Mavec v. Sanofi Pasteur, 2010 HRTO 804

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louie Mavec

Applicant

• and-

Sanofi Pasteur Limited

Respondents

A N D B E T W E E N:

Louie Mavec

Applicant

• and-

Communications, Energy and Paperworkers Union of Canada, Local 1701

and Rob Gardner

Respondents

DECISION

Adjudicator: David Muir

Date: April 12, 2010

Citation: 2010 HRTO 804

Indexed as: Mavec v. Sanofi Pasteur

APPEARANCES BY

Louie Mavec, Applicant ) Harry Kopyto, Representative

Sanofi Pasteur Limited, Respondent ) Paula Rusak, Counsel

Communications, Energy and ) James Nyman, Counsel

Paperworkers Union of Canada, )

Local 1701 and Rob Gardner, Respondents )

1These are two Applications filed with the Tribunal pursuant to s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The first Application bears Tribunal file number TR-0096-09 and was filed against the applicant’s former employer and others on February 13, 2009 (the “Employer Application”). The second Application bears Tribunal file number TR-0112-09 and was filed against the applicant’s union and one personal respondent on February 19, 2009 (the “Union Application”).

2In the Employer Application, the applicant alleges discrimination because of disability in relation to the his return from medical leave and his subsequent lay-off. The Union Application arises out of precisely the same factual circumstances, but alleges that the Union respondents discriminated against the applicant because of his disability in relation to their alleged failure to properly represent his interests in dealing with these issues. At the heart of these complaints is the belief of the applicant that the employer and his union conspired to terminate his employment after he became ill and was required to take extended leaves.

3All of the respondents take the position that the applicant entered into Minutes of Settlement on July 31, 2007, which resolved all of his disputes with them and accordingly these Applications are an abuse of process. The respondents all also take the position that these Applications are out of time, the complaint being filed with the Ontario Human Rights Commission in April 2008, more than two years after the last incident alleged in the complaint, being March 16, 2008. The respondent union also states that the complaint discloses no prima facie case of discrimination as against them.

4The Tribunal in an Interim Decision, 2009 HRTO 871, by Order scheduled these issues to be heard prior to a consideration of the merits of the Applications. The parties were directed to provide their available dates for a hearing and were further directed to provide their written submissions on the issues raised by the respondents. The applicant was also directed to deliver and file any medical evidence which he wished to rely in support of his position that he lacked capacity at the time he signed Minutes of Settlement in July 2007.

5At the time set for the hearing of this matter the respondents had complied with the Directions above; the applicant had not. The applicant, who was then represented, sought an adjournment of the hearing. The adjournment request was granted on terms as follows:

The applicant shall deliver and file his submissions on the preliminary issues identified in 2009 HRTO 871 together with the documents identified at the hearing on September 17, 2009 and listed above on or before October 19, 2009. The applicant will at the same time produce all WSIB and WSIAT decisions in respect of his claims there.

The respondents shall deliver and file their submissions including any further documents they intend to rely upon in reply on or before November 19, 2009.

The parties will deliver and file a list of the witnesses they intend to call and provide a short summary of what each witness is expected to say on or before November 19, 2009.

The respondents will indicate whether cross-examination is required of the author of any document to be tendered in evidence on or before November 19, 2009.

The hearing of the preliminary requests of the respondents will be resumed on February 18and 19, 2010.

6The hearing was scheduled for two days because it appeared likely that medical evidence would be required, given the position of the applicant that he was suffering a cognitive impairment at the time that he entered into the Minutes of Settlement and was unable to appreciate the legal consequences of the settlement.

7The applicant complied with the Directions to deliver and file the documents he was relying upon and did provide his written submissions in a timely manner. The applicant did identify three potential witnesses but failed to provide a summary of their expected evidence. The respondents indicated that they wished to cross-examine the authors of the medical documents that the applicant was relying upon.

8On the day of hearing, the applicant attended with his representative but had made no arrangements to have any of the authors of the medical documents attend. I indicated to the parties what I had anticipated would be the order and manner of proceeding that day – that the applicant would lead whatever evidence he intended to rely upon, including the critical medical evidence, to support his position that he lacked the capacity to appreciate the legal effect of the Minutes of Settlement and equally that he could not file the complaint with the Commission in a timely manner. Indeed the only reason that two days had been scheduled for the continuation of the matter was to accommodate the likelihood of medical witnesses. In response the applicant asserted that the respondents should be required to lead their evidence first and that it was bizarre and unprecedented as well as a breach of the rules of natural justice and fairness to require that the applicant lead his evidence first. The applicant also stated that it was difficult and expensive to secure the attendance of medical witnesses.

