Notash v. Queen’s University, 2011 HRTO 1603

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leila Notash

Applicant

• and-

Queen’s University and Michael Birk

Respondents

decision

Adjudicator: Ian R. Mackenzie

Date: August 26, 2011

Citation: 2011 HRTO 1603

Indexed as: Notash v. Queen’s University

wRITTEN SUBMISSIONS by

Leila Notash, Applicant ) Self-represented

Queen’s University and )

Michael Birk, Respondents ) Catherine Peters, Counsel

1Leila Notash filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of race, ethnic origin, place of origin and sex. Dr. Notash also filed a complaint under the Queen’s University’s Harassment/Discrimination Complaint Policy and Procedure. A settlement of that complaint was reached on July 14, 2011. The respondents have filed a Request for an Order dismissing the Application on the grounds that the applicant signed a release of all claims against the respondents, including this Application.

2The applicant has filed a Request for an Order amending her Application.

3The applicant has waived her right to an oral hearing of the request to dismiss the Application. She stated in her response that the determination of the request on the basis of the written submissions on file was acceptable to her.

4At the commencement of the hearing of the complaint against Michael Birk, mediation was offered by the chair of the complaint Board. Dr. Notash agreed to mediation. At the end of the day, Minutes of Settlement (MOS) were signed by the applicant.

5The preamble to the MOS refers to this Application by file number. It also states that the parties wish to resolve both the complaint under the university’s policy and the Application. Clause 9 of the MOS states that the applicant will withdraw her Application by filing a Form 9 with the Tribunal, by July 21, 2011. Clause 12 of the MOS states:

These Minutes of Settlement represent full and final settlement of all issues underlying the Complaint and the Application. Dr. Notash releases and forever discharges any and all claims up to the date of these Minutes of Settlement against the Respondents and against Queen’s University at Kingston and any of its employees.

6The applicant had representatives or advisors for most of the mediation: a union representative and a human rights officer employed by the university. The applicant describes these individuals as her “support team”. Those representatives or advisors left the session before the MOS was signed.

7The applicant stated in her submissions that she wanted to review the proposed MOS and sign it the following day. She stated that the chair told her that the expectation was that the MOS would be signed at the end of the mediation session. The applicant states that she felt “pressured” and “coerced’ because it was implied that by agreeing to mediation she had also agreed to sign a settlement at the end of the day. She states that she told her representatives or advisors that she could not sign anything that day.

8The applicant states that she was given a copy of the draft MOS at about 6:00 p.m, after her representatives or advisors had left. She stated that she raised concerns about some of the terms, but the chair “did not accept them”. She states that having been “abandoned” by her advisors and in light of the response of the chair, she “got to the point that I felt this university was not worth it and signed it.” She also states that at the time of her signing the MOS “no agreement was reached”. She also states that she felt her arm was twisted.

9The respondents submitted that the complaint proceedings constituted a proceeding for the purpose of section 45.1 of the Code. They submitted that the settlement was clearly intended to resolve all of the substantive issues underlying both the Application and the complaint. In addition, the settlement appropriately dealt with the subject matter of the Application.

10In the alternative, the respondents submitted that it would be inconsistent with the principles of finality and judicial economy to allow the Application to proceed in light of the full and final settlement of all of the underlying issues of the Application. The respondents submitted that the Application should be submitted for abuse of process.

11For the reasons which follow I dismiss the Application.

12The parties to this Application settled the Application in a settlement that clearly referred to the Application. On its face, the settlement clearly shows an intention to settle the Application and the issues underlying the Application. Subsection 45.9 (1) of the Code provides that a settlement of an application made under section 34 is binding on the parties. In this case, the applicant agreed in the MOS to withdraw her Application. She has failed to do so.

13The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended allows a tribunal to make an order that it considers proper to prevent an abuse of its processes: subsection 23(1). The Tribunal has held that filing a human rights application after having reached a settlement of the underlying issues may constitute an abuse of process (see, for example, Luo v. Dell Canada, 2010 HRTO 879). The rationale for such a conclusion is to recognize the finality of settlements. Settlements should only be set aside when there are compelling reasons to do so: Perricone v. Fabco Plastics Wholesale, 2011 HRTO 1655. The same rationale applies to a failure to withdraw an application after having reached a settlement of the application.

14The reasons given by the applicant for the setting aside of the settlement are coercion and pressure. In Luo, the Tribunal found that a finding of duress would require a finding that the applicant had been threatened with some kind of harm if she did not settle the matter. In Samuels v. Seneca College of Applied Arts and Technology, 2011 HRTO 1211, the Tribunal concluded that the same requirement applied to coercion. In this case, the applicant did not allege that she was threatened in any way prior to signing the MOS. In fact, she states that it “got to the point that I felt this university was not worth it and signed it.” This is resignation, not coercion.

15Based on the submissions of the applicant, I conclude that the applicant did consent to the terms of the MOS. There are no allegations by the applicant to support a finding that she was coerced or forced to sign the MOS. Having second thoughts about settling an Application is not a basis for overturning the MOS.

16I find it would be an abuse of process to allow the Application to proceed.

17Since I have dismissed the Application, I do not need to consider the applicant’s request to amend her Application.

18The Application is dismissed.