Brown v. Primary Response Inc., 2012 HRTO 1827

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Brown

Applicant

-and-

Primary Response Inc.

Respondents

INTERIM DECISION

Adjudicator: Andrew M. Diamond

Date: September 25, 2012

Citation: 2012 HRTO 1827

Indexed as: Brown v. Primary Response Inc.

appearances

Tammy Brown, Applicant ) Self-represented

Primary Response Inc., Respondent ) Yvonne MacDonald, Representative

INTRODUCTION

1This decision arises from an Application that is one in a series of disputes between these parties. The applicant originally filed Application 2010-06181-I (the “first Application”) dated July 6, 2010, in which she alleged that her employer, the respondent, discriminated against her based on pregnancy and her record of offences. The first Application was settled prior to a hearing. On May 17, 2011, the applicant filed this Application in which she alleges that the respondent terminated her employment as a reprisal for her allegations in the first Application and thereby has violated her rights under section 8 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Finally, on August 12, 2011, the applicant filed Application 2011-09761-S (the “third Application”), in which she alleged that the respondent breached the terms of the settlement in the first application.

2The respondent requested that the Tribunal dismiss both this Application and the third Application. The Tribunal received written submissions from both parties and on March 1, 2012, the Tribunal issued a decision dismissing the third Application for lack of jurisdiction and issued a Case Assessment Direction (“CAD”) with respect to this Application directing a preliminary hearing be held. Specifically at paragraphs 3, 4 and 5 of the CAD the Tribunal directed that:

The respondent requests that the Tribunal dismiss the Application because the applicant signed a full and final release with respect to the same matter. The respondent provided a copy of a January 21, 2011 letter signed by the parties indicating that the parties had reached an agreement settling all outstanding disputes for a specific monetary amount.

It is appropriate for the Tribunal to decide, as a preliminary matter, the respondent’s request to dismiss. Accordingly, The Registrar will schedule a 1.5 hour conference call to hear submissions on the issue of whether the Tribunal should dismiss the Application as the result of the application having signed a release. (emphasis added)

At least 14 days before the conference call, the parties are direct to file with the Tribunal and copied to each other written submissions and any case law regarding the issue of whether the Application should be dismissed as a result of the release signed by the applicant.

3The respondent filed written submissions on May 13, 2012, and the applicant filed her responding materials on May 14, 2012. The Tribunal also had the benefit of oral submissions of the parties at the preliminary hearing which was conducted by conference call on May 28, 2012.

ARGUMENT

4The respondent argued that, pursuant to section 4.6 (1) of the Code, the Tribunal should dismiss the application because either (a) it is frivolous, vexatious or is commenced in bad faith; or (b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal. The respondent made no submissions on the issue of the release, which is the only issue on which the preliminary hearing was directed in the CAD.

5In its written submissions respondent argues that:

We strongly suggest that Ms Brown [sic] repeated filings against the respondent meet the requirements of 4.6 (1) (b). Further, for the Tribunal to allow this claim would be to mandate an employer to break a law as defined in the Provincial Offences Act, which we feels [sic] is not with in the Powers of Authority of the Tribunal to do and as such falls under 4.6 (1) (b).

Analysis

6First I note that, contrary to the respondent’s submissions, and to the extent that they apply in any event, it is in fact section 4.6 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), and not the Code, that provide:

4.6 (1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,

(a) the proceeding is frivolous, vexatious or is commenced in bad faith;

(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or

(c) some aspect of the statutory requirements for bringing the proceeding has not been met.

7Second, the issue of the filing of multiple applications by an applicant, in certain circumstances may be considered frivolous and vexatious, and in bad faith pursuant to section 4.6 (1) (a) of the SPPA, not section 4.6 (1) (b) as set out in the respondents’ written submissions. However, the respondent made no submissions on this point other than to express its opinion as quoted above. There are also serious doubts as to whether these provisions of the SPPA could even be said to apply, given the requirements under section 4.6 (6) of the SPPA and the provisions of the Code itself.

8Despite the specific directions in the CAD the respondent failed to provide the Tribunal with either a copy of the “Full and Final Release” in question, or any submissions on that issue. Nevertheless, I think it appropriate to deal with the issue of the release directed in the CAD.

9Section 23(1) of the SPPA 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. This Tribunal has held that filing a human rights application after signing a full and final release can constitute an abuse of the Tribunal’s process. (See, for example, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, at para. 31).

10The only document that the Tribunal is aware of that might constitute a release is a letter of agreement between the parties dated January 21, 2011, which appears to settle the first application. In that agreement the parties agreed that:

Pursuant to our meeting of Tuesday the 11th of January 2011…all cases filed against [the respondent] have been dismissed and considered null and void.

Both parties agree that any and all matters that may occur of a disciplinary nature in the future can and will at no time, be argued by yourself or [the respondent] based on the actions or issues addressed and settled in our meeting of 11th January 2011… [The respondent] and its Agents shall be held harmless in any action or legal proceedings in future related to the issued settled 11th of January 2011.

11It could be argued that the last sentence quoted above could be interpreted as a release from future applications to the Tribunal arising not only out of the facts of the first Application, but events more broadly relating to them. I thus assume that the respondent intended to argue that the applicant’s agreement to hold the respondent harmless in any proceedings broadly arising in the context of the facts from the first Application includes any application under section 8 of the Code.

12Section 8 of the Code reads:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing

13As the learned editor of The 2012 Annotated Ontario Human Code (Toronto: Carswell, 2012) states, (in commenting on Noble v. York University, 2010 HRTO 878):

The prohibition against reprisals is an important provision of the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation.

14The importance of section 8 in the integrity of enforcing the rights protected by the Code combined with the considerable jurisprudence which holds that a person cannot “contract out” of the Code (see for example Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, and Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42) lead me to conclude that the bringing of an application under section 8 of the Code, in the face of a release, is not an abuse of process in these circumstances, given that the alleged acts of reprisal or threats of reprisal occurred after the date the release was entered into and therefore related to future rights.

DECISION

15Having reviewed both the timing of the agreement in question as well as the alleged act of reprisal, I am of the view that the making of the Application in the face of the settlement agreement from the first Application is not an abuse of process. The Application should be allowed to proceed. The Tribunal will provide further direction with respect to the next steps in the proceeding.