Samuels v. Seneca College of Applied Arts and Technology, 2011 HRTO 1211

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Samuels

Applicant

-and-

Seneca College of Applied Arts and Technology, Julie Jeffries, Leanne Garratt and Nancy Slater

Respondents

A N D B E T W E E N:

Rose Samuels

Applicant

-and-

Seneca College of Applied Arts and Technology, Alan Stelnick and Jennie Prodanovic

Respondents

DECISION

Adjudicator: Kathleen Martin

Date: June 23, 2011

Citation: 2011 HRTO 1211

Indexed as: Samuels v. Seneca College of Applied Arts and Technology

APPEARANCES BY

Rose Samuels, Applicant ) Self-Represented

Seneca College of Applied Arts and ) Technology, Julie Jeffries, Leanne ) Ann E. Burke, Counsel Garratt, Nancy Slater, Alan Stelnick ) and Jennie Prodanovic, Respondents )

1These are two Applications alleging discrimination in services on the basis of age and reprisal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision addresses whether a Memorandum of Settlement and Release signed April 20, 2010 is a bar to the applicant continuing with the Applications on the basis of abuse of process.

Background

2The Applications were filed on June 30, 2009. The allegations in the Applications pertain to the treatment of the applicant by the respondents while she was a student at Seneca College.

3On October 4, 2009, Responses were received.

4On April 20, 2010, a mediation was held with the assistance of a Vice-chair of the Tribunal. Following the mediation, the Vice-chair communicated the status of the Applications to the Registrar as settled on the basis of withdrawal by the applicant.

5The Tribunal received a letter from what appeared to be the applicant indicating that she wished to withdraw the Applications and that the respondents consented to the withdrawal.

6On May 5, 2010, the Tribunal received a letter from the applicant addressed to the mediator, counsel for the respondents and her counsel, which stated as follows:

I hereby revoke the “Memorandum of Settlement” dated April 20, 2010 and the deceptive letter I did not write dated April 19, 2010 to “The Registrar” with incorrect file numbers. This revocation is effective April 20, 2010; 4:00 P.M.

The mediator and counsel failed to see the mistakes in the contract on April 20, 2010 also the mediation process was deceptive and that is serious enough to render the contract invalid…

7In her letter, the time of 4:00 p.m. was handwritten over the typed letter which appeared to indicate 11:00 p.m. In addition, in her letter the applicant refers to several concerns about the mediation process including the fact that the parties were not in the same room when the document was signed and she was unaware of who signed for which respondent; that certain respondents were not present; and that the various pages of the settlement which she describes as “Settlement Memorandum” and “Release” were not numbered. The applicant also makes a general allegation that she signed under coercion, deceit and deception.

8On May 6, 2010, the Tribunal received another letter from the applicant requesting “to have the deceptive settlement revoke [sic]” and relying on similar concerns to those raised in her earlier letter.

9On June 8, 2010, I issued a Case Assessment Direction seeking a response from the respondents and providing the applicant with a right to reply to the same.

10On June 15, 2010, the respondents filed submissions. Among other things, the respondents state that the Applications were settled at mediation and the applicant signed Minutes of Settlement (“MOS”), a Release and a letter of withdrawal (which the respondents state was dated in error). The respondents indicate that the applicant was represented by counsel at the mediation. In response to the submission about the presence of the respondents at mediation, counsel for the respondents notes that she was retained to represent all respondents at the mediation, that the respondents who signed the MOS did so either on behalf of the corporate respondent, were either individual respondents, or were authorized to do so by the two respondents who were not in attendance at the time of execution (one of whom was unable to attend the mediation and another who left early for a doctor’s appointment).

11A copy of the MOS and Release were provided with the submissions. On its face the MOS appears to resolve all matters arising from the Applications and includes a provision that the applicant withdraws the Applications. Further, the Release contains similar language and appears to bar the applicant from making any claim or taking any proceeding in respect of the claims released.

12On June 21, 2010, the applicant filed a reply. In her submissions, the applicant alleges that the letter of withdrawal, which is dated April 19, 2010, was signed by someone else without her consent and reiterates many of points made in earlier submissions.

13On September 15, 2010, I issued another Case Assessment Direction scheduling a one-hour conference call to address the issue of whether or not the Memorandum of Agreement and Release signed on April 20, 2010 is a bar to the applicant continuing with her Applications.

14The applicant filed further submissions in advance of the conference call. The applicant does not dispute that she was represented by counsel, but states that she was “misrepresented”. She also alleges that she was given insufficient time to review the MOS and Release prior to signing and that coercion, duress and deceit were used to get her to sign, attributing this conduct in varying degress to her counsel, the respondent counsel and the mediator. The applicant also raises concerns about her treatment while at Seneca College which I do not find necessary to include in any detail given the preliminary issue being decided.

15On December 22, 2010, a conference call was held between myself, the applicant and counsel for the respondents. I declined the applicant’s request to record the call as the respondents objected and had not been given prior notice.

