HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yaser Kailani Applicant
-and-
Securitas Canada Respondent
-and-
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 5296 Intervener
DECISION
Adjudicator: Brian Cook Date: July 31, 2009 Citation: 2009 HRTO 1183 Indexed as: Kailani v. Securitas Canada
APPEARANCES BY
Yaser Kailani, Applicant ) self-represented Securitas Canada, Respondent ) Daniel McDonald, Counsel USWA, Local 5296 Intervenor ) Robert Champagne, Counsel
1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of race and sex. The applicant's employment was terminated by the respondent on July 10, 2008. By Memorandum of Settlement dated July 17, 2008, the resulting grievance was settled.
2An Interim Decision, 2009 HRTO 144, ("the Interim Decision") dealt with preliminary issues raised by the respondent. The respondents submitted that the Application should be dismissed because the Memorandum of Settlement stipulated that the applicant would not "commence any claim or complaint" against the respondent and because two of the three allegations related to events more than six months prior to the Application. The respondents also submitted that two of the allegations should be struck for failing to allege a violation of section 5 of the Code. The Interim Decision determined that a one day hearing would be held to address the preliminary issues raised by the respondent. A hearing for this purpose was held on May 15, 2009.
3Subsequently, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 5296 ("the union") applied for and was granted intervener status.
4At the hearing on May 15, 2009, the applicant appeared. He testified and made submissions on his own behalf, and called Imran Jain as a witness. An interpreter was present to assist Mr. Jain as required.
5The respondent called Phil Melanson, a Branch Manager, as a witness. The union called as witnesses Horace Legendor, the union recording secretary, and Joe Bonsu, the union president.
THE ISSUE
6The primary issue is whether the Application is barred because the applicant signed Minutes of Settlement stating that he would not commence any "claim or complaint". The respondent argues that the applicant violated the Minutes by filing the Application and it would be an abuse of process to permit the Application to proceed. In the alternative, the respondent submits that two of the allegations in the Application are not timely and that the applicant has failed to identify Code-related human rights issues.
7The applicant submits that he signed the Minutes under duress and that the Application should proceed.
8The union submits that the Minutes were properly executed and that the applicant was not under duress.
DECISION
9For the reasons that follow, I conclude that the Application must be dismissed.
BACKGROUND
10The respondent operates a company that provides security services. The applicant was employed as a security guard. He started that employment on May 3, 2006, and worked until July 10, 2008, when his employment was terminated for failing to provide an acceptable explanation when he did not report for work on July 7, 2008.
11In July 2006, the applicant enquired about a promotion to a managerial position. He testified that he initially was given to understand that he would get the promotion but then did not.
12In July 2007, he was working as a security guard at a private girls' school. The security site manager resigned and the applicant applied for the manager position. He was told that he could not have the job because it had to be filled by a female.
13Later in July 2007, he applied for a different supervisory position but was again turned down.
14In July 2008 the applicant was experiencing personal difficulties. He did not report for work on July 7, 2008. The respondent was not satisfied with the applicant's explanation for why he had not come to work. The respondent terminated the applicant's employment on July 10, 2008.
15The applicant filed a grievance. The parties agree that the applicant did not sign the grievance. The union representatives explained that because its members are in a variety of worksites, it is common for grievances to be filed based on a telephone conversation with the member.
16Following interventions by Mr. Legendor and Mr. Bonsu, a Memorandum of Settlement was drafted. It provided that the employer would issue a Record of Employment stating that the applicant had been laid off without recall rights instead of fired for cause. This was important for the applicant because he understood that he would not otherwise be able to collect employment insurance benefits.
17The Memorandum included the following provision:
The griever convenants and agrees that he will not disclose the terms of this memorandum of settlement to any of his former co-workers and will not commence any claim or complaint and will withdraw any claim already filed provided the foregoing is implemented.
18The parties signed the Memorandum on July 17, 2008.
19On July 28, 2008, less than two weeks after signing the Memorandum, the applicant filed an Application with the Tribunal.
20The applicant testified that he understood the meaning of the Memorandum. He specifically understood that under the terms of the Memorandum, he could not bring any claim against the respondent. The applicant argued that he nevertheless should be permitted to bring the Application to the Tribunal. He argues that he was pressured to sign the Memorandum and did so under duress. He also argues that signing a Memorandum of Settlement cannot deprive a person of the ability to assert their human rights since the Code takes precedence over other legal proceedings.
21The Memorandum of Settlement states that the applicant will "not commence any claim or complaint". This language is somewhat general. It does not, for example, explicitly enumerate types of claims or complaints as such agreements often do to ensure clarity. Nevertheless, on its face, the Memorandum includes an agreement that the applicant would not file any further claims against his employer. As the respondent points out, the applicant broke that agreement by filing the Application. The respondents submit that the applicant acted in bad faith by filing the Application and that the Tribunal should not permit the applicant to bring the Application.
22The witnesses called by the union and the respondent consistently testified that their understanding was that the term "claim or complaint" was intended to include human rights claims. Mr. Melanson signed the Memorandum on behalf of the respondent. He testified that he was aware that the applicant had complained about various human rights issues in the past, including allegations that he was discriminated against on the basis of sex with regard to the position at the private girls' school and possibly on the basis of race with regard to the other management jobs that he had sought. Mr. Melanson testified that he was aware of these allegations because the applicant had complained to him about them. He testified that his understanding was that the Memorandum was intended to foreclose the possibility of the applicant reviving those allegations after signing the Memorandum.
23The applicant testified that he also had his past human rights allegations in mind when he signed the Memorandum. At the time he signed, his intention was to file the Application with the Tribunal.
