Barton v. Rouge Valley Health System, 2010 HRTO 2126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Duncan Barton

Applicant

-and-

Rouge Valley Health System and Canadian Union of Public Employees and its Local 4365

Respondents

decision

Adjudicator: Michelle Flaherty

Date: October 22, 2010

Citation: 2010 HRTO 2126

Indexed as: Barton v. Rouge Valley Health System

APPEARANCES BY

Duncan Barton, Applicant ) On his own behalf

Rouge Valley Health System, Respondent ) Gordon Fitzgerald,

) Counsel

Canadian Union of Public Employees ) Gavin Leeb, Counsel

and its Local 4365, Respondent )

ii

INTRODUCTION

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations that the respondents discriminated against the applicant on the basis of disability in the context of employment.

2In accordance with a Case Assessment Direction, the Tribunal conducted an oral hearing on October 18, 2010 to deterimine the following preliminary issues:

a. does the agreement signed by the applicant on April 3, 2009 bar the Application against the respondents, either pursuant to section 45.1 of the Code or because it constitutes an abuse of process?

b. in any event, could the material filed by the applicant lead to a finding of discrimination by the respondent, the Canadian Union of Public Employees and its Local 4365 (“Union”)?

3For the reasons that follow, the Application is dismissed against all of the respondents.

BACKGROUND

4The applicant was employed by the Rouge Valley Health System (“Rouge Valley”) for approximately 23 years. In 2008, Rouge Valley reduced the number of staff in the applicant’s department. Rather than be laid off, the applicant opted to work through a notice period and be redeployed to a different, lower-paying position in another department.

5It was very clear that, in the end, the applicant regretted this choice. He began working in the new position on December 18, 2008. He had difficulty coping in the new position and seems to have been frustrated by the lower rate of pay. He began a period of medical leave on about December 23, 2008.

6During his medical leave, the applicant contacted Rouge Valley and solicited another opportunity at a severance package. He also requested casual hours of work in order to look for employment elsewhere. Rouge Valley either did not respond or did not respond positively to applicant’s overtures.

7It is undisputed that, in early March 2009, while he was on medical leave with Rouge Valley, the applicant began working for a different employer. In his Application, the applicant states:

At this time I decided to work at the new job. I found temporary relief where I didn’t have many stresses, and wait (sic) until my doctor decided I should go back to work at Rouge [Valley] or our court case was heard.

8The Union had grieved the 2008 layoffs, alleging that the work was being contracted out in contravention of the collective agreement. I understand the applicant’s mention of a court case to be a reference to the grievance arbitration.

9Rouge Valley states that it heard rumours the applicant was employed elsewhere. It met with the applicant and the Union to discuss this on March 13, 2009. At that time, although he was already working for the new employer, the applicant neither confirmed nor denied that he was otherwise employed. At the meeting, Rouge Valley advised the applicant that it would be fraudulent for him to collect sick leave benefits while employed elsewhere.

10At the hearing, the applicant stated that he had no intention of defrauding his employer. He stated that he obtained advice from the Labour Board and understood there to be nothing wrong with collecting sick leave benefits from Rouge Valley while working for a different employer.

11Later, when Rouge Valley learned that the applicant was in fact employed elsewhere while on sick leave, it arranged a further meeting with the applicant and the Union. At this meeting, held on March 31, 2009, the applicant acknowledged that he was working for another employer.

12On March 31, 2009, the Union asked that the applicant be granted one day in which to consider options, including resignation. Rouge Valley granted the request and advised that, in the event the applicant did not resign, Rouge Valley would likely terminate his employment.

13The applicant states that he was concerned that Rouge Valley would report him to his new employer. He also states that, in the discussions on March 31, Rouge Valley threatened to take legal action against him if he did not enter into a settlement agreement.

14Rouge Valley readily acknowledges stating that the applicant would likely be dismissed if he did not resign. However, it denies threatening to report the events to his new employer or threatening to take legal action.

15In the end, the applicant decided to resign and the parties entered into a memorandum of agreement to that effect. The relevant provisions of the April 3, 2009 memorandum of agreement are as follows:

The Employer will not take any disciplinary measures against Gord Barton.

Mr. Barton resigns from his employment effective April 2, 2009 (...).

Mr. Barton releases the Employer from any and all claims respecting his employment and the cessation of his employment whether pursuant to the collective agreement, the Employment Standards Act, 2000, the Labour Relations Act, 1995, the Ontario Human Rights Code or any other legislation. By signing this Agreement, Mr. Barton agrees that all matters and potential matters in dispute between himself and the Employer have been fully and finally resolved and that his sole remaining legal right is to enforce the terms of the Agreement.

Gord Barton, upon signing these Minutes, acknowledges that he was fairly represented by the Union in these matters.

ANALYSIS

Should the Application be dismissed against Rouge Valley because the applicant executed a release?

16Section 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.

