She did not take notes of these conversations or keep a log of them. Ms. Sarno testified that in the cell call, during the day from the hearing, Elaine told her that it was going well and she was going to get a settlement. Later, Elaine advised her that she received a "four-figure" settlement. When asked, on cross-examination, if Elaine mentioned any other terms, Ms. Sarno responded that "she suggested to me that she would go for some kind of credits, plus money for harassment. And that's what she received." This last point, unfortunately, was not picked up on by either counsel (or me, at the time), and Ms. Sarno was not further questioned on that testimony. Counsel, on cross-examination, did clarify that their discussion on the cell phone was "what she was requesting, not what she got", but my notes are clear that Ms. Sarno testified that Ms. Young "received" credits plus money for harassment. Ms. Sarno testified about a number of other things Ms. Young had told her about the harassment grievance. She said that Ms. Young told her that "S" was sweating at the hearings, and that she repeated it to her several times both in person and on the phone. When it was suggested, on cross-examination, that it was another mediation in Hamilton involving Martin Tosoian, Lynn Thompson and Elaine

Young at which "S" had been sweating because it was very hot that day, she denied that. She stated that "I believe, per Elaine, that that grievance related to the Trial Coordinator position, and involved a completely different grievance". According to Ms. Sarno, Ms. Young told her that she had "charged [P] with sexual harassment". Ms. Hiuser confirmed that in 1995, Ms. Young had filed a harassment complaint against "P", which led to a WDHP investigation. She was not aware of the results of the investigation. She stated that the (P) matter was a "highly confidential and sensitive matter" and that she had never heard anyone mention it before, including her Director. In terms of the tape recorder, Ms. Sarno confirmed that she told Ms. Hiuser and Ms. Glassford that Elaine had told her that she had taped hearings and that Elaine told her that one could buy a tape recorder at Zellers Department Store for $40 to $80 dollars. When questioned, on cross-examination, whether Ms. Young had said that she "could buy" a tape recorder, rather than "did buy", Ms. Sarno responded that "Elaine told me she was in possession of a tape recorder and that anyone could buy one at Zellers for $40 to $80 dollars". When it was suggested that it was not Elaine who tape-recorded a meeting but another person, Ms. Sarno said that was "incorrect — Elaine told me that she was in possession of a tape recorder". There was a significant dispute between Ms. Sarno and Ms. Young about when their friendship ended. Ms. Sarno initially testified that it ended when Ms. Young moved work locations, which, in later testimony was determined to be February 2002. Later, Ms. Sarno testified that it ended due to a number of factors — her moving locations, the joke about Ron in regard to the wedding, Ms. Sarno's actually having coffee with Ron, and Ms. Sarno's continuing failure to return Ms. Young's calls and messages. She testified that the last call she received from Ms. Young was early in 2003, around the beginning of March. She denied that the friendship broke off because of the joke about Ron and the wedding, or that it broke off at that time.

Ms. Sarno testified that shortly before the wedding, Ms. Young questioned her about whether or not she planned to attend the wedding with Ron. Ms. Sarno did not recall ever telling anyone that, but that if she did it "would have been a joke". At the time, she had been

in a common law relationship for nine years, and always intended to take her husband to the wedding.

It was undisputed that Ms. Sarno was invited to the wedding of Ms. Young's daughter, as were a number of work friends. It is also undisputed that she attended the wedding with her common law partner, Gary. She denied that this incident ended her relationship with Ms. Young and stated that Ms. Young continued to call her after the wedding.

