Hessian v. Workplace Safety and Insurance Board, 2010 HRTO 1582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Hessian

Applicant

-and-

Workplace Safety and Insurance Board, Robert Timlin and Anne Bisson

Respondents

decision

Adjudicator: Michelle Flaherty

Date: July 21, 2010

Citation: 2010 HRTO 1582

Indexed as: Hessian v. Workplace Safety and Insurance Board

APPEARANCES

Greg Hessian, Applicant ) On his own behalf

Workplace Safety and Insurance ) Gurjit Brar, Counsel Board, Robert Timlin and ) Anne Bisson, Respondents )

INTRODUCTION

1The purpose of this Decision is to address the respondents’ Request to dismiss the Application because the applicant signed a full and final release.

2The Tribunal conducted an oral hearing on July 20, 2010, at which time I heard oral submissions from the applicant and counsel for the respondents.

3For the reasons that follow, I conclude that the Application is dismissed against all of the respondnets.

POSITION OF THE PARTIES

4It is undisputed that the parties entered into a Memorandum of Agreement and Release (“Agreement”) on June 1, 2010. The Agreement contains, among other things, the following paragraphs:

(8) In Consideration of the mutual convenants and undertakings herein, the Employee... hereby release and forever discharge the Employer, its employees, agents, officers, successors and assigns and members of the board of directors of and from all actions, causes of action, applications, suits proceedings, claims and demands of every nature and kind, including any proceedings under the Employment Standards Act, which the Employee, his heirs, executors, administrators, agents or assigns had, now have or may have for, or by reason of, or as a result of, or in any way relating to the Employee’s employment or termination of employment from the Employer.

(9) The Employee Agrees that this agreement constitutes a full and final settlement of any existing, planned, or possible complaint or complaints agains the Employer under the Human Rights Code up to the date of the agreement, arising out of or in respect to the Employee’s employment with the Employer. The Employee agrees that he is aware of his rights under the Human Rights Code, and confirms that he is not asserting such rights or advancing a human rights claim or complaint.

5At the hearing, the applicant stated that, in light of the Agreement, he was prepared to withdraw the Application against the Workplace Safety and Insurance Board (“WSIB”) provided that the WSIB complied with the terms of the Agreement.

6It became apparent at the hearing that there is a dispute between the parties as to whether or not the WSIB had fully complied with the Agreement. I advised the parties that compliance with the Agreement was not presently at issue before the Tribunal.

7The applicant argued that, in any event, the Application should proceed against the two individual respondents because:

a. the individual respondents were not parties to the Agreement; and

b. the release language contained in the Agreement is insufficient to release individual employees from alleged acts of discrimination under the Code.

8The applicant maintained that paragraphs 8 and 9 of the Agreement should be considered separately. Otherwise, the more specific paragraph 9 is without any real meaning. While the applicant readily acknowledges that employees are released from Employment Standards Act claims pursuant to paragraph 8, he argues that the specific paragraph dealing with human rights matters does not include release language for individual employees.

9The WSIB argued that, taken together, paragraphs 8 and 9 of the Agreement are sufficiently broad and clear as to release the WSIB and its employees from claims of any kind, including human rights matters. The WSIB states that, while paragraph 9 contains language specific to human rights, it does not limit the scope of the more general release language contained in paragraph 8.

DECISION

10Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. This Tribunal has held that proceeding with a human rights Application after signing a full and final release can constitute an abuse of the Tribunal’s process. see, for example, Sinnett v. Orlick Industries, 2009 HRTO 916 and Kailani v. Securitas Canada, 2009 HRTO 1183.

11I accept the WSIB’s argument that the release language contained in the Agreement is sufficiently broad as to encompass human rights claims against individual employees. I find that the release language contained in paragraph 8 is not limited to Employmaent Standards Act claims, but includes all claims of any kind. Accordingly, while the purpose of paragraph 9 of the Agreement is somewhat unclear, I find that it does not limit the scope of the release language contained in paragraph 8.

12In my view, it would be an abuse of process to allow the Application to proceed against any of the respondents in light of the Agreement. Accordingly, the Application is dismissed.