Anamguya v. Intercon Security, 2010 HRTO 2464

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Anamguya

Applicant

-and-

Intercon Security, Blair Mitchell and Nicole Lentinello

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: December 13, 2010

Citation: 2010 HRTO 2464

Indexed as: Anamguya v. Intercon Security

APPEARANCES

David Anamguya, Applicant ) Self-represented )

Intercon Security, Blair Mitchell and ) David Whitten, Counsel Nicole Lentinello, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 7, 2008. The Application alleges discrimination in employment. It contains many allegations; the relevance of most of them to the Code is not apparent. However, the Application cites the Code-protected ground of sex and alleges sexual harassment by the applicant’s supervisor. The Application also states that the applicant had a psychological/mental illness and alleges that the events alleged resulted in weeks of admission to hospital for depression and stress.

2The respondents filed a Response to the Application on March 13, 2009. In their Response, the respondents allege that the applicant’s employment was terminated for a number of listed reasons, including lateness, “unreasonably refusing to accept assignments”, “failure to advise that he would be out of the country for an extended period of time” and “baseless allegations of sexual harassment against his supervisor”. The matter was scheduled for a hearing.

3On June 25, 2009, the respondents served and filed a Request for Order during Proceedings (“Request”) seeking dismissal of the Application on the basis that the applicant had signed a release on February 6, 2009. Along with their Request, the respondents provided a copy of the signed release and accompanying correspondence setting out the terms and conditions of the applicant’s employment termination.

4This matter has been the subject of some delay and a number of Interim Decisions, necessitated by the personal circumstances of the applicant, which included hospitalisation for the treatment of a mental disability. See 2010 HRTO 965. This Interim Decision deals with the respondents’ Request to dismiss the Application.

5I heard evidence from the applicant, who was self-represented, and from Blair Mitchell, a senior account manager for the respondent and the person to whom the applicant reported. I also permitted the respondents’ counsel to call Nicole Lentinello, a human resources manager for the corporate respondent, although the respondents had not filed the usual notice and statement of expected evidence for Ms Lentinello, in view of the fact that she had been named as a personal respondent.

6At the hearing on September 23, 2010, the respondents did not argue that they would be prejudiced by the continuation of the Application to a hearing on the merits. The respondents argued that, in view of the Release signed by the applicant, it would be an abuse of process to allow the Application to continue.

7After hearing the evidence, I have come to the conclusion that, while the applicant signed the Release, he was homeless and affected by a mental disability and did not read or understand what he was signing. In the circumstances, allowing the Application to continue would not be an abuse of the Tribunal’s process. My reasons are set out in more detail below.

The legal framework

8Section 40 of the Code provides that the Tribunal shall dispose of applications made under this Part “by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications”. The context of this decision is a request by the respondent that the Tribunal deny the applicant an opportunity of a hearing on the merits because he signed a release, on the basis that allowing the Application to continue would be an abuse of the Tribunal’s process.

9The Code does not explicitly bar applications where a release has been signed by the applicant. However, the Tribunal has the jurisdiction to stay or dismiss applications if to proceed would amount to an abuse of process. In Ontario, this discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, which 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.” The Tribunal may dismiss an Application as an abuse of process where an applicant has entered into a settlement resolving his or her outstanding employment issues: see for example Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, Stephens v. Western Plastics, 2010 HRTO 985 and Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151.

10In a leading case on abuse of process that has been cited in a number of Tribunal decisions, the Supreme Court of Canada emphasized that the abuse of process doctrine focuses on the integrity of the justice system: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, (“CUPE”). In the CUPE decision, the Supreme Court confirmed that an arbitrator erred in law by limiting the scope of the power to prohibit relitigation of issues previously decided in criminal proceedings to circumstances in which the convicted person initiates the subsequent proceeding for the purpose of challenging a finding made in the criminal proceeding. The Supreme Court found abuse of process in the context of the arbitrator’s having effectively allowed the relitigation of a criminal conviction in which all grounds of appeal had been exhausted, in circumstances that clearly implicated the reputation of the justice system.

11The CUPE decision confirmed the well-accepted principle that “where relitigation would undermine the integrity of the adjudicative process, it should not be permitted”, while also noting that “[f]inality concerns must be tempered by a search for justice in each individual case” (see discussion in the Court of Appeal decision confirmed by the Supreme Court, Toronto (City of) v. Canadian Union of Public Employees, 2001 CanLII 24114 (ON C.A.) at paras. 65-72 and 94). The Supreme Court decision in CUPE confirms that approach, acknowledging that the “doctrine of abuse of process is used in a variety of legal contexts”, and declining to set out strict rules, noting that even relitigation may in some instances “enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.” (CUPE, above, at paras 36 and 52-55). The decision is instructive in its balanced attention to all aspects of the integrity of the justice system in deciding whether abuse of process is established.