On cross-examination, Ms. Sarno was closely questioned about Ms. Young's various positions and locations in the Court House. Ms. Sarno was somewhat familiar with Ms. Young's various positions and back-filling but she was not certain. She did not know how long Ms. Young was off work in early 2001, nor did she know what Ms. Young earned per hour or the number of hours she worked. Ms. Young testified that although she had known Ms. Sarno since 1991, they became friendly in 1998. She could not recall, however, if they had lunch or coffee from time to time, "maybe one time". She did not socialize with her after work, but "we'd call each other". They would talk about many things, "like with any friend". Ms. Young stated that their relationship changed during the summer of 2002. She had heard from a co-worker that Ms. Sarno was planning to take Ron, an employee whom she had briefly dated the previous year, to her daughter's wedding. She testified that she got very upset about this and confronted both Ms. Sarno and Ron. Both denied it, and Ms. Sarno attended the wedding with her common law partner, Gary. Ms. Young stated that she was "not surprised" that Ms. Sarno attended the wedding with Gary. She had thought about "disinviting" Ms. Sarno to the wedding, but then changed her mind and decided to "let it go". After this, Ms. Young stated that her contact with Ms. Sarno was "very limited" and "strictly work-related". After the wedding, they "very rarely spoke" and it was "strictly business-related". She said that she did not call her outside of work after the wedding.

Ms. Young testified that she was "very upset and annoyed" by Ms. Sarno's accusations. She was very surprised by the allegations. She denied that she breached paragraph 3 of the settlement. She never discussed the specific terms of the agreement, or told anyone that she received money or an amount or even a range. She only told

people that the matter was "settled" or "finished". She was not sure exactly how many employees she said that to since there was "talk in the office about it". She did tell Lynn Thompson and an employee named Joy, and "people who asked me at work". Prior to the settlement, she had discussed her grievance and the remedies she sought with a few co-workers, specifically Ms. Sarno, Lynn Thompson and Joanne Leigh. She told them that she wanted compensation for her time off and her salary back. She denied that she told Ms. Sarno anything about the settlement on or after September 19, 2002, since "I wasn't talking to her". Ms. Young denied that she called Ms. Sarno by cell phone on September 19, 2002. In support of that claim, she produced the billing records of the cell phone she used for September 19. The phone belonged to her ex-husband. She had blacked out, however, all calls other than calls made on September 19 since that was the date in issue. No other telephone records were provided. The billing records showed no calls to Elena Sarno on September 19. There was one call to Ms. Thompson's home, and one call to the general number at the Court House, but Ms. Young testified that she had called that number to check her voice mail. On cross-examination, Ms. Young was asked whether she had ever called Ms. Sarno from the GSB, and she answered "on that day, no". When asked if she ever had, she replied "I don't think I ever did".

When asked to explain how Ms. Sarno would know that she had received a "four-figure" settlement, Ms. Young replied "I believe it was a guess on her part", a "lucky guess". On cross-examination, she also said that it was "common sense" given that she was off for a period of time, and Ms. Sarno knew what she makes. Four figures was "within the ball park".

In Ms. Young's view, Ms. Sarno did benefit from making these allegations. In her view, Ms. Sarno had gotten caught causing trouble and was looking for an out.

In terms of her comment that "S" was "sweating buckets", Ms. Young testified that this referred to a mediation in Hamilton which took place before the wedding. She said the room was quite warm and everyone was hot and sweating. She saw "S" down the hall and he was sweating as well. She acknowledged that she told that to

others "around the office", including Ms. Sarno. Ms. Young added that Ms. Sarno wanted to testify on her behalf, but she advised her that she was not required.

In terms of Ms. Hiuser's knuckles being rapped, Ms. Young denied that she was referring to the hearings in this matter in Toronto. Instead, she said that Ms. Hiuser "should have her knuckles rapped" for her constant violations of the collective agreement. She agreed that she had said this to Ms. Sarno, but it was around a year before the wedding.

Ms. Young was not aware if Ms. Sarno was aware of a "practice regarding gag orders". She said, "I think we discussed that grievances sometimes have gag orders." It was "possible". She did not discuss it, however, in regard to this matter. On cross-examination, she was asked if she ever told anyone that there was a gag order in this matter and she replied, "No, I don't think I ever did." In terms of "P", Ms. Young testified that she filed a discrimination complaint against him, which was investigated. She agreed that she had spoken to Ms. Sarno about this.

In terms of the tape recorder, she agreed that she had a conversation with Ms. Sarno about purchasing a tape recorder. Before the strike in March 2002, she had been asked to purchase a tape recorder by the Union for use during the strike. She purchased one from Wal Mart. She mentioned it to Ms. Sarno, but she disagreed that she told her that she purchased it from Zellers or that the price was $40 to $80. The price she mentioned was $40 to $60.

