Cheryl Park (now Cheryl DeFoa) v. Regional Municipality of Waterloo and Ann Steadman, 2010 HRTO 1604

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Park (now Cheryl DeFoa)

Applicant

-and-

Regional Municipality of Waterloo and Ann Steadman

Respondents

DECISION

Adjudicator: Mark Hart

Date: July 26, 2010

Citation: 2010 HRTO 1604

Indexed as: Park v. Waterloo (Regional Municipality)

APPEARANCES BY

Cheryl Park (now Cheryl DeFoa), Applicant ) Paul Mennie, ) Representative

Regional Municipality of Waterloo ) Carl Peterson, Counsel and Ann Steadman, Respondents )

1This is an Application, dated June 3, 2009 and filed 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 March 5, 2008.

2A preliminary hearing in this matter took place on July 26, 2010 to determine the issue raised by the respondents that the Application should be dismissed pursuant to s. 45.1 of the Code or as an abuse of process, on the basis of a settlement reached between the respondent employer and the applicant’s union.

3In keeping with the expeditious manner in which s. 53 applications are to be conducted, at the conclusion of the hearing on July 26, 2010, I issued the following oral decision.

1. This is a preliminary request by the respondents to dismiss the Application pursuant to s. 45.1 of the Code or as an abuse of process as a result of a memorandum of settlement entered into between the respondent employer and the applicant’s union, dated May 22, 2008.

2. The applicant filed a grievance pursuant to the collective agreement on the same day that she filed her human rights complaint with the Commission. There is no dispute between the parties that both the grievance and the human rights complaint deal with the same issues.

3. In the course of the grievance process, the grievance was settled as between the union and the employer on the basis of payment of 80 hours of wages to the applicant. The applicant acknowledges before me that she was aware that the union was negotiating a settlement of this nature with the employer, and that she agreed to accept the settlement, although she states that she did so under duress and on the basis of an understanding with the union that they would assist her in pursuing her human rights complaint to obtain the balance of the monies she believed were owing to her.

4. While the applicant is not a signatory to the settlement, no indication was given to the employer that the applicant did not agree to the settlement reached with the union and there is no dispute that the monies agreed to be paid to the applicant pursuant to the settlement were in fact paid to her and accepted by her. The first indication that the respondents received that the applicant was not satisfied with the settlement was when the applicant filed her Application with this Tribunal in June 2009.

5. A similar situation was addressed in the case of Rysinski v. Aecon Industrial, 2010 HRTO 340. In that case, a grievance dealing with the same issues as the human rights proceeding had been settled as between the applicant’s union and the employer. This Tribunal held that the fact that the applicant is not happy with the result is not by itself sufficient to entitle him to litigate the same issues again before this Tribunal.

6. With regard to the applicant’s submissions about duress, there is no medical evidence before me to establish that at the time she agreed to accept the settlement, the applicant was experiencing the kind of duress that is required to set aside a settlement. Nor is financial difficulty alone sufficient to constitute economic duress sufficient to set aside a settlement, as stated in Kailani v. Securitas Canada, 2009 HRTO 1183.

7. With regard to what the applicant may have been told by her union about assisting her to proceed with her human rights complaint, in the absence of an express provision in a settlement of a grievance dealing with the same issues allowing a grievor to proceed with a human rights complaint, it is my view that an employer should be entitled to rely upon the finality of the settlement, particularly where, as here, there was no indication that the applicant did not agree to the settlement and accepted the monies paid out pursuant to the settlement.

8. As a result, I find that it would be an abuse of process to allow this Application to proceed in the face of the settlement reached between the applicant’s union and the respondent employer.

9. Accordingly, the Application is dismissed.

4As a result, the Application is dismissed.