HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrea Anderson
Applicant
-and-
Lerners LLP
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Anderson v. Lerners LLP
appearances BY
Andrea Anderson, Applicant ) Self-represented
Lerners LLP, Respondent ) Robert J. Atkinson, Counsel
INTRODUCTION
1The purpose of this Decision is to determine whether the Application should be dismissed on a preliminary basis.
BACKGROUND
2The applicant began working as a legal assistant with the respondent in February 2006. In December 2008, she attended her last day of work in the office, and in March 2009, she executed an Agreement and Release which formally ended her employment.
3On December 31, 2010, the applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent harassed and discriminated against her because of her citizenship, disability, marital status, and association with a person identified by a Code ground, and subjected her to reprisal, all with respect to employment.
4On April 8, 2011, the Tribunal issued a Case Assessment Direction (“CAD”), which directed that a summary hearing be held by teleconference to determine whether the Application should be dismissed. The CAD set out three issues to be determined at the summary hearing: (i) whether the Application should be dismissed as an abuse of process because of the Release that was signed by the applicant; (ii) whether the Application should be dismissed because of delay; and (iii) whether, if it is not dismissed for these reasons, there is a reasonable prospect that the applicant can show a link between her treatment by the respondents and the Code grounds cited.
5On May 26, 2011, the Tribunal issued a Notice of Rescheduled Summary Hearing to the parties, which informed them that the hearing was scheduled for September 1, 2011. Prior to the hearing, the respondent filed written submissions and supporting documents and cases, and the applicant filed supporting documents and a list of cases.
6The summary hearing took place by conference call as scheduled. I heard submissions from the applicant, and dismissed the Application with written reasons to follow. My written reasons are set out in this Decision.
PRELIMINARY ISSUES
7Between the date that the applicant filed her Application and the date of the summary hearing, the applicant filed numerous correspondence and Requests for Orders During Proceedings (“RFOPs”), which requested that the Tribunal defer consideration of her Application and allow her to amend her Application by adding new Code grounds and new allegations of discrimination and reprisal.
8Prior to hearing the applicant’s submissions on the summary hearing issues, I denied the applicant’s Requests to defer consideration of her Application, and granted her Requests to amend her Application. The following are my reasons.
9On April 20, 2011, the applicant filed a RFOP which requested that the Tribunal defer consideration of her Application because on April 15, 2011, the lawyer who represented her in settlement negotiations with the respondent served a Claim on her to recover unpaid legal fees. The applicant stated that she intends to file a Defence and Counterclaim on the basis that she signed the Agreement and Release under duress. The applicant requested that the Tribunal defer consideration of her Application until the above matter has been dealt with in Small Claims Court.
10Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
11In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
12In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although there is a partial overlap in issues between the two proceedings, the proceeding before this Tribunal started first, and is at a more advanced stage than the proceeding in Small Claims Court. Furthermore, the respondent is not a party in the other proceeding, which is only between the applicant’s former lawyer and herself.
13On April 28, 2011, the applicant filed a further RFOP, which requested that the Tribunal defer consideration of her Application for health reasons. She attached a doctor’s note which stated:
As per Andrea’s request I am writing to request a deferral of her cases with the Human Rights Tribunal for health reasons. Her medical issue has spanned the last 2 years.
14I denied the applicant’s Request because the materials that she filed with the Tribunal indicate that since her employment with the respondent ended she has actively sought employment and worked with two different law firms for 11 months. In addition, after she filed this RFOP, she filed further RFOPs and materials with the Tribunal with lengthy written submissions. In my view, this is all inconsistent with the substance of her doctor’s note.
15On May 31 and July 22, 2011, the applicant filed two further RFOPs, which requested that the Tribunal allow her to amend her Application by (1) removing citizenship as a ground, (2) adding race, colour, ancestry, place of origin, ethnic origin, sex, and family status as grounds, and (3) adding further allegations of discrimination and reprisal. The respondent opposed the applicant’s Requests.
16I granted the applicant’s Requests because there was no evidence that the respondent would be prejudiced if I allowed the amendments, and, in my view, it would be more expeditious to deal with all the applicant’s allegations at the summary hearing.