In terms of actual taping, Ms. Young acknowledged, on cross-examination, that she was aware that a co-worker, Martin Tosoian, had taped a labour relations meeting with management about the Trial Coordinator position, and that she knew beforehand that he was doing it. She denied ever using a tape recorder at the GSB. In the particulars of this matter, filed by the Union, it was denied that Ms. Young ever used a tape recorder to record labour relations proceedings of any kind, but that "another employee did so on one occasion, without Ms. Young's knowledge or consent". Although these particulars were prepared with the assistance of Ms. Young, they were prepared by counsel not by Ms. Young. Accordingly, I do not find it appropriate to rely on any discrepancy in the particulars to determine credibility in this case.

Ms. Young denied that she ever told anyone that she would be going for "6 figures", or that she followed Ms. Hiuser to the washroom at the GSB to overhear or tape her, saying "I don't believe I ever did that, no". Nor did she say it to Ms. Sarno.

It was the testimony of both Ms. Hiuser and Ms. Glassford that the relationship between Ms. Sarno and Ms. Young did not change until March 2003. Both testified that after the meetings in March involving this matter, their relationship became strained, and they no longer talked to one another. Neither of the two employees who testified on behalf of Ms. Young, Ms. Fazakas nor Ms. Thompson, was asked if they had noticed a change in the relationship. Ms. Fazakas testified that, in connection with the issues that arose with Ms. Sarno in March 2003, she enlisted Ms. Young's assistance in playing a practical joke on Ms. Sarno — by telling her something that was not true. Ms. Young agreed to do so and did, although Ms. Sarno did not believe what she was told by Ms. Young. Ms. Thompson testified that she would "occasionally have lunch with Ms. Sarno and Elaine", although neither of them were social friends of hers. On cross-examination, Ms. Thompson was asked if she had any discussions with Ms. Young about Ms. Sarno, and Ms. Thompson stated that "in the last few months" Elaine was irritated because Ms. Sarno had interfered with her romantic relationship with Ron. Ms. Thompson also confirmed that Ms. Young had said that Ms. Hiuser had gotten her knuckles rapped "several time over the years" in relation to various grievances. She had also heard Elaine say that "S" had been "sweating buckets" and that Ms. Young repeated it, many times to a lot of people. In her view, however, Ms. Young was referring to the mediation session held in Hamilton, not in Toronto. Ms. Young, according to Ms. Thompson, had "a habit of telling stories over and over again". She agreed that Ms. Young had a "gift for gab" — mostly factual, with some embellishment like the "sweating buckets" comment.

Ms. Thompson was not sure if Ms. Young had withdrawn, settled or mediated the harassment grievance. She knew that she was seeking lost wages and was concerned about her contract. She was not sure if she was seeking money for stress. She had no idea if Ms. Young had also sought sick credits, and "could only guess" at the

amount of money she was seeking, but she thought that she could estimate it.

Decision There is no dispute between the parties regarding the importance of settlement agreements. The GSB has repeatedly emphasized the importance of settlement agreements to effective labour relations between the parties. As set forth in Re Ontario (Ministry of Community and Social Services) and O.P.S.E. U. (Landry-King), G.S.B. No. 1593/84 (Knopf) at pp. 8-9: The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters.

In Re Ontario (Ministry of Natural Resources/Management Board of Cabinet) and O.P.S.E.U. (Union Grievance), G.S.B. Nos. 1526/91, 1294/92 (Kaplan) at p. 31, the Board referred to the "[s]anctity of [s]ettlements", stating that "it is absolutely essential that the Board give effect to final settlements reached by the parties". It is also undisputed that where confidentiality is made a term of the settlement, it is entitled to enforcement like any other term. The reasoning for this is well expressed in Re Northfield Metal Products Ltd. and Glass, Molders, Pottery, Plastics & Allied Workers International Union, [1991] O.L.R.B. Rep. May 664 (Herman), at para. 15:

Many settlements include the payment of compensation by an employer to employees or the union. Many of these would no doubt never have been finalized if the employer could not have been assured that no liability or blame could be attributed to the employer. Similarly, such "without prejudice" settlements would often be of little utility if they were not kept confidential. It is not difficult to see why, in a particular circumstance, an employer might be willing to settle a complaint with payment of compensation to a complainant, but only if liability is not attributed and only if the community and other employees do not learn that the company has agreed to pay compensation. The employer's fear is that the disclosure of such a payment, apart from the amount of the payment, might alone undercut the efficacy of the denial of liability, and might also lead other employees or unions to file further complaints, in the belief that the employer will settle such complaints with cash. That is why some parties insist on confidentiality as a condition of any settlement.

