Ihasz v. Ontario (Revenue), 2011 HRTO 1991

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Ihasz Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Revenue Respondents

DECISION

Adjudicator: Ena Chadha Date: November 3, 2011 Citation: 2011 HRTO 1991 Indexed as: Ihasz v. Ontario (Revenue)

WRITTEN AND ORAL SUBMISSIONS BY

Ronald Ihasz, Applicant ) Self-represented Ministry of Revenue, Respondent ) Paul Meier, Counsel

INTRODUCTION

1The applicant filed this Application on December 3, 2010 under section 45.9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging the respondent contravened Minutes of Settlement arising out of the applicant’s previous human rights complaints made to the Ontario Human Rights Commission. The applicant submits that according to the Minutes of Settlement, executed in 2004, the respondent was required to continue to employ him in a specific job. The applicant alleges that the respondent violated this aspect of the agreement when it took steps to eliminate his position in 2010.

2The respondent filed its Response on March 7, 2011, denying the allegations of a breach of settlement. The respondent alleges that there is nothing in the Minutes of Settlement requiring the respondent to maintain the applicant in the specific job and, consequently, no breach of settlement.

3On March 16, 2011, the Tribunal issued a Case Assessment Direction scheduling a teleconference hearing into this matter. The Case Assessment Direction stated that the hearing was to determine the sole issue of whether or not there was a breach of settlement.

4A teleconference call was held on September 28, 2011 to hear the parties’ oral submissions with respect to the contravention of settlement allegation and the Tribunal received written submissions from both parties before the teleconference. The applicant and counsel for the respondent participated in the conference call.

DECISION

5For the reasons that follow, I find that the respondent did not contravene the Minutes of Settlement and, as such, the Application should be dismissed.

Minutes of Settlement

6In 2000 and 2001, the applicant, a financial analyst employed by the Ontario government, filed two employment-related human rights complaints with the Ontario Human Rights Commission (“Commission”).

7The parties agreed upon a settlement of the two complaints on February 19, 2004, that being the date the applicant signed the Minutes of Settlement. A representative of the respondent signed the Minutes of Settlement on February 25, 2004 and the Commission approved and signed the Minutes of Settlement on March 10, 2004. The relevant paragraphs of the Minutes of Settlement are as follows:

2. The corporate respondent agrees to offer the complainant the position of Tax Administration Manager at the AM18 level in the Mississauga Regional Tax Office commencing June 21, 2004. A Letter of Employment is attached hereto as Exhibit A.

3. The parties agree that they shall be bound by the provisions of this agreement until the Commission decides whether or not to approve the agreement in accordance with section 43 of the Code.

4. In the event that this agreement is approved by the Commission, it shall continue to bind the parties.

5. In the event that the Commission does not approve this agreement, it shall be null and void.

8Section 43 of the Code, as it read at the time, stated:

43. Settlements – Where a settlement of a complaint is agreed to in writing, signed by the parties and approved by the Commission, the settlement is binding upon the parties, and a breach of the settlement is grounds for a complaint under section 32, and this Part [Part IV Enforcement] applies to the complaint in the same manner as if the breach of the settlement were an infringement of the a right under this Act.

Applicant’s Position

9The applicant alleges that, pursuant the terms of the February 2004 Minutes of Settlement, he was offered a job as a Tax Administration Manager in the respondent’s Mississauga regional office commencing in June 2004. The applicant accepted this position and continued to work in this office until 2010, when he went on sick leave. The applicant submits that the Minutes of Settlement contain no expiry date so the respondent is not obligated to maintain him employed in the Tax Administration Manager position.

10The applicant alleges that the respondent violated the Minutes of Settlement when it advised him, in March 2010, that his position was being eliminated as a result of the introduction of the Harmonized Sales Tax (“HST”) and that he would be transferred to a federal government office with the Canada Revenue Agency (“CRA”) in November 2010. The applicant further alleges that his position was targeted for elimination because of his mental disability and as reprisal for his previous complaints, as well as for expressing his human rights concerns regarding the current circumstances.

11In his Application, the applicant cites paragraph 12 as the term of the Minutes of Settlement which he alleges was contravened. The applicant submits that, because the settlement was approved by the Commission, the agreement continues to bind the respondent to provide him with the job as set out in paragraph 2 of the Minutes of Settlement.

