HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Miguel Martin Avila
Applicant
-and-
Toronto Zoo and Curtis Shalapata
Respondents
DECISION
Adjudicator: Jay Sengupta
Indexed as: Avila v. Toronto Zoo
AppearanceS BY
Miguel Martin Avila, Applicant ) Shelly Brown, Counsel
Toronto Zoo and Curtis Shalapata, Respondents ) Michael Kennedy, Counsel
Canadian Union of Public Employees (CUPE) )
and its Local 1600, Affected Party ) Risa Pancer, Counsel
1This is an Application to the Tribunal filed on March 26, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in the area of employment on the basis of disability, race and reprisal.
2Pursuant to an earlier Interim Decision, 2009 HRTO 807, a conference call was convened in order to hear the parties’ submissions on whether the Tribunal should continue to deal with the Application given the existence of Minutes of Settlement signed by the applicant containing release language.
3As it became apparent at the outset of the conference call that it would be necessary to hear evidence in support of the submissions being made on behalf of the applicant, the call was adjourned and the parties appeared in person for a half day hearing on July 12, 2010.
4Present at the hearing were the applicant, respondents, and the affected party CUPE Local 1600, all of whom provided submissions.
5For the reasons that follow, the Application is dismissed.
Facts
6The applicant was employed by the respondent employer, Toronto Zoo, beginning in February 2006, as a custodian. He alleges that during the time he was employed at the Zoo, he suffered discrimination, harassment and reprisal in respect of employment on the basis of disability and race.
7Specifically, he alleges he was denied a transfer, a promotion and a workplace opportunity. He also alleges he was subjected to comments, displays, jokes, harassment and a poisoned work environment and that he was improperly disciplined and fired. Finally, he alleges that the respondents have failed to find an appropriate and permanent form of accommodation that addresses his disability related needs.
8The applicant’s employment was terminated on March 9, 2009. Although the Application lists the last in a series of incidents as having occurred on March 11, 2009, it is unclear from the Application documents and his evidence just what event is alleged to have taken place on the later of the two dates.
9This human rights Application was filed with the Tribunal on March 26, 2009.
10At the same time, it is clear that the applicant, his union and the respondent employer were actively involved in referring a number of outstanding grievances involving the applicant to arbitration, including a grievance relating to the March 9, 2009 termination. The parties met with Arbitrator Goodfellow on May 1, 2009. It appears that all of the outstanding grievances were consolidated and Minutes of Settlement (“Minutes”) entitled “Last Chance Agreement” were signed by the employer, the union and the applicant on that date.
11The Minutes include a clause reinstating the applicant to his position effective May 1, 2009, without interruption of seniority. Of particular note for the purposes of this Decision is the inclusion of the following paragraphs in the Minutes:
(2) Prior to returning to work, the grievor shall undergo an independent medical examination (IME) with Dr. Hy Bloom. The grievor shall co-operate with the scheduling of his examination and during the actual examination by Dr. Bloom. The grievor also consents to the release of all his relevant medical information to Dr. Bloom. Dr. Bloom will be asked to opine on the grievor’s fitness to attend at work and whether the grievor has any medical restrictions. Furthermore, the grievor and the zoo must adhere to and comply with any recommendations of Dr. Bloom as a result of any medical restriction found. The grievor authorizes Dr. Bloom to provide his medical report to the zoo and the union. The zoo shall pay for the IME.
(3) If within 7 days of the date of this agreement, it becomes apparent that Dr. Bloom cannot meet with the grievor and provide a report within 60 days, the parties will agree to a new IME provider. If mutual agreement cannot be reached on a new IME provider the agreement will be deemed void.
(12) The union and the grievor agree to withdraw any and all grievances, applications, causes of actions, or complaints the grievor has outstanding as of this day and (the) agree that this settlement resolves all liability related to the grievor’s employment as of the date of this agreement, including under the Employment Standards Act or the Human Rights Code.
12The applicant’s evidence is that neither the employer nor the union contacted him about meeting with Dr. Bloom within the seven days immediately following the signing of the “Last Chance Agreement” on May 1, 2009. He says that he provided information about alternate suitable doctors to his union in late May and early June, 2009.
13Despite the existence of the signed Minutes, on May 8, 2009, the Tribunal received a Request to Expedite this Application from the applicant. The date on the Request to Expedite was May 7, 2009. In it, the applicant sought the Tribunal’s intervention and asked that it “quash” paragraphs 2, 6, 8, 9(g) and 13 of the he signed on May 1, 2009.
14The respondent employer terminated the applicant’s employment by letter dated May 28, 2009 alleging various breaches of the May 1, 2009 Minutes. The union informed the applicant by letter dated October 21, 2009 that it would be withdrawing the grievance arising out of that termination.
Analysis
15Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
16Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 as amended (the SPPA) provides as follows:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
17The applicant argues that the Tribunal should continue to deal with his Application for a number of reasons.
18Firstly, he argues the Minutes are void because of paragraphs 2 and 3 of the Minutes. He suggests that the Minutes contain reciprocal obligations. He says that no steps were taken by either the employer or the union to let him know whether the IME could be done by Dr. Bloom within the seven days immediately following the signing of the “Last Chance Agreement”. He also states that when the first seven days had expired, no steps were taken by the union and the employer to arrange for an IME and, therefore, the Minutes are void. As a result, he argues he should not be bound by the term that requires that he withdraw all human rights applications outstanding as of the date of settlement.
19Secondly, he argues that the terms of the Minutes are an attempt to override Code obligations and ought not to be allowed to stand. In support of this proposition he suggests that paragraph 8 of the Minutes signed by the applicant “emasculates” the Code, is contrary to the purposes of the Code and ought not to be allowed to stand. That section reads as follows:
The Zoo, the Union and the Grievor agree that this last chance agreement fulfills the Zoo’s duty to accommodate the Grievor pursuant to the Ontario Human Rights Code. Moreover, the process contemplated by this agreement constitutes reasonable accommodation. In addition, the parties agree that further accommodation beyond what is contemplated in this agreement constitutes undue hardship.
