Romo v. Raynor Canada Inc., 2009 HRTO 1773

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Romeo Romo Applicant

-and-

Raynor Canada Inc. o/a Richard-Wilcox Canada, Robert Hampson, Ulises Fernandez and Charles Dudley Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart Date: October 26, 2009 Citation: 2009 HRTO 1773 Indexed as: Romo v. Raynor Canada

APPEARANCES BY

Romeo Romo, Applicant (On his own behalf)

Raynor Canada Inc. o/a Richard-Wilcox Canada, Robert Hampson, Ulises Fernandez and Charles Dudley, Respondents (Mary Catherine Chambers, Counsel)

DECISION

1This is an Application dated June 2, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on April 27, 2007.

2A preliminary hearing in this matter took place on October 14, 2009 to determine the issue raised by the respondents that the Application should be dismissed on the basis that the underlying complaint was settled in the Commission process.

3Prior to this preliminary hearing, this matter was the subject of two Interim Decisions. The first Interim Decision 2009 HRTO 1530 ordered the Commission to provide a copy of the signed Minutes of Settlement and Release that had been filed by the respondents. These documents were produced by the Commission to the Tribunal and the parties.

4The second Interim Decision 2009 HRTO 1655 ordered the Commission to produce to the Tribunal and to the parties any and all records of communications, including the content of those communications, between the applicant and the Commission during the period from March 19, 2008 to April 19, 2008. One record was produced by the Commission on October 13, 2009 and was provided to the parties. This record related solely to communications by the applicant to the Commission relating to whether and when he notified the Commission that he had changed his mind about the settlement and wished to withdraw or revoke his signature on the settlement documents, and did not disclose any communications relating to the substantive content of the mediation discussions at the Commission.

5In keeping with the expeditious manner in which s. 53 applications are to be conducted, at the conclusion of the hearing on October 14, 2009, I issued the following oral decision.

1. This is a preliminary hearing to determine the issue raised by the respondents that the Application should be dismissed on the basis that the underlying complaint was settled in the Commission process.

2. The basic facts are that a mediation at the Commission was held on March 19, 2008, at which time the applicant signed Minutes of Settlement and a Release. The respondents state that the applicant accepted an offer of settlement made by the respondents that counsel for the respondents and the representative of the corporate respondent in attendance at the mediation had authority to make on behalf of all respondents. However, the Minutes of Settlement were not formally signed by all respondents until March 25, 2008.

3. The Commission’s records indicate that on March 22, 2008, the mediator was contacted by the applicant. I note that this was a Saturday, and so it is unlikely that the discussion between the Commission mediator and the applicant took place precisely on this date, and it is more likely that it took place either on Friday, March 21, 2008 or on Monday, March 24, 2008. The evidence of the applicant and his spouse, who appeared at the preliminary hearing, is that this discussion likely took place on Friday, March 21, 2008, but they have no notes or records of this discussion.

4. The Commission’s records indicate that the applicant told the mediator that he had been pressured by his wife, who attended the Commission mediation with him, to accept the settlement. The applicant agrees that he said this to the mediator at that time. The Commission’s records next indicate that the applicant said that he was “now having second thoughts” and that “he agreed to give this matter further thought”. The applicant disputes that he said this, and states instead that he told the Commission mediator at that time that he had changed his mind about accepting the settlement.

5. The Commission’s records next indicate that on April 1, 2008, the applicant left a voicemail message for the mediator stating that he had changed his mind about accepting the settlement and that he would like to continue with the process. The applicant does not remember leaving this voicemail message, but does not dispute the Commission’s record.

6. On April 1, 2008, the Commission mediator contacted counsel for the respondents to advise her that the applicant had changed his mind about accepting the settlement. On April 2, 2008, the Commission mediator sent a letter to counsel for the respondents returning the settlement cheque that the respondents had provided to the Commission. In this letter, the Commission mediator confirms the discussion that he had had with respondents’ counsel on April 1, 2008, that the applicant had decided not to accept the terms of settlement even though he had signed the Minutes of Settlement and Release.

