David Dixon v. Ken Morrison and Paul Dossman, 2010 HRTO 2156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Dixon Applicant

-and-

Ken Morrison and Paul Dossman Respondents

DECISION

Adjudicator: Brian Eyolfson Date: October 26, 2010 Citation: 2010 HRTO 2156 Indexed as: Dixon v. Morrison

APPEARANCES BY

David Dixon, Applicant ) Greg Dixon, Representative Ken Morrison and Paul Dossman, Respondents ) Kelly Graham, Counsel

INTRODUCTION

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 23, 2009, alleging discrimination on the basis of disability and reprisal or threat of reprisal in employment.

2On August 19, 2009, the respondents filed a Request for Early Dismissal – Without Full Response ("Request") on the basis that the subject matter of the Application is the same or substantially the same as the subject matter of Complaints previously filed with the Ontario Human Rights Commission (the "Commission"). The respondents also submit that the Application should be dismissed because the applicant signed full and final releases with respect to the same matter.

BACKGROUND

3The applicant was previously employed by K.C.'s Automotive Inc. (the "employer"). The respondent, Mr. Morrison, is an owner of the employer. The respondent, Mr. Dossman, who is now deceased, was the Vice-President and General Manager of the employer.

4The applicant filed Complaints with the Commission in September 2005 and April 2007. The 2005 Complaint identified the respondents and the employer, as well as another individual as respondents. The 2005 Complaint alleged discrimination in employment on the basis of disability and reprisal. This Complaint was resolved and minutes of settlement and a release were signed on May 17, 2006.

5The April 2007 Complaint named Mr. Dossman and the employer as respondents. The 2007 Complaint alleged discrimination in employment on the basis of disability and breach of settlement and reprisal. The allegations in the 2007 Complaint primarily concern the respondents' actions and positions taken in the applicant's Workplace Safety and Insurance Board ("WSIB") proceedings. This Complaint was also resolved and minutes of settlement and a release were signed on November 20, 2007.

6In the current Application, the applicant alleges that the respondents have failed to comply with the November 2007 settlement agreement and continue to subject him to discrimination, harassment and reprisal. In particular, he alleges that submissions made to the WSIB on behalf of the employer, in a letter dated May 8, 2009, have subjected him to discrimination and harassment, contrary to terms of the November 2007 settlement agreement.

7In his Response to the respondents' Request, the applicant submits that the Application is a new matter and is within the Tribunal's jurisdiction.

PRELIMINARY ISSUES

8In an Interim Decision, 2009 HRTO 1550, the Tribunal held that it was appropriate to determine the respondents' Request as a preliminary matter. The Tribunal indicated that a hearing would be held to address the following issues:

a. should the Application be dismissed because another proceeding has appropriately dealt with the substance of the Application?

b. should the Application be dismissed because the applicant has signed a full and final release with respect to the same matter?

c. is the Application barred because it is substantially the same as a complaint that was filed with the Commission?

9At the outset of the hearing, the Tribunal indicated to the parties that the Application also raised the following additional issues:

1. Does absolute privilege apply to the May 8, 2009 submissions made by the employer's representative in the WSIB proceedings, thereby preventing a claim under the Code based on the May 8, 2009 submissions?

2. Does the Application disclose a prima facie case? Does the Application raise allegations that, if accepted to be true, would be enough to establish a violation of the Code?

10After hearing submissions from the parties with respect to the issues set out in paragraph 8 above, the Tribunal returned to the additional issues that were identified at the outset of the hearing. The Tribunal provided the parties with copies of the following Tribunal decisions in relation to the additional issues set out in paragraph 9 above: Carlos v. 1174364 Ontario, 2009 HRTO 311, in particular, paras. 14 to 17, Ornelas v. Casamici Restaurant, 2010 HRTO 1078, in particular, paras. 90 to 109, and Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, in particular, paras. 6 to 13. The parties were provided with an opportunity to review the decisions. The Tribunal then explored various options with the parties in terms of hearing submissions on the additional issues, including hearing submissions from the parties after taking a break or having the parties provide submissions at a later date, either in writing, on a telephone conference call or in person. The applicant requested and the Tribunal granted a 15-minute break. After the break, the parties indicated that they were prepared to make submissions on the additional issues identified by the Tribunal and that they agreed that the respondents would proceed first.

11The respondents submitted that the doctrine of absolute privilege does indeed apply in this case because the May 2009 letter was prepared by the respondents' representative, from the Office of the Employer Adviser, in the WSIB appeal hearing. They submitted that the privilege protects the respondents' representative so that she is able to put the respondents' position forward without the threat of allegations of reprisal or discrimination. They submitted that the sole purpose of the letter was to respond to the inquiries of the WSIB.

