O’Connor v. Ontario (Finance), 2012 HRTO 2381

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul O’Connor Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance Respondent

Paul O’Connor Applicant

-and-

Ontario Public Service Employees Union Respondent

DECISION

Adjudicator: David Muir Date: December 20 2012 Citation: 2012 HRTO 2381 Indexed as: O’Connor v. Ontario (Finance)

WRITTEN SUBMISSIONS

Paul O’Connor, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance, Respondent Jennifer Richards, Counsel

Ontario Public Service Employees Union, Respondent Danny Kastner, Counsel

Introduction

1These are two Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a breach of settlement pursuant to section 45.9(3) of the Code. The respondent Crown in Right of Ontario as represented by the Minister of Finance (“Finance”) is the applicant’s former employer. The respondent Ontario Public Service Employees’ Union (“OPSEU”) is the applicant’s former bargaining agent. In his Application the applicant alleges that OPSEU withdrew his grievances and his employment was terminated on January 5, 2012.

Background

2The applicant filed two Applications with the Tribunal involving these respondents in 2009. In June 2009 the parties agreed to a settlement of those cases. As part of this settlement the parties acknowledged that the applicant had outstanding grievances at the Grievance Settlement Board (GSB) and it was agreed that nothing in the settlement would prevent the applicant from advancing a claim for reinstatement before the GSB. The applicant signed Minutes of Settlement and a Release in June 2009.

3The respondents Finance and OPSEU reached a settlement of the applicant’s outstanding grievances before the GSB on January 5, 2012. The settlement funds contemplated by this agreement were provided to counsel for the respondent union on January 26, 2012. It is not clear but it appears that the applicant has declined to accept the funds payable to him pursuant to this settlement. It does not appear that he executed Minutes of Settlement or a Release in respect of this settlement.

4These new Applications appear to reference the settlement reached between the parties above in June 2009. The applicant appears to be alleging that in settling grievance(s) he had before the GSB in January 2012 the respondents are in breach of the prior settlement provision which allowed him to pursue reinstatement in his grievances before the GSB.

5In order to clarify the nature of the breach of settlement claim advanced by the applicant and to identify the proper parties to these Applications the Tribunal made a number of Directions in a Case Assessment Direction issued on October 4, 2012, including the following:

The applicant will deliver and file submissions within 14 days of the date of this Case Assessment Direction setting out the facts upon which he intends to rely in support of his claim that there has been a breach of settlement. In particular the applicant will identify the settlement which he alleges has been breached; the provisions of the settlement which he believes have been breached; and the acts or acts of each respondent which he believes constitute a breach of settlement;

6On October 30, 2012 the applicant, in apparent response to this Direction, wrote to the Tribunal stating that he was tricked into signing the June 2009 settlement and that it was not fully explained to him.

7The respondents responded to the applicant’s submissions. Finance initially took the position that the applicant had not complied with my Direction above and accordingly these Applications should be dismissed. OPSEU took the position that the applicant was not alleging a breach of settlement but rather that he signed the June 2009 settlement under duress. OPSEU argued that the Tribunal has no jurisdiction under section 45.9 of the Code to consider the issues raised by the applicant in the context of a breach of settlement application. OPSEU relied on the Tribunal’s Decision in Barrer v. Nipissing University, 2011 HRTO 1746 and argued that these Applications should be dismissed for the same reasons.

8In a Case Assessment Direction issued on November 22, 2012, I indicated that in my view OPSEU had raised a substantial issue of the Tribunal’s jurisdiction to consider the issues raised by the applicant.

9In order to ensure the orderly adjudication of this case I made Directions that the applicant deliver and file submissions in response to the point raised by OPSEU within 14 days of the Direction failing which these Applications would be dismissed as abandoned.

10I also indicated that the Tribunal might determine this issue on the basis of the written submissions, or in the event that the Tribunal considered that oral submissions were required it would contact the parties.

11Since issuing these Directions the applicant has delivered and filed a series of emails between November 22 and December 2, 2012. The applicant provides information about the settlement discussions which took place in the context of the GSB proceeding and reiterates his claim that he was tricked into accepting the June 2009 Tribunal settlement. He cites no facts to support this claim. The applicant also alleges in an email received by the Tribunal on November 30, 2012 that he accepted the 2009 Tribunal settlement under economic duress. He claims that he was in financial difficulty at the time and that this had “a turbulent effect and causes havoc, unrest and mayhem in the proper decision making process”. The applicant made no submissions in response to the jurisdictional issue raised by OPSEU.

12In response to the applicant’s submissions that he accepted the June 2009 settlement under duress, the respondent Finance adopted OPSEU’s submission. Finally OPSEU reiterated its position that these Applications should be dismissed because there is no allegation that the June 2009 settlement was breached. OPSEU also states, and Finance concurs, that an allegation that a settlement was agreed to under duress is not properly brought as a breach of settlement under section 45.9 of the Code.

Decision and analysis

13These Applications are dismissed, for the following reasons.

14The applicant alleges that he was tricked into accepting the settlement and that it was not fully explained to him. He does not articulate how he was allegedly tricked. As set out above, the applicant also alleges that he accepted the settlement under duress.

15I have reviewed the June 2009 Minutes of Settlement again and, as pointed out by the respondents, the settlement acknowledged that the applicant could continue to pursue reinstatement in the context of the grievance then before the Grievance Settlement Board but did not provide any guarantee as to the outcome of the grievance proceeding.

16I agree with OPSEU in its reliance on the Tribunal’s Decision in Barrer, above, and I adopt the reasoning in Barrer. The applicant alleges he was tricked into accepting the June 2009 settlement and that it was not fully explained to him. He also alleges that he accepted the settlement under economic duress. I note that the applicant was represented at the time.

17In Barrer, above, at paras. 8 and 9, the Tribunal found:

… the applicant is not arguing that another party, the respondent, has contravened the settlement. She is, in effect, arguing that she signed the settlement under duress, meaning that she entered into a contract against her own free will, that the contract does not represent a voluntary agreement, and as a consequence the Tribunal should set aside or void the settlement.

The Tribunal can only make an order under section 45.9(8) of the Code if it determines that a party has contravened the settlement. The Application in this case does not actually allege a contravention of settlement. As a consequence, the Tribunal does not have jurisdiction under the Code to consider the Application and the Application for a Contravention of a Settlement is dismissed.

18The applicant’s submissions are, quite expressly, a claim that he did not enter into the agreement of his own free will and accordingly he should be allowed to continue with the transition applications which he settled in June 2009. The applicant may be entitled to bring a Request for Order During Proceedings or a new Application, seeking to set aside the previous settlement and proceed with an Application at the Tribunal based on the original allegations and the Tribunal will address it. I would, however, observe that the claim of economic duress that the applicant makes does not appear to be the kind of duress that the law has accepted. See Kailani v. Securitas Canada, 2009 HRTO 1183. In any case I agree with the Decision in Barrer, I find that I have no jurisdiction to consider these Applications as a breach of settlement and accordingly they must be dismissed.