20Finally, counsel for the applicant suggests that the cases put forward by the respondents can be distinguished from the present Application because in the settlements reached in those cases involved releases obtained for consideration.
21The respondents take the position that the applicant entered into Minutes of Settlement with the assistance of his union, while of full mental capacity and under no duress, and that there are no Code related reasons to look behind the settlement. They argue that there is no evidence that the parties could not agree on an independent IME provider. They take the view that the applicant was terminated for breach of the terms of the Minutes before the Minutes could have been rendered void.
22Given the existence of the Minutes that require that the applicant withdraw all human rights applications outstanding as of May 1, 2009, they argue both that s.45.1 of the Code applies and that to allow this Application to continue would constitute an abuse of process.
23The union, for its part, argues that the grievances covered the same matters as the Application, that both matters were proceeding at the same time and that the applicant voluntarily signed the Minutes after having read, discussed and fully understanding the terms. The union argues that there is no reason to set aside the Minutes and to do so would result in “labour relations chaos”.
24There is no question that the substance of the matters before Arbitrator Goodfellow was the same as the allegations that are before the Tribunal. There is also no suggestion that the applicant was under duress or had a disability that rendered him incapable of understanding or appreciating the agreement he was entering into when he signed the Minutes. Although the Minutes do not include a financial settlement, they do include a provision reinstating the applicant to his employment with no loss of seniority.
25This Application is clearly one that was “outstanding” as of the date the applicant entered into Minutes, having been filed on March 26, 2009. The present Application would, therefore, be covered by paragraph 12 of the May 1, 2009 Minutes of Settlement.
26On a straightforward reading of the Minutes, the applicant agreed to give up his rights to pursue any human rights issues arising out of his employment up to the date of the settlement, including the issues he raised in his Application of March 26, 2009 before me.
27I am not persuaded by the applicant’s argument that he ought not to be bound by the terms of the agreement because the Minutes are void. The Minutes set out conditions under which the parties could treat the agreement as void, but the evidence does not establish that these conditions ever came about. Rather, the evidence before me supports the conclusion that the applicant decided that he wished to resile from his own obligations under it, while seeking to hold the employer to the obligation to re-employ him. Before the process contemplated by the agreement could reach its full conclusion, it was superseded by the employer’s decision to treat the applicant’s conduct as breaching the agreement, leading to his dismissal.
28The applicant’s Request to Expedite was drafted on May 7, 2009 (six days after signing the Minutes) and filed with the Tribunal on May 8, 2009 (seven days after signing the Minutes). There is nothing in paragraphs 2 or 3 of the Minutes and the evidence that I have heard that would suggest that the Minutes could have been or were rendered void within that time frame.
29The applicant’s Request to Expedite sought to have the Tribunal “quash” terms of the Minutes over which Arbitrator Goodfellow had jurisdiction. The applicant’s request essentially sought to relieve him of his obligations under the agreement, while requiring the employer to fulfill its agreement to re-employ him. The applicant’s request was not based on the theory that the agreement had been rendered void as a result of the failure of the process contemplated under that agreement, but rather his desire to essentially re-write the terms of the agreement he had just signed. There is nothing in the events that took place between May 1 and May 8, 2009 that indicates the parties had reached the conclusion, based on the terms of paragraphs 2 and 3, that the agreement was void.
30Following his March 9, 2009 termination, the applicant was engaged in two processes, either of which could deal with the human rights issues arising out of his employment up to and including his termination on March 9, 2009. By signing Minutes of Settlement within the arbitration process, in which he was assisted by his union, the applicant elected to agree to a resolution of a number of grievances raising his human rights issues, as well as this Application naming the employer and the personal respondent, through that venue. Whatever may be the effect of the subsequent events, they did not result in voiding the agreement and enabling the applicant to pursue this Application.
31I am also not persuaded by the applicant’s argument that the terms of the agreement are an attempt to override or “emasculate” the Code and ought not, as a result, be allowed to stand. As the Tribunal indicated in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149,
Settlement is voluntary, reflecting the will of the parties, and there are many reasons a particular litigant may decide to settle. Every agreement to settle litigation involves fashioning an outcome acceptable to all parties, and a litigant may well not obtain everything sought.
32The Tribunal, in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655 (“Perricone”), discussed the principle of finality in considering the doctrine of abuse of process and held as follows:
The Tribunal has expressly distinguished the concepts of “abuse of process” and “bad faith”:
To call her endeavour an “abuse of process” is not to conclude that she has acted oppressively or abusively, or that she is driven by malice or bad faith. As I have indicated, abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process. (Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 38. See also Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (Can LII) at para. 47.)
The Supreme Court of Canada has emphasized that the abuse of process doctrine focuses less on the private interests of the parties, and more on the integrity of the adjudicative process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE), as cited in Campbell, supra, at para. 38.
The applicability of the abuse of process doctrine in the Release context is readily apparent when one considers that one of the principles on which the doctrine is based is the principle of finality, described as “so crucial to the proper administration of justice.” (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000, at 347-48, as cited in CUPE, supra, at para. 38). When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether.
33Although the Perricone decision involved a release, the principle of finality is equally applicable in the present Application. Having settled his human rights issues in the context of the arbitration proceeding, it would, in my view, constitute an abuse of the Tribunal’s process to permit the applicant to subsequently argue that he should be permitted to continue with this Application.
34The Application is dismissed.
Dated at Toronto, this 30th day of September, 2010.
”signed by”__________
Jay Sengupta
Vice-chair