Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Practice and procedure – Settlement offers – Confidentiality – Human rights complaints – Discrimination – Judicial review – Privileged communications – Evidence – Disclosure – Mootness – Standard of review – Correctness
Downtown Vancouver Business Improvement Assn. v. Pivot Legal Society,  B.C.J. No. 1091, 2010 BCSC 807, British Columbia Supreme Court, June 9, 2010, R.E. Powers J.
The DVBIA and the City of Vancouver (the “City”) were subject to a complaint by the Pivot Legal Society (“Pivot”) and the Vancouver Area Network of Drug Users (“VANDU”) alleging that the DVBIA and the City had discriminated against a class of individuals who appeared to be street homeless or drug addicted through the activities of the Downtown Ambassadors Program. The complaint alleged that the Downtown Ambassadors Program was, in essence, the DVBIA/City operating as a private security program with the purpose of removing or displacing homeless people from Vancouver’s sidewalks and alleys. DVBIA and the City denied any such discrimination.
In January 2009, the matter was the subject of an early settlement meeting which did not result in a settlement. In July 2009, DVBIA and the City applied to have the complaint dismissed through a summary application which was dismissed. The media reported on the dismissal and, in the media coverage that followed, the executive director of DVBIA posted comments to The Province’s newspaper website:
“Efforts to settle this matter with Pivot and VANDU failed in February. Every remedy, with the exception of one (that DVBIA pay each homeless person $20.00 to a maximum of 1,000 homeless people), that Pivot and VANDU requested in their Complaint was agreed to by the DVBIA. Pivot’s representative submitted revisions to the Ambassadors training manual and had input on many other documents, and felt confident that this could be settled. VANDU, who never had a representative at the early settlement meeting and never met with DVBIA representatives, scuttled the settlement by making additional demands that…. The DVBIA honoured its part of the settlement and all the remedies, except the $20,000.00 payment, that were requested by Pivot and VANDU…”
Pivot applied to the Tribunal for a ruling that the Executive Director had breached the Tribunal’s confidentiality clause in its standard form settlement meeting agreement and Rule 21(8) of the Tribunal’s Rules of Practice and Procedure.
Rule 21(8) reads “any information received by any person in the course of attempting to reach a settlement of a complaint, including at a settlement meeting, is confidential and may not be disclosed or admitted in evidence, except with the consent of the person who gave the information.”
The standard form settlement meeting agreement confidentiality clause reads “we agree that the settlement meeting or meetings covered by this agreement are conducted without prejudice to the rights of either party to the complaint. We agree that anything said during the settlement meeting must be kept confidential, is not admissible, and will not be used in any legal proceedings, including a Tribunal hearing, except with the consent of the participant given that information.”
The Tribunal ruled that the Executive Director’s remarks had breached Rule 21(8) and fined DVBIA $2,000.00.
DVBIA applied to quash the ruling. The Tribunal had found that the Executive Director’s comments outlined his view that all of the complainants’ proposed terms of settlement had been agreed to except one. The Court held that a comment by an individual who believes that all terms to a settlement have been reached with the exception of one term is not a disclosure of information received during the settlement meeting. Rather, it is a comment on the meeting’s outcome.
The Tribunal had found that the Executive Director provided details about the nature of the remedies sought at the settlement meeting and the discussions that had taken place between the parties at that meeting. By contrast, the Court held that the comments referred to the remedies which were listed in the complaint, and went no further.
The standard of review was correctness, given that the central question was a question of mixed fact and law, dealing with whether the conduct of the Executive Director was a breach of the Tribunal’s Rule. The Court held that the Tribunal had erred in concluding that the DVBIA Executive Director’s comments breached the Rule. The comments made did not “include any information that the Rule was intended to protect.” It was permissible to refer to remedies claimed in an original complaint and even to state that DVBIA had agreed to all remedies except one. The Court quashed the decision and moved on to a consideration of whether the Order for costs should fall.
The issue of quantum of costs is discretionary and is therefore subject to deference according to the provisions of the Administrative Tribunal Act which, s.59, which provides that a court must not set aside a discretionary decision unless it is patently unreasonable. In this case, the Order for costs failed because there was no longer a basis for an award of costs, even though the quantum of costs was not demonstrated to be patently unreasonable.
DVBIA had also applied for summary dismissal of the complaint made by Pivot and VANDU. At the time the application came on for hearing the basis of the summary dismissal application was that the Complainants had no evidence to support their complaint. After the application to dismiss was dismissed, DVBIA sought to renew it and at that time Pivot indicated that evidence had been obtained which would be relied on at the hearing of the matter. The Court therefore found that the issue was moot and adjourned the application generally.
The Tribunal’s decision that confidentiality attaching to settlement meeting discussions had been breached was quashed, with costs for that portion of the hearing awarded to the DVBIA.
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