HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chinedu Egwuenu
Applicant
-and-
Toronto Catholic District School Board, Adrian Della Morra, Bob Dubniak, and Linda Moynagh
Respondents
-and-
Canadian Union of Public Employees
Intervenor
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Kaye Joachim Date: April 2, 2009 Citation: 2009 HRTO 378 Indexed as: Egwuenu v. Toronto (Catholic District School Board)
[1] This is an Application received August 27, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Commission complaint which gives rise to this Application was filed on June 9, 2008 and abandoned upon the filing of this Application. The purpose of this Decision is to determine the respondents’ Request for early dismissal on the basis that the applicant signed Minutes of Settlement agreeing to withdraw the Application and also signed a letter withdrawing the Application.
[2] In a previous Interim Decision, [2008 HRTO 358](https://www.minicounsel.ca/hrto/2008/358), the Tribunal deferred the Application pending resolution of a parallel arbitration proceeding.
[3] On January 28, 2009, the applicant wrote to the Tribunal seeking to continue with his Application on the basis the arbitration proceeding was completed.
[4] A Case Resolution Conference was held on March 31, 2009 to hear the parties’ evidence and submissions on whether it is an abuse of process for the applicant to continue this Application in light of a signed settlement and letter of withdrawal.
[5] The Canadian Union of Public Employees (“CUPE” or the “Union”) filed written submissions and appeared at the hearing. Although requests for intervention are rarely granted in section 53(3) applications, I was satisfied that the Union had useful and unique evidence and arguments to make with respect to the circumstances surrounding the signing of the Minutes of Settlement and the letter of withdrawal. Accordingly, I granted them intervenor status. I was satisfied that there was no prejudice to the applicant as he had notice of evidence and argument that the Union intended to call.
[6] The Application is dismissed. These are my reasons.
[7] The complaint which underlines the present Application alleges that the applicant was unsuccessful in a job competition and that discriminatory factors were at play. In addition, there were allegations of systemic discrimination. The Application was deferred pending the resolution of the arbitration process in which the grievor had also challenged the results of the same job competition.
[8] The arbitration commenced in April 2008 and was adjourned for procedural reasons. Before the arbitration resumed in January 2009, the applicant met with Denise Carter, National Representative of the Union and the president of his Local to prepare for the grievance. During the course of pre-arbitration discussion, the applicant testified that Ms. Carter mentioned the figure of $7,000, as potential lost wages from not winning the job competition. While Ms. Carter recalled the potential lost wages as somewhat less than $7,000, she agreed that some discussion of financial losses and the possibility of a financial settlement was discussed.
[9] The arbitration resumed on January 15, 2009. Ms. Carter met separately with Guy Bisson, legal counsel for the respondents, to discuss how the grievance would proceed. The subject turned to potential settlement discussions. Over the course of approximately three hours, Ms. Carter shuttled back and forth between the applicant and the Local Union members in the hearing room and the respondents in a separate room to discuss settlement offers. By lunch time, the Union, the respondents and the applicant had signed handwritten Minutes of Settlement whereby the applicant agreed to resolve the grievance and withdraw this Application in return for $1,500. He also signed a letter withdrawing the Application.
[10] The applicant testified that that he was hurried by Ms. Carter to sign the Minutes and the letter of withdrawal and warned that the settlement was better than he would get even if the grievance were successful. He was advised that the likely outcome of a successful grievance would be re-posting the disputed competition and he could not be certain to win that competition. The applicant submitted that therefore he signed under duress.
[11] Even if I accepted the applicant’s evidence above, which I do not, I would not find that the applicant signed the Minutes of Settlement under duress or that the Union made a serious misrepresentation which induced him to sign. At best, the above evidence would establish that the applicant felt hurried to sign and felt some pressure to accept the financial settlement out of a concern that he might not do as well if the matter proceeded to arbitration. Those concerns may be consistent with regret for signing the settlement but they do not establish that the settlement is not valid or binding upon the applicant.
[12] In any event, I prefer the evidence of Ms. Carter and Mr. Bisson to the applicant’s evidence as to how the events of January 13, 2009 unfolded. The applicant’s evidence was contradictory and inherently improbable and his arguments demonstrated a lack of good faith. On the one hand, he testified that he felt hurried or pressured to sign the Minutes of Settlement. On the other hand, the uncontradicted evidence of Ms. Carter and Mr. Bisson is that the applicant specifically requested that the money be paid out by cheque rather than direct deposit. This attention to detail is not consistent with a hurried settlement.
[13] The applicant asserted that the Minutes of Settlement should not be binding because they were handwritten rather than typed and because he was never introduced to the respondents’ counsel and the arbitrator. The spuriousness of these arguments is inconsistent with good faith.
[14] I accept Ms. Carter’s evidence that she fully explained to the applicant how the negotiations were progressing. Before agreeing to the final offer on his behalf, she explained to him that the settlement would cover both the grievance and the human rights Application at the Tribunal and understood that he agreed with those terms. I accept her evidence that she read the Minutes of Settlement out loud while the applicant was also reading them, and gave him every opportunity to consider whether he wished to sign. Another sign of the applicant’s lack of good faith is that he turned this reading aloud against her, asserting that this demonstrated that she was treating him as a “functional illiterate.”
[15] Ms. Carter testified that almost immediately upon signing the settlement agreement, the applicant mentioned that he planned on continuing with his human rights complaint, that he had filed complaints before, and that he had obtained some monetary compensation as a result. Ms. Carter advised him that he could not do so in light of the terms of the agreement.
[16] The applicant did not deny that some conversation about the human rights proceeding occurred that day. He testified that he only meant that he intended at that time to let the Tribunal know how the arbitration had resolved and that it was only later that he decided to actually repudiate the agreement. I do not accept his explanation. In my view, the applicant’s actions less than two weeks later are consistent with his expressed intention to Ms. Carter. Despite having signed the agreement, the applicant fully intended to proceed with his Application at the Tribunal at the same time for the purpose of negotiating another financial settlement.
[17] On January 28, 2009, 13 days after signing the Minutes of Settlement and letter of withdrawal, the applicant wrote the Tribunal and asked them to continue with his Application.
[18] I find that the applicant has not acted in good faith in seeking to set aside the Minutes of Settlement and letter of withdrawal and that it would be an abuse of the Tribunal’s process to proceed with the Application.
[19] For all these reasons, the Application is dismissed.
Dated at Toronto, this 2nd day of April, 2009.
“Signed by”
Kaye Joachim
Alternate Chair