24There was conflicting evidence regarding what options, if any, the union may have offered the applicant. The witnesses called by the union indicated that the applicant was told that the union would pursue the grievance to arbitration if he did not want to sign the Memorandum. The applicant testified that he was not given this choice. However, he also indicated that he would not have been able to avail himself of this option even if it had been presented because he knew that pursuing the grievance would take time and he would have no income in the interim.
25The applicant testified that no one from the union called him to tell him the terms of the settlement, although he did understand that his status would be changed from fired to laid off. Mr. Bonsu testified that he read the Memorandum to the applicant over the telephone. The applicant was pleased with the result and his only concern was about a confidentiality provision. The applicant testified that there was no one present from the union when he signed the Memorandum. He was upset about the process and felt that the union had not properly represented his interests. Mr. Jain testified that he was present at the workplace on July 14 and in a conversation with the applicant, he understood that the applicant was very upset about his situation. The applicant told Mr. Jain that he felt the union had not properly represented him and that he was very concerned about his financial situation.
ANALYSIS
26In my view, the phrase "will not commence any claim or complaint" in the Memorandum of Settlement encompasses an Application to the Tribunal. While the Memorandum did not specifically identify the types of claims or complaints, on the face of the document, there is no reason to interpret it as excepting human rights claims or complaints, including an Application to the Tribunal.
27Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, was a case where a union member sought to pursue a human rights complaint to the Tribunal despite having signed Minutes of Settlement. The Tribunal noted at paras. 33-35:
The Code and the Tribunal's Rules support, facilitate and enforce the final and binding settlement of human rights proceedings between parties if they choose to resolve the matter voluntarily. The current Code, in s. 45.9, provides that a settlement of an application before the Tribunal is binding on the parties, may be incorporated into a Tribunal order on the joint motion of the parties, and may be the subject of an application for enforcement. The Tribunal's Rules of Procedure provide for Tribunal mediation, on the initiative of the Tribunal or a party. The old Code, under which these complaints were filed, required the Commission to "endeavour to effect a settlement" of any complaint filed with it.
The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include "[t]o promote the expeditious resolution of workplace disputes". The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:
Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.
This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end.
28In the case before me, the parties entered into an agreement that was intended to resolve a dispute. As a result of the agreement, the applicant was able to receive employment insurance benefits. The respondent understood that, in exchange, the applicant would not bring any claims or complaints against it.
29As noted in Dunn, an important consideration is whether the parties freely chose to resolve the dispute. In this case, the applicant claims that he signed the Memorandum under duress and so did not freely choose to resolve the dispute.
30The test for whether a person has signed a settlement under duress is high. Black's Law Dictionary (6th ed.) offers the following definition of duress:
Any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). Subjecting person to improper pressure which overcomes his will and coerces him to comply with demand to which he would not yield if acting as free agent.
31On the basis of the evidence presented, I am unable to conclude that the applicant signed the Memorandum under duress. The applicant has not claimed that he was threatened or coerced. He testified that he has a good understanding of contracts and collective agreements based on his legal training in Egypt and training to become a paralegal in Canada. He testified that he understood the meaning of the Memorandum including the phrase "will not commence any claim or complaint".
32I do not accept that the applicant was unaware of the options that were available to him. Even if it is true that the union representatives did not explicitly tell him of the options available under the Collective Agreement, the applicant is quite capable of understanding the Collective Agreement and the grievance procedures that were available. It appears that his primary concern was his financial situation and that he decided to sign the Memorandum so that he could get employment insurance benefits.
33It therefore appears that if there was duress, it was economic duress. The applicant was financially responsible for his family and had no income as a result of the termination of his employment. He was aware that he would likely be unable to collect employment insurance benefits if the Record of Employment indicated that he had been fired with cause. He knew that he would qualify for benefits if the Record of Employment indicated that he had been laid off.
34In the context of human rights proceedings, duress may include economic duress. In Pritchard v. Ontario (Human Rights Comm.), 1999 CanLII 15058 (ON S.C.), the Court said at para. 17:
Undoubtedly, in some cases, an employee who has accepted a sum of money in exchange for a release of claims against a former employer, including human right claims, would be acting in bad faith in subsequently turning around and filing a human rights complaint. However, in other cases, the facts may show that the employee misunderstood the significance of the release, or received little or no consideration for it beyond statutory entitlements under employment standards legislation, or was in such serious financial need that she or he felt there was no choice but to accept the package offered. To take the approach that there is bad faith whenever a human rights complaint is brought after signing a release risks ignoring the context within which a particular complainant has signed the release and denying access to the investigative procedure under the Human Rights Code without assessing the complainant's individual moral blameworthiness in pursuing the complaint.
35The fact that a person has settled with a former employer does not automatically bar the person from bringing an Application even if the settlement released the employer from future claims. Each case must be considered on its own merits and economic duress is a factor that may be considered. However, it seems apparent that the test for economic duress is high. Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.
36I accept that the applicant had financial difficulties as a result of the loss of his employment and he was faced with a difficult choice when presented with the Memorandum. However, he presented no evidence to establish that his need was so serious that he had no other option but to sign the Memorandum. There is no evidence that the applicant was otherwise coerced or forced to sign the Minutes.
37On the basis of the available evidence I conclude that the applicant was not under sufficient duress as to cause me to look behind the plain meaning of the Memorandum of Settlement. I must conclude that it would be an abuse of process to proceed with the Application.
38For all of these reasons, the Application is dismissed.
Dated at Toronto, this 31st day of July, 2009.
"Signed by"
___________________________________
Brian Cook Vice-chair