ABUSE OF PROCESS
17The first issue that was addressed at the summary hearing was whether the Tribunal should dismiss the Application as an abuse of process because the applicant signed an Agreement and Release.
18The applicant, who was represented by legal counsel throughout the negotiation process between her and the respondent, executed an Agreement and Release on March 2, 2009, which, among others, had the following provisions:
The parties agreed that the applicant’s last day of work was December 11, 2008, after which she went on a paid leave of absence.
The applicant agreed that she resigned from her employment with the respondent upon executing the Agreement and Release.
The respondent agreed to continue paying the applicant’s salary and cover her under the respondent’s Extended Health Care and Dental plans until December 11, 2009.
The respondent agreed to reimburse the applicant for legal expenses up to a maximum of $2,000.
The respondent agreed to provide the applicant with a letter outlining her dates of employment, job title, and general duties, and indicating that she resigned from her employment for personal reasons.
The applicant agreed to withdraw all internal complaints, and not to file any further internal complaints or a complaint under the Code.
The applicant agreed to release the respondent from all claims related to her employment, and specifically released the respondent from a claim under the Code.
The applicant agreed not to communicate the contents of the Agreement and Release to any person or organization, other than her legal and financial advisors, except to the extent required by law.
The applicant acknowledged that she understood the terms of the Agreement and Release, had sought and received independent legal advice, and entered into the Agreement and Release voluntarily and as a free agent.
19Subsection 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. This Tribunal has held that filing 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, Kailani v. Securitas Canada, 2009 HRTO 1183, and Kennedy v. Appliance Canada, 2011 HRTO 384.
20The Tribunal’s rationale for these holdings was set out in Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, at para. 39:
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.
21In her submissions, the applicant admitted that the Agreement and Release was “generous”, but stated that she did not receive proper legal advice from her lawyer, and is dissatisfied with the monetary amount that she received, as well as the fact that the confidentiality clause was not mutual. She argued her human rights Application should proceed because she was on antidepressant medication and had an “unsound mind” when she signed the Agreement and Release. To support her position on this issue, she filed a copy of her prescription for the medication with the Tribunal.
22When I asked the applicant why she did not obtain and file a doctor’s note to support her position that she had an “unsound mind”, she stated that the copy of her prescription was sufficient, and there was no need to provide a doctor’s note. When I pointed out to the applicant that she had submitted a doctor’s note to support her request for deferral of the Application, she simply reiterated her view that there was no need to provide a doctor’s note to show that she had an “unsound mind”.
23I disagree. In Rivard v. George Brown College, 2009 HRTO 2212, the Tribunal stated at para. 29 that an applicant would need to meet a high threshold to establish that he or she did not appreciate the significance of signing a release by reason of mental illness or disability:
I do not accept the applicant’s evidence that she was not capable of understanding what she was signing when she signed the release. Although the applicant presented some medical evidence that she was experiencing increased sleepiness at the time she signed the release, she did not present anything even approaching the kind of medical evidence which would be required to establish that she was prevented from understanding the significance of the release by reason of mental illness or disability.
24In Lachance v. Honda Canada, 2010 HRTO 1731, the Tribunal also stated at para. 20:
In this case, the applicant has asserted that he was not in the right frame of mind at the time of signing the release and was taking a “slew” of medications at the time, which affected his thinking. However, he did not provide any medical documentation to substantiate this position, despite the March Interim Decision giving the parties an opportunity to provide further written material or documentation or facts. Further, his action of obtaining legal advice before signing the release demonstrates a person rationally exercising his will in deciding whether to accept a severance offer.
25Furthermore, in Oakley v. Lanark (County), 2009 HRTO 1034, the Tribunal stated at paras. 9 and 10:
The applicant self-identifies as a person with a disability and asserts that she was taking medication, amitriptyline, which clouded her judgment on the day of the mediation. She asserts that, in these circumstances, the applicant’s lawyer and/or the mediator ought not to have permitted her to sign minutes of settlement without a proper opportunity for reflection.
I note that the applicant did not submit any medical evidence supporting her assertion that her judgement was in fact clouded by the medication she was taking. In these circumstances, a bald assertion that the applicant may have been affected by medication, coupled with the fact that the applicant was represented by counsel, does not satisfy me that the applicant has established duress or a basis to permit the Application to proceed despite the signed minutes of settlement.