The evidence of Ms. Hiuser establishes that these types of considerations were important to the Ministry in its decision to settle Ms. Young's grievance. It was concerned about "S's" reputation and

did not want a settlement, particularly the payment of compensation, to undermine the Employer's denial of liability. It did not want the terms of the settlement disclosed. What is very much in dispute is whether or not the confidentiality provision in the September 19, 2002 settlement was breached by Ms. Young. As noted above, the answer to this question turns on credibility. Basically, Ms. Sarno says that her information came from Ms. Young. Ms. Young denies ever telling Ms. Sarno, or anyone, about the terms of the agreement. In assessing credibility, both counsel urged me to rely on the test set forth in Faryna a Chomy, [1952] 2 D.L.R.354 (B.C.C.A.), p. 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

The Faryna v Chorny standard has been applied in other GSB cases. Re Ontario (Liquor Control Board) and O.L.B.E. U. (Massa), G.S.B. No. 2033/97 (Abramsky); Re Ontario (Ministry of Health and Long-Term Care) and O.P.S.E. U. (Dale), G.S.B. No. 0783/00 (Abramsky). After much consideration, applying this standard to the facts in this case, I conclude, on the balance of probabilities, that it is more likely than not that Ms. Sarno learned about the terms of the settlement from Ms. Young. Accordingly, I conclude that, on the balance of probabilities, Ms. Young breached paragraph 3 of the settlement agreement. I reach this conclusion for the following reasons. The evidence clearly established that for a significant period of time, Ms. Sarno and Ms. Young were friends and confidantes. For a period of time, Ms. Young would regularly call Ms. Sarno and discuss grievances and highly personal matters. For example, it is undisputed that Ms. Young told Ms. Sarno about her complaint against P. Although there is some dispute whether it was a harassment complaint or a discrimination com-plaint, Ms. Young told Ms. Sarno that she had filed "a complaint" against P. She did not tell this to Lynn Thompson, and there is no evidence that she told anyone else about it. But she told Ms. Sarno.

As Ms. Hiuser testified, the complaint against P was a highly confidential and sensitive matter which led to a WDHP investigation.

This admission by Ms. Young is significant for two reasons. First, it provides some insight into the type of matters discussed between Ms. Young and Ms. Sarno. Second, it corroborates Ms. Sarno's testimony that she was told this by Ms. Young.

There are also a number of other matters which Ms. Young admitted she told Ms. Sarno, which again corroborates Ms. Sarno's account. She admitted that she told Ms. Sarno about "S" "sweating buckets" although she insisted this was about a mediation in Hamilton, not Toronto, and that everyone was sweating that day. It should be noted that the mediation in Hamilton, according to Lynn Thompson, was to deal with three grievances, including the alleged harassment one. Further Lynn Thompson testified that Ms. Young repeated that story about "S" sweating "many times to a lot of people". There is no indication that anyone other than "S" was reported by Ms. Young to have sweated that day, or that she limited the comment to the mediation in Hamilton. Ms. Young also acknowledged that she told Ms. Sarno that she had purchased a tape recorder and that anyone could purchase one for around $40 to either $60 or $80. The small discrepancy in the price and the place of purchase (Zellers or Wal Mart) does not diminish the fact that such a conversation took place, as asserted by Ms. Sarno.

