HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Solcan

Applicant

-and-

The Corporation of the City of Kitchener

Respondent

-and-

Canadian Union of Public Employees Local 791

Intervenor

DECISION

Adjudicator: Kathleen Martin

Date: December 7, 2011

Citation: 2011 HRTO 2205

Indexed as: Solcan v. Kitchener (City)

APPEARANCES

Christine Solcan, Applicant ) Gregory P. Dewar, Counsel

The Corporation of the ) Paula M. Rusak, Counsel City of Kitchener, Respondent )

Canadian Union of Public Employees, ) Paul O’Ryan, Counsel Local 791, Intervenor )

1This is an Application filed on September 14, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was discriminated against on the grounds of disability and reprisal in the context of her employment and the termination of her employment with the respondent.

2In its Response, the respondent seeks dismissal of the Application on the basis that the applicant has signed a full and final release with respect to the same subject matter. The respondent states that the applicant’s union filed a grievance on May 14, 2008, dealing with many of the same issues identified in the Application and a subsequent grievance on September 19, 2008, dealing with her termination. On October 2, 2008, the parties entered into Minutes of Settlement (“MOS”) resolving the discharge grievance. The respondent submits that as a result of these MOS, the applicant should not be permitted to proceed with the Application.

3In her Reply, the applicant submits that the MOS should not bar her from proceeding because she had no opportunity to consult counsel and was under duress. The applicant also argues that the language of the MOS is limited to a resolution of the discharge grievance and does not extend to the human rights issues raised by the Application.

4Pursuant to an Interim Decision, 2010 HRTO 663, a hearing was scheduled to address the following issues:

• Should the Application or a part of the Application against the respondent be dismissed because of the Minutes of Settlement signed October 2, 2008, whether because it would be an abuse of process to proceed or otherwise?

• Should the Application or part of the Application against the respondent be dismissed pursuant to section 45.1 of the Code because the substance of the Application has been appropriately dealt with by the Minutes of Settlement signed October 8, 2008?

• Is all of the Application timely under section 34(1) of the Code such that it was filed within one year after the incident to which it relates or if there was a series of incidents, within one year after the last incident. If there was any delay in filing the Application, was it incurred in good faith and with no substantial prejudice to any person affected by the delay?

5A hearing was held to hear evidence and submissions on the issues on June 23, 2010, which continued on February 14, 2011. Between these two dates, the applicant’s union filed a Request to Intervene which was granted: 2010 HRTO 1920.

6For reasons that follow, the Application is dismissed. I find that it would be an abuse of process to proceed with the allegations concerning the termination of the applicant’s employment. I further find that the applicant cannot proceed with the allegations that predate the termination because of delay.

Overview of Events

7The following overview is based on the materials filed by the parties in advance of the hearing and the evidence given at the hearing.

8The applicant was employed by the respondent as a senior financial analyst from July 2000 until September 15, 2008. The substance of the Application stems from an alleged failure to accommodate the applicant in respect of disability. The applicant alleges that she has various physical aliments and suffers from depression; that the respondent was aware of these conditions; and that it failed to accommodate her both during her employment and in her termination. The allegations summarized in the Application commence “shortly after” a meeting on February 22, 2007, at which time the respondent raised concerns about the applicant’s job performance and continue until her termination on September 15, 2008, for an alleged failure to perform to expectations in her position. Among other things, the applicant alleges that she was treated in a humiliating and demeaning manner in the various meetings held and that she was not provided with accommodation.

9The applicant’s union filed two grievances in 2008. On May 14, 2008, the applicant filed a grievance as a result of the respondent conducting meetings with her about her job performance without union representation. On its face, the grievance refers to various allegations, one of which is that the respondent ignored or dismissed the vulnerable state of the applicant in the comments made about her work performance. In the applicant’s testimony, she stated that the failure to take her health issues into account was one of the reasons for filing the grievance. Notwithstanding this, at the hearing, the parties, including the applicant through her counsel, agreed that the grievance was “not” filed to address accommodation issues. The parties and union also agreed to other facts including that the grievance had never been formally withdrawn although as it had not been moved along in accordance with the time frame set out in the collective agreement, the respondent assumed it was no longer an active grievance.

10The applicant’s union also filed a discharge grievance on September 19, 2008, alleging that the applicant was unjustly discharged and seeking immediate reinstatement and compensation for all lost wages, benefits and seniority. In her testimony the applicant stated that the discharge was “unjust” because the respondent failed to accommodate her because of her anxiety and depression. The applicant stated that the last time she articulated a request for accommodation was in May 2008.