26In my view, the facts in the case at hand are analogous to the facts in the above cases. The applicant was represented by legal counsel at the time she signed the Agreement and Release, and openly admits that it was generous in her favour. Although she is now dissatisfied with some its terms, and alleges that she did not understand what she was signing, she failed to present medical evidence that shows that she was unable to understand the meaning and significance of the Agreement and Release because of a mental illness or disability, or the medication that she was taking. A copy of a prescription for antidepressant medication falls far short of meeting the necessary threshold. She also failed to provide a credible explanation as to why she did not submit proper medical evidence to the Tribunal.
27Accordingly, at the summary hearing, I dismissed all the allegations in the Application, up to and including the day that the applicant executed the Agreement and Release (March 2, 2009), as an abuse of process because the applicant signed an Agreement and Release. In view of my decision on this issue, it was not necessary to determine whether those allegations should also be dismissed because of delay
REASONABLE PROSPECT OF SUCESSS
28The second issue that was addressed at the summary hearing was whether the Tribunal should dismiss the remaining allegations in the Application on the basis that there is no reasonable prospect that they will succeed.
29Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
30Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
31The alleged incidents occurred after the applicant executed the Agreement and Release on March 2, 2009. At the outset of her oral submissions on this issue, the applicant stated the allegations all relate to section 8 of the Code, which provides that every person has a right to claim and enforce his or her rights under the Code without reprisal.
32The applicant’s allegations appear to be two-fold:
After she raised Code-related issues with the respondent and her employment ended, she worked temporarily for two law firms, the first of which blocked her from applying for further employment, and the second of which terminated her employment. These adverse events occurred because the respondent provided negative information about her to the two firms.
After the filed her Application with the Tribunal, she applied for a job with a third law firm through a temporary placement agency, and the respondent refused to respond to a request from the agency for a reference.
33With respect to the first allegation, the applicant stated that she had conversations with some of her former co-workers while she was working at the two firms, and that they said things to her that indicated that the respondent was providing negative information about her to her new employers. For example, she stated that one of her former co-workers told her that it does not matter what people said about her because she did not work with the respondent anymore.
34When I asked the applicant if she had any evidence that someone with the respondent had spoken to her new employers about her, she stated that her evidence was the fact that the first law firm did not allow her to apply for a forthcoming job, and the second law firm fired her.
35With respect to the second allegation, the applicant stated that the temporary placement agency told her that the respondent refused to provide them with a reference about her. The respondent, however, pointed out that the Agreement and Release only provided for a written letter of employment, and there is no provision that required the respondent to respond to oral requests for references.
36The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code, or an intention by a respondent to commit a reprisal for asserting one’s Code rights. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
37In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an Application alleging reprisal, the following elements must be established:
a) An action taken against, or threat made to, the applicant;
b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and
c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
38In my view, the applicant’s allegations are merely speculative. She did not demonstrate that there is a reasonable prospect that she can prove, on a balance of probabilities, that her Code rights were violated. Specifically, she did not demonstrate in any way that there is a reasonable prospect that evidence she has, or that is reasonably available to her, can show a link between the adverse events and the respondent’s actions or inaction, as well as an intention on the part of the respondent to retaliate against her for claiming her rights under the Code.
39With respect to the first allegation, I do not see how the statement by her former co-worker, assuming it is true, shows that the respondent provided negative information about her to the two law firms. Furthermore, the fact that the first law firm did not allow her to apply for a forthcoming job, and the second law firm fired her, is speculation, not evidence, of reprisal by the respondent.
40With respect to the second allegation, assuming that it is true that the respondent refused to respond to a request from the temporary placement agency for a reference for the applicant, that, alone, does establish a reasonable prospect that the applicant can prove that the respondent subjected her to reprisal, particularly given the fact that the Agreement and Release only provided for a written letter of employment, and there is no provision that required the respondent to respond to oral requests for references.
41Accordingly, at the summary hearing, I dismissed the remainder of the allegations in the Application on the basis that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated.
ORDER
42The Application is dismissed.
Dated at Toronto, this 7th day of September, 2011.
“Signed by”
Ken Bhattacharjee
Vice-chair