HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jennifer Zu
Applicant
-and-
City of Hamilton and Lorraine Paddon
Respondents
interim DECISION
Adjudicator: Michelle Flaherty
Indexed as: Zu v. Hamilton (City)
APPEARANCES
Jennifer Zu, Applicant ) Self-represented
City of Hamilton and )
Lorraine Paddon, ) Bushra Rehman, Counsel
Respondents )
Canadian Union of Public Employees, Local 5167 ) Elizabeth Nurse, Counsel
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in which she alleges that she was discriminated against on the grounds of race, place of origin, ethnic origin, and disability in the context of employment. The applicant also alleges reprisal or threat of reprisal.
2In their Response, the respondents seek the early dismissal of the Application pursuant to s.45.1 of the Code and because they argue that it would be an abuse of process to allow portions of the Application to proceed. The respondents say that the applicant filed grievances regarding the issues raised in the Application and that the parties have entered into a settlement agreement in respect of those grievances that deals with the subject matter of the Application. The applicant argues that, given the circumstances in which it was signed, the settlement agreement should not bar the Application.
3Pursuant to an earlier Interim Decision, 2010 HRTO 557, the Tribunal held a telephone conference hearing on November 15, 2010 to address the request for early dismissal. The Tribunal heard oral submissions from the applicant, the respondent and the Canadian Union of Public Employees, Local 5167 (“Union”).
4At the outset of the hearing, the parties agreed that the following two issues are raised in the Application and were not addressed in the settlement agreement between the applicant and the respondent, the City of Hamilton (“City”):
a. that on January 16, 2009, the City raised performance issues with the applicant and criticized her English language skills; and
b. that the applicant was unfairly denied the opportunity for a promotion in or about November of 2008.
5The parties agreed that the Application will proceed on at least these two issues.
6The Request for early dismissal raises a question as to whether the remaining allegations in the Application ought to be dismissed either pursuant to section 45.1 of the Code or because it would be an abuse of process to allow those parts of the Application to proceed.
7For the reasons that follow, the Application is dismissed in part. I find that it would be an abuse of process to allow portions of the Application to proceed.
Background
8In addition to the allegations described at paragraph 4, above, the Application includes allegations that:
a. the applicant was treated differently from others in terms of the ability to bank time;
b. she was disciplined for being absent from work even though her absence was justified in a medical note; and
c. she was denied a transfer.
9The applicant filed the following three grievances:
a. on March 10 2009, alleging the respondent breached, among other things, the collective agreement by denying the applicant permission to bank time through a flex time program;
b. on April 27, 2009, alleging the respondent breached, among other things, the collective agreement by unjustly disciplining the applicant on April 3, 2009 for allegedly using flex time without approval; and
c. on May 21, 2009, alleging the respondent breached, among other things, the collective agreement by denying the applicant’s request for a transfer and by transferring employees with less seniority.
10The three grievances were settled at a mediation. The applicant and the respondent entered into a memorandum of settlement on August 14, 2009 in which they agree that:
a. the memorandum of settlement is a final and binding settlement of the three grievances;
b. the respondent would remove the April 3, 2009 verbal warning from the applicant’s personnel file on the understanding that the applicant not bank flex time without the approval of her manager; and
c. the respondent would grant the applicant seven hours of flex time.
11The settlement agreement does not contain any release language.
POSITIONS OF THE PARTIES AND THE UNION
12The applicant acknowledges that minutes of settlement were reached but she argues that they should not bar this proceeding because, when she signed the agreement, she was under stress, had not slept, was unwell (she had a cold), and was not aware of the choices available to her if she did not sign the minutes of settlement.
13The applicant has filed two medical notes. The first is dated January 30, 2010 and states that a doctor saw the applicant on August 17, 2009 for “work related stress”. The doctor prescribed mediation to the applicant and suggested a follow up with her family physician.
14The second medical note is dated February 2, 2010. The doctor indicates that the applicant has “depression due to work related stress” and requires medication for this condition for an undetermined period. The note does not indicate when the applicant began taking medication.