12The respondents also submitted that the Application does not disclose a prima facie case in that there are no specific allegations or details set out in the Application, or in the applicant's submissions, that would meet the threshold of a prima facie case.

13With respect to the issue of absolute privilege the applicant submitted that he was not alleging that the respondents' representative discriminated, but that the respondents reprised and breached the settlement. The applicant referred to provisions of the November 2007 settlement agreement, including paragraphs 14 and 17. Paragraph 14 states, in part, that the respondents "agree that the personal respondent and the managing principals of the corporate respondent will not say anything negative about the complainant to any third party." Paragraph 17 states, in part, that the respondents "will not provide any information regarding the complainant to the Workplace Safety & Insurance Board (WSIB) except in response to written inquiries from the WSIB."

DECISION

Absolute Privilege

14In Ornelas, supra, the Tribunal summarized the principle of absolute privilege as follows:

[90] Absolute privilege is a common law principle which, among other things, prohibits legal proceedings which are based on statements made by legal counsel while representing their clients in respect of ongoing or contemplated judicial or quasi-judicial proceedings. It is rooted in the principle that legal counsel must be free to carry out their professional duties to their clients without fear of consequences. In this way, absolute privilege exists to serve the public's interest in the orderly and effective administration of justice.

15In considering the application of the principle of absolute privilege in proceedings before it, the Tribunal in Ornelas, supra, held as follows:

[98] The question is whether absolute privilege also applies in the human rights context. Where there is common law immunity from legal proceedings generally, I can see no principled basis upon which to conclude that it ought not to also apply in the human rights context, even bearing in mind the paramountcy of human rights legislation and the quasi-constitutional nature of human rights legislation. Indeed, the Tribunal has previously held that common law immunity from legal proceedings, such as judicial immunity (Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered, 2009 HRTO 2180), prosecutorial immunity (Oliphant v. Ontario (Attorney General), 2009 HRTO 1902) and parliamentary privilege (Freitag v. Penetanguishine (Municipality), 2009 HRTO 1712), will deprive the Tribunal of jurisdiction over allegations against the immune party.

[99] More to the point, the Tribunal has previously dismissed allegations which were based on statements protected by absolute privilege. In Carlos v. 1174364 Ontario, 2009 HRTO 311, the applicant alleged that the respondent building manager issued her notices of eviction under the *Residential Tenancies Act, 2006*, S.O. 2006, c. 17, because she objected to his sexual solicitation and sexually demeaning comments. She also alleged that the notices themselves contained sexually demeaning comments. The Tribunal held that absolute privilege attached to the notices of eviction and that they could therefore not be relied upon to found a breach of the Code.

16In Ornelas, supra, the Tribunal found, based on absolute privilege, that the applicant was prevented from pursuing a reprisal claim under the Code based on a letter in which counsel for the respondents threatened to commence a civil action against the applicant.

17In the present case, I find that absolute privilege attaches to the submissions made by the employer's representative in the May 8, 2009 letter. The submissions were made by the employer's representative in the context of proceedings before the WSIB in which the applicant was appealing a Claims Adjudicator's decision. In these circumstances, the submissions cannot be relied upon to establish a breach of the Code by the named respondents.

Prima Facie Case

18The only particulars provided in the Application in support of the allegations of discrimination, harassment, breach of settlement and reprisal concern the May 8, 2009 letter from the employer's representative to the WSIB. The applicant's submissions also focussed on the allegation that the respondents breached the November 2007 settlement agreement and reprised against the applicant through the employer's representative's correspondence with the WSIB.

19The applicant also submitted for the first time at the hearing that he applied for a job, that he used the respondents as a contact because they had an agreement he would get a good reference but that didn't happen. No particulars were provided and this allegation is not set out anywhere in the Application. Further, the Application alleges a breach of paragraphs 14 and 17 of the November 2007 settlement agreement and not paragraph 16 which addresses the provision of references.

20Aside from the allegations concerning the May 8, 2009, letter to the WSIB, there are no other allegations set out in the Application, and May 8, 2009 is listed as the date of the last event in the Application. I have already found that the employer's representative's May 8, 2009 letter to the WSIB is covered by absolute privilege. There are no remaining allegations raised in the Application that, if accepted as true, could establish a violation of the Code. As such, the remainder of the Application does not disclose a prima facie case.

21For the above reasons, the Application is dismissed. In light of this conclusion, it is not necessary to determine the remaining preliminary issues set out in the Tribunal's earlier Interim Decision in this matter.