17The Tribunal has held that filing a human rights application after signing a full and final release in respect of the subject-matter of the application may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed. See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655.

18The applicant does not dispute that he signed the memorandum of agreement or that it contains release language specifically contemplating the Code and the subject-matter of the Application. He argues, however, that the release was signed under duress and that, as a result, it should not prevent him from proceeding with this Application.

19As the Tribunal explained in Perricone, supra:

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. Thus, in determing whether it would be an abuse of process to permit the Application to proceed, the question is not whether the applicant filed her Application in bad faith, but whether the contract (i.e. Release) she entered into is legally binding, and final.

20The party alleging duress has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality.

21The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 at paras. 8-9:

There is no doubt that economic duress can serve to make an agreement unenforceable against a party who was compelled by the duress to enter into it. Nor is there any doubt that the party can have the agreement declared void on this basis.

However, not all pressure, economic or otherwise, can constitute duress sufficient to carry these legal consequences. It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept.

22At the hearing, I gave the applicant an opportunity to clarify what he felt constituted duress in these circumstances. He referred to three things:

a. the employer threatened to terminate his employment if he did not resign;

b. the employer threatened legal action against him if he did not resign; and

c. there was a suggestion that his behaviour might be reported to his new employer.

23I look at each of these allegations in turn and consider whether, in the circumstances, they meet the legal test for duress.

Comments regarding the termination of the applicant’s employment

24There is no dispute that Rouge Valley said that the applicant’s employment would likely be terminated unless he chose to resign. The applicant feels that this amounted to coersion and left him with no or little choice but to tender his resignation. He analogized the entire circumstances of entering into the memorandum of agreement to having a gun held to his head.

25I completely reject the applicant’s argument in this regard.

26As the Court of Appeal explained in Taber, supra, to constitute duress, the pressure exerted must be one which the law regards as illegitimate.

27At the hearing and, indeed, throughout the proceedings, the applicant seemed convinced that he was entitled to a severance package or some other compensation for his long years of service with Rouge Valley. The Application seems premised on the belief that Rouge Valley improperly denied him this benefit.

28There is no basis at law for this belief. The applicant rejected a severance package offered to him in 2008 and chose instead to be redeployed to a different job. Although there may have been an ongoing grievance and rumours of more layoffs, the applicant continued to be employed by Rouge Valley up to the date of the settlement agreement.

29Generally speaking, entitlement to severance arises where an employer terminates an employee’s employment without just cause for doing so. Where an employer can establish just cause or where it is the employee who ends the relationship, severance is not generally payable. This applies regardless of the number of years of service.

30There is no basis to conclude that by stating that it would likely terminate the applicant’s employment, Rouge Valley was threatening to withold monies owing to the applicant.

31Throughout these proceedings, the applicant has fundamentally failed to appreciate the inappropriateness of his actions. He represented to Rouge Valley that he was unable to work because of a disability. In reality, however, the applicant was not disabled. At the same time as he was drawing sick leave benefits on the basis of a disability, he was actively earning employment income elsewhere. He also appears to have been biding his time until the grievance was determined.

32Although nothing turns on it, I cannot accept the applicant’s contention that he genuinely believed, based on advice obtained from the Labour Board, that this was appropriate. First, for a period of several weeks, the applicant was receiving sick leave benefits at the same time he was earning wages. The applicant’s situation is very different from the circumstances he says were described to him by the Labour Board, where a person is actively employed at two different jobs.

33Second, the applicant was circumspect about his new employment, which suggests to me that he did not genuinely believe his behaviour to be appropriate. He began working for the other employer in early March. He acknowledges that, at the March 13 meeting with the Union and Rouge Valley, the impropriety of drawing sick benefits while working elsewhere was discussed. At that time, he clearly had an opportunity to advise the Union and Rouge Valley of his new employment but he did not do so.

34In my view, there is no question that the applicant behaved inappropriately when he worked for another employer while drawing sick leave benefits from Rouge Valley. It may be that the applicant’s behaviour was cause for discipline up to and including termination.

35In the circumstances, given the seriousness of the applicant’s misrepresentation, I cannot conclude that Rouge Valley’s statement that the applicant would likely be dismissed is illegitimate at law.

36Applying the test for duress set out by the Court of Appeal in Taber, the applicant has not satisfied me that the threat of termination constitutes duress in the circumstances.

Legal action

37At the hearing, the applicant was asked to clarify what he meant when he alleged that Rouge Valley had threatened legal action and on what basis he had reached that conclusion.

38In response to my questions, he explained that Rouge Valley had, at the two meetings in March of 2008, described his behaviour as fraudulent. As I understand it, the applicant seems to have inferred from Rouge Valley’s use of the word “fraud” that it would undertake some form of legal action against him. There was no contention that Rouge Valley made any explicit threat of legal action against the applicant. Similarly, there was no contention that Rouge Valley explicitly or implicitly stated that it would refrain from legal action if a settlement was reached.