9Despite the applicant’s position that the respondents should lead their evidence first, I directed the applicant to call his evidence if he had any to call. As I indicated to the parties at the hearing, while there may be some burden on the respondents to lead evidence after the applicant presented his, on the face of it the human rights complaint was filed out of time and there were apparently valid Minutes of Settlement between the parties. It had never been suggested that there were other issues that would require the respondents to lead evidence to establish what was plain on the face of the materials. As set out above the issue for determination had been for many months whether or not by reason of an alleged incapacity the applicant should not be bound by the Minutes of Settlement and that the delay in filing of the complaint was incurred in good faith. Both of these positions required evidence from the applicant.

10As well and over the objection of the respondents I admitted the medical documents filed by the applicant but indicated that the failure of the applicant to produce any of their authors would have to effect the weight I could give to them. I also heard the evidence of the applicant.

11These Applications are dismissed. I find for the reasons set out below that there is no evidence that the applicant was at the time of the signing of the Minutes of Settlement, incapable of understanding their legal effect and that these Applications are an abuse of the Tribunal’s process. Having come to this conclusion there is no need to deal with the other issues raised by the parties.

12The applicant took a number of alternative positions in respect of the abuse of process argument:

a. That the Tribunal would under no circumstances enforce Minutes of Settlement that purported to release a respondent from liability under the Code.

b. That the applicant was unable to appreciate the legal effect of the Minutes of Settlement that he signed on July 31, 2007.

c. That the respondent parties were put on notice at the time that he signed the Minutes of Settlement that the applicant would sign them now and move to set them aside later and were therefore aware of the applicant’s understanding of his legal obligations at the time.

d. That the fact that the applicant thought he could move to set aside the Minutes at a later date indicates that he did not have the same understanding of their effect and accordingly there was no meeting of the minds.

e. That given what the respondents all knew about the state of the applicant’s mental health at the time, they were under an obligation akin to a fiduciary obligation to take great care and require that the applicant be certified as competent to sign the Minutes.

f. That the important public policy concerns in favour of enforcing settlement is trumped in this case by the particular circumstances of the applicant’s state of health which was known to the respondents.

13As indicated above I have concluded based on the evidence before me that the Minutes of Settlement were freely agreed to by the applicant and that there is no evidence to support the suggestion that he was medically incapable of understanding the legal consequences of what he was doing when he signed them.

14There is little dispute about the broad trajectory of events. The applicant had been employed by the respondent employer for many years. He was a good employee. In 2005 he became ill and took a five-month medical leave. He returned to work with some accommodations in February 2006 but was given Notice of lay-off on March 16, 2006. The applicant left the workplace in late May or early June 2006 and never returned. Under the collective agreement governing the applicant’s employment, an employee in the applicant’s circumstances could elect to receive severance pay immediately or maintain recall rights for up to two years. The applicant elected the latter option. Over the ensuing months leading to the signing of the Minutes of Settlement in July 2007, there were on–again, off-again discussions about the applicant taking his severance package and giving up his recall rights, but the applicant continue to decline until July 2007.

15The applicant denied the suggestion that he called the union in late July 2007 telling them he would take the severance package but he did acknowledge requesting a copy of the draft Minutes of Settlement. In the end it is clear that there was no pressure exerted by the respondents to take the package and sign the Minutes; rather it is likely that he initiated the process. The applicant also acknowledged that he was under increasing financial pressure having been off work for some period of time at this point in time. As well, the record reveals that the applicant’s claim for WSIB and CPP disability benefits had been denied just prior to his agreeing to take the severance package. Most troubling perhaps for the applicant was the fact that his home was in the process of being seized by the mortgage holder. It was plainly acknowledged in his evidence that the reason the applicant signed the Minutes was that he desperately needed the money and could not wait any longer for a return to work.

16The only significant factual dispute in this narrative relates to what was said by the applicant at the time he signed the Minutes. Notwithstanding the submissions of the applicant as set out in 12(c) and (d) above, he denies saying that he would sign the Minutes and seek to set them aside at a later date. Rather, he testified that he would sign them but if the employer sued him for breach of the settlement he would make his case in the court that they should not be binding on him and as he put it – justice would be done. To my mind although different in some technical sense in the context of this case, the difference between the two versions of what the applicant said is not material. I accept that the applicant gave the respondent union, the employer not being privy to this discussion, an indication that he did not feel bound by the Minutes of Settlement and Release and that if he felt the need to breach them he would make his case to the court in the hopes that he would be released from their consequence. I find that contrary to applicant’s submission on this point, that the evidence of the applicant, whatever the precise words used, establishes without much doubt that he knew precisely what he was doing and that he understood that the Minutes were binding on him but that he hoped he could be released from their effect by the court.

17To my mind the question boils down to the position initially taken by the applicant and articulated fully in the complaint form – that “he did not possess the capacity necessary to assess, appreciate and appropriately deliberate the consequences of his signing this agreement”. This statement is a quotation from a letter written by the applicant’s family physician, Dr. Springle, in response to enquiries from the WSIB.

