Osborne v. Eveley International Corp., 2012 HRTO 1573

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Osborne Applicant

-and-

Eveley International Corp. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 14, 2012 Citation: 2012 HRTO 1573 Indexed as: Osborne v. Eveley International Corp.

WRITTEN SUBMISSIONS

Dennis Osborne, Applicant Andrew C. Bome, Counsel

Eveley International Corp., Respondent James D. Higginson, Counsel

INTRODUCTION

1The applicant filed this Application on March 6, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because disability and reprisal. The Application alleges that the respondent employer took steps to retaliate against the applicant because of the applicant's previous disability-related application, which was settled and closed by way of a Tribunal-facilitated mediation.

2The Application alleges that the respondent's discrimination and reprisal entailed various disclosures and statements to the Workplace Safety and Insurance Board ("WSIB") following a confidential mediation process in the previous Tribunal case. The Application alleges that the respondent reprised against the applicant by divulging confidential details surrounding the mediation and the settlement, including selective information about the parties' without prejudice offers. The Application alleges that the respondent further reprised against the applicant by refusing to allow the applicant to release more fulsome confidential details to the WSIB in order to respond to the positions taken by the respondent. The applicant alleges that the respondent's selective disclosure of the confidential information and the refusal to waive all confidentiality are deliberate acts to punish the applicant for his previous human rights application.

3The respondent filed a Response on June 25, 2012 denying the allegations of discrimination and reprisal. The respondent requests the Tribunal dismiss the Application on the basis that the applicant signed a full and final release with respect to the issues in dispute, specifically the settlement of the previous application. The respondent also asks that the Tribunal dismiss the Application because the WSIB has appropriately dealt with the substance of the Application in that the WSIB has determined the applicant was accommodated and refused additional compensation. The respondent alleges that neither a breach of confidentiality, nor any reprisal, has occurred. The respondent alleges that its correspondence to the WSIB was not part of the Tribunal's mediation process and was not confidential information. The respondent alleges that the applicant is unhappy with determinations made by the WSIB and is using the Tribunal get around an adverse decision.

4The applicant filed reply submissions objecting to early dismissal.

Full and Final Settlement

5The respondent requests early dismissal of the Application on the basis that the applicant signed a full and final settlement. The respondent provided a copy of the Minutes of Settlement signed by the parties on October 12, 2011 with respect to the applicant's previous human rights application. The Minutes of Settlement include a provision wherein the applicant releases the respondent from:

...any and all applications, claims, demands, complaints, or actions of any kind arising out of the events that gave rise to this application, and/or the Applicant's employment with the Corporate Respondent or the end of that employment...

6Based on the parties' submissions, it appears that the applicant's previous application was filed in 2010 and involved concerns of a work-related injury, modified work and termination of employment. While there is no doubt that a full and final settlement exists with respect to the applicant's previous application and the applicant has released the respondent from claims with respect to his past employment and the termination of that employment, I do not accept the respondent's argument that the settlement pertains to the post-termination allegations of discrimination and reprisal as made in the current Application.

7This Application makes allegations relating to events surrounding the Tribunal mediation and asserts that the respondent has violated mediation privilege and confidentiality. In addition to alleging that the respondent reprised against him with respect to selective communications with the WSIB in contravention of principles of mediation confidentiality, the applicant alleges that the respondent's on-going refusal to waive confidentiality prevents the applicant from defending against the respondent's discriminatory claims.

8The subject matter of the instant Application is different from that of the previous application and the settlement and release. The language of the Minutes of Settlement relates to the events during the applicant's employment and the events that led to the termination of employment. Although the previous complaint is the backdrop to this Application, the applicant's current allegations that the respondent retailiated against him is not the same subject matter of the earlier application. The events with respect to the alleged selective breach of confidentiality and subsequent refusal to waive confidentiality are separate incidents of discrimination and reprisal, which I conclude are not covered by the Minutes of Settlement.

9I find that it would be paradoxical if the respondent was permitted to preclude the applicant from pursuing his concerns of reprisal by relying on the very Minutes of Settlement that the applicant alleges were confidential and breached by the respondent.

10Accordingly, the respondent's request for early dismissal because of a full and final settlement is denied.

WSIB Process

11The respondent requests that the Application be dismissed on the basis that another proceeding, namely the WSIB process, has appropriately dealt with the substance of the Application pursuant to section 45.1 of the Code.

12Section 45.1 of the Code states:

45.1 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.

13The purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. See Campbell v. Toronto District School Board, 2008 HRTO 62, at paras. 29 to 31.

14As discussed above, the substance of the impugned conduct in this Application is discrimination and reprisal because of the respondent's alleged selective breaches of confidentiality and subsequent refusal to waive confidentiality. Based on the parties' materials, it appears that the WSIB proceeding relates to issues of loss of earnings benefits and return to work obligations. While the factual circumstances giving rise to the reprisal allegations are comprised of certain communications with the WSIB, the WSIB entitlements are not the subject matter of this Application. The disposition of the WSIB claims will not deal with the human rights issues in dispute in this Application.

15In sum, I find that the proceeding before the WSIB does not deal with the substance of this Application. Accordingly, I am not prepared to dismiss the Application on this basis of section 45.1 of the Code.

CONCLUSION

16The Tribunal orders as follows:

i. The respondent's requests for early dismissal are denied and the Application may proceed; and

ii. Given that the respondent has indicated a willingness to engage in mediation, within 14 days of the date of this Interim Decision the applicant is directed to write to the Tribunal, copied to the respondent, and confirm whether or not he is willing to participate in mediation.

17I am not seized of this matter.