Bhatti v. Pomer and Boccia Professional Corporation, 2010 HRTO 1967

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Azhar Bhatti Applicant

-and-

Pomer and Boccia Professional Corporation and Sam Dhaliwal Respondents

DECISION

Adjudicator: Brian Cook Date: September 27, 2010 Citation: 2010 HRTO 1967 Indexed as: Bhatti v. Pomer and Boccia Professional Corporation

APPEARANCES BY

Azhar Bhatti, Applicant ) Self-represented Pomer and Boccia Professional Corporation, Respondent ) David Pomer, Counsel Sam Dhaliwal, Respondent ) Did not appear

1This Decision deals with an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the grounds of disability, and specifically that his employment was terminated while he was off work due to a disability.

Background

2The Application was filed on January 5, 2009. It named Pomer and Boccia Professional Corporation and Sam Dhaliwal as respondents. A Response was filed by Sam Dhaliwal on behalf of the respondents. Mr. Dhaliwal identified himself as the CEO of Pomer and Boccia Professional Corporation. The Response indicated that the applicant’s employment was terminated in January 2008 because the applicant did not communicate with the employer for six months after going off work in June 2007, and did not respond to a letter asking him to contact the company and advising him that his employment could be terminated if he did not respond. The applicant denies receiving any letter from his employer subsequent to leaving work due to his disability.

3A hearing was held on August 17, 2009. The applicant appeared. David Pomer appeared on behalf of the corporate respondent. Mr. Dhaliwal did not appear. The hearing was adjourned for the reasons set out in Interim Decision 2009 HRTO 1366. That Decision noted that the applicant had indicated that he had reached a verbal settlement with Mr. Pomer but wished to continue the Application against the personal respondent Mr. Dhaliwal. The decision also noted that Mr. Pomer and Mr. Dhaliwal were engaged in litigation.

4The Decision sought written submissions from the applicant, Pomer and Boccia Professional Corporation, and Mr. Dhaliwal regarding how the Tribunal should deal with the Application.

5Submissions were received from Mr. Dhaliwal. He indicated that by Order of a Court, he was “legally restricted from handling any matters surrounding Pomer and Boccia Professional Corporation.”

6In Interim Decision 2010 HRTO 210, I made the following direction:

The Tribunal requires submissions from Mr. Pomer and the applicant regarding how the Tribunal should now deal with the Application. The applicant must confirm whether he wishes to pursue the Application, and, if so, against whom. If the applicant wishes to withdraw the Application against Pomer and Boccia Professional Corporation, he must file a completed Form 9 Request to Withdraw and deliver it to the other parties and the Tribunal.

Whether or not the applicant wishes to withdraw the Application against Pomer and Boccia Professional Corporation, Mr. Pomer must clarify who has authority with respect to Pomer and Boccia Professional Corporation and who would be liable in the event that the Application was heard and the applicant was successful.

7As noted in a third Interim Decision, 2010 HRTO 585, the applicant filed a Form 9 (Request to Withdraw) indicating that he wished to withdraw the Application against David Pomer, but not as against Sam Dhaliwal. However, he subsequently advised that he no longer wanted to withdraw the Application as against Mr. Pomer. I directed that a one day hearing be scheduled to address all of the issues raised in the earlier Interim Decisions as well as the merits of the Application. The hearing was scheduled for September 23, 2010.

The hearing on September 23, 2010

8At the hearing on September 23, 2010, only the applicant appeared, although, as discussed below, there was telephone contact with Mr. Pomer.

9At the outset of the hearing, I asked the applicant to clarify the status of any settlement he might have reached. He advised that he had settled with Mr. Pomer but indicated that he was not sure if he had settled with the personal respondent. He advised that he had signed a document in relation to the settlement. In the circumstances, I determined that it was necessary to see the document to understand the status of the Application.

10The document is a Release and the applicant testified that the signature on the document was his. The Release provides that, in exchange for a monetary settlement, the applicant will not bring any legal action against his employer, and specifically with respect to this Application. It reads in part as follows:

Azhar Bhatti hereby releases and forever discharges Pomer & Boccia Professional Corporation and their partners, agents, employees, associates, servants, heirs, assigns, successors, officers and insurers of and from any and all actions, including the counterclaims causes or actions, claims and demands or losses whatsoever which he had, now has or may have had, or which his heirs, executors, administrators, successors and assigns or any of them, hereinafter can, shall or may have for or be [sic] reason, or any cause, matter or thing which were raised, or relate to a matter in the Human Rights Tribunal of Ontario, being HRTO File No. 2009-01069-I, any Department of Labour claims, any civil actions, any dealings whatsoever with Pomer & Boccia Professional Corporation as an employee or independent contractor.

