HUMAN RIGHTS TRIBUNAL OF ONTARIO
______________________________________________________________________
Trish-Ann Tremblay
Applicant
-and1168531 Ontario Inc. and Amy Lalonde
Respondents
AND BETWEEN
1168531 Ontario Inc. and Amy Lalonde
Applicants
-andTrish-Ann Tremblay
Respondent
______________________________________________________________________
DECISION
______________________________________________________________________
Adjudicator:
Ian R. Mackenzie
Date:
October 15, 2012
File Numbers:
2011-10040-S; 2011-10115-S
Citation:
2012 HRTO 1939
Indexed as:
Tremblay v. 1168531 Ontario Inc.
______________________________________________________________________
2012 HRTO 1939 (CanLII)
B E T W E E N:
APPEARANCES
Trish-Ann Tremblay, Applicant/Respondent
)
)
)
)
1168531 Ontario Inc., and Amy Bolton
Respondents/Applicants
2
Self-represented
Louis Gaulin, Representative
2012 HRTO 1939 (CanLII)
)
)
)
)
[1]
Trish-Ann Tremblay (the applicant) filed an Application for Contravention of
Settlement, HRTO file 2011-10040-S, on October 12, 2011, pursuant to s. 45.9(3) of the
1168531 Ontario Inc., and Amy Bolton (the respondents) breached a settlement entered
into by the parties of a previous Application to the Tribunal. The respondents also filed
an Application for Contravention of Settlement on October 19, 2011, HRTO file 201110115-S, alleging that the applicant had also breached a term of the settlement. The
applicant alleges that the respondents refused to pay the amount owing under the
settlement and the respondents submitted that the applicant breached the confidentiality
provision of the agreement. The respondents state that the agreed upon amount in the
Minutes of Settlement was not paid after the alleged breach of the confidentiality
provision was discovered.
[2]
The corporate respondent is a fast food franchise in Cornwall. The personal
respondent Amy Lalonde was the manager of the corporate respondent. Louis Gualin is
the owner of the corporate respondent and represented it and the personal respondent
before me and at the mediation of the original Application. The applicant was employed
by the corporate respondent.
[3]
To the extent possible, I have not revealed the terms of the Minutes of
Settlement in this Decision, including the amount of the monetary settlement.
[4]
In its Application, the respondents provided a signed statement from someone
who stated that she heard details of the settlement from a person who was not a party
to the Minutes of Settlement. This individual was not called as a witness. I ruled that I
would not consider this statement since the individual was not available for crossexamination.
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2012 HRTO 1939 (CanLII)
Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that
Mediation of Original Application
[5]
The mediation of the original Application was conducted on September 13, 2011
the applicant. The personal respondent and Mr. Gualin attended on behalf of the
respondents.
[6]
The people attending the mediation signed the Tribunal's agreement to mediate,
which includes the following clause:
5. We understand and agree that this is a confidential process. ...all
statements made during the mediation are without prejudice and cannot
be used in evidence before the HRTO or in any other civil proceeding.
[7]
The parties reached a settlement and signed a Minutes of Settlement that
included the following clause:
2. The Applicant and the Respondents agree to maintain confidentiality of
the terms of these Minutes of Settlement, and shall not discuss or disclose
the terms of the settlement with anyone other than immediate family, or
legal or financial advisors, or as required by law.
[8]
Ms. Lalonde testified that on her return to work on the day after the mediation,
she was asked about the outcome of the mediation by the assistant manager. She told
the assistant manager that she could not disclose the terms of the settlement because
of a confidentiality provision. The assistant manager asked her if the applicant was also
subject to the confidentiality provision. When Ms. Lalonde said yes, the assistant
manager told her that the applicant had been posting messages on her Facebook
account about the mediation and the settlement. The assistant manager showed Ms.
Lalonde the messages on the office computer and Ms. Lalonde printed them out.
[9]
The first message was posted during the mediation session:
Sitting in court now and _________ [blank in original posting] is feeding
them a bunch of bull shit. I don't care but I'm not leaving here without my
money...lol.
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2012 HRTO 1939 (CanLII)
in Ottawa. A friend of the applicant, Saphir Charbonneau, attended the mediation with
[10]
The next message was posted after the Minutes of Settlement were signed:
[11]
About four hours later she posted the following message:
Well my mother always said something is better than nothing...thank you
so much saphir for coming today....
[12]
Mr. Gaulin testified that Ms. Lalonde showed him the printout of the Facebook
messages. He was upset because confidentiality was important to him. He stated that in
a small community like Cornwall it is important that settlements remain confidential. His
concern related both to the reputation of his business and that others might regard filing
an application or suing the company as “easy”.
[13]
Mr. Gaulin testified that after reading the comments he decided not to pay the
applicant the amount specified in the Minutes of Settlement which was due on October
1, 2011.
[14]
He said that he wanted the Tribunal to sort matters out.
[15]
The respondents provided a printout of Facebook comments made by the
applicant relating to its failure to pay her the settlement monies. I find that these
comments are not relevant to the determination of whether or not there was a breach of
settlement.
[16]
The applicant did not deny that she wrote the postings. She submitted that there
was no proof that she was talking about the respondents as she did not mention them
by name. She also submitted that Facebook was private. She submitted that there was
no mention of the amount of the settlement.
[17]
The respondents submitted that the breach of the settlement rendered the
agreement null and void and they should not have to pay the applicant anything.
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2012 HRTO 1939 (CanLII)
Well court is done didn't get what I wanted but I still walked away with
some...