Respondent’s Position

12The respondent is the Ministry of Revenue. In 2009, the Ontario government announced that, effective July 2010, there would be a new tax system with the HST as the single sales tax. Accordingly, the province’s previous Retail Sales Tax (“RST”) ceased to exist as of July 2010. As a result of this new system, the respondent alleges that it undertook an analysis of its RST-related work and identified various managerial positions impacted by the new sales tax regime, including the applicant’s job. In March 2010, the respondent negotiated an agreement with the federal government for its HST-impacted employees, like the applicant, to be eligible to transfer the CRA. Consequently, the respondent advised the applicant that his position as a Tax Administration Manager was being eliminated as part of the HST initiative and that he was eligible to transfer to a comparable job with the CRA.

13The respondent alleges that it is entitled to organize its workplace as considers appropriate and denies the applicant’s contention that the Minutes of Settlement provide that he must be permanently kept in the Tax Administration Manager position. The respondent submits that the Minutes of Settlement simply required it to offer the applicant the job as a Tax Administration Manager in the Mississauga regional office. The respondent alleges that the terms of the Minutes of Settlement were fully complied with when it offered the applicant this particular position and that there is no on-going obligation.

14In sum, the respondent submits that it never promised a job guarantee to the applicant and that nothing in the settlement can be implied to incorporate such an agreement or fetter the respondent’s right to control its workplace.

ANALYSIS

15The onus is on the applicant to establish the contravention of the settlement. In order to do so in the case at bar, the applicant must persuade the Tribunal that, on a balance of probabilities, a term or provision of the Minutes of Settlement agreed to by the parties guaranteed the applicant a particular job and that the respondent infringed this aspect of the agreement.

Settlement Paragraph 2

16Paragraph 2 of the Minutes of Settlement details the title, location and pay scale of the position that the respondent agreed to “offer” to the applicant.

17The applicant’s submissions suggestion that I should interpret paragraph 2 broadly to convey that, upon offering the job to the applicant, the respondent was bound to maintain the applicant in the job indefinitely or as the applicant submitted until he retired or was discharged for cause. I cannot agree with this interpretation. I find that paragraph 2 simply states that the respondent was required to provide the applicant with a job offer for the identified position, in a specified location and within a particular pay range. The language used in paragraph 2 is clear – the respondent was undertaking to offer the applicant a specific job. To give effect to the applicant’s submissions would require me to expand the scope of paragraph 2 beyond the actual wording of the provision.

18In addition, I have carefully reviewed Exhibit A as referenced in paragraph 2 and as attached to the settlement. There is nothing in the Letter of Employment which augments the terms of the settlement or the meaning of the terms to suggest that the respondent agreed to maintain or guarantee the applicant in the Tax Administration Manager job. I agree with the respondent that, once the applicant accepted the job offer, the employment relationship was governed by the Letter of Employment and common law.

19I can assign no other meaning to the word “offer” as included in paragraph 2 than the ordinary sense of ‘a proposal for acceptance or rejection’. As such, I do not conclude that paragraph 2 itself, or as read as whole with the Letter of Employment, obliged the respondent to keep the applicant indefinitely in the Tax Administration Manager position.

20The applicant further alleges that, during the negotiations of the settlement, it was his understanding and that of the Commission’s that there was no time limit on the agreement and, therefore, he was to be kept permanently in the position provided for in paragraph 2.

21Even if I were to accept the applicant’s contention that both he and the Commission understood that he was being placed in the job permanently, this does not mean the respondent also intended for the settlement to guarantee the applicant a job. A party’s beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement constitute extrinsic evidence which, in accordance with the parol evidence rule, cannot be considered when interpreting the meaning of the words of the contract. Thus, in the absence of any exceptional circumstances, I cannot impute the applicant’s intentions and beliefs into the written word of the agreement. As explained in Barter v. Bata, 2010 HRTO 325, “there is no basis to circumvent the parol evidence rule, whereby an agreement is to be interpreted on the basis of its provisions and a court or tribunal will not entertain ancillary evidence about the parties’ intentions.”