12Where one of the parties seeks to rely on a release, a major principle under discussion is the principle of finality, described as “so crucial to the proper administration of justice.” See Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000, at p. 347-48, as cited in CUPE, above, 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. 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. (Perricone, above, at para. 39).

13The competing principle to finality in contracts in these circumstances is fairness to the individual who may be deprived of a hearing on the merits by the operation of the doctrine of abuse of process. In evaluating fairness, the personal circumstances of the parties are relevant.

14Decisions of the Ontario Court of Appeal since CUPE maintain the balance set out in the CUPE decision between the public interest in the finality of contracts between parties and fairness to the individual, by confirming that abuse of process should only be found in the clearest of cases. See, for example, Miguna v. Toronto Police Services Board, 2008 ONCA 799, Waterloo (City) v. Wolfraim, 2007 ONCA 732, and France v. Liang, 2007 ONCA 741. In Joshi v. Joshi, 2006 CanLII 4940 (ON C.A.), the Court of Appeal took into consideration the personal circumstances of an appellant who moved to set aside Minutes of Settlement where there were outstanding allegations by the appellant of failure to disclose and where the applicant was “unsophisticated, on a disability pension, and his English is very poor. Except on the case conference in this case, he always had a translator with him... He also deposed that he did not understand the minutes of settlement” (at para. 1).

15In a number of cases the Tribunal has indicated that Code-related issues, such as disability, that might have prevented an applicant from understanding the material documents related to a claim of abuse of process should be taken into consideration. See, for example, Dube v. Rockhaven Recovery, 2009 HRTO 53, and Bielman v. Casino Niagara, 2009 HRTO 123. In Bielman, the Tribunal dismissed a Request to dismiss an Application without a hearing on the basis of abuse of process where it appeared that there was a connection between an alleged failure to accommodate and the signing of a Release. A decision released after the hearing in this matter, Walkinshaw v. Complex Services, 2010 HRTO 2318, declined to find an abuse of process in circumstances in which the applicant signed a release while living with a mental disability.

The facts and allegations relevant to abuse of process

16Many of the facts in this matter are undisputed. Where there is a dispute, I indicate it below.

17Mr. Mitchell stated that the applicant’s employment was terminated because of ongoing performance issues. He stated that the applicant was anxious to be transferred from his previous employment location and the respondent wished to transfer him. However, the applicant refused a transfer to a particular alternative location selected by the respondent.

18I referred the applicant to a copy of the document containing the release (the “Release”). He agreed that the signature on the document was in fact his. The Release, dated February 6, 2008, is a one-and-a-half page single-spaced document which includes the following language: “I hereby acknowledge that I have not been subjected to any form of discrimination whatsoever and hereby represent and warrant that I have not commenced any complaint and undertake not to commence any complaint under the Ontario Human Rights Code”. The applicant agreed that he received a cheque just after he signed the Release.

19The applicant testified that he now understands the language of the Release to mean that he “did not experience discrimination and was fairly treated” and that he “would not sue [the respondents] or take them to the law”. However, the applicant maintained that he did not read or understand the Release he signed at the time he signed it, and that he did not understand that it would bar his right to make this Application. He stated that he signed the document on the understanding that this was the only way he could get his severance pay.

20The applicant did not make formal legal arguments as to the basis of his claim that his Application should be allowed to go forward. He did testify that his understanding of the situation when he met with the respondents on February 6, 2008, was that he would have to sign the Release in order to get his severance pay. He was very anxious to receive this, as he was homeless at the time, and living on the street. However, I do not understand him to be making a claim of duress, and I do not find it necessary to decide this point.

21As I understand the applicant, his position is that having his Application heard on the merits would not be an abuse of process, because he did not read the Release or understand its effect before he signed it, and that he was not capable of doing so because he was affected by a mental illness at the time he signed. He stated that he was also homeless when he signed, and that he believed that he had to sign the Release in order to get his severance pay.

22The respondents’ evidence focussed on a meeting of February 6, 2008 between Mr. Mitchell, Ms Lentinello and the applicant. Mr. Mitchell stated that he and Ms Lentinello explained that they were terminating the applicant's employment because of performance issues and were offering him pay in lieu of notice in the form of a severance package. They handed him a copy of the letter and release dated February 6, 2008, and reviewed the letter and release with him. Mr. Mitchell indicated that he explained to the applicant that the amount of the severance package exceeded his entitlement under the Employment Standards Act by the amount of one week’s pay and benefits. He stated that in return for the extra week of pay and benefits, the applicant would be required to sign the release.

