Jones v. No Frills Malloch’s 3928, 2010 HRTO 2423

Human Rights Tribunal of Ontario

B E T W E E N:

Tom Jones

Applicant

-and-

No Frills Malloch’s 3928 a.k.a. “2168750 Ontario Limited o/a Malloch’s No Frills and Corporate No Frills”, Tony Cassullo and Glenn Malloch

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 6, 2010

Citation: 2010 HRTO 2423

Indexed as: Jones v. No Frills Malloch’s 3928

1This Application was filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 29, 2010. The Application alleges discrimination in respect to employment on the basis of disability. This Interim Decision addresses requests from the respondents for the Tribunal to dismiss the Application on the basis that the applicant has signed a full and final release and that it fails to establish a prima facie case of discrimination. In the alternative, the respondent requests that the Tribunal defer consideration of the Application on the grounds there is an ongoing proceeding before another decision-maker which raises some or all the facts and issues raised in this Application. There is a further Request to Intervene from the applicant’s former bargaining agent, the United Food and Commercial Workers, Canada, Local 1000A (the “Union”).

2The respondents’ requests were made as part of their Response to the Application. On November 17, 2010, the Tribunal wrote a letter to the applicant, enclosing a copy of the Response. The Tribunal identified the respondents’ requests and directed the applicant as to how he should respond to these requests. The Tribunal has not received a reply from the applicant nor from the Union, which, as an identified interested party, was also given the opportunity to reply to the respondents’ requests.

REQUEST TO DISMISS ON THE BASIS THAT A FULL AND FINAL RELEASE HAS BEEN SIGNED

3The respondents submit that the Application ought to be dismissed on a preliminary basis because the applicant signed a full and final release on September 30, 2009, releasing the respondents from any and all claims relating to his employment including claims under the Code. The respondents provided a copy of the release that states, in part:

I hereby release and forever discharge the Company and affiliated companies and their officers, directors, employees, agents, and assigns from any and all manner of actions, causes of action, grievances, claims, demands and proceedings of every nature and kind of injury, loss compensation, reinstatement or interest, however arising, whether statutory or otherwise, (including but not limited any provisions or claims under any Collective Agreement, the Employment Standards Act, and the Human Rights Code) which I have had, may now have, may hereinafter have in any way arising out of my employment with the company or my resignation therefrom.

My signature shall indicate that I have read and fully understand the conditions under which I am tendering my resignation and that is a full and final decision.

4The Tribunal’s general practice is to hold a preliminary hearing to determine whether to dismiss an Application in instances where an applicant has signed a release on the basis that to allow such an Application to proceed would be an abuse of process. However, in this case the matter is complicated by the fact that it appears that there is another proceeding underway that will consider the events surrounding the signing of the release on September 30, 2010. For this reason, I am going to allow the respondents’ request to defer.

THE REQUEST TO DEFER

5The respondents request that the Application be deferred pending the outcome for the applicant’s Duty of Fair Representation application to the Ontario Labour Relations Board (‘OLRB”) under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended. This application was commenced on or about January 21, 2010. This application is against the applicant’s Union with the respondents as designated intervenors.

6The applicant’s application to the OLRB is before me. It focuses on the actions of the Union representative who accompanied the applicant to the meeting with the respondents’ representative on September 30, 2009, that resulted in the applicant resigning and signing a release. The application alleges that the Union representative did not sufficiently apprise the applicant of the respondent’s case against him, that the Union representative did not represent the applicant’s interests in relation to signing the release or apprise him of his right to legal representation prior to signing a release. The application states that the applicant signed the release under duress.

7The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8Although the applicant’s application before the OLRB names a different respondent and essentially raises different legal issues than those raised in the Application before the Tribunal, I am of the view that the signing of the release is a central issue in both applications. In my view, the Application should be deferred until such time that a decision is made in the applicant’s proceedings before the OLRB in relation to the events of September 30, 2009, in order to avoid the possibility of inconsistent decisions.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the OLRB process has been concluded.

10The Tribunal will consider the respondents’ Request to Dismiss and the Union’s Request to Intervene if and when a request is made for the Tribunal to bring back the Application following the OLRB process.

11I am not seized of this matter.