King v. Ontario (Health and Long-Term Care), 2011 HRTO 2228

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Applicant

-and-

Her Majesty the Queen in right of Ontario, as represented by the Minister of Health and Long-Term Care and the Minister of Community and Social Services

Respondents

DECISION

Adjudicator: Michelle Flaherty Date: December 12, 2011 Citation: 2011 HRTO 2228 Indexed as: King v. Ontario (Health and Long-Term Care)

BACKGROUND

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The parties participated in a mediation on October 27, 2011 at the conclusion of which the parties completed and executed a Form 25, confirming that they had entered into minutes of settlement and waiving their right to make oral submissions before the Tribunal.

2The Form 25 was filed with the Tribunal. However, before the Tribunal had administratively closed its file, the applicant sought to set aside the minutes of settlement and the Form 25 and to proceed with the Application. In letters to the Tribunal (copied to the respondents) dated October 27 and October 28, 2011, the applicant asked that the Tribunal void the Form 25 and the minutes of settlement. He stated, among other things, that he had signed them under duress.

3In a Case Assessment Direction (“CAD”) dated November 7, 2011, the Tribunal sought submissions from the parties regarding how the issues raised in the applicant’s correspondence of October 27 and 28, 2011 should be addressed. The Tribunal invited the parties to consider its decision in Der Von Felix v. Super Telecommunications, 2008 HRTO 400.

4The parties have filed submissions as directed.

5For the reasons that follow, the request to void the Form 25 and the minutes of settlement is denied. The parties have entered into a binding settlement agreement, the finality of which does not depend upon the Tribunal administratively closing its file. Even if the applicant’s allegations regarding the circumstances surrounding the signing of the minutes of settlement and the Form 25 were accepted, they do not amount to duress and do not form a basis for setting aside the agreement and proceeding with the Application. The Tribunal will close its file.

THE POSITIONS OF THE PARTIES

6The parties entered into minutes of settlement, following a mediation facilitated by a Tribunal member. The applicant states that he entered into a settlement agreement with the respondents under duress, based on the threat that his entitlement to Ontario Disability Support Program (“ODSP”) benefits would be compromised if he challenged the wording of the settlement. He states that he felt intimidated and that he felt he had no choice but to enter into the settlement agreement. The applicant states that he had no input in the drafting of the minutes of settlement and that the mediator pressured him and favoured the respondents.

7The applicant states that he felt rushed by the mediator. He states that the mediation ran beyond the allotted time and that the mediator had another matter scheduled. According to the applicant, the mediator “unduly pressured” him and lead him to enter into an agreement in haste. The applicant further states that the mediator became angry and exasperated, that he badgered the applicant and used foul language. He also states that the mediator did not appropriately address the applicant’s concerns about how the settlement would affect his receipt of ODSP benefits.

8The applicant states that his request to void the settlement was timely and that there would be no prejudice to any party in proceeding with the Application. He also expresses dissatisfaction at the terms of the settlement between the parties: he states that the settlement itself does not accommodate his disability and that, in any event, the settlement in this case did not resolve the issues raised in the Application. The applicant argues that, unlike in Der Von Felix, supra, he is not asking the Tribunal to reconsider a decision. This case is different because the Tribunal’s file has not yet been closed. The applicant disputes that it would be an abuse of process to proceed with the Application in the circumstances.

9Both respondents have filed submissions in which they ask the Tribunal to deny the applicant’s request to set aside the minutes of settlement and proceed with the Application.

10The Ministry of Health and Long-Term Care states that there are strong policy reasons against setting aside a settlement agreement. It states that the applicant’s arguments do not amount to duress. This respondent further states that the applicant did have an opportunity to negotiate the terms of settlement and that, in the course of discussions, amendments to the proposed terms were made at the applicant’s request.

11The Ministry of Community and Social Services argues that it would be an abuse of process for the Application to proceed given the settlement agreement between the parties. It also states that the applicant’s arguments, even if accepted, do not amount to duress.

ANALYSIS

12There is no dispute that the parties in this matter reached a written agreement regarding the settlement of the Application. The respondents filed a copy of the minutes of settlement along with their submissions. They contain release language.

13Subsection 45.9 (1) of the Code states:

If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

14The issue for me to determine is whether the Tribunal’s file should be closed in light of the Tribunal’s receipt of a signed Form 25 or whether there is a basis for the Application to proceed.

