Hiroshi Noda v. Huron-Perth Children’s Aid Society, 2009 HRTO 923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hiroshi Noda

Applicant

-and-

Huron-Perth Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: June 26, 2009

Citation: 2009 HRTO 923

Indexed as: Noda v. Huron-Perth Children’s Aid Society

1The applicant filed an Application with the Tribunal pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 12, 2009. The applicant alleges discrimination in the context of employment on the basis of race and ethnic origin.

2The respondent filed a Response on April 29, 2009, in which it requested an early dismissal of the Application because it says the applicant signed a full and final release with respect to the same matter. The applicant filed a Reply on May 26, 2009, responding to the request for an early dismissal.

3A mediation has been scheduled for July 24, 2009. On June 23, 2009, the respondent communicated with the Tribunal (with a copy to the applicant) and requested the mediation be adjourned and the matter deferred pending the determination of the arbitration. The respondent states that a grievance arbitration dealing with the subject matter of the Application is scheduled to take place on July 16, 2009.

4The purpose of this Interim Decision is to address the respondent’s request for an early dismissal as well as its request that the matter be deferred pending the outcome of the grievance arbitration.

Background

5The applicant was employed by the respondent from March 2004 until July 2007, when his employment was terminated. He alleges that, while employed, he was subjected to harassment and discrimination on the basis of race. He also contends that this harassment included improper discipline and, ultimately, the termination of his employment.

The Settlement Agreement

6The applicant grieved the discipline and termination through his union. He acknowledges that the grievances were resolved and that he entered into a settlement agreement with the respondent.

7The respondent filed a copy of the settlement agreement with the Tribunal. The settlement agreement states that it concerns “all matters relating to the employment and the termination of employment” of the applicant. The settlement agreement also contains the following clause:

The Grievor acknowledges that this settlement is inclusive of an exhaustive of all claims and entitlements to pay, payments required pursuant to the … Human Rights Code and all other employment related statutes or laws and the collective agreement.

8The settlement agreement stipulates that the arbitrator remains seized of the matter in the event of a dispute between the parties as to the interpretation or alleged violation of the agreement.

This Application

9This Application relates to allegations that the respondent breached the settlement agreement. More specifically, the applicant alleges that the respondents contacted the applicant’s new employer to advise it of “concerns [about the applicant] but [are] unable to disclose them due to an arbitration settlement agreement.” The applicant also states that the respondent threatened that it would refuse to refer clients to his new employer. The applicant alleges that these communications constitute both a breach of the settlement agreement and a further violation of his rights under the Code.

10The applicant states that alleged breach of the settlement agreement is the subject of an arbitration hearing scheduled to take place on July 16, 2009.

DECISION

Request for Early Dismissal

11The dismissal of an Application is appropriate where the applicant has signed a full and final release with respect to the subject matter of the Application.

12In my view, the subject matter of the Application in this case is different from that addressed in the settlement agreement. The release language in the settlement agreement relates to the termination of the applicant’s employment as well as events which occurred during his employment. The settlement agreement does not, however, address future alleged breaches of the Code.

13For this reason, the request for early dismissal is denied.

Request to Defer

14The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative, or at the request of a party (Rule 14.1). Where the Tribunal intends to defer consideration of an application, it will first give the parties, any identified trade union or occupational or professional organization, and any identified affected person an opportunity to make submissions (Rule 14.2).

15The Registrar will provide the applicant’s union (Canadian Union of Public Employees, Local 1427) with a copy of the Application, Response, Reply, this Interim Decision, and the respondent’s letter of June 23, 2009.

16Within 10 days of the date of this Interim Decision, the applicant and the union may deliver to the parties and the union, and file with the Tribunal, written submissions on the issue of deferral. These submissions should address the nature of the arbitration and whether or not the issues before the arbitrator are the same as those set out in the Application.

17I am not seized of this matter.