HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynette Lewis

Applicant

-and-

Leisureworld Caregiving Centre – O’Connor Gate, Cora Murray and Carol McIlveen

Respondents

AND B E T W E E N:

Lynette Lewis

Applicant

-and-

Service Employees International Union Local 1 Canada and Karen Walsh

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: March 31, 2010

Citation: 2010 HRTO 710

Indexed As: Lewis v. Leisureworld Caregiving Centre

AppearanceS BY

Lynette Lewis, Applicant ) Cheryl Lewis-Thurab,

) Representative

Leisureworld Caregiving Centre – O’Connor Gate, ) Daryn Jeffries,

Cora Murray and Carol McIlveen, Respondents ) Counsel

Service Employees International Union Local 1 ) Jesse Kugler,

Canada and Karen Walsh, Respondents ) Counsel

background

1This is an Application filed June 30, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant alleges discrimination in employment because of disability or perceived disability.

2The respondents have requested early dismissal of the Application on the basis that the applicant signed minutes of settlement which incorporated a full and final release regarding all claims relating to her employment, including any claims under the Code. The applicant acknowledges that she signed the settlement agreement, but believes the settlement is not fair. The applicant wants to be compensated fairly for the discrimination she experienced.

3A hearing was held on March 3, 2010 to deal with the respondents’ request to dismiss the Application. The respondents were represented by legal counsel. The applicant’s sister, Ms. Cheryl Lewis-Thurab, attended the hearing to support the applicant and made submissions on her behalf. I heard evidence from the applicant and from Karen Walsh, the applicant’s union representative at the time the settlement agreement was signed.

THE FACTS

4The applicant commenced employment with Leisureworld Caregiving Centre – O’Connor Gate (the “Employer”) in 2001 as a cook. In 2004, she was demoted to the position of dietary aid porter. The applicant believes the demotion occurred because the Employer perceived that she had poor literacy skills.

5In 2006 and 2007, the applicant’s employment was subject to disciplinary action. In March 2006, she received a written warning for being late on 14 occasions. In May and July 2007, she received two five-day suspensions, one for insubordination and one for an error relating to the preparation of food for one of the residents in the centre.

6On August 3, 2007, the applicant filed her human rights complaint with the Ontario Human Rights Commission (the “Commission”). She complained that she was being discriminated against and harassed because of her disability or perceived disability. The applicant believed she was being unfairly disciplined because of her Employer’s perception that she had poor literacy skills. The applicant conceded she was a “slow reader”, but stated she had never been diagnosed with dyslexia or any other form of reading disability.

7The applicant’s employment was terminated on August 9, 2007 because of a second incident where she gave incorrect food to a resident, in conjunction with her disciplinary history. A grievance was filed by the applicant’s union, Service Employees International Union (the “Union”) on August 13, 2007.

8On September 18, 2007, the Employer, the Union and the applicant settled the grievance. The applicant received $3,000.00 in compensation, a letter of reference, the sealing of her disciplinary history and the opportunity to voluntarily resign her employment. The Memorandum of Settlement (also referred to as the “settlement agreement”) included the following release:

… the Grievor hereby releases the Employer and the Union …. from any and all claims, complaints or grievances relating to employment with the Employer and the cessation of said employment including, but not limited to, all claims arising under the Collective Agreement, the Employment Standards Act 2000, the Labour Relations Act 1995, the Ontario Human Rights Code …. whether known or later arising. The Grievor acknowledges that she has been fully and fairly represented by the Union.

9Both the Employer and the Union have requested early dismissal of the Application on the basis that the applicant signed a full and final release as part of the settlement negotiated between all parties. In her written response to the respondents’ Request for dismissal, the applicant alleged she was not given proper representation by her Union representative, was not given sufficient time to consider the offer or seek legal counsel, and she felt pressured to accept the termination package.

ANALYSIS

10The applicant’s human rights complaint is based on the allegation that she was treated differently in her employment because of her actual or perceived literacy skills. She alleges that either her literacy skills amounted to a disability or her employer perceived her literacy skills to be poorer than they were and this gave rise to differential treatment on the basis of a perceived disability. In either case, the applicant alleges that she was disciplined and ultimately terminated because of her disability or perceived disability.

11Because the sole issue before me on the Request for dismissal is whether the Application can proceed in the face of the settlement, I do not need to decide the merits of the Application, namely whether literacy skill levels, in and of themselves, may amount to a disability.

12However the issue of literacy, having been put before the Tribunal by the applicant, is relevant to the issue of the effect of the settlement agreement. The Tribunal must be satisfied the applicant understood the agreement that she signed. If the applicant had difficulty reading the agreement, the obvious question arises as to whether she understood it.

