Dube v. Rockhaven Recovery, 2009 HRTO 53

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ritchy Dube

Applicant

-and-

Rockhaven Recovery Limited, Nicole Cardinal, Jerry Nolan and Chris Jackel

Respondents

DECISION

Adjudicator: David Muir Date: January 16, 2009 Citation: 2009 HRTO 53 Indexed as: Dube v. Rockhaven Recovery

1This is an Application dated August 27, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

Background

2At a Case Resolution Conference on January 7, 2009 in Sudbury I heard from the parties on a number of preliminary issues raised by both parties. This Decision addresses the respondents' request for early dismissal of the Application on the grounds that the applicant has signed two releases releasing the respondents from any claims arising from the termination of his employment by the respondent employer.

3In the initial Response to the human rights complaint the respondents framed this preliminary issue as a request that the complaint be dismissed under section 34 of the Code (since repealed) on the basis that it had been dealt with in another proceeding for which there was a signed release, or alternatively that the complaint was frivolous, vexatious or brought in bad faith. In the parties' written and oral submissions the preliminary issue became simply whether the Application should be dismissed on the basis that the applicant had signed two releases in favour of the respondents following the termination of his employment.

4On October 29, 2008 the applicant filed two Requests for an Order during Proceedings. In the first, the applicant sought an Order amending the Application by the addition of "an addiction disability" as a ground of discrimination. In the second the applicant sought to add eight individual respondents and considerably expand the remedies sought. The request to add respondents was withdrawn at the Case Resolution Conference. The parties agreed to address the proposed amendment of the Application in writing if necessary following receipt of the Tribunal's decision on the request to dismiss. Given my finding on that matter it is not necessary for the parties to provide written submissions on the request to amend.

Analysis

5The applicant was dismissed, allegedly for cause, from his employment as a counsellor by the respondent Rockhaven Recovery Limited by letter dated February 9, 2007. The termination letter contained an offer of a modest severance package in exchange for a release. If the offer was acceptable the applicant was directed to sign and return the release before four o'clock on February 15, 2007. The applicant did so.

6The release includes general language releasing the respondents from any kind of claim. It also included specific reference to the Code wherein the applicant agreed to release Rockhaven, its employees, officers etc. of

any claims I may have … under the Workplace Safety and Insurance Act, 1997. S.O. 1997 c. 16, as amended and the Human Rights Code, R.S.O. 1990, as amended,

and that any such claims, if made, would be in bad faith.

7The applicant claims that he was unable to get legal advice before signing the release because his lawyer was unavailable. The applicant further states that he contacted the corporate respondent by telephone with the intention of asking for some further time to consider the offer, but did not attempt to speak to anyone with the authority to respond to such a request. Instead he asked to speak to the administrative assistant and was told she was away.

8Despite the language of the release the applicant made the complaint forming the basis of this Application to the Ontario Human Rights Commission on March 21, 2007 and began a Small Claims Court action for wrongful dismissal on March 19, 2007. The corporate respondent counterclaimed. Following a pre-trial the applicant signed a second release on July 24, 2007 in respect of the Small Claims Court proceeding.

9The applicant did not advise the respondent of his human rights complaint during the discussions which culminated in the second release. The respondents only became aware of the complaint when the Ontario Human Rights Commission forwarded it to them in September 2007.

10The applicant relied upon the Ontario Human Rights Commission Guideline on Releases in responding to the request to dismiss. While I have considered the Guideline in reaching my decision I note it is based on the old provisions of the Code where the question was whether bringing the complaint was in bad faith.

11To my mind it would be manifestly unfair to the respondents and an abuse of the Tribunal's process to allow this Application to continue. The applicant is not a lawyer but he is not an unsophisticated man. His lengthy and cogent written submissions delivered prior to the Case Resolution Conference establish that fact. He has not raised any Code-related issues that might have prevented him from understanding the material documents related to this issue. He reads and writes English with proficiency.

12The applicant signed two releases, the first including specific language releasing the respondents from any complaints under the Human Rights Code. The language of the termination and offer letter is clear and unambiguous. The applicant was given several days to consider the offer and obtain legal advice if he thought it necessary to do so. Although he claims the he was unable to obtain such advice I am not satisfied that his alleged inability to do so was a material factor here. I am also not satisfied that the applicant made reasonable efforts to ask for an extension of time from the corporate respondent if indeed he needed more time to consider the offer. He chose to take the offer under no more pressure than any other employee who has been summarily dismissed by their employer. There is no basis for concluding that the applicant signed the release under duress or that undue pressure was brought to bear by the respondents.

13The applicant also states that the respondents ought not be allowed to rely upon the first release because they should have known that there were human rights issues at play in his termination. However beyond stating that the respondents, like himself, are all persons who have had addictions it is not apparent to the Tribunal why it ought to have been clear to the respondents that there were human rights issues at play in the termination. In the human rights complaint filed with the Application there are no facts alleged that would support a human rights claim. I also note in this regard that in both the human rights complaint and the Small Claims Court pleadings the applicant states that the real reason for his termination was his challenge of the respondent employer's hiring decision. This does not mean that there were not potential human rights issues at play at the time, but rather that it is not clear how or why that fact would have been obvious to the respondents at the time of the termination or thereafter when the two releases in question were being discussed.

14Despite the first release, the applicant simultaneously commenced a wrongful dismissal suit and a human rights complaint in respect of his termination. Confronted at the Small Claims pre-trial with the fact that he had signed a release wherein he had agreed not to commence the lawsuit, he agreed to a second release for some consideration to resolve both it and the counterclaim. Significantly, although the two proceedings were commenced at the same time the applicant did not advise the respondents that he had made a human rights complaint when he made this agreement.

15The respondents have in good faith signed two releases and incurred legal expenses in responding to this Application. To allow this Application to proceed in these circumstances would only compound the prejudice to them having attempted to resolve on two occasions all issues arising out of the termination of the applicant's employment.

16Section 23(1) of the *Statutory Powers Procedure Act,* R.S.O. 1990, c. S.22, as amended, provides that the Tribunal may make such orders as it considers proper to prevent an abuse of its processes. To my mind the filing of this Application in these circumstances is an abuse of the Tribunal's process. The only appropriate remedy for this abuse of process is to conclude the Application and for that reason it should be dismissed at this stage.