Willard v. Toronto (City), 2011 HRTO 1936

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ken Willard

Applicant

-and-

City of Toronto and Raymond Kessler

Respondents

-and-

Canadian Union of Public Employees, Local 79

Intervener

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 26, 2011

Citation: 2011 HRTO 1936

Indexed as: Willard v. Toronto (City)

ORAL SUBMISSIONS BY

Ken Willard, Applicant ) Patrick James, Counsel

City of Toronto and Raymond Kessler, ) Darragh Meagher, Counsel Respondents )

Canadian Union of Public Employees, ) Melissa Kronick, Counsel Local 79, Intervenor )

INTRODUCTION

1The applicant filed an Application on October 8, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which he alleges harassment and discrimination with respect to employment because of age.

2The respondents filed a Response on November 29, 2010 requesting the early dismissal of the Application on the basis of that the applicant signed a full and final release with respect to issues raised in the Application. The respondents allege that the applicant entered into Minutes of Settlement in November 2008 resolving two grievances, including a grievance alleging age discrimination and harassment, and that the applicant signed a full and final release as part of the settlement.

3In his Reply, filed on December 15, 2010, the applicant opposed the respondents’ request to dismiss on the basis that the subject matter of the Application is different from his previous grievances and the settlement of those grievances.

PROCEDURAL BACKGROUND

4By way of Interim Decision, 2011 HRTO 150, the Tribunal granted intervenor status to Canadian Union of Public Employees, Local 79, the applicant’s union. The union confirmed that in November 2008 the applicant entered into a settlement of two grievances, one of which alleged age discrimination and harassment.

5In the earlier Interim Decision, the Tribunal determined that it was appropriate to hear submissions from the parties as to whether the applicant signed a full and final release regarding the same matters as alleged in the current Application.

6A conference call was held on October 13, 2011 to hear the parties’ oral submissions with respect to whether or not some, all or none of the Application is barred because the applicant executed a full and final release. The Tribunal received written submissions from the applicant and the respondents prior to the teleconference.

DECISION

7For the reasons that follow, I find that paragraphs 5 and 6 should be struck from the Application as constituting the subject matter of a settlement entered into by the parties and a release signed by the applicant on November 5, 2008.

SUMMARY OF POSITIONS

8The applicant works as a Property Officer for the respondent City. The applicant alleges that over the past few years he was subjected to age-related harassment and discrimination by his supervisor. The applicant alleges that he filed grievances about his concerns to no avail. The applicant alleges that the respondent City, his employer, failed to protect him from this poisoned work environment.

9The respondents deny the allegations of harassment and discrimination. The respondents allege that, for a number of years, there have been deficiencies in the applicant’s performance, unrelated to any issues of age, which have required the respondents to discuss performance issues with the applicant.

10The respondents point out that some of the events alleged in the Application pre-date Minutes of Settlement entered into by the parties and the union on November 5, 2008. The respondents assert that those aspects of the Application, specifically paragraphs 4, 5 and 6, should be struck as an abuse of process because the allegations were the subject of a full and final release set out in Minutes of Settlement. The respondents also allege in their written submissions that the remainder of the Application should also be dismissed as vague and failing to establish a prima facie case of discrimination.

11The applicant submits that, while the crux of his Application and allegations pertain to incidents since 2009, the Application narrative describes a continuum of events. The applicant notes that the disputed paragraphs in the narrative which reference events in 2007 do not constitute live allegations, but rather serve as context and potentially admissible similar fact evidence. The applicant indicates that he intends to file a request to amend the Application in order to clarify the details and circumstances of the alleged events.

12The union takes no position with respect to respondents’ request to dismiss. The union submits that there are parts of the Application which are unclear as to when the events occurred and may require further particulars.

ANALYSIS

13Section 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 as it considers proper to prevent abuse of its processes. The Tribunal’s jurisprudence establishes that proceeding with an Application may constitute an abuse of process when an applicant has signed a full and final release with respect to the subject-matter of the Application: Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655; Douse v. Hallmark Canada, 2009 HRTO 1254; Sinnett v. Orlick Industries, 2009 HRTO 916; and Kailani v. Securitas Canada, 2009 HRTO 1183.

14As set out in the earlier Interim Decision, the issue in this case is whether or not some, all or none of this Application can proceed because the applicant signed a full and final release on November 5, 2008 with respect to events and issues alleged in the current Application.

15The Application constitutes nineteen paragraphs. Paragraphs 1-3 contain introductory information and paragraph 19 is a conclusion. The thrust of the applicant’s allegations are contained in paragraphs 4 to 18. In summary, the allegations are as follows:

Paragraph 4 – The applicant worked well with his managers and enjoyed his job until 2007.

Paragraph 5 – In and around 2007, the personal respondent became the applicant’s supervisor and made the applicant feel like he was unwelcome on his team because the applicant was the oldest member of the team. The personal respondent was more interested in the applicant’s retirement plans than the applicant’s advancement on the team.

Paragraph 6 – Since becoming his supervisor, the personal respondent subjected the applicant in the presence of witnesses to humiliating comments about age, including comments to the effect that the applicant was too old for the job.

Paragraph 7 – In and around 2010, the personal respondent assigned the applicant new duties without any prior notice or training. The applicant’s requests for training were denied, whereas other employees received training. The applicant believes that his duties were changed by the personal respondent in order to force him to retire.

Paragraph 8 – Between 2007 and 2009, the applicant initiated several grievances but the union did not advance human rights related grievances to arbitration.