23Mr. Mitchell stated that he explained that if the applicant chose not to sign the release, he would receive only the amount owing under the Employment Standards Act. Mr. Mitchell stated that he allowed the applicant time to review and read the document on his own. Ms Lentinello said that the applicant did so. Mr. Mitchell stated that he and Ms Lentinello told the applicant that he could take the severance package and Release away to review and consider them and to consult with a lawyer if he wished. Both of the respondents’ witnesses stated that they asked the applicant if he had any questions about the letter or release, and that he stated that he did not. He declined the opportunity to take the package away for review, signed the release and accepted the cheque.

24Mr. Mitchell's recollection was that the applicant did not make any comments or ask any questions, nor did he mention financial difficulties or health problems. He did not appear distressed.

25Mr. Mitchell estimated that the meeting took 10 minutes. The severance payment was made during the meeting. Ms Lentinello confirmed Mr. Mitchell’s testimony. She stated that the meeting followed the usual procedure and agenda for such meetings. Her recollection was that it was a brief, quiet meeting. The applicant did not raise any personal issues, or have any questions.

26In his testimony, the applicant was somewhat vague, and could not remember precise dates. He seemed to have some difficulty in reading documents, and took considerable time to read them. He was offered but did not take advantage of opportunity to cross-examine the respondents.

27The applicant testified as to his circumstances on February 6, 2008, and just prior to that date. He said that he was homeless, living on the street and “sick and financially broke”. He stated that the nature of his health problem was “psychological” and that he suffered from “post-traumatic disorder”. He indicated that he suffered from this disorder because of something that had happened in his life previously; “it's an old ailment”. As of February 6, 2008, he was “psychologically sick, but failed to acknowledge it”. He was very frustrated, felt that he had no choice and felt helpless. He stated that he did not realise that he needed help, and did not receive treatment for his psychological illness until later. Some time after the day he signed the release, his uncle “had to call the police” to get him treated, apparently involuntarily. The applicant could not be specific about the date that this occurred.

28The evidence of both parties confirms that there were two meetings between the applicant and the respondent’s witnesses. I consider these meetings, as well as some incidents that also occurred during the period from December 2007 to February 6, 2008, to be relevant to the applicant’s personal circumstances on February 6, 2008, the day of the signing of the Release, and therefore relevant to the abuse of process issue.

29The applicant stated that he was “depressed and stressed and experiencing some gangster related issues” from December 2007 to January, 2008. He said that people had threatened him with guns on the street because of an incident that happened at the workplace. The applicant was frightened; he stated that his family agreed he had to get away “for my life's sake”, so he left the country for a period of some weeks. It became apparent that the applicant was referring to a period of unauthorised absence from work referred to in the respondent’s Response to the Application as occurring between late December 2007 and January 22, 2008.

30Prior to his departure, the applicant sent the respondents a letter of November 15, 2007 that referred briefly to a number of alleged workplace incidents with no clear relevance to the Code. In addition, the letter contains the applicant’s allegation of sexual harassment by his supervisor. The narrative and style of the letter is difficult to follow; the respondent’s Response describes it as “disjunctive”. The letter refers to an incident “putting my life in danger” in relation to an attempted murder, and an incident in which “medication and some strange condition unknown” made the applicant dizzy so that he had to lie on the floor at work. As noted by the respondents, the letter stopped in mid-sentence.

31The applicant testified that, at a meeting prior to the February 6, 2008 meeting, he asked the respondents to help him with the issues identified in the letter, but that they “could not” do so. He stated that they maintained their position about the location to which he was to be assigned and when he refused that transfer, they told him that his employment was to be terminated.

32In his testimony, Mr. Mitchell recalled that there “may have been a discussion earlier on” between himself and the applicant about the issues raised in the letter. Mr. Mitchell recalled that there was more than one meeting concerning the applicant's transfer. He stated that the applicant did not initially reject the placement, “but then the next thing was a phone call from another country”.

33Ms Lentinello confirmed that there had been a meeting between the applicant and Mr. Mitchell to discuss the November 15, 2007 letter and the applicant's request for a transfer. The respondents’ testimony and materials filed by the respondents indicate that there was a meeting on January 22, 2008, between the applicant and the personal respondents, in which the applicant “made confusing and unintelligible comments regarding the alleged danger”, and the respondents “requested him to put his complaint in writing so that they could be thoroughly investigated”.

34The applicant's evidence was that from early January of 2008, after he came back to Ontario, he got occasional financial help from his uncle, and used his family home as a mailing address, but he was homeless, without funds and living on the street. His was homeless as of the date he signed the release. He did not recall when he finally found a place to live.

35The applicant’s recollection of the February 6, 2008 meeting was that he did not read the document -- he repeated several times, in giving his evidence in chief and in cross-examination, that the respondent had told him that his employment was terminated and that he had to sign the Release to get the severance pay. It was specifically put him in cross-examination that the respondents’ witnesses would say that he was told that he would get two weeks’ severance pay even if he did not sign the release. He responded, “all I'm certain of is that I needed to sign to get severance pay”.