The Union asserts that Ms. Sarno's credibility was undermined by her initially telling management that Ms. Young had filed a "sexual harassment" complaint against "S" when she clearly knew that it had been a harassment complaint. It asserts that she knew that the allegation was untrue and she said it anyway since it was the more scandalous charge. It is certainly possible that Ms. Sarno knowingly told management that Ms. Young had filed a sexual harassment grievance. It is equally possible, however, that she did so mistakenly. When questioned about it by management on March 24, Ms. Sarno quickly clarified that she meant "harassment", not "sexual harass-ment". At the hearing, she acknowledged that if she said "sexual harassment", she was mistaken. These circumstances undermine the view that she intended to mislead management. Further, it is significant that Ms. Young acknowledged that she told Ms. Sarno about her harassment grievance and the remedies she

was seeking. She did not tell very many co-workers — only three, including Ms. Sarno. Ms. Sarno, moreover, was far more familiar with that issue than was Ms. Thompson. Ms. Thompson did not know, for example, that Ms. Young was seeking a return of sick credits. But Ms. Sarno knew. It is clear that Ms. Young also discussed other grievances with Ms. Sarno such as the Trial Coordinator grievance. Ms. Sarno was aware of that grievance and that it was a "completely different grievance" than the harassment one. She knew which employees were involved in that grievance and where the mediation took place.

The evidence also supports Ms. Sarno's assertion that Ms. Young told her that Ms. Hiuser had "gotten her knuckles rapped" rather than Ms. Young's claim that she said management "should get its knuckles rapped". This was confirmed by Ms. Thompson who testified that Ms. Young had told her that Ms. Hiuser had gotten her knuckles rapped "several times over the years" in relation to various grievances. There is no question that parts of Ms. Sarno's testimony were "fuzzy", particularly as to exactly when Ms. Young told her about the settlement terms. She also did have a motive against Ms. Young. She blamed her for "instigating" the situation with Jeannie Fazakas. But rather than create a wholly fictitious tale about Ms. Young, I find it more likely than not that her "pay back" was revealing what Ms. Young had told her in confidence. Ms. Sarno knew there was a gag order on the settlement and knew she was going to get Ms. Young in difficulty by her disclosures, and she did. The fact that Ms. Sarno knew there was a gag order on the settlement is an extremely important fact. It was one of the three important terms of the agreement. Another was the $1,000 payment — a four-figure sum. Ms. Sarno therefore knew two out of the three important terms of the agreement. Although it is possible that it was a lucky or educated guess, I find it more probable, under all of the facts, that she knew it was four-figure sum and knew there was a gag order because she had been told that. Not all settlement agreements contain a confidentiality clause. Many do, particularly where money is involved, but not all. Ms. Young did not recall discussing such clauses generally with Ms. Sarno, although it was "possible" that she told her that "sometimes" such clauses are included. Yet Ms. Sarno knew, correctly, that there was a confidentiality clause in regard to this settlement.

The settlement in this case could have taken many different possible forms — from a new assignment or contract to a variety of other things. It did not have to include money, and certainly not "four figures". Yet Ms. Sarno knew, correctly, that there was a four-figure sum paid. Further, the fact that "four figures" of lost wages are requested in a grievance does not mean that a "four-figure" settlement will result. Many times, parties agree to things in a settlement that have no relationship to what is requested in the grievance. Likewise, the compensation paid is often far less than the requested amount. Consequently, the fact that Ms. Young told Ms. Sarno what she was seeking in the grievance does not establish that she would know, with such accuracy, what settlement was reached. According to my notes of Ms. Sarno's testimony, she also knew that Ms. Young received a number of credits in the settlement. If this is correct, then Ms. Sarno knew all three specific terms of the settlement agreement. Although I could accept that Ms. Sarno might be able, or lucky enough, to guess one of the significant terms, I cannot accept that she could correctly guess all three. But even if I am wrong about the credits, I also cannot accept that Ms. Sarno was lucky enough to guess two of the three critical terms — the four-figure settlement and the gag order. Under the facts of this case, I find the assertion that it was a lucky or educated guess to be inconsistent with the "preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions". There are simply too many other possibilities that could have been encompassed in the settlement for someone to so accurately guess the actual ones. Further, and equally significant is the fact that she did not include any erroneous terms, as one might expect if she were truly guessing. In light of the accuracy of her knowledge, their relationship and the type of things Ms. Young conveyed to Ms. Sarno, I find it more likely than not that she told Ms. Sarno the terms of the settlement agreement. In so ruling, I cannot accept Ms. Young's assertion that her relationship with Ms. Sarno ended shortly after the wedding of her daughter on September 7, 2002. It simply makes no sense that Ms. Young would terminate a good friendship over an unfounded claim that Ms. Sarno said that she was going to attend the wedding with Ron. To her credit, she confronted both Ms. Sarno and Ron, and both