18As noted above, despite being put on notice by the respondents that the authors of the medical documentation be made available for cross-examination, the applicant did not produce any of the authors of the documents in question. This is particularly troubling as regards Dr. Springle, whose opinion apparently forms the basis of the applicant’s claim of his being incapable at the material time. In the absence of the vive voce evidence of this physician I am unable to give it much weight. Quite aside from the fundamental unfairness in the respondents being unable to question Dr. Springle, I agree with the respondents’ submission that given the evident variance in medical opinion about the applicant’s cognitive impairments if any, it would be dangerous to rely upon this one opinion without a further exploration of the issue. For example, the applicant has in addition to seeing his family physician also been referred to two psychiatrists. The first to see him, in December 2005, Dr. Rosenbluth found no significant cognitive dysfunction. Dr. Seevaratnam, who saw the applicant in late July 2006, came to similar conclusions. This psychiatrist found no evidence of formal thought disorder, delusional thinking or perceptual abnormalities. He was well-oriented in time place and person and there was no overt evidence of any cognitive impairment.

19Aside from the fact that the respondents were not afforded an opportunity to question Dr. Springle’s opinion, there are other difficulties that arise on the face of the document. To begin with it is authored by a general practitioner who has claimed no particular expertise in assessing or treating psychological illness. While I appreciate that a family physician is often in the best position to assess a patient’s general level of function, Dr. Springle’s opinion is the only one speaking directly to the issue at hand and is at odds with the two psychiatrists who saw him and upon whose reports Dr. Springle appears to have, in part, relied. Without an explanation for this divergence of view the opinion is deficient.

20More importantly, Dr. Springle’s opinion is an assertion and is completely lacking in any explanation including any diagnosis supporting the claim that the applicant lacked capacity to appreciate the consequences of his signing the Minutes of Settlement. An expert opinion to be accepted must provide the rationale for the conclusion reached including a description of the testing or assessments that were done. On its own and in light of the divergent medical opinion described above, I am not satisfied that the opinion of Dr. Springle is an accurate picture of the applicant’s mental health or cognitive capacity in July or August of 2007.

21At the end of the day, the applicant seems to believe, and said so on many occasions, that because he was ill at the time he ought not be bound by the agreement he made. There is no question that he was ill at the time, although there was a significant doubt about the appropriate diagnosis for an extended period of time, which was no doubt stressful for the applicant and his family. However, the question for me at this stage is not whether the applicant was ill but whether because of an illness he should be relieved of the legal consequence of signing the Minutes. For the reasons set out above there is insufficient evidence to support such a conclusion.

22The applicant also states that given what the respondents knew or ought to have known the respondents were under an obligation to ensure that the applicant had the capacity to enter into the Minutes of Settlement. I do not agree. To begin with it is not clear what exactly the respondents knew about the applicant’s state of mental health. Given the limited medical information available at the time this is not surprising.

23The applicant states that they must have known he was incapable because of what he characterized as erratic behaviour in discussions with them. I reject that proposition.

24There is simply no basis to conclude that the applicant lacked capacity. As summarized above, the medical information available at the material times would not have given rise to a reasonable concern about the applicant’s competence. I also note that while the materials filed indicate that the applicant’s mental health condition has worsened since the Fall of 2007, there has never been any significant cause to question his competence to obtain and instruct his representative and on that basis to participate in this proceeding. I observed the applicant over the course of almost two full days and had no cause for any concern about his capacity to proceed. In light of all this I am not satisfied that the respondents knew or ought to know that there was a reasonable question about the applicant’s capacity to enter in a settlement in July 2007.

25The Minutes of Settlement are clear and unambiguous and release the respondents from all claims including a claim or application under the Human Rights Code. The Minutes include an acknowledgement that he had been fully and fairly represented by the union.

26The fact there that there is a binding agreement does not necessarily end the inquiry. As has been noted in other cases the Code does not expressly bar an Application because a Release has been executed. In Bielman v. Casino Niagara, 2009 HRTO 123, it was held:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits. An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

27I have considered and rejected the applicant’s initial contention that he lacked the capacity to appreciate the consequences of his signing the Minutes. No other valid excuse was offered. I reject the applicant’s contention that the settlement of a human rights claim is unenforceable as contrary to public policy. No authority was provided for the proposition and it flies in the face of numerous decisions of the Tribunal. I also find that if it is a requirement for a binding settlement there be good and sufficient consideration for the Minutes that requirement was met here. There is no evidence of duress, the applicant was not under any pressure from the respondents to take the package. I have concluded that although the offer of a severance package was repeated on several occasions it was the applicant who made the call requesting a copy of the draft Minutes.

28I appreciate that having been out of work for over a year at that point that the applicant would have been under enormous economic pressure. However that is going to be the case in many if not all employment cases. If a settlement freely arrived at can be avoided merely by asserting economic pressures, the incentive for the parties to resolve their disputes without a hearing will be gone and every such claim will have to be fully adjudicated.

29For all of these reasons, I find that these Applications are an abuse of the Tribunal’s process and should be dismissed on that basis. Having concluded that these Applications ought to be dismissed on the basis that they constitute an abuse of process, there is no need to deal with the other issues raised by the respondents.