Robert Pellerin v. Conseil scolaire de district catholique Centre-Sud and Maryse Francella, 2009 HRTO 1238

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Pellerin

Applicant

-and-

Conseil scolaire de district catholique Centre-Sud and Maryse Francella

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: August 10, 2009

Citation: 2009 HRTO 1238

Indexed as: Pellerin v. Conseil scolaire de district catholique Centre-Sud

APPEARANCES

Robert Pellerin, Applicant ) Gordon V. Meakings,

) Counsel

Conseil scolaire de district catholique Centre-Sud ) Jennifer Trépanier,

and Maryse Francella, Respondents ) Representative

INTRODUCTION

1In this Interim Decision, the Tribunal is required to reconcile provisions in an agreement that seem, at least at first glance, irreconcilable. The applicant and the Conseil scolaire de district catholique Centre-Sud (the “Board”) signed an agreement in which the parties agreed, among other things, that his employment with the respondent would end, that he would receive salary continuance for a period, and that he would be provided with a letter of reference. It included clauses stating that this was a settlement of all claims against the respondent, and a full and final release. However, the agreement also included a statement that the settlement did not affect the applicant’s right to make a complaint or continue existing complaints at the Human Rights Tribunal of Ontario.

2The respondents submit that the settlement bars the Application from proceeding and have requested that it be dismissed without requiring a full Response. They also submit that a previous complaint by the applicant to the Ontario Human Rights Commission should result in a dismissal of the Application without a full Response. A hearing was held on these issues on June 3, 2009, during which the parties made oral submissions. The applicant was represented by counsel only for the purposes of argument on these issues.

BACKGROUND

3The applicant was a principal for the Board. His Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that he was discriminated against on the basis of disability and subjected to reprisals by the Board and the personal respondent, the assistant superintendent of education. The allegations relate to numerous events between September 2007 and October 1, 2008, when the applicant was suspended from employment. He never returned to active employment. The applicant asks for financial remedies, reinstatement, and remedies for future compliance.

4The Application was filed with the Tribunal on February 20, 2009. After the Tribunal obtained further information from the applicant in order to ensure the Application was complete, the Tribunal delivered it to the respondents on March 27, 2009. In the meantime, on February 26, 2009, the parties signed the agreement ending his employment.

5Through materials filed with the Tribunal (including the Application which includes the allegation, “forced to resign”), it is apparent that the parties were involved in negotiations for some time prior to the signing of the agreement. The applicant was represented in the negotiations by the Association des directions et directions adjointes des écoles franco-ontariennes (“ADFO”), which is a professional association of francophone principals, and its legal counsel. ADFO is not a statutory collective bargaining agent.

6The agreement signed on February 26, 2009, contains the following three clauses relevant to my analysis:

8. Les parties acceptent que cette entente constitue un règlement de tous les différends concernant l’emploi de M. Pellerin et que celle-ci ne constitue aucunement une admission ou reconnaissance de faute ou responsabilité de la part des parties. L’entente ne constituera un précédent.

9. M. Pellerin s’engage de retirer ses plaintes de [harcèlement] en vertu des politiques du Conseil et suite [à] cette entente il n’en fera plus. Cette entente ne déroge pas aux droits de M. Pellerin de loger des plaintes ou de continuer des plaintes actuelles à l’Ordre des enseignantes et enseignants de l’Ontario ou au Tribunal des droits de la personne de l’Ontario.

10. M. Pellerin donne quittance pleine et entière au Conseil, ses dirigeants, membres, salariés et mandataires de toute réclamation relative à son emploi ou à la cessation de son emploi.

[TRANSLATION]

8. The parties agree that this agreement is a settlement of all disputes regarding Mr. Pellerin’s employment and in no way constitutes an admission of wrongdoing or liability by the parties. This settlement shall not constitute a precedent.

9. Mr. Pellerin agrees to withdraw his harassment complaints under the Board’s policies and will not make any further such complaints. This agreement does not affect Mr. Pellerin’s right to make complaints or continue existing complaints to the Ontario College of Teachers or the Human Rights Tribunal of Ontario.

10. Mr. Pellerin fully and finally releases the Board, its directors, members, employees and agents from all claims regarding his employment or the cessation of his employment.

7Article 12 of the agreement, it appears, was proposed by Mr. Pellerin’s representative and drafted and placed into the final version of the agreement by the Board.