13In her written submissions on the respondents’ Request for early dismissal, the applicant did not allege an inability to read or understand the agreement. The first time this issue was raised was in response to a direct question from me after reviewing the nature of her human rights complaint.

14Ms. Walsh, the applicant’s union representative, testified that she read the entire settlement agreement to the applicant and explained each paragraph, including the release. The applicant concedes Ms. Walsh read the agreement to her, but cannot recall whether the release paragraph was explained. The applicant did concede, however, that Ms. Walsh told her if she signed the agreement, she could not claim against the Union or the Employer. I accept Ms. Walsh’s evidence that she read the entire agreement to the applicant and explained to the applicant that if she signed the agreement, she could not make a claim against the Union or the Employer.

15There is no evidence that the applicant has a disability that interferes with her ability to comprehend what Ms. Walsh told her. The claimed “disability” in her human rights complaint relates to literacy. Again, as stated above, I am not deciding whether literacy skills alone constitute a disability under the Code.

16The thrust of the applicant’s written submissions and her direct evidence before the Tribunal is she believes the agreement is unfair and does not want to be bound by it for that reason. The applicant wants to be compensated fairly for the alleged discrimination and she feels she has been taken advantage of. The fact that the applicant believes the agreement is unfair does not mean she did not understand its terms.

17It is apparent from the applicant’s human rights complaint that she has faced many learning challenges in her life. She has, to her credit, overcome many of those challenges. She graduated from high school with a grade 12 diploma, obtained a food handlers certificate, food safety certificate and cook certificate from the YMCA, and upgraded her food handlers certificate with the Scarborough Board of Education. After termination, she attended Centennial College and received her food services diploma. These accomplishments are a testament to the applicant’s hard work and dedication and her ability to comprehend information.

18The applicant has difficulty reading, but in this case, the agreement was read and explained to her. At the time the applicant signed the agreement, the human rights complaint had been filed. The settlement agreement states specifically the applicant cannot bring any claims against the Employer and the Union, including complaints under the Code. This was explained to her. There is no evidence before me that the applicant was unable to understand this straightforward concept. I find the applicant understood that by signing the agreement, she was precluding from making a human rights complaint against her Union and the Employer.

19The second issue is whether the applicant was pressured into signing the agreement. The applicant asserts she was not given sufficient time to consider the offer or seek legal counsel, and she felt pressured to accept the termination package.

20During the settlement meeting, Ms. Walsh reviewed the applicant’s disciplinary history with her. Ms. Walsh told the applicant that the settlement was “the best deal” she could get. Ms. Walsh also told the applicant there was no guarantee her grievance would go to arbitration as that decision would be based on many factors including the applicant’s length of employment and disciplinary history. The applicant was likely left with the impression that if she did not accept the agreement she might end up with nothing. The question before me is whether this amounts to duress.

21The test for whether a person has signed a settlement under duress is high. The Tribunal has relied upon the definition of duress set out in Black’s Law Dictionary (6th ed.) which states:

Any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). Subjecting person to improper pressure which overcomes his will and coerces him to comply with demand to which he would not yield if acting as free agent.

22On the basis of the evidence presented, I am unable to conclude the applicant was under duress when she signed the Memorandum of Settlement. There is no allegation by the applicant that Ms. Walsh threatened or coerced her into signing the settlement agreement. She was told the agreement was the best deal Ms. Walsh could obtain. I accept the applicant may have felt that if she did not accept the agreement, she would be left with nothing. In my view, that does not constitute duress. Ms. Walsh was direct with the applicant in presenting the risks of not signing the agreement. There was no guarantee the Union would proceed with a grievance on the applicant’s behalf and if it did not, the applicant would be left with nothing. The applicant made the decision not to take that risk and accepted the settlement that was offered. There is no evidence the applicant requested more time to consider the offer or asked for additional time to seek legal advice. The applicant relied on the advice of her Union representative and agreed, under the terms of the release, that she had been “fully and fairly represented by the Union”.

23Section 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 as it considers proper to prevent abuse of its processes. This Tribunal has held that proceeding with a human rights Application after signing a full and final release can constitute an abuse of the Tribunal’s process: see, for example, Sinnett v. Orlick Industries, 2009 HRTO 916 and Kalini v. Securitas Canada, 2009 HRTO 1183.

24In the circumstances of this case, to proceed with the Application in the face of the release signed by the applicant would be an abuse of the Tribunal’s process. The applicant entered into the settlement agreement freely and understood that by doing so, she would not be able to make a claim against the Union or the Employer. It would be unfair to unravel the agreement because the applicant believes it is unfair. The parties signed an agreement that resolved all issues relating to the applicant’s employment and termination of employment, including her human rights. As stated by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 35:

There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever form it is brought, the matter is at an end.

25For all of these reasons, the Application is dismissed.