22I agree with the respondent that if the parties intended to give the applicant an absolute entitlement to the position offered in paragraph 2 then such a right would have been explicitly stated in the Minutes of Settlement or Letter of Employment, particularly given the magnitude of the benefit.

Settlement Paragraph 12

23The applicant relies heavily on the fact that paragraph 12 of the settlement includes the phrase that in the event the agreement is approved by the Commission “it shall continue to bind the parties.” The applicant asserts this phrase crystallizes the obligation on the respondent to keep him continuously employed as a Tax Administration Manager until either he retired or is dismissed for just cause. The applicant submits that the word “continue” means to ‘exist over period time or indefinitely’ and the expressed inclusion of the word “continue” in paragraph 12 is evidence that the respondent is required to maintain him in the job on an on-going basis.

24The respondent alleges that the applicant has misinterpreted the phrase “shall continue to bind the parties” in paragraph 12 to infer that the agreement provides him a guaranteed job, when, in fact, the respondent submits, no such entitlement exists. The respondent submits that paragraph 12 must be read in the context of paragraphs 11 and 13 and section 43 of the Code.

25I accept the respondent’s submissions that paragraph 12 must be read in conjunction with paragraphs 11 and 13 and find that the language of these provisions do not convey or provide that the respondent must continuously maintain the applicant in the job offered in paragraph 2.

26As explained in Glover v. 571566 Ontario Inc., 2011 HRTO 1563, when the applicant’s original complaints were settled in 2004, the Commission had carriage of the complaints and was a party to all proceedings. Prior to the current version of the Code taking effect on June 30, 2008, the Commission’s standard practice was to place these types of agreements before its Commissioners for approval of the terms of settlement: Schleifer v. Toronto (City), 2008 HRTO 182. Therefore, in order for a settlement to be binding on the Commission, the settlement had to be approved by the Commission: Glover, para 66.

27Paragraphs 11-13 set out a series of steps that can or may occur in attempting to secure Commission approval for there to be a final and complete settlement involving the Commission. Specifically, paragraph 11 speaks to the interim period awaiting Commission approval, paragraph 12 addresses when approval is secured and paragraph 13 is operational if no approval is given. Given that the Commission did provide approval of the agreement, paragraph 12 was triggered and paragraph 13 did not apply.

28Accordingly, in the circumstances of this case, the Minutes of Settlement were binding on the parties on an interim basis from February 19, 2004 until the Commission provided approval. Upon approval by the Commission, which occurred on March 10, 2004, the agreement took full effect and became a Commission-approved settlement binding on the parties and the Commission. By virtue of section 43 of the Code, an infringement of the terms of a Commission-approved settlement gave rise to an independent ground for a complaint under the Code.

29However, contrary to the applicant’s assertion, this continuation of the settlement from the pre-approval stage to the post-approval stage in no way converted the job offered in paragraph 2 into a job guarantee. The language “shall continue to bind the parties” references the transition from an agreement that only bound the parties to a full and final settlement that included the Commission, which, if violated, could give rise to an independent contravention complaint.

30In summary, I do not accept the applicant’s submission that the phrase “shall continue to bind the parties” in paragraph 12 connotes that the parties agreed that the job offer was intended to be a permanent position. Nothing in the Minutes of Settlement and/or the Letter of Employment can be interpreted to suggest that the respondent acceded to provide the applicant with the Tax Administration Manager position until retirement.

31I find that the language of the Minutes of Settlement is unambiguous and supports the respondent’s position that the agreement merely entailed an offer of employment. The applicant was unable to present clear and cogent language of a job guarantee or persuasive evidence, on a balance of probabilities, that this was the parties’ mutual intention in establishing the job offer set out in paragraph 2. For the foregoing reasons, I find that the respondent did not violate the Minutes of Settlement.

CONCLUSION

32In his written and oral submissions, the applicant noted that he had serious concerns regarding the respondent’s alleged unfair treatment and made allegations with respect to discrimination and reprisal arising out of the events surrounding the elimination of his position. As made clear in the Tribunal’s Case Assessment Direction, the hearing into the current Application pertained only to the question of whether or not the Minutes of Settlement were contravened. I did not consider the applicant’s allegations with respect to sections 5 and 8 of the Code and nothing in this Decision addresses any alleged rights or violations in that regard.

33Accordingly, the Application is dismissed.