36The applicant did agree that the respondents had not insisted that he sign that day, and that they asked him if he was ready to sign and he said yes. The applicant also agreed that the personal respondents had told him that he that he could get separate legal advice. The applicant stated that he did not tell the respondent at the February 6 meeting about his psychological illness, his financial problems or the fact that he was homeless.

Findings of Fact and Application of the Law

37The standard of proof in respect of this matter is the civil standard: a balance of probabilities.

38The respondents did not dispute the applicant’s evidence that he has a mental illness. Nor did they raise an argument that he was not affected by a mental illness at the date he signed the Release, although they confirmed with him in cross-examination that he was not receiving treatment for his mental illness on February 6, 2008, and they state that they had no reason to believe on that date that he was affected by a mental illness. In view of the documentary evidence tendered by both the applicant and the respondents in this Application, and the oral evidence of the applicant at the hearing, I conclude that the applicant was in fact affected by a mental disability on February 6, 2008.

39On the basis of the parties’ evidence, I find on a balance of probabilities that the following occurred at the ten-minute meeting of February 6, 2008. Mr. Mitchell and Ms Lentinello explained that they were terminating the applicant's employment because of performance issues and were offering him pay in lieu of notice in the form of a severance package. They handed him a copy of the letter and Release. Mr. Mitchell explained to the applicant that the amount of the severance package exceeded his entitlement under the Employment Standards Act by the amount of one week’s pay and benefits. He stated that in return for the extra week of pay and benefits, the applicant would be required to sign the Release. Mr. Mitchell and Ms Lentinello told the applicant that he could take the severance package and Release away to review and consider them and to consult with a lawyer if he wished. They asked the applicant if he had any questions about the letter or release. The applicant stated that he did not have questions; he signed the release and accepted the cheque.

40While the respondents told the applicant that he could read the document, I do not accept the respondents’ assertions that the applicant took the time to review and read the document on his own. In view of all of the information conveyed by the personal respondents at the meeting, as well as the signing and conveying of a cheque, it seems to me very unlikely that there would have also been time for the applicant also to have read the lengthy Release in the course of the ten-minute meeting. In agreeing with a number of the respondents’ assertions, the applicant made several admissions against his own interest, but he consistently maintained that he neither read nor understood the consequences of the Release before he signed it.

41The respondents asserted that they had no reason to believe that the applicant was affected by a mental disability on February 6, 2008, when he signed the Release. In view of their evidence about the applicant’s letter of November 15, 2007 and about his behaviour at work at the end of 2007, and at the meeting on January 22, I do not accept this assertion. In any event, the focus of an inquiry into alleged abuse of process is not on the conduct of parties (although that can certainly be relevant), but on the integrity of the justice system. The question here is whether, considering all the circumstances, allowing the Application to continue would amount to an abuse of the Tribunal’s process.

42Ordinarily, with some exceptions provided by legislation or common law, an adult who signs a contract is held to the terms of that contract. This is an exceptional situation. The applicant in this case was homeless, and living on the street. He was affected by a mental disability, for which he was not, at the date he signed the Release, receiving treatment and which led later to involuntary admission to hospital. He did not read or understand the Release he signed; his understanding of the situation was that he had to sign to receive his severance pay. The respondents had reason to believe that the applicant might be affected by a mental disability, given his behaviour at work and the “disjunctive” letter he wrote with its reference to “medication and some strange condition unknown” that had made the applicant dizzy so that he had to lie on the floor at work. They took no special precautions to ensure that the applicant understood what he was signing; their meeting was routine in nature and lasted ten minutes, and the applicant did not read the Release before he signed.

43Considering all of the circumstances of this case, I cannot conclude that that the respondents have established a clear enough case that allowing the Application to continue would be an abuse of the Tribunal’s process.

44The respondents cited Arrindell v. Toronto Marriott Downtown Eaton Centre, 2009 HRTO 2235 and Oxley v. Gus Brown Pontiac Buick GMC, 2010 HRTO 33, but both of these decisions are clearly distinguishable on their facts, the Tribunal having specifically indicated in both that the applicants had understood the consequences of the releases they signed. The respondents’ Request is dismissed.

45As noted above, the Application contains many allegations; the relevance of most of them to the Code is not apparent. However, the Application cites the Code-protected ground of sex and alleges sexual harassment by the applicant’s supervisor. If the Application is not settled, some case management may be required, but this is best left to the Vice-chair assigned to hearing the matter.

46In their Response, the respondents indicated a willingness to attempt mediation. The applicant did not. Given the passage of time, the parties may have changed their position. The parties are asked to contact the Registrar’s office by December 29, 2010, to indicate whether they wish to attempt mediation, and, if so, mediation will be scheduled in the normal course.

47I am not seized of this matter.