15While this matter is different from Der Von Felix, supra, in that it does not involve a request for reconsideration, some of the principles set out in that decision are of general application. In particular, at paragraph 17 of Der Von Felix, the Tribunal states:

The Code provides that a settlement that is in writing and signed by all the parties is final and binding on all the parties. The final and binding effect of a settlement is independent of the Tribunal issuing a Form 4 Order disposing of the complaint.

16Thus, the fact that the Tribunal has not administratively closed its file or issued an order or a letter disposing of the Application has no bearing on the finality of the settlement agreement between the parties. Where the parties have entered into minutes of settlement and provided a signed Form 25, the Tribunal will close its file. I am not satisfied that, in the circumstances of this case, it is appropriate to for the Tribunal to deviate from that general practice.

17First, it is not for the Tribunal to determine the appropriateness of a settlement agreement between the parties, nor is it for the Tribunal to consider whether a settlement agreement addresses all of the issues raised in the Application. In determining whether there is a basis to permit the Application to proceed, the issue is not the appropriateness of the terms of settlement but whether the agreement the parties entered into is legally binding and final.

18The applicant argues that, given his timely request, there is no prejudice to any party in proceeding with the Application. I disagree. There are strong public policy reasons for giving effect to settlement agreements signed by the parties. Not only the respondents, but the administration of justice, would be prejudiced by disregarding a settlement agreement or a signed Form 25 absent compelling reasons.

19The applicant has stated that, in the circumstances, duress is a compelling reason for setting aside the agreement and the Form 25.

20The applicant has the onus of establishing that the circumstances surrounding the conclusion of the agreement amount to duress. The legal threshold is an exacting one, which recognizes the strong public interest in the principle of finality. The Ontario Court of Appeal described the elements of duress as follows in Taber v. Paris Boutique & Bridal Inc, 2010 ONCA 157, at para. 9:

It must have two elements: it must be pressure that the law regards as illegitimate; and it must be applied to such a degree as to amount to “a coercion of the will” of the party relying on the concept.

21It is clearly not for me to determine whether the mediator’s alleged behaviour was appropriate: see Der Von Felix, supra, at para. 21. Rather, I need to consider whether the applicant’s allegations (if accepted) amount to duress and whether the settlement agreement ought to be set aside in the circumstances.

22Even if I assume (without deciding) that the applicant’s allegations regarding the pressure applied to him during the mediation process are established, I conclude that this did not amount to illegitimate pressure, nor was it applied to such a degree as to constitute a coercion of the will.

23Parties do generally feel some pressures in the course of litigation, including as they engage in settlement discussions. Mediation is an exercise in encouraging parties to achieve compromise and reach settlement terms. Importantly, not all pressure applied in these circumstances is illegitimate, constitutes duress or has legal consequences. As I have explained, the legal threshold for duress is a high one.

24In this case, even if the mediator badgered, rushed, or applied pressure to the applicant to enter into a settlement agreement, there is no basis to conclude that this met the high onus of duress and constituted a coercion of the applicant’s will. Indeed, nothing the applicant has alleged in this regard goes beyond what one would normally expect to occur during mediated settlement discussions.

25Although the applicant states that he was “unduly pressured”, nothing in the examples he cites lead me to conclude that the pressure applied was “undue”. Mediation is a voluntary process. While the applicant felt pressured to accept a settlement agreement, he does not allege (nor is there any basis to conclude) that he could not have turned down the respondents’ offer and ended settlement discussions.

26While I do not condone the use of foul language, based on the applicant’s submission and in the circumstances of this case, I find that the allegations of swearing, even if true, do not support a finding of illegitimate pressure or coercion of will that constitutes duress.

27Finally, there is no basis to set aside the settlement agreement because of the mediator’s alleged failure to address the applicant’s concerns regarding his eligibility for benefits. A mediator’s role is to facilitate settlement discussions, not to provide legal advice to the parties. I note that the applicant states that, at one point, the mediator interrupted a telephone call he was having and asked to whom he was speaking. It is not clear to me that the applicant is alleging the mediator interfered with his ability to obtain legal advice. In any event, there is no allegation that the applicant did not have a further opportunity to continue the telephone conversation he said was interrupted.

DECISION

28The Tribunal will close its file. The parties to the Application entered into a binding settlement agreement and have filed a Form 25 with the Tribunal, confirming that the matter has been settled. I am not satisfied that there is any basis to set the settlement agreement or the Form 25 aside or to otherwise proceed with the Application.

29For all of these reasons, the Applicant’s request to set aside the settlement agreement is dismissed.

Dated at Toronto this 12th day of December, 2011.

”signed by”

Michelle Flaherty Vice-chair