Paragraphs 9 and 10 – Since 2009, the personal respondent has been dismissive, disrespectful, and hostile towards the applicant, threatened the applicant’s job and made remarks about the applicant’s age, including “you can not adapt; and we need people with career potential, etc.”

Paragraph 11 – The personal respondent used performance as a pretext in an effort to terminate the applicant’s employment and denied the applicant’s requests for training in his new role, indicating that the applicant was “getting by okay”. The applicant perceives this comment as a “put down” in reference to his age.

Paragraphs 12, 15, 16, 17 and 18 – Respondent management was aware of the hostile work environment and did nothing to correct the situation. Management’s failure to protect the applicant from the poisoned work environment caused the applicant to suffer anxiety and a loss of self-esteem.

Paragraph 13 – The union’s inaction to pursue the applicant’s grievances has been a factor in management’s treatment towards him.

Paragraph 14 – In and around September 2010, because of management’s mistreatment, the applicant experienced panic attacks and is now unable to work due to stress-related problems.

16There is no dispute that, by agreement dated November 5, 2008, the applicant, respondents and the union, entered into Minutes of Settlement which fully and finally resolved two grievances filed by the applicant in 2007. The first grievance alleged that, during a meeting which the applicant perceived to be disciplinary and in the absence of union representation, the personal respondent was critical of the applicant’s performance and remarked that the applicant may be getting too old for his job. The second grievance alleged that management refused to payout the applicant’s unused vacation time.

17The Minutes of Settlement states at paragraph 7 that the parties agreed that the terms of the Minutes of Settlement constituted a full and final settlement of all matters in dispute. The matters referenced in the subject line of the Minutes of Settlement are the applicant’s two 2007 grievances. The Minutes of Settlement also includes a clause, in paragraph 8, indicating that the applicant agreed to release the respondent and the union “from any claims, actions, grievances and complaints arising out of this matter or the implementation of these Minutes, including any claims filed pursuant to the Employment Standards Act, Human Rights Code, the Collective Agreement or otherwise.”

18The applicant does not question the validity of the Minutes of Settlement and accepts that the settlement and release covered the 2007 age-related grievance. The applicant also acknowledges that the age-related grievance pertained to the personal respondent’s alleged discrimination and harassment at that time and, in particular, the remark that the applicant may be getting too old for the job.

19The Minutes of Settlement expressly release all claims arising out of the 2007 grievances, including any claims under the human rights legislation. I accept the respondents’ position that it would be an abuse of process to allow the Application to continue to pursue the allegations forming the basis of the 2007 age-related grievance in the face of the clear language of the release and the applicant’s acceptance that the age-related grievance was fully settled.

20I find the applicant cannot proceed with claims regarding alleged incidents of discrimination and harassment prior to November 5, 2008, specifically the allegations that the personal respondent made the applicant feel unwelcome on his team and told the applicant that he may be too old for the job. I find that paragraphs 5 and 6 of the Application, as summarized above, make allegations with respect to alleged discrimination and harassment in 2007, which are the subject of the released claims to the extent that they speak to events preceding the Minutes of Settlement, and should be struck. However, given the absence of dates, it is unclear whether the allegations in paragraph 6 of the Application regarding the personal respondent’s humiliating comments also refer to events that post date the grievance settlement and are therefore not covered by the release. For clarity, the applicant can proceed with the allegations in paragraph 6 of the Application only to the extent that such alleged events post date the grievance settlement.

21However, I do not agree with the respondents’ assertion that paragraph 4 is similarly barred. Paragraph 4 speaks to the applicant’s past experiences with other managers prior to 2007. I do not accept that applicant is precluded from relying on background information about his general employment experiences pre-2007. The two 2007 grievances, which were fully and finally settled in November 2008, did not address the applicant’s past experiences with previous managers. The mere reference of the 2007 year does not in of itself render the information in paragraph 4 as part of the settled dispute. I find nothing in the content of paragraph 4 to encroach on the subject matter of the Minutes of Settlement and the released claims. I cannot conclude that it would be an abuse of process for the Application to continue to make allegations against the respondents arising out of paragraph 4 and, therefore, I refuse the respondents’ request to strike paragraph 4.

CONCLUSION

22I note that, as recognized by the parties and the union, a number of paragraphs in the Application do not indicate the timing of the events. As such, it is unclear whether the allegations contained in those paragraphs are the subject of the settlement and release. The parties were satisfied to leave this issue for a later date.

23I further note, and as discussed in the conference call, the findings made in this Interim Decision do not address the parties’ dispute with respect to alleged vagueness and alleged insufficient particulars, as well as the admissibility of any alleged similar fact evidence. The latter issue, the question of admissibility of similar fact evidence, is the purview of the hearing adjudicator and the former issue, the question of adequate particulars, was not the focus of the present inquiry.

24In their written submissions, the respondents requested that the remainder of the Application dealing with the on-going situation since 2009 should be dismissed on the ground that the Application has not established a prima facie case of discrimination. As I indicated in the conference call, I will not address this request because the purpose of the conference call, as stated in the earlier Interim Decision, was to deal with strictly the issue of a full and final release.

25Accordingly, the Tribunal orders:

a. Paragraph 5 is struck from the Application; and

b. Paragraph 6 is struck from the Application to the extent that the content of paragraph 6 relates to the applicant’s allegations regarding humiliating comments that occurred prior to the grievance settlement, which was fully and finally settled in November 2008,.

26I am not seized.