39I cannot accept that, in the circumstances, the use of the word “fraud” can reasonably be interpreted to mean that some legal action would be commenced against the applicant if he did not enter into the settlement agreement.

40I have found that the applicant misrepresented his ability to work at Rouge Valley and that he received benefits on the basis of his misrepresentation. Had Rouge Valley threatened to take legal action against the applicant if he did not enter into a settlement agreement, there might have been the basis for a finding of duress. However, I cannot conclude, on the basis of the use of the word “fraud” alone that any such threat was made or that it was tied in any way to a settlement agreement.

Reporting to the new employer

41The applicant stated that the respondents threatened to report his “double dipping” to his new employer and that this is further evidence of duress. At the hearing, however, the applicant explained that the reporting issue was actually raised by the Union, not Rouge Valley.

42According to the applicant, after it had a conversation with Rouge Valley, the Union commented to the applicant that it would be unfortunate if the applicant’s new employer learned of his behaviour.

43I accept that this may have been an incentive for entering into the agreement, but I do not agree that it constitutes duress. First, there was no suggestion that Rouge Valley was threatening, either implicitly or explicitly, to report the applicant to his new employer. The comment was made by the Union. The agreement and the release language is between the applicant and Rouge Valley. While the applicant alleges that the Union failed to represent him appropriately, he does not allege that the Union coerced him into a settlement agreement.

44In any event, in the circumstances, I cannot conclude that the Union’s comment could reasonably be interpreted to mean that either the Union or Rouge Valley intended to report the applicant to his new employer or that either would refrain from carrying this out if the applicant signed the agreement.

45Based on the Union’s comment alone, it was not reasonable for the applicant to conclude that Rouge Valley was threatening to report him to his new employer unless a settlement agreement was reached. I do not accept that this constituted duress.

Other arguments regarding duress

46The Union argued that the Tribunal’s ability to set aside a settlement agreement for duress is limited to circumstances where the duress arises out of a Code-related ground. To illustrate the argument, counsel for the Union used the example of an applicant who signs a settlement agreement with a gun pointed to his head. According to the Union, in this example, the Tribunal could not find duress based solely on the threat posed by the gun pointed at the applicant’s head. For the Tribunal to have jurisdiction to set aside an agreement based on duress, the applicant would need to show, for example, that he had a temporary mental disability at the time he signed the agreement.

47Given my conclusions that there is no duress in the circumstances of this case, it is not strictly necessary for me to determine the issue raised by the Union.

48I note, however, the Alberta Court of Queen’s Bench decision in Chow v. Mobil Oil Canada, 1999 ABQB 1026. That matter involved a stated case to the Alberta Court of Queen’s Bench. The Court was asked to determine whether the panel had jurisdiction to (a) determine a complaint where a release had been executed; and (b) determine whether there was a valid and enforceable release.

49The Court concluded that the Human Rights Panel did have the requisite jurisdiction. At para. 40, it wrote:

In the event a dispute arises over the validity or enforceability of a release, the Panel, but not the Commission, has jurisdiction to determine whether the release is valid and enforceable. The criteria which the Panel should use in determining the validity or enforceability of the release is the same criteria that would be applied in law by a court of competent jurisdiction.

Could the materials filed by the applicant lead to a finding of discrimination against the Union?

50At the hearing, I explained to the applicant that the Tribunal does not have a general power to decide whether the respondents treated the applicant fairly or appropriately. The Tribunal’s powers relate only to alleged discrimination and violations of the Code.

51In other words, while the applicant has stated that he feels mistreated by the Union, for there to be a finding of discrimination, he must explain how this alleged mistreatment could constitute discrimination based on a prohibited ground included in the Code.

52When asked to explain how he felt the Union’s conduct could constitute a violation of the Code, the applicant explained that he was inadequately represented by the Union and, more specifically, complained that the Union ought to have obtained more than one day for him to consider the options available to him.

53Counsel for the Union argued that the allegations against the Union fall outside the Tribunal’s jurisdiction because they are unrelated to the Code. In any event, he argues that no Code-related ground applies as the applicant was not disabled during the material negotiations with Rouge Valley. According to the Union, by March 31, 2009, the applicant was working and there is no basis for him to invoke the ground of disability.

54I have considered the applicant’s allegations against the Union. They relate to alleged inadequate representation and, even if they were made out at a hearing on the merits, they do not relate to and could not form the basis of a finding of discrimination under the Code.

ORDER

55The applicant has failed to make out the elements of duress. In my view, Rouge Valley must be entitled to rely upon the settlement agreement and release. To set aside the agreement and allow the Application to proceed would be an abuse of process.

56Accordingly, the Application is dismissed against Rouge Valley.

57For the reasons I have indicated above, I find that the allegations against the Union do not relate to the Code and therefore could not form the basis of a finding of discrimination against the Union. The Application is dismissed against the Union on that basis.