7. Where an offer of settlement has been made but not yet accepted, the party making the offer is free to withdraw or revoke the offer at any time prior to acceptance, unless there is a specific term indicating that the offer is irrevocable for a certain period of time which does not apply here. However, once a settlement offer has been accepted by the other party, the settlement is final and binding.

8. The question for me, then, is whether the applicant withdrew or revoked an offer of settlement prior to its acceptance by the respondents. The respondents take the position that it was their offer of settlement, which was accepted by the applicant on the day of mediation on March 19, 2008. Given my decision in this matter, it is not necessary for me to determine whether the settlement was finally concluded on March 19, 2008 or whether it was only finally concluded once the Minutes of Settlement had been signed by all respondents on March 25, 2008.

9. In my view, there is no sufficient evidence to establish that the applicant had clearly communicated that he wanted to withdraw or revoke his signature on the Minutes of Settlement and Release prior to April 1, 2008. The Commission’s records indicate that, prior to March 25, 2008, the applicant had only communicated that he was having second thoughts about the settlement and that he agreed to give the matter further thought.

10. While I am aware that the applicant states that prior to March 25, 2008, he clearly communicated to the Commission that he had changed his mind about the settlement and wanted to proceed with the investigation process, I do not accept this evidence for several reasons. First, the applicant has no notes or records to confirm that he said this to the Commission at that time. In contrast, the Commission’s records do not support that this was clearly communicated by the applicant until the voicemail message that he left on April 1, 2008.

11. Second, if the applicant already had told the Commission prior to March 25, 2008 that he had changed his mind about the settlement, there would have been no need for him to make a further telephone call on April 1, 2008 to say the same thing. The fact that the applicant made a further call to the Commission on April 1, 2008, which is not disputed by the applicant, instead supports the Commission’s records that prior to March 25, 2008, the applicant had only said that he was having second thoughts and wanted to give the matter further thought.

12. Finally, the fact that the applicant only clearly communicated that he had changed his mind on April 1, 2008 is further supported by the evidence that this was the day that the Commission contacted respondents’ counsel to inform her of the applicant’s position, which was further confirmed by letter dated April 2, 2008. If the applicant had clearly communicated to the Commission that he had changed his mind previously, these steps would have been taken by the Commission at an earlier time.

13. I need to address the language in paragraph 1 of the Minutes of Settlement, which states that “a certified cheque, payable to the Complainant, will be held in escrow by the Commission to be given to the Complainant upon approval of this settlement”. The Commission states that this was what the Commission refers to as an “administrative settlement”, such that no approval by the Commission was required in order for the settlement to take effect. As a result, I find that this language in the settlement does not prevent the settlement from being considered to have been finally concluded by the parties at the latest as of March 25, 2008 when it was signed by all respondents.

14. Accordingly, I find that there was a fully concluded settlement that was binding upon the parties prior to the communication by the applicant that he had changed his mind and no longer wanted to proceed with the settlement.

15. Having made this determination, I next need to consider whether there is any basis upon which the settlement should be overturned. I am familiar with the caselaw indicating that a settlement may be overturned in appropriate circumstances where there has been duress or where one of the parties lacks capacity. There is no evidence before me that the applicant lacked capacity to agree to the settlement at the mediation. With regard to the issue of duress, the most that the applicant has said is that he felt pressured by his wife to accept the settlement. This does not constitute a sufficient basis upon which to overturn a settlement.

16. Before me, the applicant submitted that the settlement was “unfair”. Whether or not a settlement is fair is not a determination that I can or should make in the context of the issue before me. The fairness or otherwise of a settlement could only be assessed in the context of an adjudication on the merits of the applicant’s underlying complaint, which is not being undertaken at this preliminary stage. A settlement is necessarily a compromise between the parties which is voluntarily entered into in the absence of an adjudication on the merits. The perceived fairness or otherwise of a settlement is not a proper basis upon which a party can resile from a settlement that has already been concluded.

17. As a result, I find that there is no proper basis upon which I can set aside the settlement that was reached.

18. I am aware that the settlement funds that were forwarded to the Commission by the respondents were destroyed by the Commission. These funds and the letter of reference shall be sent directly to the applicant within 14 days of the date of this decision.

19. The Application is otherwise dismissed.

6As a result, the Application is dismissed.