denied it. Ms. Young did not "disinvite" Ms. Sarno and decided to "let it go". Ms. Sarno, not surprisingly, intended to attend the wedding with her common law husband, and she did so. Although Ms. Young may not have appreciated the joke, if there was one, I find it unlikely that she abruptly terminated their friendship over it, particularly after her decision to "let it go". In this regard, I find it significant that neither Jeannie Fazakas nor Lynn Thompson were asked to verify that the relationship between Ms. Sarno and Ms. Young ended with the wedding. In contrast, Ms. Hiuser and Ms. Glassford testified that they saw no material change in their relationship until March 2003, which is generally consistent with when Ms. Sarno claimed it ended. In regard to the date of the termination of their friendship, Ms. Sarno's testimony was, again, somewhat "fuzzy". Initially, she said that it ended with Ms. Young's movement away from her area, which occurred in February 2002. But even Ms. Young did not claim that their friendship ended at that time. It clearly continued after that date. Later in her testimony, Ms. Sarno testified that a variety of factors led to the end of their friendship in early 2003, including her having coffee with Ron, and her failure to return Ms. Young's telephone calls. Her testimony that Ms. Young was angry with her for having coffee with Ron appears to have been corroborated, in part, by Ms. Thompson who testified that "in the last few months" Elaine was irritated with Ms. Sarno for ruining her relationship with Ron.

In this regard, I cannot agree with the Union that Ms. Sarno told Ms. Glassford that her relationship with Ms. Young ended over "issues relating to Ron", meaning the wedding. She told her that Ms. Young was angry because she was seen having coffee with Ron. On cross-examination, she was adamant that she was not referring to the wedding incident. Consequently, I cannot agree with the suggestion of the Union that Ms. Sarno adjusted her story about Ron in order to have their friendship end at a later date. One other thing also leads me to conclude that the relationship between Ms. Young and Ms. Sarno did not end with the September 7, 2002 wedding. Ms. Young testified that she "was not talking" to Ms. Sarno after that date, yet when asked to participate in a joke on Ms. Sarno in March 2003 by Ms. Fazakas, Ms. Young agreed to do so even though it involved talking with Ms. Sarno. If Ms. Young were truly not on speaking terms with Ms. Sarno except for "strictly

business-related matters", it seems unlikely that she would have participated in this manner. There is no evidence that Ms. Young was reluctant to speak to Ms. Sarno or expressed any discomfort with her role in the matter.

In terms of the cell phone records presented by the Union, I find that they do not significantly undermine Ms. Sarno's credibility, although it is a factor I have considered. It certainly establishes that Ms. Young did not call Ms. Sarno from that cell phone during the day of September 19th, accepting that the call to the general number of the court house was to retrieve her voice mail, as Ms. Young stated. But it does not establish that the numerous other calls Ms. Sarno stated were made by Ms. Young about the settlement were not made. Many of those calls, according to Ms. Sarno, were made to her home at night and would not appear on the cell phone bill. There are also other phones at the GSB from which calls may be made. Consequently, while the cell phone bill does undermine Ms. Sarno's claim that Ms. Young called her from the hearing on the day of the settlement, it does not significantly undermine her overall credibility for all of the reasons set forth in this Award. The Union argues that since Ms. Sarno repeated her denials about the Fazakas matter before the Board, I can only conclude that she "lied to the Employer and she lied to this Board". In my view, the fact that the Employer disciplined Ms. Sarno regarding the Fazakas matter and did not credit Ms. Sarno's account in the incident does not establish that Ms. Sarno should not be believed in regard to the instant matter. It is certainly possible to credit some things a person says, and not others. It all depends, as set out in Faryna v Chorny, supra, on the probabilities of the situation and the surrounding cir-cumstances. According to Ms. Hiuser, in the Fazakas/Sarno dispute, management was influenced by the fact that Ms. Fazakas had filed a formal complaint, which is somewhat unusual, and that she had been very upset about what occurred. In essence, they found that, in those circumstances, it was more likely than not that matters took place as asserted by Ms. Fazakas. This situation is different and turns on its own facts. In this case, Ms. Sarno disclosed, in what may be characterized as either a spurt of anger or an attempt to deflect matters from herself, that Ms. Young told her the terms of the confidential settlement, and she

