José Gonzalez v. Toronto Catholic District School Board, 2010 HRTO 754

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

José Gonzalez

Applicant

-and-

Toronto Catholic District School Board and Hanna Cabaj

Respondents

-and-

Canadian Union of Public Employees, Local 1328

Intervenor

DECISION

Adjudicator: Lorne Slotnick Date: April 14, 2010 Citation: 2010 HRTO 754 Indexed as: Gonzalez v. Toronto District Catholic School Board

APPEARANCES

José Gonzalez, Applicant ) Joel Schwartz, Counsel

Toronto Catholic District School Board ) John Woon, Counsel and Hanna Cabaj, Respondents )

Canadian Union of Public Employees, ) Risa Pancer, Counsel Local 1328, Intervenor )

1This Decision deals with a motion by the respondents to dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application, or that proceeding with the hearing on its merits would constitute an abuse of process. The Application is made under Section 53(5) of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”).

2The chronology of agreed relevant events is as follows: the applicant was employed for roughly 16 years as a teacher of English as a second language by the respondent school board and its predecessors. During the last few years of his employment, he was a member of a bargaining unit represented by the intervener, Canadian Union of Public Employees, Local 1328. His supervisor was the individual respondent. By letter dated March 1, 2006, the school board terminated his employment, effective March 31, 2006, citing concerns about his job performance. The union filed a grievance on April 12, 2006, challenging the termination, saying it violated the collective agreement’s provisions against unjust discharge “and any other articles, acts and legislation.” The applicant did not sign the grievance, which lists his name incorrectly.

3The next month, the applicant wrote to the union local’s president saying he felt he had been treated unfairly by officials of the school board, who he said were “aware of my health condition.” The applicant also contacted both the Canadian Human Rights Commission and the Ontario Human Rights Commission in July 2006, but did not file a complaint at that time.

4The union referred the grievance to arbitration. On the second day of the arbitration hearing, March 22, 2007, the union and the school board began settlement discussions. By that time the individual respondent had given her evidence in chief. The parties reached an agreement that day and they, along with the applicant, signed Minutes of Settlement. Under the settlement, the applicant’s termination was changed to a resignation, he was paid $1,000 less statutory deductions and was given a two-paragraph letter of employment.

5The Minutes of Settlement state as follows:

This settlement is made in full and final settlement of all matters related to the grievor’s employment with the Board, under the collective agreement and all applicable provincial or federal legislation.

6Several months after this settlement was reached, the applicant filed with the Ontario Human Rights Commission the complaint that underlies this Application. The complaint is undated, but was apparently filed in July 2007. It claims discrimination in employment on the basis of ancestry, creed, disability, place of origin and sex. While the complaint makes no allegations that it relates to the applicant’s ancestry, creed, place of origin or sex, it does mention back pain, stress, and other unspecified physical and mental issues.

7The respondents and the intervener union argue that the Tribunal should dismiss this Application because the arbitration process that resulted in the settlement dealt appropriately with the substance of the Application, or because it would be an abuse of process to allow the applicant to revive his human rights issues after agreeing to settle all disputes arising from his employment. The applicant argues that the grievance and arbitration proceeding dealt only with his allegation of unjust termination and not with the substance of his human rights allegations, and that the grievance was resolved with no specific reference to the Code or any human rights issues. In any event, the applicant argues, the settlement itself was unconscionable given his long years of service and the state of his health at the time he signed it.

8At the hearing of this motion, the applicant gave evidence, testifying that he had no experience with unions or grievances before his termination. He said he had never even seen the grievance filed on his behalf until a few days before the hearing of this matter at the Tribunal. At the time of the arbitration hearing, he said, he was in poor shape physically and mentally, taking medication and suffering from chronic back pain and depression. He said the union representatives pressured him into resigning, but that he remembers little else except that he did not understand what was happening. He acknowledged, however, that the union officials “probably” read him the Minutes of Settlement, and that he signed.

9I also heard evidence from Bob Dubniak, the respondent school board’s senior co-ordinator of labour relations, who said he was surprised to see a human rights complaint from the applicant as it was his understanding that all matters arising from his employment were being resolved when the Minutes of Settlement were signed.

10The respondents and the intervenor rely partly on section 45.1 of the Code, which reads:

45.1 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.