11On October 2, 2008, the applicant and representatives of the parties entered into Minutes of Settlement. The preamble to the MOS set out that the parties agree that “the following terms and conditions constitute full and final settlement of the above noted grievance” (which referenced the discharge grievance). The terms of the MOS included the substitution of the termination letter with a resignation; a term governing the provision of references; continuation of the applicant’s regular weekly pay cheque from September 16, 2008 up to and including January 15, 2009; continuance of benefit coverage and OMERS deductions and credits for the same period as if the applicant was employed as a full-time employee; withdrawal of the discharge grievance; and a provision that all matters pertaining to the MOS would be contained in a sealed file. The MOS references that the agreement is “final and binding upon the parties”.

12The MOS does not contain any release language.

13I heard evidence from three witnesses about the grievance meeting that resulted in these MOS: the applicant; Lesley Bansen, a human resources manager; and Deborah Hirdes, a national representative for the applicant’s union. The parties also agreed to the evidence of two additional witnesses for the union. In general, while there were minor differences in the respective accounts of the grievance meeting, I do not find them critical for the issues being determined in this Decision.

14The meeting took place in the morning of October 8, 2008 and lasted approximately 2 to 2.5 hours. Initially, the applicant met with several union representatives, including Ms. Hirdes, for approximately an hour. The evidence reflected that the applicant was crying and upset during her meeting with the union, although as Ms. Hirdes stated, she assumed it was because the applicant had been terminated. Ms. Hirdes stated that this is not atypical for someone in her circumstances. After this meeting, the union met directly with respondent representatives and then communicated the outcome of the discussions to the applicant. The applicant only interfaced with the respondent representatives when the MOS was signed later that day.

15While the applicant testified that she went into the meeting hoping to obtain reinstatement with accommodation, it does not appear the human rights issues including accommodation were expressly raised by the applicant or discussed by the parties.

16In the meeting various options were canvassed with the applicant. The applicant was offered reinstatement to a different vacant position (albeit for a position that was paid at a rate $20,000.00 less than her former position); continuing with the grievance to arbitration (subject to the union membership supporting the same); and the option she eventually accepted which is set out in the MOS. The applicant states that she was told that the monetary offer presented was only valid at the time and if not accepted would be withdrawn. Around mid-day, the meeting was adjourned for a lunch break. The applicant states that she understood she was to provide an answer after the lunch break.

17There were some minor differences in the evidence about whether the applicant had lunch with the union representatives or not, but I do not find them relevant for purposes of the Decision. For purposes of this Decision I have accepted the applicant’s evidence that she did not go to lunch as she felt sick and that she broke down over the lunch break. The applicant contacted her father and after speaking with him decided to take the offer now reflected in the MOS. While conceding that she could have elected either of the other two options, the applicant testified that she agreed to the option selected because she felt “backed into a corner”. She states that she had just purchased a house, was a single income household and had substantial legal bills. The applicant states that she felt that if she did not sign, she could lose her house and possibly go bankrupt.

18The applicant did not ask for more time to consider her position nor did she ask to consult counsel. The applicant states that she thought the latter was not available to her as she was represented by the union.

19By all accounts the applicant was visibly upset after signing the MOS. The applicant was crying and exchanged words with Ms. Bansen about feeling that she was being treated like “garbage”. The applicant states that Ms. Bansen told her that hopefully she could get the help she needed through the counselling centre (which Ms. Bansen gave her contact information for). Ms. Bansen’s evidence contained only minor differences although she suggested that the card may have been given at the termination meeting. Ms. Bansen stated that persons in the applicant’s circumstances are generally very upset at these meetings.

20To the extent there are differences between the evidence of the applicant and Ms. Bansen, I do not find them significant. I accept that the applicant was visibly upset, that Ms. Bansen gave her a card for a counselling centre at one of the two meetings, and that it is typical for persons who are terminated to be very upset at termination or related meetings

21As for the scope of the MOS, the applicant states that she viewed the MOS as relinquishing her rights regarding the discharge grievance and not other issues. The applicant states that she asked the CUPE national representative as to whether the MOS addressed future potential lawsuits and was told that the document dealt with the union’s grievance filed in September.

22As a result of the foregoing, the applicant states that she concluded that it did not deal with the other issues, which she clarified was the “original grievance filed in May 2008”. The applicant described this grievance as dealing with the failure to accommodate. The applicant states that in the beginning of September the union had told her they were trying to get in touch with her Director for a meeting about the grievance. The applicant never raised the issue with the union again and only brought it up when she met with her lawyer after her termination. The applicant states that she only learned that the respondent took the position that it was no longer outstanding when she received the Response in this proceeding.

