HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christine Solcan
Applicant
-and-
The Corporation of the City of Kitchener
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Solcan v. Kitchener (City)
1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on September 14, 2009. The applicant alleges that she was discriminated against on the grounds of disability and reprisal in the context of her employment with the respondent.
2In its Response, the respondent seek early dismissal of the Application on the basis that the applicant has signed a full and final release with respect to the same matter. This Interim Decision schedules a hearing to address the preliminary issue raised by the respondent, along with additional issues arising from the materials filed by the parties.
BACKGROUND
3The applicant was employed by the respondent from July 10, 2000 to September 15, 2008. Among other things, the applicant alleges that she had certain health and/or medical issues which began to impact on her employment commencing in February 2007. The applicant alleges that the respondent failed to accommodate her and ultimately terminated her employment contrary to the Code. The applicant acknowledges that her union filed a grievance regarding her termination from employment and that the grievance was subsequently settled on October 2, 2008 but submits that she had no legal representation in the settlement negotiations and that in any event the settlement did not address the human rights issues.
4The Response seeks early dismissal on the basis that the applicant has signed a Full and Final Release. In support of the request to dismiss, the respondent states that the applicant’s union filed a grievance on May 14, 2008 while the applicant was employed that dealt with many of the same issues that are now described in the Application. Further, when the respondent terminated the applicant on September 15, 2008, the union filed a second grievance alleging unjust discharge. This grievance was settled by the parties and the union by Minutes of Settlement that included that the applicant would resign her employment and receive salary and benefit continuance for the period September 16, 2008 to January 15, 2009. As a result of the foregoing, the respondent takes the position that the Minutes of Settlement are binding on the parties and should not be set aside and nor should the applicant be permitted to relitigate a matter that she voluntarily agreed to resolve.
5The applicant has filed a reply to the Request for early dismissal by way of a Form 11 (Response to a Request for an Order). The applicant states that the facts set out in the Application constitute the necessary facts so as to support a prima facie case for duress and that the provisions contained in the Minutes of Settlment were unconscionable. The applicant argues that the request for early dismissal should be dismissed in its entirety, or in the alternative, the applicant should be entitled to address at a minimum the human rights allegations.
6The applicant’s union was served with the Application but has not filed a Request to Intervene.
Request to Dismiss
6Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions.
7Having regard to the position of the respondent and the material filed, I find it appropriate to schedule a hearing to to address the following issues:
Should the Application or a part of the Application against the respondent be dismissed because of the Minutes of Settlement signed October 2, 2008, whether because it would be an abuse of process to proceed or otherwise?
Should the Application or part of the Application against the respondent be dismissed pursuant to section 45.1 of the Code because the substance of the Application has been appropriately dealt with by the Minutes of Settlement signed October 8, 2008?
Is all of the Application timely under section 34(1) of the Code such that it was filed within one year after the incident to which it relates or if there was a series of incidents, within one year after the last incident. If there was any delay in filing the Application, was it incurred in good faith and with no substantial prejudice to any person affected by the delay?
8The following directions shall apply to the hearing:
The parties should be prepared to provide any evidence and submissions in support of their respective positions in response to the questions set out above including any evidence regarding the applicant’s claim that the Minutes of Settlement should be set aside because of duress or otherwise.
Any party wishing to rely on written materials not already filed with the Tribunal including documents and caselaw not included with the Application, Response or Form 11 (Response to Request for an Order) must deliver such written material to the other parties and file it the Registrar within 21 days of the date of this Interim Decision.
Any party intending to call any evidence must comply with the requirements of Rule 17 of the Tribunal’s Rules of Procedure except the deadline for filing any such disclosure is within 21 days of the date of this Interim Decision.
9The parties may wish to have regard to sections 34 (1) and (2) and section 45.1 of the Code as well as the Tribunal’s caselaw which can be found at www.canlii.org.
10I note that the union has not filed a request to intervene in this matter. The Registrar should send a copy of this Interim Decision to the applicant’s union. If the union intends to intervene for the purpose of the hearing it should advise the Registrar in writing within 14 days of the date of its Request and copy the parties on the same.
11I am not seized of this matter.
Dated at Toronto, this 26th day of March, 2010.
“Signed By”
Kathleen Martin
Vice-chair