Sadaghyani v. Kingston General Hospital, 2008 HRTO 431

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abbas Sadaghyani

Applicant

-and-

Kingston General Hospital, Cathy Shaw, Gary Bedford and Ontario Public Service Employees Union

Respondents

decision

Adjudicator: Sherry Liang

Date: December 24, 2008

Citation: 2008 HRTO 431

Indexed As: Sadaghyani v. Kingston General Hospital

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") on September 4, 2008. The Application alleges discrimination in employment on the grounds of race, place of origin, creed and age.

2This decision deals with requests by the respondents to dismiss the Application on the basis of a prior complaint filed with the Ontario Human Rights Commission (the "Commission").

BACKGROUND

3The background to this matter was described in the Tribunal's interim decision of November 19, 2008, as well as in the Application and Responses, and originates in events that occurred some five years ago.

4The applicant was employed by the Kingston General Hospital (KGH) between February 2003 and August 2004, under the terms of a collective agreement between KGH and the Ontario Public Service Employees Union (OPSEU). On or about February 24, 2004, he filed a grievance against KGH alleging harassment and discrimination in his employment. This grievance was referred to arbitration by OPSEU in April 2004, and a sole arbitrator appointed.

5There is some uncertainty about the precise dates but it appears that the applicant contacted the Commission in or around July 2004 and subsequently filed a complaint against his employer (also naming OPSEU), alleging discrimination under the Code. He also made a complaint against OPSEU (also naming the employer) to the Ontario Labour Relations Board (OLRB) under section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (LRA) in August 2004. The applicant's complaints under both the Code and the LRA made similar allegations to the effect that he had been treated in a discriminatory manner in the workplace, and had not received support from the union. The applicant resigned from his employment in August 2004, but alleges that he was forced to do so.

6The arbitrator scheduled a hearing into the applicant's grievance, for March 11, 2005. On the date scheduled for hearing, the parties reached a settlement of the grievance and signed Minutes of Settlement and Release. Among the terms of the settlement was the applicant's agreement to advise the Commission that he had resolved all outstanding issues with the hospital, and to request that his complaint be withdrawn.

7The applicant's letter to the Commission, dated March 14, 2005 and referencing his Commission file number, states:

This letter is to inform you that I'm dropping human rights complain [sic] against Kingston General Hospital. In fact, this is a hard decision for me. In March 11, 05 this matter was settled with the hospital through Arbitration, although I'm not completely satisfied with the outcome. But I hope the employer took this important message into consideration: "Human rights should be respected and there should be no harassment and discrimination, no matter where we have come from."

The parties agreed that the terms of this meeting in March 11, 05 to be kept confidential.

Accordingly, it is submitted that Ontario Human Rights Commission confirm my withdrawal of complaint by sending a letter to Kingston General Hospital.

8By return letter on the same date, the Commission confirmed that the applicant's complaint was closed in accordance with his letter.

9By decision dated May 2, 2005, the OLRB confirmed the withdrawal of the applicant's complaint under the LRA.

10In this Application to the Tribunal, dated September 4, 2008, the applicant alleges he was discriminated against during his period of employment on the basis of race, place of origin, creed and age, including being unfairly treated in scheduling, in discipline, and in workplace opportunities. The allegations are substantially the same as those made in the complaints to the Commission and the OLRB.

REQUEST TO DISMISS

11Section 53(8) of the Code provides:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

12All the respondents have filed Responses requesting early dismissal of the Application relying on section 53(8) and the applicant's earlier complaint to the Commission. The Tribunal's interim decision of November 19, 2008 accordingly requested the applicant's submissions on whether his Application is barred under section 53(8) of the Code.

13The applicant does not dispute that he filed a complaint with the Commission about the same events described in his Application to the Tribunal. The applicant also does not dispute that he signed Minutes of Settlement agreeing to withdraw that complaint, and subsequently withdrew it in writing. He has filed submissions describing in some detail the reasons why he feels he should nonetheless be entitled to pursue his allegations. Among other things, he states that the subject-matter of his complaint has never been investigated or addressed by the Commission, and that there has been no hearing into his allegations, which is his right.

14The applicant asserts that he signed the Minutes of Settlement under undue pressure and under a misapprehension about his rights. At the arbitration, the applicant was represented by the union's legal counsel. The applicant essentially asserts that the union, employer and arbitrator exerted undue pressure on him to accept the settlement, and that he signed the Minutes of Settlement "not because I was agreed with, but because I was an ignorant, I had no lawyer and unable to focus. I was like a robot following the Arbitrator, the Union and the Employer who had no respect for my rights." He asserts that he did not read the Minutes of Settlement, and that he was told by the arbitrator and the union's lawyer to sign it as it was a good deal. He alleges that most of the discussion was about incidental matters unrelated to the merits of his grievance. He asserts that he was not given an opportunity to talk about his concerns. He also states that he agreed to accept a sum of money as part of the settlement because he was under financial hardship.

15The applicant also alleges that when he agreed, as part of the settlement, to withdraw his complaint before the Commission, he was under a mistaken belief that the Commission had already closed his file. He makes claims that the Commission was party to wrongdoing in the processing of his complaint, in order to force him to pursue arbitration of his grievance.

16The applicant also asserts that he misplaced the Minutes of Settlement for a period of time. He states that he found them once again in December 2007. He asserts that he "knew nothing about the paragraphs written" in the Minutes of Settlement until he read them for the first time in December 2007, and found out "what the arbitrator, employer and union have done to me."

17The Tribunal is satisfied that this Application is barred under section 53(8), as its subject-matter is substantially the same as the subject-matter of the complaint that the applicant filed with the Commission under the old Part IV of the Code. Section 53(8) is not restricted to complaints that have been fully investigated or heard by the Commission. It also operates to bar an application based on the same subject-matter as a complaint that has been withdrawn.

18Without commenting on whether they would amount to duress, I find that the allegations made by the applicant about the circumstances under which he withdrew his complaint do not affect the application of section 53(8). In considering whether the statutory bar in section 53(8) applies, it is not for the Tribunal to decide whether there are any grounds to nullify either the settlement or the applicant's withdrawal of his complaint.

19By my conclusions, I do not mean to suggest that the applicant is or was without recourse if he believes that he should not be held to the terms of the settlement or the withdrawal of his complaint before the Commission. His recourse, however, is not an application under section 34 of the Code.