DECISION

23The parties focussed their submissions on three main areas: whether the applicant had established duress (so as to vitiate the MOS); whether the Application should be dismissed because of abuse of process and/or section 45.1 of the Code; and whether the Application or a part of it was untimely.

24I note that the applicant had originally relied on the absence of counsel during the negotiations of the MOS to support her argument that the MOS should be set aside. This argument was not pursued in final submissions and therefore I do not find it necessary to address in any detail. In the particular circumstances of this case, I did not find the absence of counsel to have any bearing on the issue of whether the Application should be dismissed or not because of the MOS.

25I will turn first to the issue of duress.

Were the MOS signed under Duress?

26The applicant acknowledges that MOS were reached about her discharge, but argues that the MOS should not limit her remedy because they were signed under duress. In support of this submission, the applicant relies on a number of factors including her mental state at the time, the absence of a guarantee of arbitration, the time limited nature of the offer, her financial stress and a “history of mistreatment by the City”. The applicant argues that these factors considered together establish duress since she had no choice but to accept the offer.

27The respondent argues that the applicant has not met the test for duress as the applicant essentially relies on economic and time pressures, which are not sufficient to establish duress or coercion. The respondent also notes that the argument of duress was only raised as an afterthought in the applicant’s Reply, which should diminish its significance. The union made similar submissions.

28Where “duress” is put forward as the reason for vitiating a settlement agreement, the party claiming duress must establish that he or she entered the agreement against his or her own free will.

29“Duress” has been defined as “…a threat of harm made to compel a person to do something against his or her will or judgment…” See Black’s Law Dictionary, 8th ed. (St. Paul, Minn.: Thomson West, 1999). “Economic duress” is similarly defined as “…an unlawful coercion to perform by threatening financial injury at a time when one cannot exercise free will.”

30In this case, even accepting the applicant’s evidence of her emotional and financial circumstances and the surrounding circumstances in the settlement meeting, I do not find that I can conclude that she was compelled to enter into an agreement because of duress.

31I accept that, at the time the applicant’s employment was terminated she had significant financial pressures as is reflected in paragraph 17 above. However, it is clear that economic pressure alone is not sufficient to establish duress. As stated in Kailani v. Securitas Canada, 2009 HRTO 1183, at paragraph 35:

…Each case must be considered on its own merits and economic duress is a factor that may be considered. However, it seems apparent that the test for economic duress is high. Most people who have had their employment terminated are faced with economic difficulty. Financial difficulty alone cannot therefore be sufficient. If it were, almost every settlement arising out of the termination of employment could be violated.

32The applicant also relies on her mental state, stating in her testimony that on that day she broke down over the lunch hour and then again after she signed the MOS, elaborating that she felt worthless, humiliated and embarrassed and had thoughts of suicide. While not including the detail present in the applicant’s evidence, the other witnesses who testified confirmed the applicant was crying and upset at the beginning of the day and after she signed the MOS.

33Notwithstanding the absence of medical evidence, I accept that the applicant had been treated for depression in the past and was very upset at different points during the day of the settlement. Moreover, I also accept that the applicant was under various other pressures including financial and pressures inherent in a settlement meeting (the uncertainty of litigation (in this case arbitration) and the time limited nature of the offer. However, I do not accept that this evidence is sufficient to conclude that the applicant was coerced or compelled under duress to agree to the MOS (see Parma v. Stoney Creek Lifecare, 2010 HRTO 501, at paras. 11 and 30).

34The evidence does not support a conclusion that the applicant had a disability which prevented her from understanding the agreement and the various options that were presented to her. In fact, the applicant conceded in her evidence that there were other options available to her and it is clear that she made a choice based on her view of what was the preferred option given her circumstances. Further, while there is no doubt that the respondent wanted a decision that day, the applicant was given time over the lunch break to call her father, and returned after the lunch break when she accepted the offer. The applicant did not request further time nor did she ask for an opportunity to discuss the offer with anyone else such as counsel. There is no suggestion that the respondent and/or her union threatened the applicant that she had to accept the option chosen. In sum, when I consider all of the circumstances, I find no basis on which to conclude that the applicant was forced or compelled under duress to accept the MOS.

35In the circumstances, I can only conclude that the applicant freely entered into the MOS.

Should the Application be dismissed on the basis of section 45.1 or abuse of process?

36Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

37In addition, section 23 (1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, 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.”.

38In this case, the respondent relied on both section 45.1 and abuse of process to support its argument that the Application should be dismissed because the applicant entered into a full and final settlement of her employment issues. In addition, the respondent argued that the allegations that predated the termination were out of time. The union made limited submissions which were for the most part consistent with the respondent’s argument that it understood that the MOS addressed all of the applicant’s concerns and that there would be no further action taken.

39The applicant argues that neither section 45.1 nor abuse of process should apply as the MOS do not address the human rights issues. The applicant argues that the accommodation issue was not part of the grievance, there was no release of human rights issues and the grievance and MOS do not contain any reference to human rights including any claim/relief for “general damages”. The applicant states that to the extent she received four months’ pay and benefits, there may be some kind of set-off in any remedy provided in this proceeding.

40I find that the issues before me can be disposed of based on the Tribunal’s abuse of process principles and delay.

Abuse of Process

41The Tribunal has dismissed applications as an abuse of process where an applicant has entered into a settlement which contain a full and final release and/or which resolve his or her outstanding employment issues.

42In Messiah v. Snap-on Tools of Canada, 2010 HRTO 1151, the Tribunal applied abuse of process to dismiss an application where the settlement did not include a release but where it was apparent from the agreement that the parties intended to resolve all outstanding employment issues. In that Decision, the Tribunal stated that “the question is whether it would be unfair to permit the proceeding to continue having regard to the terms of the memorandum of settlement and all of the surrounding circumstances.” See also Holowka v. Ontario Nurses Association, 2010 HRTO 2171, and Zu v. Hamilton (City), 2010 HRTO 2461.

43In this case, I am satisfied that notwithstanding the absence of a typical release, it would be unfair to permit the Application to proceed on the issue of the discharge.

44On its face the MOS are framed as a “full and final settlement” of the discharge grievance. The discharge grievance expressly claims that the “corporation has violated the collective agreement with Cupe 791 by unjustly discharging Christine Solcan”. While the discharge grievance does not include an express reference to human rights, I find that if the grievance had not resolved, the arbitrator would have had the jurisdiction to interpret and apply the Code in assessing the justness of the discharge. In fact the Tribunal routinely defers its proceedings to the grievance and arbitration process given the clear jurisdiction of an arbitrator to consider human rights issues.

45In addition, I find that a consideration of the terms of the settlement supports a conclusion that there would not be future litigation regarding the applicant’s discharge. A term of the MOS was the substitution of the termination by a resignation dated September 15, 2008 where the applicant stated “Effective immediately I am resigning from my position due to personal reasons”. While in submissions, counsel for the applicant suggested that this term was of no consequence, I disagree. I find it is inconsistent with a claim in an application 11 months later that the applicant was “terminated” contrary to the Code.

46Further, I find that the applicant’s testimony supports my conclusion. When asked why her discharge was unjust (as set out in the grievance), the applicant responded that she had been discriminated against by not being accommodated, thus suggesting that she viewed the grievance as inclusive of a human rights issue. Thus, this is not a case where the applicant was unaware of the human rights aspect of the discharge grievance until after she settled the issue.

47Finally, in describing what remained outstanding after the MOS, the applicant identified the May 2008 grievance, which she stated included a request for accommodation. While the applicant suggested that this issue continued to be outstanding at the time of her termination (a claim I do not accept, as explained below), what I find notable is that she focussed on the earlier grievance as being the outstanding issue.

48I find that considering the language of the MOS and all of the surrounding circumstances, it would be unfair to permit the applicant’s allegations about her termination from employment to continue. The applicant viewed her termination as unjust because of the alleged failure to accommodate her and agreed to a full and final settlement of her termination (which included her resignation from employment and other favourable terms). I find these MOS binding with respect to her termination and find that to permit this part of the Application to proceed would be an abuse of process.

49I find otherwise in respect of the allegations that precede the discharge. The MOS is clearly limited to the discharge grievance and there was no evidence provided by any witness that would suggest that it was intended to cover other issues. In fact, although there was an earlier grievance and a request for accommodation, albeit a request that is somewhat ambiguous, neither the document nor the evidence about the surrounding circumstances supports a conclusion that the accommodation issue was resolved. Thus, subject to the issue of delay, I would allow these allegations to continue.

Are the Remaining Allegations Untimely?

[50] Section 34 of the Code states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

51Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist: that the delay was incurred in good faith and no substantial prejudice will result to any person affected.