15The applicant also argues that the grievances were not appropriately dealt with because her concerns were not resolved through the grievance process and that, in any event, the grievances “were not from a human rights point of view.”
16Finally, the applicant argues that the City breached the settlement agreement and that, as a result, the entire agreement should be set aside and she should be permitted to pursue the Application
17The respondents argue that the settlement agreement is a binding and final resolution of the issues raised in the three grievances. The respondents deny any breach of the agreement and argue that it should not be set aside. Although the applicant later expressed dissatisfaction with the settlement agreement, she has benefited from the agreement and has not met the test for duress.
18While there may not have been specific discussions regarding the applicant’s human rights at the mediation that led to a settlement agreement, the respondents argue that the grievances are framed broadly, they raise the same factual allegations as the Application and that, by necessary implication, they also raise human rights issues.
19The Union disagrees and argues that the grievances address collective agreement issues and that these may arise independently of any allegation of discrimination.
20The Union did not take a position on the Request for early dismissal. However, it confirmed that human rights issues were not specifically part of the grievance process or the mediation discussions in this case. The Union agrees that the grievances were framed in such a way that human rights issues might have been raised (subject to employer objections) at a later stage of the grievance proceeding. The Union stated that while the applicant may have been under stress at the time of execution of the settlement agreement, she did not appear to be impaired in any way.
DURESS
21The applicant does not dispute that she signed the memorandum of agreement or that it addresses some facts and issues that also form the basis of the Application. She argues, however, that the release was signed under duress and that, as a result, it should not prevent her from proceeding with this Application.
22As the Tribunal explained in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655
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 determining 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.
23The 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.
24The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157 at para. 9:
...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.
25The applicant argues that she was suffering from stress and fatigue and was feeling unwell when she signed the memorandum of settlement. She relies on the two medical notes, described above, and argues that her circumstances amount to duress.
26I do not accept the applicant’s argument in this regard. While the medical notes submitted by the applicant show that she had workplace stress, there is no basis for me to conclude that this stress impacted her ability to enter into a settlement agreement or that it was of such a degree as to constitute a coercion of the will.
27While the physicians state that the applicant required medication as of at least August 17, 2009 (3 days after the settlement was concluded), they do not speak to the applicant’s condition at the time of settlement. Further, the medical notes do not suggest that the applicant’s stress was of such a degree as to limit her judgement, her ability to exercise her will or even her ability to carry out the normal functions of her job.
28Parties entering into settlement agreements often face a number of pressures and may make decisions in difficult circumstances. To establish duress, however, the applicant must show more than this. As I have indicated, she has the onus of establishing a coercion of the will. She has not met this test in the circumstances.
SECTION 45.1
29Section 45.1 of the Code states:
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.
30The purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. Section 45.1 is generally considered in two parts: (1) was there was another “proceeding”?; and (2) if so, did it “appropriately deal with” the substance of the application.
31The circumstances of this case require me to decide whether the grievance proceedings, which resolved at a mediation, appropriately dealt with the substance of the Application.
32As I discuss below, I have some concerns with the applicant’s attempts to compartmentalize her claims. However, for the purposes of section 45.1 of the Code, I cannot conclude that the human rights issues raised in the Application were “appropriately dealt with” in the grievance proceedings.
33Although the grievances were framed broadly, the applicant and the Union state (and the respondent does not dispute) that the applicant’s claims of discrimination were not part of the settlement discussions or the grievance proceedings leading up to the mediation. Although the human rights issues might have been raised at a later stage had the grievance proceeding continued, they were not raised and are not referred to in the settlement agreement.
34The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application. Section 45.1 imposes a positive obligation and requires that the respondents show that human rights principles were considered in the other proceeding. See, for example, Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273.
35Because the grievances were resolved at the mediation stage without specific consideration of human rights, I cannot find that the applicant’s human rights claims were, for the purposes of section 45.1, appropriately dealt within the context of the grievance proceeding.
36For these reasons, it is not appropriate to dismiss portions of the Application based on section 45.1 of the Code.