The respondents note that the applicant had contacted two human rights commissions prior to the arbitration hearing and had also written to the union regarding his health issues. They ask me to conclude from this that the allegations of discrimination were live issues at the time a “full and final settlement” of all issues related to the applicant’s employment was reached. There is no evidence of impropriety or misrepresentation of the terms of the settlement, and, given that the applicant was represented throughout by his union, the facts do not support any allegation that the settlement was unconscionable, respondents say. Therefore, the respondents argue, another proceeding has appropriately dealt with the subject of the Application, and section 45.1 applies.

11The applicant urges me to look at the low value of the settlement, which he says amounts to barely more than a week of pay for a 16-year employee, far less than his entitlement (assuming no cause is alleged) under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended. This kind of settlement ought not be used to deprive the applicant of the opportunity to enforce his rights under the Code, the applicant argues. The applicant points out that he played no role in the negotiation of the settlement, had no independent legal advice, and says he did not understand the significance of the settlement’s wording. In the circumstances, the applicant argues, the settlement is unconscionable. The Tribunal should not automatically bar a complaint just because a release has been signed, the applicant says, citing Pritchard v. Ontario (Human Rights Commission) 1999 CanLII 15058 (Ont. S.C.), where the court said the context and circumstances must be considered in deciding whether a human rights complaint can proceed after a release is signed. The applicant (along with the respondents) also relies on Parma v. Stoney Creek Lifecare, 2010 HRTO 501, where the Tribunal noted in assessing the settlement that the applicant received her entitlement under the Employment Standards Act and Waterman v. Frisby Tire Co. (1974) Ltd., 1995 CanLII 7283 (On. S.C.) where the settlement was ruled unconscionable.

12I have considerable doubt about whether I can conclude that the substance of this Application has been appropriately dealt with in another proceeding, and thus whether section 45.1 of the Code applies. While there is no question that the applicant had contacted two human rights commissions and raised his health issues in a general way with the union prior to the settlement, it appears that the grievance, the response to the grievance, and the arbitration process were focused exclusively on the performance issues that led to the termination of the applicant’s employment. The complaint that underlies this Application was filed only after the settlement was reached. In the circumstances, it is difficult to find that the grievance and arbitration proceeding dealt with the substance of the human rights complaint.

13However, the key to this case, in my view, is not whether the arbitration process dealt with the substance of the human rights complaint, but what the applicant, the respondent employer and the intervenor union intended when they signed Minutes of Settlement on March 22, 2007. On this issue, I believe there can be no doubt: by saying their agreement is a “full and final settlement of all matters related to the grievor’s employment with the Board, under the collective agreement and all applicable provincial or federal legislation” the signatories are expressing a clear intention to bar any further claims by the applicant against the respondents arising from his employment, including a claim under the Code.

14The applicant has presented no reason that would cause the Tribunal to undo this agreement. This Tribunal and the courts have many times made the rather obvious point that parties must be held to their agreements except where there has been impropriety; otherwise the ability of parties to settle disputes with certainty would be seriously undermined. (See, for example, the Parma case, cited above, and Better Beef Ltd. v MacLean, 2006 CanLII 17930 (On. S.C.D.C.))

15In this case, there is not credible evidence that the applicant, who was an English teacher for 16 years, did not understand the settlement document, nor is there any medical evidence to suggest he did not have the capacity to make a decision on a settlement offer. I accept that he felt under pressure when faced with the choice between accepting the settlement or proceeding with the arbitration hearing. This is neither surprising nor is it a basis to dismantle the agreement he signed.

16The applicant was represented through the process by his union, which took his case to arbitration; this in itself seriously weakens any allegation that the settlement was unconscionable. The inequality or abuse of bargaining power by the respondent that would be necessary to make a finding that the settlement was unconscionable is simply not present here.

17The applicant invites me to examine the alleged monetary inadequacy of the settlement. This is exactly the kind of second-guessing that, in my view, the Tribunal must avoid where the applicant was represented and signed the agreement. The advice given by his representatives, according to the applicant’s evidence, was that he would be better off taking what was offered than continuing to fight the case. He took the advice and signed a settlement that clearly states he will make no further claims arising from his employment relationship with the respondents.

18In the circumstances, it would be an abuse of process to allow the applicant to proceed with this Application. The Application is therefore dismissed.