DECISION

8My task is to objectively determine the intention of the agreement as expressed in its words. It is clear that each party had a different view of what it was signing: the applicant believed he could continue with a human rights application raising all issues related to his employment and his resignation, and the respondent believed that there would not be litigation regarding Mr. Pellerin’s employment. I must look, however, at the agreement itself and the principles of contractual interpretation. I note that the applicant’s counsel specifically stated that he did not challenge the validity of the agreement itself.

9The respondents argue that the proper interpretation of Article 11 is that, read together with Articles 8 and 12, it permits the applicant to make an Application to the Tribunal only about matters other than his employment. This Application, they say, is barred because it relates to his employment.

10The applicant, in contrast, argues that the Board is the author of the document and I should therefore resolve any ambiguity in the applicant’s favour. The agreement should be read to exclude all claims related to his employment except for those that arise under the Code. In other words, according to the applicant, the agreement precludes civil litigation but not an Application to the Tribunal.

11In my view, there is no reason that the latter part of Article 11 would be present merely to permit the applicant to file human rights applications about matters other than his employment. There is no reason to believe that the applicant would have any such claims and no part of the agreement purports to restrict them. Accordingly, I do not agree with the respondents’ interpretation. I also do not believe that the principle that ambiguities in contracts are resolved against their author (contra proferentem) relied upon by the applicant, is of assistance in this case, given that the document was the subject of ongoing negotiations by both parties and the clause was proposed by the applicant although drafted by the respondent.

12Without it being explicit, I also do not believe that Article 11 should be interpreted to permit the applicant to challenge the agreement itself, by which the parties agreed that his employment was at an end. It is extremely unlikely that the parties would have had this intention, given the context and content of the agreement.

13In my view, the key to the interpretation of the clauses is an examination of Article 11, as a whole, considered in the factual context in which the parties made their agreement. The applicant had filed harassment complaints under the Board’s policies, and had filed a complaint against the personal respondent and another person at the Ontario College of Teachers. Article 11, read as a whole, addresses complaints about harassment that the applicant alleged he experienced while employed by the Board. It speaks to whether the applicant could continue such claims under the Board’s policy (he could not), at the College of Teachers (he could), and before the Tribunal (he could). As regards the Tribunal, it specifically retained his right to make an application regarding the harassment.

14The statement in Article 11 that the agreement does not affect the applicant’s right to make complaints to the Tribunal is a more specific clause than the general clauses, Articles 8 and 12, in which the applicant released the respondent from claims and agreed that this was a settlement of all issues regarding his employment. It must therefore be read as modifying or derogating from them.

15The result is that the applicant retains the right to bring or continue an application to the Tribunal alleging that he experienced harassment on the basis of disability and reprisals while he was employed by the Board. He does not, however, have the right to challenge the parties’ agreement ending his employment or to seek reinstatement. I make no determination at this stage of whether the agreement has any other effect on the remedies the applicant may obtain if the Application is allowed.

16As for the applicant’s prior complaint to the Commission, it related to events in 2006. This Application relates to events beginning in 2007, and alleges reprisals for the prior complaint. The Commission complaint and s. 53(8) of the Code have no effect on whether the applicant can proceed with this Application.

17Therefore, subject to the limitations set out above, the Application may proceed.

NEXT STEPS

18I have concerns about the Tribunal’s ability to address the allegations in the Application, given the form in which it was filed, which includes a 117-page explanation including correspondence and comments on that correspondence. I also note that the Tribunal does not have the power to evaluate all aspects of the applicant’s employment relationship or the general manner in which the personal respondent exercised her management responsibilities. Rather, it can only determine whether there has been discrimination on the basis of disability or reprisals against the applicant contrary to the Code.

19Rule 6.2 provides as follows:

A complete Application must provide the information requested in every section of the Application form and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant’s rights under the Code.

20A party’s narrative should generally not include evidence related to the allegations (such as e-mails) but rather an outline of the facts setting out a description of exactly how the respondents violated the Code. Generally, a party’s narrative, even in the most complex cases, is less than fifteen pages, and is usually considerably shorter.

21In the circumstances, to assist in the hearing of the allegations, I direct the applicant to deliver to the respondents and file with the Tribunal a document that sets out, in narrative form, how the respondents are alleged to have violated the Code. The applicant shall specifically explain the basis upon which he alleges that the actions he raises were affected by his disability or his prior Commission complaint.

22This document shall comply with Rule 6.2 and shall be delivered and filed no later than two weeks from the date of this Interim Decision. Within 35 days of the delivery of the applicant’s revised narrative, the respondents shall file a full Response in Form 2.

23The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website at www.hrto.ca or from the Registrar’s office.