ABUSE OF PROCESS
37Section 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.
38In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 the Supreme Court of Canada writes the following regarding the doctrine of abuse of process:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.
39The Tribunal has dismissed applications as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues. It has done so even where the settlement agreement did not contain specific release language between the parties, but where it was apparent from the agreement that the parties intended to bar future litigation with respect to all outstanding issues, including human rights issues: See Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151, and Holowka v. Ontario Nurses Association, 2010 HRTO 2171.
40In Messiah, supra, the Tribunal stated that “the question is whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances.”
41On their face, the three grievances filed by the applicant raise the same factual issues as the Application. The grievances were settled and the applicant derived benefit from the settlement. The respondent, in turn, performed certain acts in reliance upon the terms of settlement.
42Notwithstanding the memorandum of agreement, the applicant seeks to put the same factual issues before the Tribunal because she says the settlement did not address her concerns from a human rights perspective.
43The circumstances of this case are somewhat different from matters that proceed to adjudication, where both the section 45.1 and the abuse of process issue are considered in the context of an adjudicative decision. In this case, the Tribunal is faced with a voluntary settlement agreement that does not contain release language.
44In reaching a settlement agreement, the parties have direct input into the resolution their differences and they can generally determine what issues are addressed in the discussions. In this context, I am concerned that the applicant’s argument that her grievances were not addressed “from a human rights perspective” is problematic, particularly given that the grievances resolved at mediation were framed broadly enough to encompass the human rights elements of her claims.
45As the Supreme Court of Canada indicated in Danyluk, supra, a litigant is required to put her best foot forward to establish her allegations when first called upon to do so. In my view, the same principle applies to matters that are settled before they reach the adjudicative stage.
46Although these may not have been specifically discussed, the grievances are framed broadly enough to include human rights issues. In my view, it is not open to the applicant to frame her grievances in this way and then allege that the settlement of those grievances did not address all of the possible elements of her claims.
47In the circumstances, I find that it would be an abuse of process to allow portions of the Application to proceed.
48The situation might be different had the grievances been framed more narrowly or had the applicant made clear that the mediation discussions and the settlement agreement did not encompass her human rights concerns. There is no evidence before me that either the applicant or the Union took this position.
49In relying on the doctrine of abuse of process, I have also considered:
a. that the same facts give rise to the grievances and the portions of the Application at issue; and
b. that the applicant was aware of her claims under the Code and had raised them with the respondent in an internal complaint process.
50This is not a case where the applicant resolved a grievance without being aware of her rights under the Code. The applicant explained that she did not specifically raise human rights issues at the grievance mediation because she understood that they could not be asserted in that context, either because she was out of time or because the respondent’s internal policy is the appropriate venue for raising human rights issues.
51I am not convinced that is a reasonable position in light of the language of the collective agreement and the internal policy, both of which indicate that raising the issue in one venue does not preclude raising it in another.
ALLEGED BREACH OF THE SETTLEMENT AGREEMENT
52The applicant argues that the City breached the settlement agreement and that the Application should be allowed to proceed on that basis.
52There is a factual dispute about the implementation of the settlement agreement. The applicant states that the City threatened to discipline her when she asked to used banked time. The City does not dispute that it threatened discipline, but states that this was not in violation of the agreement. According to the City, the applicant made persistent requests to used bank time that she had waived as part of the settlement agreement.
53It may be that the applicant has other recourse if she believes the settlement agreement was breached. However, based on the material before me, I see no basis to set aside the settlement agreement.
54Whether or not the terms of settlement were fully complied with, it would be an abuse of process to allow portions of the Application to proceed.
ORDER
55The Application will proceed on only the following two allegations:
a. that on January 16, 2009, the City raised performance issues with the applicant and criticized her English language skills; and
b. that the applicant was unfairly denied the opportunity for a promotion in or about November of 2008.
56The remainder of the Application is dismissed. I am not seized of this matter.
Dated at Toronto, this 13^th^ day of December, 2010.
”signed by”________
Michelle Flaherty
Vice-chair