[18]
The applicant submitted that she should receive damages for pain and suffering
for the delay in payment from the respondent in the amount of $5,000.
[19]
The applicant has not denied that the Facebook postings were made by her. She
states that the respondents have no proof that the postings were about the settlement.
However, she has provided no alternate explanation for her postings. It is clear from the
date of the postings and the comments made that she was referring to the mediation. In
addition, it is clear that she revealed that she had received a monetary settlement. She
said she was not leaving without money and then said she "walked away with some".
[20]
I find that the applicant breached the confidentiality provision of the Minutes of
Settlement. The fact that she did not disclose the amount of the settlement is not
relevant to the determination of whether there was a breach. By her comments she
disclosed that there was a monetary settlement, which was a term of the Minutes of
Settlement. The extent and content of the breach of confidentiality is a relevant factor to
consider in assessing the remedy for the breach.
[21]
The respondents concede that they did not pay the agreed upon amount to the
applicant. It is therefore clear that the respondents breached the Minutes of Settlement.
[22]
Section 45.9(8) of the Code sets out the Tribunal’s power to remedy
contraventions of settlements. The Tribunal may make “any order that it considers
appropriate to remedy the contravention.” As noted in Matos v. Transplay, 2010 HRTO
2527 (at para. 11), the driving consideration is remedying harm.
[23]
In Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO
2516, (at para. 51) the adjudicator stated:
Respect for terms of settlement is not only a legally binding, contractual
obligation, it also promotes essential Code values. A contravention of
settlement can undermine the administration of justice by discrediting the
human rights system and generating wrong disincentives to negotiation.
The uncertainty created by a contravention of settlement potentially
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2012 HRTO 1939 (CanLII)
DECISION
undermines the substantive and procedural provisions of the Code. An
award of monetary compensation can help reflect both the private and
public importance of complying with settlement terms.
The respondents are required to pay the amount owing under the Minutes of
Settlement subject to an offset as discussed below. The failure to pay was a direct
result of the breach of confidentiality and was an understandable reaction on the part of
the respondents. The respondents were unrepresented and stated that they wanted the
Tribunal to sort it out. I find that, in the circumstances of this case, no damages remedy
is warranted. However, it is appropriate that the respondents pay interest on the amount
owing (less the offset) at the pre-judgement interest rate of 1.3% from the date of the
breach (October 1, 2011) to the date of this decision.
[25]
A breach of the confidentiality provision in a settlement is a significant breach of
the agreement. Confidentiality can be important to all parties in resolving disputes. If
these provisions are routinely ignored by applicants there may be a disincentive for
respondents to settle human rights applications.
[26]
A decision of the Grievance Settlement Board (Ontario Public Service Employees
Union v. Ontario (Ministry of the Attorney General), 2004 CanLII 55317) quotes the
following from Northfield Metal Products Ltd. [1991] OLRB Rep. May 664, at para. 15 to
support the importance of confidentiality in settlements:
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. …
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2012 HRTO 1939 (CanLII)
[24]
[27]
Mr. Gaulin testified about the importance of the confidentiality clause to him and
his business relating both to the denial of liability and the possibility of others filing
[28]
There have been no cases before the HRTO where a breach of confidentiality
has been found.
[29]
Damages for failure to pay settlement amounts have ranged from $500 to
$1,000: Weitzmann v. Burns, 2011 HRTO 818 and Schenk v. Nixon, 2011 HRTO 1312.
[30]
A breach of confidentiality is harder to remedy, since it is impossible to reinstate
confidentiality, once breached. The Grievance Settlement Board noted in Ontario Public
Service Employees Union v. Ontario (Ministry of the Attorney General) that
confidentiality clauses should have “real meaning” since parties rely on such clauses in
deciding whether or not to settle and stated:
A remedy must ensure that confidentiality clauses will be adhered to
without being punitive. Deterrence is also a consideration. Each case,
naturally, will vary in terms of the appropriate remedy.
[31]
The same considerations apply in human rights settlements.
[32]
In the Grievance Settlement Board case, the adjudicator ordered the grievor to
return the $1,000 paid to him under the agreement. In a recent arbitration decision, an
arbitrator awarded general damages of $1,000 payable to the union and $1,000 payable
to the grievor: Green Grove Foods Corp v United Food and Commercial Workers
Canada, Local 175, 2012 CanLII 51867. In that case, the breach of confidentiality
occurred when the employer disclosed the terms of the settlement to the Canada
Revenue Agency.
[33]
In determining the appropriate remedy, I have considered the fact that the
respondents did not establish that the applicant disclosed the amount of the monetary
settlement. I have also considered the public nature of Facebook, especially in a small
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2012 HRTO 1939 (CanLII)
applications or claims against the business.
community such as Cornwall. The applicant’s assertion that Facebook is “private” was
not supported by the ease with which the respondents discovered the postings.
In the circumstances of this case, I find it appropriate to reduce the amount
owing to the applicant under the settlement by $1,000.
ORDER
[35]
The Tribunal orders:
a. The applicant breached a term of the Minutes of Settlement;
b. The respondents breached a term of the Minutes of Settlement;
c. The respondents shall pay to the applicant the amount owing under the
Minutes of Settlement, less $1,000, within 14 days of the date of this
Decision; and
d. The respondents shall pay interest on the amount owing, less $1,000,
at the rate of 1.3% from October 1, 2011 to the date of the Decision.
Dated at Toronto, this 15th day of October, 2012.
”signed by”
________________________________
Ian R. Mackenzie
Member
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2012 HRTO 1939 (CanLII)
[34]