52As stated in Miller v. Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.

53In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2): See Miller, above.

54In this case, the applicant argues that the Application is not untimely because the applicant made a request for accommodation in May 2008 and accommodation was never provided. In short, the applicant argues that the last incident is not the request for accommodation in May 2008 but the respondent’s ongoing failure to accommodate which continued right up to the termination.

55I have some difficulty in identifying the precise request for accommodation as the evidence was limited and somewhat inconsistent. The applicant testified that it was encompassed in the May 2008 grievance, whereas she separately agreed that the grievance was not meant to address accommodation issues. Notwithstanding the foregoing, for the purposes of this Decision, I have accepted that there was a request in May 2008 at an unspecified date. There appeared to be no dispute that the May 2008 grievance was denied on June 6, 2008.

56Accepting these facts, I do not see how I can reasonably conclude that the last incident can be defined as the respondent’s ongoing failure to accommodate up to and including the date of termination. This is not a case where the parties were having ongoing discussions about accommodation. The respondent did not accommodate the applicant in response to her request in May 2008 (in fact the respondent’s position was that the applicant had taken the position through her union that she could perform the work of her position as confirmed in a letter dated May 12, 2008 sent to the applicant from the respondent). While the respondent agreed that it got a request for a meeting about the May grievance in September, there was no evidence that it pertained to the request for accommodation nor was the grievance formally moved along; instead the evidence was that the time limit had expired to proceed to the next step. Further, there is no evidence that applicant ever raised the issue again during her employment such that a fresh allegation was made. In this context, while the applicant may have genuinely believed the issue was outstanding, there is no basis for reasonably concluding that it was outstanding such that it would qualify as an incident within the meaning of the Code.

57Accordingly, I find that the last incident is the request for accommodation in May 2008 which was not accepted by the respondent at that time. To the extent the accommodation issue is associated with the May 2008 grievance, that grievance was denied on June 6, 2008. Having regard to the foregoing, the accommodation allegation has been filed more than one year after the incident to which it relates, which makes it untimely subject to the applicant establishing that any delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay.

58In support of her contention that the delay was incurred in good faith, the applicant relies on the union’s ongoing involvement in her issues, her ongoing communication with her supervisor and a period of depression which lasted from the time she was terminated to January 2009. The applicant states that in the period January 2009 on, the applicant was making inquiries and moving the process along.

59I do not find that any of these submissions, either considered separately or together, establish a good faith explanation for the delay.

60While the applicant was involved with her union after she made a request for accommodation, there was no evidence presented that she made submissions to her union after May 2008 that she was not being accommodated. Further and in any event, the applicant ceased having contact with her union after October 2, 2008, which does not explain the delay in the subsequent period.

61As for the applicant’s communication with her supervisor, there was no evidence presented about communication occurring in the period after May 2008 about the issue of accommodation so I have difficulty seeing this reason as a valid explanation for delay.

62Finally, the applicant relies on the period of depression experienced by her after her termination and settlement of the related grievance. In this respect, the applicant testified that for the first couple months after her termination she had difficulty getting out of bed and felt worthless. She states that her symptoms were severe until March 2009 although she started applying at places in February or March 2009 because she did not want to lose her house. The applicant states that it was not until June 2009 that she started to have improvement when she got a contract position.

63Notwithstanding the foregoing, the applicant states that when meeting with a lawyer regarding another issue in November 2008, she explained what happened at work and that lawyer suggested that she speak to another lawyer who was identified regarding her employment issues. She finally solicited a legal opinion at the end of 2008 or the beginning of 2009.

64The Tribunal has accepted that Code-related reasons such as a disability may provide a reasonable explanation for delay. However, I do not find that the applicant has presented sufficient evidence to establish that she had a disability which prevented her from filing her Application in a timely way.

65Even accepting that the applicant had a disability (depression) for a period of time after her termination, I do not find that I can conclude that this depression was sufficiently disabling that she could not make inquiries and commence her Application sooner, given that she gave evidence to the contrary. During the period that she experienced depression, the applicant was able to meet with counsel on a different issue in November 2008 and sought a legal opinion on this issue in late 2008 or early 2009. While the applicant may have had depression, I cannot conclude that her depression prevented her from engaging in all activities. Further, even on the applicant’s evidence, she was feeling better in March 2009; and as such I cannot conclude that her “depression” can account for the delay in not filing the Application until September 15, 2009.

66In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. Therefore, it is not necessary for me to consider whether substantial prejudice would result from the delay.

67The Application is dismissed.