Humphrey v. Community Living Huntsville, 2012 HRTO 1915

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Douglas Humphrey

Applicant

-and-

Community Living Huntsville, Laurel Shaw, Tracey Kuusk, Cathy Stroud, Judith Ruan, Judy Fulton-Hines, Ralph Jones, Gundy Upans, Scott Hayden, Jim Kitching, Linda McEachern, Doug Sullivan, Cheryl Ogston, Debbie Kirwin, Alana Hall, and Jessica Walton

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: October 9, 2012

Citation: 2012 HRTO 1915

Indexed as: Humphrey v. Community Living Huntsville

WRITTEN SUBMISSIONS

Douglas Humphrey, Applicant Self-represented

Community Living Huntsville, Laurel Shaw, Tracey Kuusk, Cathy Stroud, Judith Ruan, Judy Fulton-Hines, Ralph Jones, Gundy Upans, Scott Hayden, Jim Kitching, Linda McEachern, Doug Sullivan, Cheryl Ogston, Debbie Kirwin, Alana Hall, and Jessica Walton, Respondents Martin Smith, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application, filed on December 13, 2011, alleged that the respondents discriminated against the applicant with respect to employment because of a record of offences, and subjected him to reprisals. The applicant subsequently filed a number of further submissions which alleged that the violations of the Code were ongoing and culminated in the termination of his employment.

2An Interim Decision in this matter, dated June 7, 2012, summarized the applicant’s allegations as follows:

1. Ms. Shaw directed employees, including the applicant, to read, sign and return a package of documents, which required them to disclose all charges or convictions under the Criminal Code and the Highway Traffic Act. When the applicant asked Ms. Kuusk if he could lose his job because he was convicted of an offence under the Highway Traffic Act, she responded: “Maybe”.

2. After the applicant told Ms. Stroud and a Board member that the requirement to sign the documents and Ms. Kuusk’s comment were a violation of privacy legislation and the Code, Ms. Stroud, at the behest of the Board, subjected him to a series of reprisals, including disciplining him and terminating his employment. (2012 HRTO 1130, at para. 6)

3The materials now filed by both parties give further detail concerning the applicant's allegations of harassment and reprisal. They indicate that, some days after the Application was filed, the applicant received a sympathy card from the respondent employer instead of a Christmas card, which other staff received. The respondent indicates that this was an “inadvertence” and that the day after the sympathy card was sent, a representative of the employer apologized to the applicant. The respondent states that, on the same day the apology was given, the applicant filed a workplace violence incident report, claiming psychological abuse. The respondent states that, three days later, the applicant left work early, stating that stress from the card incident was causing him chest pain. The parties agree that the applicant provided a note from his family doctor to the effect that he needed time off work until further notice, and that there have been a number of allegations, reflected in both the Application and the grievances that have not yet been resolved, concerned with the applicant’s return to work.

4The June 7, 2012 Interim Decision noted from the applicant’s materials that some of his allegations appeared to have been settled in a grievance process. The Tribunal directed the respondents to address whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code and/or because it is an abuse of the Tribunal’s process. The Interim Decision also directed the respondents to address whether the Tribunal should defer the Application until any ongoing grievance process is completed. The applicant was invited to address these issues in his Reply.

5In their Response, the respondents have indicated that the applicant has filed four grievances in which he made the same allegations as the ones in the Application. The respondent state that one of the grievances has been resolved through arbitration and three grievances are pending. In their Response, the respondents enclosed copies of four grievances, as well as letters referring each grievance to arbitration. The respondents also enclosed a copy of a note signed by the applicant by a representative of the respondent which outlines the basis upon which the first grievance was withdrawn.

6The applicant filed a written response to the June 7 Interim Decision, which was received by the Tribunal on June 22, 2012. In his response, he confirms that he attended a mediation/arbitration hearing in respect of the grievance he filed pertaining to the direction by the respondents that staff must disclose charges or convictions under the Criminal Code and the Highway Traffic Act, and the two discipline letters associated with that incident. The applicant confirms that the note referred to above was a Memorandum of Settlement. Both the applicant and the respondent confirmed that the applicant attempted to “rescind” the settlement.

7The applicant's letter deals only briefly with his position as to why he should not be bound by the Memorandum of Settlement he filed. He refers to “false” or “inaccurate” information being given by his Union’s staff representative, but he does not identify what this information may be. While he mentions duress he does not explain why he should be considered to have signed the agreement under duress.

Dismissal Prior to a Hearing on the Merits

8The parties agree that the part of this Application that deals with the institutional respondent’s discipline of the applicant following his reaction to being required to disclose charges or convictions under the Criminal Code and the Highway Traffic Act was the subject of an arbitration that concluded in a settlement. The Tribunal has found that it would be an abuse of process to allow applications to proceed where the applicant has settled human rights discrimination allegations in the context of other proceedings. This reflects well-established jurisprudence developed in both courts and administrative tribunals. “When two parties contract to settle legal matters between them, the principle of finality demands that the contract be given effect and prevents parties from litigating settled matters, unless there are compelling reasons to set the contract aside altogether” (Donald J. Lange, The Doctrine of Res Judicata in Canada, Markham, Ontario: Butterworths, 2000, at 347-48). See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Perricone v. Fabco Plastics Wholesale, 2010 HRTO 1655, Sooriyakumaran v. Delta Chelsea Hotel, 2012 HRTO 34.

9The applicant has advanced no compelling reason as to why the settlement should be considered questionable. In the circumstances, I find that the part of the Application that deals with the institutional respondent’s discipline of the applicant following his reaction to being required to disclose charges or convictions under the Criminal Code and the Highway Traffic Act should be dismissed.

Deferral of Other Aspects of the Application

10The applicant admits that the other grievances concerned his receipt of a sympathy card from the institutional respondent, his attempts, beginning in April of 2012, to return to work after his leave, and the termination of his employment. Those grievances were referred to arbitration, on May 7, 2012 in respect of one of the grievances and on June 4, 2012 in respect of the other two.

11The Tribunal will usually defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The Tribunal’s deferral practices relating to grievances based on the same facts and human rights issues as an Application are based, in part, on the fact that grievance arbitrators have the responsibility to implement and enforce the substantive rights and obligations of the Code, as well as other employment-related statutes, as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

12In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. I am satisfied that the circumstances do not justify a departure from the Tribunal’s normal approach.

13If the applicant believes, on conclusion of the arbitration process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

ORDER

14The part of the Application that deals with the institutional respondent’s discipline of the applicant following his reaction to being required to disclose charges or convictions under the Criminal Code and the Highway Traffic Act is dismissed.

15The Application is deferred pending the completion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the tribunal’s Rules of Procedure, which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

16I am not seized of this matter.