16During the conference call, I heard evidence from the applicant. In her evidence, the applicant was asked about the letter of withdrawal, the MOS and the Release. With respect to the former, the applicant states that if it was signed by her she had no knowledge of it, although her counsel had asked her to sign and provide her initials on a document. The applicant provided similar evidence about the MOS, stating that her counsel told her to sign it and instructed her to add a notation on the first page (referring to the addition of the phrase “by May 14, 2010” which qualifies when a payment is made). The applicant states that she was not given time to review the same.

17The respondents argue that the Applications should be dismissed because it would be an abuse of process for them to continue. The respondents state that the MOS and Release were signed by the applicant and witnessed by her counsel and that no evidence of any duress has been provided. The respondents do note that they have been unable to effect delivery of the settlement monies to date (the cheque has been returned), but remain willing to re-issue the cheque.

18The applicant submits that the Applications should continue. In her submissions, the applicant focussed on her allegations that she was coerced and only signed under pressure. The applicant states that since nobody asked what she wanted, the settlement did not represent her “free will”.

DECISION

19I find it would be an abuse of process for these Applications to continue.

20Section 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 in proceedings before it as it considers proper to prevent abuse of its processes.

21The Tribunal has held that filing a human rights application after signing a full and final release in respect of the subject matter of the application or a settlement that resolves all outstanding issues may constitute an abuse of the Tribunal’s process and, where that is the case, such applications should be dismissed: See Luo v. Dell Canada Inc., 2010 HRTO 879; Romo v. Raynor Canada, 2009 HRTO 1773; Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151.

22The underlying rationale is to recognize the importance of finality when parties settle and only to set aside settlements when there are compelling reasons to do. As the Tribunal explained in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655:

… 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.

23In the circumstances of this case, even ignoring the letter of withdrawal, it appears clear from the evidence and submissions that the applicant signed the MOS and the Release. The former includes an express withdrawal of the Applications and the latter confirms the same in the following language:

Further, I agree that the terms set out in the Memorandum of Settlement referred to above constitute a full and final settlement of any existing, planned, or possible complaint or complaints against the Releases under the Ontario Human Rights Code arising out of or in respect to my enrollment and/or treatment by the College. I also agree that I am aware of my rights under the Ontario Human Rights Code and have withdrawn my Applications to the Tribunal pursuant to the above noted Memorandum of Agreement and confirm that I am not asserting any further such rights or advancing any further human rights claim or Application.

24In challenging this MOS and Release, the applicant is not disputing that she signed these documents but only that the settlement should be “revoked,” citing several reasons including deception, coercion, duress and misrepresentation. In her submissions, I note that these terms are used loosely, often without reference to particulars.

25I do not find that there is a compelling reason to set aside the settlement and Release in these Applications. The applicant was represented by counsel at the mediation, including during the signing of the MOS and Release. While the applicant may be dissatisfied in retrospect with the representation she received, that allegation alone does not provide a reason for the Tribunal to overturn a settlement.

26The applicant has made a number of allegations about “deception” in the mediation process, including that the parties were not in the same room, that she became aware that some respondents were not in attendance, and that the pages were not numbered. Notably, the applicant does not assert that she raised any of these concerns at the time, although presumably she would have been aware of how the mediation was being conducted and the form of the document. The applicant acknowledges that she became aware of the “missing respondents” when the mediator returned with the “documents” (although it appears she did not know the reasons for any absence).

27I do not find any of these submissions about “deception” to be a compelling reason to set aside the settlement. On the issue of the presence of respondents, I have no reason to doubt the respondents’ submission that the signatories had signing authority to sign on behalf of those absent and it is apparent that the respondents have been trying to comply with the settlement.

28Further, the applicant has also made general allegations of coercion and duress. Underlying her use of both of these terms seems to be the contention that she was forced to enter into a settlement.

29In Luo at paragraph 32, the Tribunal indicated that a finding of duress would entail finding that the applicant was threatened with some kind of harm if she did not enter into the agreement. I would import a similar meaning to coercion. I did not hear any evidence or submissions which would support a finding that the applicant was forced to settle her Applications.

30Finally, I will comment on the applicant’s allegations to the extent they are directed at the mediator. While not entirely clear, the applicant does attribute some of her allegations of improper conduct to the mediator, although often in instances where she lists the mediator along with her counsel (or simply “the professionals”) as engaging in undue influence, coercion or similar improper conduct. As noted previously, the applicant’s allegations of undue influence, coercion or similar improper conduct for the most part lack any particulars or explanation, and I do not intend to comment on these general allegations other than to reiterate that the applicant was represented by counsel. Where the applicant has attributed specific conduct to the mediator, such as the allegation that the mediator should have advised her of the absence of certain respondents, I have already addressed this submission above.

31In summary, based on the evidence and submissions made, I cannot conclude that the applicant did not truly consent to the terms of the MOS and Release. There are no facts alleged here which suggest that she was forced to sign or threatened that some harm would occur if she did not sign. Although the applicant clearly has had second thoughts about her decision to settle, that is not a basis for overturning the MOS and Release.

32I find it would be an abuse of process to permit the Applications to proceed.

33I am aware that the settlement funds that were to be paid pursuant to the MOS were not able to be delivered to the applicant and that the respondents subsequently cancelled the cheque. These funds shall be re-issued and delivered to the applicant at the address set out in the Application within 14 days of the date of this Decision.

34The Applications are dismissed.