11I advised the applicant that on its face, the Release appears to mean that he had agreed not to pursue any legal action against the corporate respondent or any partners, officers or employees of the corporate respondent. At the relevant time, Mr. Dhaliwal, the personal respondent, was either a partner (as Mr. Pomer had previously asserted) and/or the CEO (as the personal respondent indicated at the time the Response was filed with the Tribunal). I advised the applicant that accordingly, it was not clear that he could continue the Application as against Mr. Dhaliwal. The applicant was invited to provide further evidence or submissions on this issue.

12Mr. Pomer then telephoned the applicant, calling his cell phone. Mr. Pomer asked to speak to me. The conversation with me was conducted on the Tribunal’s speaker phone to permit the applicant to hear and respond.

13Mr. Pomer indicated that he was seeking an adjournment. He said he was calling from a doctor’s office and that he was dealing with an acute medical issue, which was why he had been unable to attend the hearing. He advised that the appointment had been arranged on an urgent basis ten days earlier. He said that he had not contacted the Tribunal to seek an adjournment during that ten day period because he had been under too much stress.

14Mr. Pomer then advised that he is in possession of a document which was relevant to the question of whether the Release barred the Application as against the personal respondent. He said that pursuant to this document, the applicant had not settled with Mr. Dhaliwal and that the Release was not a release against Mr. Dhaliwal. Mr. Pomer did not explain why this document had not been sent to the Tribunal.

15I asked the applicant if he was aware of this document or if he signed any document concerning this matter either at the time he signed the Release or subsequently. He said he was not aware of the document referred to by Mr. Pomer and that he had not signed any document other than the Release.

16I advised Mr. Pomer that I would consider his adjournment request and the telephone conversation ended.

17The applicant then provided further information about the circumstances of the Release. He testified that he met Mr. Pomer at a mall to discuss a settlement. Mr. Pomer produced the Release and told him he should sign it. Mr. Pomer told him that the settlement was only between Mr. Pomer and the applicant and that it was not a settlement with Mr. Dhaliwal. The applicant testified that the meeting occurred just before the mall was about to close and that he accordingly did not have time to read the document carefully.

18The applicant said that he still wishes to pursue the Application against Mr. Dhaliwal. He noted that Mr. Dhaliwal had not attended either of the hearings at the Tribunal. He would also like to be re-hired by the corporate respondent and seeks an order from the Tribunal directing that he be re-hired.

Conclusions

19Mr. Pomer’s request that the hearing be adjourned is denied. While there is a legitimate explanation for why Mr. Pomer did not appear in person, I find that in the circumstances of this case, the explanation for why the adjournment request was not made earlier is not adequate. Mr. Pomer apparently knew for the ten days before the hearing that he was not going to be able to attend. A request for an adjournment delivered by way of a call to the applicant’s cell phone in the middle of a hearing is not acceptable.

20I am also satisfied that there is no basis to grant an adjournment with respect to the document that purportedly makes it clear that the Release did not apply to Mr. Dhaliwal. There is no explanation for why this document was not produced earlier. There is no indication that a copy was provided to Mr. Dhaliwal. The applicant testified that he had no knowledge of the document and that he had not signed any document supplementary to the Release.

21In regard to the question of whether the applicant can continue as against the personal respondent, Mr. Dhaliwal, I find that he cannot. The Release that the applicant signed represents a full settlement between the applicant and the corporate respondent and any and all of its partners, officers, and employees. While there may be some continuing legal controversy regarding the exact nature of Mr. Dhaliwal’s association with the corporate respondent, there is no suggestion that he was not a partner, officer or employee at the time of the events relevant to the Application.

22The applicant did not indicate that he signed the Release under duress. In my view, the fact that the mall was about to close is not sufficient to establish duress. The applicant has worked in a legal office for many years and agreed that he is generally familiar with contracts and legal documents. Given this, it is not clear how he could fail to appreciate the plain meaning of the Release that he signed.

23In my view, the Release plainly means that the applicant cannot continue the Application against the personal respondent or the corporate respondent. In these circumstances, the Application must be dismissed.