accurately testified to either two, or all three, significant terms. She knew there was a "four-figure" settlement and she knew the terms were confidential. Based on my notes, she also knew that she received a number of credits. On the balance of probabilities, the accuracy with which she stated the significant terms of the settlement was likely more than a lucky or educated guess. It is more probable than not that the information she disclosed about the settlement came from Ms. Young. Remedy The GSB has a duty to protect a settlement that the parties have reached. As set out in Northfield Metal Products Ltd., supra, at para.16: "Where the settlement is clear, parties should not expect to be allowed to depart from the terms they have agreed to, or to be relieved from the consequences of their settlement." In that case, the Board found that the employees had revealed that the company had paid cash to settle the complaint. By doing so, they had revealed a term of the settlement and breached the confidentiality provision. In that case, the parties had agreed, in the settlement, on the penalty should there be a breach and the Board ordered that remedy. In this case, on the balance of probabilities, I have concluded that Ms. Young breached the confidentiality provision in the settlement agreement. Under that provision, in the event of a breach "Vice Chair Abramsky will have the authority to determine the appropriate remedy". Consequently, I now must determine "the appropriate remedy". The Employer seeks a declaration as to the breach and repayment of the $1,000 paid to Ms. Young.

Confidentiality clauses, like all other terms of a settlement agree-ment, should have real meaning. Parties rely on such clauses in deciding whether or not to settle. As set forth in Northfield Metal Products Ltd., supra, at para. 15: "It is not difficult to see why .. . an employer might be willing to settle a complaint with payment of compensation to a complainant, but only if liability is not attributed and only if the community and other employees do not learn that the company has agreed to pay compensation." The evidence established that the confidentiality provision was an important consideration for the Employer in deciding to settle, particularly in light of the nature of the grievance. The evidence showed that "S" was "furious, shocked and very upset" when he learned that the terms of

the settlement had been revealed. Ms. Glassford was "stunned" and "mortified for [Sr since she had not heard anything about the grievance before. The confidentiality provision was included to avoid exactly what happened here. The breach of a confidentiality provision also causes harm to the grievance settlement process, which is critical to the proper functioning of labour relations and grievance administration. For settlements to work, parties must be sure that all of the terms will be honoured and enforced. This is equally true for employers, unions and grievors. A remedy must ensure that confidentiality clauses will be adhered to without being punitive. Deterrence is also a consider-ation. Each case, naturally, will vary in terms of the appropriate remedy.

In this matter, I have considered both a declaration alone and a declaration combined with a return of the $1,000 payment. I have a significant concern, however, about a declaration alone, particularly in regard to deterrence. In some cases, an individual may not care about a declaration since it does not impact them financially, although I do not believe that would be true in this case. On the con-trary, I believe that both sides would care significantly about a declaration which is why I have seriously considered a declaration alone in this case. But I am concerned about the message that such a remedy would send — breach a confidentiality provision and all you get is a declaration. That could easily be interpreted as an ineffective remedy, with no deterrence value. After considering all of the relevant factors — the importance of confidentiality clauses to the grievance settlement process, the importance of deterring breaches of such clauses, the importance placed on the confidentiality provision by the Ministry in this case and the harm caused to "S" — I conclude that the appropriate remedy is a declaration combined with a return of the $1,000 payment. Accordingly, for all the reasons set forth above: 1. I declare that, on the balance of probabilities, Ms. Young breached the confidentiality provision contained in paragraph 3 of the September 19, 2002 Minutes of Settlement. 2. Ms. Young is to return the $1,000 paid to her under that settle-ment, on terms to be worked out between the parties.

3. I shall remain seized.